Don J. Permoda v. Office of Personnel Management ( 2017 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DON J. PERMODA, DOCKET NUMBER
Appellant, CH-0831-14-0810-I-2
v.
OFFICE OF PERSONNEL DATE: January 5, 2017
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Don J. Permoda, Grand Rapids, Michigan, pro se.
Kristine Prentice, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM), denying his request for interest on his delayed annuity payment.
Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant is a former Air Traffic Controller for the Federal Aviation
Administration. Permoda v. Office of Personnel Management, MSPB Docket No.
CH-0831-14-0810-I-1, Initial Appeal File (IAF), Tab 6 at 40. In 2006, he
submitted an application for disability retirement under the Civil Service
Retirement System (CSRS), which was approved. Id. at 17-20, 40-43. The
appellant did not meet the age and service requirements in place at that time for
the special annuity computation associated with Air Traffic Controllers.
Id. at 6-7, 13; see 5 U.S.C. § 8412(e). Years later, following a series of court
cases, OPM issued new guidance concerning the retirements of several positions,
including Air Traffic Controllers such as the appellant, providing for an Enhanced
Disability and Survivor Annuity (EDSA). 2 IAF, Tab 6 at 6-7, 13, 30; see
Springer v. Adkins, 525 F.3d 1363 (Fed. Cir. 2008) (concluding that a Federal
firefighter forced to retire under disability was entitled to an enhanced disability
2
The agency’s guidance can be found in its July 7, 2010 Benefits Administration
Letter, 10-105, available at https://www.opm.gov/retirement-services/publications-
forms/benefits-administration-letters/2010/10-105.pdf.
3
retirement annuity, without regard to the age and time of service requirements of
an ordinary retirement); Pitsker v. Office of Personnel Management,
234 F.3d 1378 (Fed. Cir. 2000) (concluding that Federal law enforcement officers
who qualified for disability retirement may qualify for enhanced retirement
benefits, without regard to the age and time of service requirements of an
ordinary retirement). As a result, in 2012, OPM adjusted the appellant’s future
annuity payments and provided him with a lump sum payment of $60,406
($48,324.80 after taxes) to account for the difference in his prior annuity
payments. IAF, Tab 6 at 30.
¶3 The appellant requested reconsideration of OPM’s EDSA recalculation,
asserting that OPM should provide him interest on his delayed benefits. Id. at 21.
In its reconsideration decision, OPM denied the request because there was no
statutory authority for the agency to pay interest in a case such as the appellant’s.
Id. at 6-7. The instant appeal followed, with the appellant again asserting that
OPM should be required to pay him interest on his delayed benefits. IAF, Tab 1
at 3; Permoda v. Office of Personnel Management, MSPB Docket No.
CH-0831-14-0810-I-2, Appeal File (I-2 AF), Tab 2. 3
¶4 After holding the requested hearing, the administrative judge affirmed
OPM’s reconsideration decision, finding that the appellant was not entitled to the
interest he sought. I-2 AF, Tab 31, Initial Decision (I-2 ID). The appellant has
filed a petition for review. Petition for Review (PFR) File, Tab 5. OPM has filed
a response, and the appellant has replied. PFR File, Tabs 8-9.
¶5 On review, the appellant argues that OPM unreasonably delayed paying him
the proper annuity amounts and reasserts that he is entitled to interest on the
3
To accommodate the appellant, the administrative judge dismissed the initial app eal
without prejudice and later refiled it. IAF, Tab 9, Initial Decision; I-2 AF, Tab 2.
4
difference between his annuity payments as originally calculated in 2006 and
recalculated in 2012. 4 PFR File, Tab 5 at 1-3. We disagree.
¶6 When an appellant challenges an OPM reconsideration decision involving
retirement benefits before the Board, he bears the burden of proof. 5 C.F.R.
