Carlos Poree v. Office of Personnel Management ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARLOS R. POREE, DOCKET NUMBER
Appellant, DA-831E-17-0318-X-1
v.
OFFICE OF PERSONNEL DATE: June 29, 2022
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Carlos R. Poree, Baton Rouge, Louisiana, pro se.
Jo Bell, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 This case is before the Board on the appellant’s petition for enforcement of
the February 8, 2018 compliance initial decision ordering the Office of Personnel
Management (OPM) to submit evidence that it has issued a new reconsideration
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
decision on the appellant’s application for disability retirement. Poree v. Office
of Personnel Management, MSPB Docket No. DA-831E-17-0318-C-1,
Compliance File, Tab 9, Compliance Initial Decision (CID) at 4. For the reasons
discussed below, we find OPM in compliance and DISMISS the petition for
enforcement.
DISCUSSION
¶2 The agency bears the burden to prove its compliance with a Board order.
Vaughan v. Department of Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An
agency’s assertions of compliance must include a clear explanation of its
compliance actions supported by documentary evidence. Id. The appellant may
rebut the agency’s evidence of compliance by making “specific, nonconclusory,
and supported assertions of continued noncompliance.” Brown v. Office of
Personnel Management, 113 M.S.P.R. 325, ¶ 5 (2010).
¶3 OPM initially denied the appellant’s application for disability retirement on
the ground that his application was untimely, but on appeal the administrative
judge determined in a decision issued on July 18, 2017, that the appellant had
proved by preponderant evidence that the 1-year time limit for filing should be
waived. Poree v. Office of Personnel Management, MSPB Docket No. DA-831E-
17-0318-I-1, Initial Appeal File, Tab 16, Initial Decision at 2. The administrative
judge then ordered OPM to issue a new reconsideration decision addressing his
application. Id. On December 1, 2017, the appellant filed a petition for
enforcement alleging that OPM had failed to comply with the order. CID at 1.
OPM did not dispute that it was not in compliance with the Board’s order, and the
administrative judge found that it was not in full compliance and ordered OPM to
submit evidence that it has issued a new reconsideration decision on the
appellant’s application. Id. at 3-4. The case subsequently was referred to the
Board’s Office of General Counsel to obtain compliance.
3
¶4 On March 7, 2018, OPM submitted a copy of its March 1, 2018 final
decision on the appellant’s application for disability retirement. Poree v. Office
of Personnel Management, MSPB Docket No. DA-831E-17-0318-X-1,
Compliance Referral File (CRF), Tab 1. 2 On its face, OPM’s document is
evidence that it has complied with the Board’s decision. The Board’s
acknowledgment order notified the appellant that he may respond to OPM’s
submission within 20 calendar days of its date of service and that the Board may
assume from a failure to respond that he is satisfied and dismiss his petition.
CRF, Tab 2. The appellant did not respond to OPM’s submission.
¶5 Accordingly, in view of OPM’s issuance of the ordered final decision on the
appellant’s application and the absence of a response from the appellant, the
appellant’s petition for enforcement is dismissed. This is the final decision of the
Merit Systems Protection Board in this compliance proceeding. Title 5 of the
Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
2
In its March 1, 2018 decision, OPM found that the appellant did not meet the criteria
for entitlement to a disability retirement, and the appellant appealed OPM’s decision to
the Board. CRF, Tab 1 at 8; Poree v. Office of Personnel Management, MSPB Docket
No. DA-831E-18-0257-I-1, Initial Appeal File (0257 IAF), Tab 1. In a June 26, 2018
initial decision, the administrative judge vacated OPM’s decision and remanded the
appeal to OPM for issuance of a new final decision. 0257 IAF, Tab 10, Initial Decision.
On November 8, 2018, the appellant petitioned for enforcement of the initial decision.
Poree v. Office of Personnel Management, MSPB Docket No. DA-831E-18-0257-C-1,
Compliance File (0257 CF), Tab 1. In a December 10, 2018 compliance initial
decision, the administrative judge found that OPM established compliance with the
June 26, 2018 initial decision and dismissed the appellant’s petition for enforcement.
0257 CF, Tab 7, Compliance Initial Decision. The compliance initial decision became
the final decision of the Board on January 14, 2019, after neither party filed a petition
for review. Id. at 3.
4
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.