Cynthia J. Vickers v. Office of Personnel Management ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA J. VICKERS, DOCKET NUMBER
Appellant, AT-0842-14-0917-I-1
v.
OFFICE OF PERSONNEL DATE: May 12, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Richard W. Stevens, Esquire, Washington, D.C., for the appellant.
Patrick Jennings, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The Office of Personnel Management (OPM) filed a petition for review of
the initial decision in this appeal, which reversed OPM’s final decision regarding
the commencing date of the appellant’s civil service annuity. For the reasons set
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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forth below, we DENY OPM’s petition and AFFIRM the initial decision, which is
now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 In this appeal, the appellant contested the commencing date of her
retirement annuity, arguing that rather than the January 1, 2011 date used by
OPM, the annuity should have commenced no later than June 30, 2010. IAF,
Tabs 1, 11. The administrative judge found that the appellant established
jurisdiction over her appeal under 5 U.S.C. § 8461(e)(1). IAF, Tab 14, Initial
Decision (ID) at 2. After holding a hearing, the administrative judge determined
that the appellant established, by preponderant evidence, that she was separated
as of June 30, 2010, such “that her retirement annuity should have commenced on
the date commensurate with that separation date and the type of annuity to which
she is entitled.” 2 ID at 6.
¶3 Specifically, the administrative judge found that despite the appellant’s
Individual Retirement Record (IRR), which indicated that she was on the rolls of
her employing agency, the Federal Deposit Insurance Corporation (FDIC), in a
leave without pay status from June 30 to December 31, 2010, the preponderance
of the evidence instead reflected that, pursuant to a settlement agreement between
the appellant and FDIC, the appellant retired from the agency on June 30, 2010.
ID at 4-5; see IAF, Tab 9 at 35-44, Tab 6 at 33-42. In doing so, the
administrative judge relied on Conner v. Office of Personnel Management,
120 M.S.P.R. 670, ¶ 6 (2014), aff’d, No. 2014-3129, 2015 WL 1061870 (Fed. Cir.
Mar. 12, 2015), in which the Board determined that, consistent with controlling
U.S. Court of Appeals for the Federal Circuit precedent, it “has jurisdiction to
review the accuracy and completeness of IRRs in the context of appeals from
OPM final decisions that rely on them.” ID at 6 n.2.
2
As the administrative judge noted, the record indicates that the appellant may be
eligible for a retirement annuity under the provisions applicable to law enforcement
officers. ID at 2 n.1.
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¶4 In its timely-filed petition for review, OPM argues that the Board wrongly
decided Conner and contends that it should be reversed. Petition for Review
(PFR) File, Tab 1 at 4-5. OPM asserts that the appellant’s solution is to instead
seek to have FDIC correct any erroneous information in her IRR and have it
submit that information to OPM for an adjustment of her annuity calculation. Id.
at 5. The appellant responds that OPM waived its argument that Conner was
wrongly decided because it failed to raise that argument in the appeal below.
PFR File, Tab 3 at 4-7. The appellant also argues that OPM’s argument on
review is actually an untimely objection to the admission of evidence and that
OPM’s failure to either appear at the hearing on this matter or to file a brief
preserving its objection to the admissibility of the appellant’s evidence in the
appeal below precludes its doing so for the first time on review. Id. at 7. He
further argues that the Board correctly decided Conner and that the administrative
judge therefore acted within his authority to consider the evidence. Id. at 8-11.
OPM made a reply to the appellant’s response. PFR File, Tab 4.
¶5 Subsequent to the issuance of the initial decision in this matter, the Board
reaffirmed and applied its holding in Conner to consider evidence which reflected
that an employee’s hiring date was different than the one set forth on his IRR.
Beal v. Office of Personnel Management, 122 M.S.P.R. 210, ¶¶ 6-8 (2015). In
Beal, OPM asked the Board to reconsider its decision in Conner and the Board
declined to do so on the ground that it is bound by the Federal Circuit’s precedent
in Lisanti v. Office of Personnel Management, 573 F.3d 1334 (Fed. Cir. 2009).
Beal, 122 M.S.P.R. 210, ¶¶ 6-7. Based on our reading of Lisanti, as set forth in
Beal, id., the administrative judge in this appeal was well within his authority to
examine the evidence before him and to determine that the appellant established
by preponderant evidence her entitlement to the benefits at issue, ID at 4-6.
Although OPM characterizes the evidence that the administrative judge
considered in this matter to be “inferior or secondary” in comparison to the
appellant’s IRR, OPM does not challenge the substance of the evidence, opting to
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only contest the administrative judge’s authority to consider it. PFR File, Tabs 2,
4. Nevertheless, because the record reflects that the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions thereto, we discern no reason to disturb his findings in this
matter. See Beal, 122 M.S.P.R. 210, ¶ 8 (citing Haebe v. Department of Justice,
288 F.3d 1288, 1302 (Fed. Cir. 2002) (the Board may overturn credibility
determinations only when it has “sufficiently sound” reasons for doing so) and
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)).
ORDER
¶6 We ORDER the Office of Personnel Management (OPM) to recompute the
appellant’s civil service annuity and to adjust the commencing date of the
appellant’s annuity commensurate with a separation date of June 30, 2010. OPM
must complete this action no later than 20 days after the date of this decision.
¶7 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it took to
carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
¶8 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
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NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
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States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono (free of charge) representation for
your court appeal, 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 Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.