§ 1201.56(b)(2)(ii). The appellant must prove, by preponderant evidence, that he
is entitled to the benefits he seeks. Id.; see Cheeseman v. Office of Personnel
Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); Henderson v. Office of
Personnel Management, 109 M.S.P.R. 529, ¶ 8 (2008). However, as a matter of
law, payments of money from the Federal Treasury are limited to those authorized
by statute. Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 434
(1990).
¶7 As he did below, the appellant argues that interest is authorized in situations
analogous to his and he should be entitled to relief on equitable grounds d ue to
the unreasonableness of OPM’s delay in determining that he qualified for the
EDSA. PFR File, Tab 5 at 1-3. For example, the appellant refers to 28 U.S.C.
§ 2672, which pertains to tort claims against the United States caused by a
Federal employee, and 31 U.S.C. § 1304, which authorizes the payment of
interest on certain court judgments. Id. at 3. He also compares his situation to
those addressed in the Federal Erroneous Retirement Coverage Corrections Act
(FERCCA), which applies to specific retirement coverage errors not directly
applicable in this case. Id.; see Archer v. Office of Personnel Management,
120 M.S.P.R. 68, ¶ 6 (2013) (discussing the limited applicability of FERCCA).
4
The appellant’s petition for review also refers to his discovery disputes with OPM,
generally. PFR File, Tab 5 at 3. However, the petition did not specify what d iscovery
he was improperly denied, if any, nor did it present any substantive allegation that the
administrative judge committed an abuse of discretion. See Parker v. Department of
Housing & Urban Development, 106 M.S.P.R. 329, ¶ 9 (2007) (recognizing that an
administrative judge has wide discretion over matters relating to discovery, and the
Board will not reverse rulings on discovery matters absent an abuse of discretion ).
Moreover, it appears that the appellant’s discovery requests were primarily related to
the reasonableness of OPM’s delay in granting his EDSA, which we find irrelevant to
our disposition in this appeal. I-2 AF, Tab 10 at 4.
5
¶8 Even if we agreed that OPM acted unreasonably, it is well settled that the
United States is immune from a claim for interest on a sum due in the absence of
an express statutory provision. Chappell v. Office of Personnel Management,
55 M.S.P.R. 260, 263 (1992). The appellant has failed to identify any statute, and
we are aware of none, that authorizes OPM to provide interest in a case such as
his, where OPM initially granted his request for a disability annuity, then
retroactively granted him an enhanced disability and survivor annuity at a later
date.
¶9 To the extent that the appellant relies on equity and basic fairness for his
claim of interest on delayed annuity benefits, our reviewing court has recognized
that “such arguments have been unsuccessfully advanced many times before.”
Lichtman v. Office of Personnel Management, 835 F.2d 1427, 1428
(Fed. Cir. 1988) (denying a request for interest on a lump sum provided by OPM
after the court found him entitled to annuity benefits OPM previously had denied
because no provision of law permitted such interest). In the absence of express
statutory authority for interest in a case such as his, the appellant is not entitled to
the interest he seeks. See, e.g., Henderson v. Office of Personnel Management,
88 M.S.P.R. 470, ¶ 7 (2001) (finding no basis to award interest on survivor
annuity benefits where there was no statutory provision providing for such
interest); Maurer v. Office of Personnel Management, 84 M.S.P.R. 156, ¶ 26
(1999) (finding that OPM correctly denied a request for interest on a CSRS lump
sum benefit beyond that which was explicitly authorized by statute), aff’d,
236 F.3d 1352 (Fed. Cir. 2001); Chappel, 55 M.S.P.R. at 264 (finding that an
appellant could not recover interest on a lump sum awarded as part of his CSRS
annuity because Congress did not explicitly authorize such intere st); Kesselman v.
Office of Personnel Management, 47 M.S.P.R. 293, 296-97 (1991) (finding no
basis to award interest on a lump sum retirement annuity beyond that which was
explicitly required by statute, even if payment of the appellant’s annuity was
delayed). Accordingly, we find that the administrative judge correctly affirmed
6
OPM’s reconsideration decision, denying the appellant’s request for interest on
his delayed annuity benefits.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. 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 and other sections of the United 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 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
7
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.