Cesar A. Delarosa v. Office of Personnel Management ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CESAR A. DELAROSA, DOCKET NUMBER
Appellant, SF-0831-14-0602-I-1
v.
OFFICE OF PERSONNEL DATE: January 15, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rodelio V. Mendoza, Camarines Sur, Philippines, for the appellant.
Cynthia Reinhold, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice 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 the appellant the opportunity to redeposit his refunded retirement
deductions. Generally, we grant petitions such as this one only when: the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 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. See
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, and based on the
following points and authorities, 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 retired from the U.S. Navy and was also employed in
civilian positions subject to the Civil Service Retirement System. Initial Appeal
File (IAF), Tab 8 at 13. In 1988, the appellant resigned from federal employment
and applied for a refund of his retirement contributions for his entire period of
service from 1981 to 1988. Id. at 15. He received two disbursements in 1989.
Id. at 8-9. After OPM informed the appellant in 1991, that he may be entitled to
an additional refund, he applied for and received an additional disbursement. Id.
at 13.
¶3 In 2013, the appellant filed an application for a deferred retirement annuity.
Id. at 31-33. OPM denied the appellant’s application because he had withdrawn
his retirement deductions. Id. at 29-30. Despite being advised of his right to seek
Board review, id., the appellant did not appeal OPM’s decision. In 2014, the
appellant submitted correspondence to OPM requesting payment of a deferred
annuity and requesting to redeposit the refunded deductions. Id. at 26. In its
response to the appellant’s request, OPM stated that the appellant was ineligible
and would remain ineligible to redeposit the withdrawn deductions unless he was
3
reemployed in a position subject to retirement deductions. Id. at 5. The
correspondence provided the appellant with Board appeal rights. Id.¶4 The appellant appealed OPM’s decision to the Board. IAF, Tab 1. In its
response to the appeal, OPM stated that it discovered a balance of $46.11 in
retirement deductions that should have been refunded to the appellant. IAF,
Tab 8 at 4. OPM also stated that the issue of entitlement to a deferred annuity
was not before OPM or the Board because the appellant did not appeal the
previous final decision. Id. In the initial decision, the administrative judge found
that the issue of entitlement to a deferred annuity was not before the Board and
that the appellant was not entitled to make a deposit. IAF, Tab 15, Initial
Decision. On petition for review, the appellant argues, as he did below, that the
existence of a remaining balance entitles him to redeposit the retirement
deductions. IAF, Tab 9 at 4; Petition for Review (PFR) File, Tab 1 at 4-5. OPM
has responded in opposition to the petition, PFR File, Tab 5, and the appellant has
filed a reply, PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 We find that the appellant is not entitled to redeposit his retirement
deductions. The appellant, as an applicant for a retirement benefit, bears the
burden of proving his entitlement by a preponderance of the evidence. See
Cheeseman v. Office of Personnel Management, 791 F.2d 138 (Fed. Cir. 1986),
cert. denied, 479 U.S. 1037 (1987). Only an “employee” may make a
redeposit. 5 U.S.C. § 8334(d)(1). An “employee” is defined by regulation as (1)
a person currently employed in a position subject to the civil service retirement
law; or (2) a former employee (whose annuity has not been finally adjudicated)
who retains civil service retirement annuity rights based on a separation from a
position in which retirement deductions were properly withheld and remain (or
have been redeposited in whole or in part). 5 C.F.R. § 831.112 (a)(1)-(2). It is
undisputed that the appellant resigned from federal service in 1988, and has not
4
returned to federal employment. IAF, Tab 8 at 15. He is therefore not entitled to
make a deposit on the basis of current employment.
¶6 With respect to the second definition of an “employee,” the appellant argues
that he is still eligible to make a deposit because he never received a complete
refund of his retirement deductions. PFR File, Tab 1 at 4-5. Unless an employee
is reemployed in a position subject to the civil service retirement system, receipt
of a refund of retirement contributions voids all rights to redeposit those
contributions. Rint v. Office of Personnel Management, 48 M.S.P.R. 69, 72,
aff’d, 950 F.2d 731 (Fed. Cir. 1991) (Table). The issue is therefore whether the
appellant is actually in receipt of the refund, despite OPM’s error in failing to
refund a minimal balance.
¶7 The applicable regulations provide that, upon application, an applicant is
entitled to a refund “for the total lump-sum credit to his or her credit in the
Retirement Fund.” 5 C.F.R. § 831.2002. The regulations do not provide for a
partial refund with respect to separations such as that of the appellant. Id. Here,
the appellant clearly requested and received a refund of his retirement
contributions. We find no basis in the law for a finding that OPM’s error in
calculating the amount of the refund entitles the appellant to make a redeposit.
Because we find that the appellant is not entitled to make a redeposit, we also
find that he is not entitled to a deferred annuity. 2 See Youngblood v. Office of
Personnel Management, 108 M.S.P.R. 278, ¶ 12 (2008).
¶8 We also find that the appellant’s general arguments concerning equitable
estoppel do not affect this result. See IAF, Tab 9 at 4-5; PFR File, Tab 1 at 4. In
2
OPM has indicated that it is prepared to issue the appellant a refund of the remaining
balance of his retirement deductions ($46.11). IAF, Tab 8 at 4. If the appellant is not
satisfied with the resolution with respect to the remaining balance, he must seek a final
decision from OPM prior to any possible Board appeal regarding the balance. See
McNeese v. Office of Personnel Management, 61 M.S.P.R. 70, 73-74 aff’d, 40 F.3d 1250(Fed. Cir. 1994) (Table).
5
order to invoke equitable estoppel against a government agency, an appellant
must demonstrate affirmative misconduct on the part of government officials and
that he reasonably relied on that misrepresentation or misconduct to his
detriment. See Perez Peraza v. Office of Personnel Management, 114 M.S.P.R.
457, ¶ 9 (2010). The appellant has presented no such evidence.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request the United States Court of Appeals for the
Federal Circuit to review this final decision. 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
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.
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If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.