Michael Burgess v. Office of Personnel Management ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL W. BURGESS, DOCKET NUMBER
Appellant, AT-0831-16-0098-I-1
v.
OFFICE OF PERSONNEL DATE: June 22, 2022
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael W. Burgess, Americus, Georgia, pro se.
Carla Robinson, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, 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) to reduce his retirement annuity by eliminating credit for his post-1956
military service once he became eligible for Social Security benefits. Generally,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
we grant petitions such as this one only in the following 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. We MODIFY the initial decision to find that, although an
appellant may establish administrative error by relying on indirect or incomplete
information as provided by the Social Security Administration (SSA), the
appellant failed to prove such an error occurred in his case. Except as expressly
MODIFIED by this Final Order, we AFFIRM the initial decision.
BACKGROUND
¶2 On January 2, 2015, the appellant was separated from the U.S. Air Force
Reserve Command after signing an application for immediate retirement. Initial
Appeal File (IAF), Tab 4 at 22, 24, 44-45. In April 2015, after the appellant
reached 62 years of age, OPM contacted SSA to determine whether he was
entitled to Social Security benefits. Id. at 10, 22. After learning that he was
entitled to such benefits, and because he did not pay a deposit for his military
service prior to his retirement, OPM recomputed the appellant’s annuity to
eliminate credit for his post-1956 military service. Id. at 6.
¶3 The appellant appealed OPM’s decision to the Board. IAF, Tab 1. The
administrative judge held a telephonic hearing, the recording of which was lost.
3
IAF, Tab 11, Initial Decision (ID) at 2 n.*. Because the recording was lost, the
administrative judge scheduled a second telephonic hearing, but the appellant did
not participate. Id. Because the appellant failed to show good cause for that
failure, the administrative judge informed the parties that he would decide the
case on the basis of the written submissions and his notes from the first hearing.
Id. The administrative judge affirmed OPM’s reconsideration decision. ID
at 1-2, 6. The appellant has filed a petition for review, to which OPM has
responded in opposition. Petition for Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 Pursuant to statute, the appellant was entitled to receive credit for his active
duty military service performed after 1956 under both the C ivil Service
Retirement System and the Social Security system only if he deposited an amount
equal to 7% of his total post-1956 military pay with the Civil Service Retirement
and Disability Fund. See 5 U.S.C. §§ 8332(j), 8334(j); McDevitt v. Office of
Personnel Management, 118 M.S.P.R. 204, ¶ 6 (2012). Pursuant to statute and
regulation, the appellant was required to complete this deposit prior to separating
from his employing agency. See 5 U.S.C. § 8334(j)(1)(A); Thomas v. Office of
Personnel Management, 107 M.S.P.R. 334, ¶ 14 (2007); 5 C.F.R. § 831.2104(a).
If he failed to make such a deposit, OPM was required to recalculate his annuity
payments when he first became eligible for Social Security benefits, to exclude
credit for his post-1956 service. McDevitt, 118 M.S.P.R. 204, ¶ 6.
¶5 OPM’s regulations permit a postseparation deposit when an annuitant’s
failure to make the deposit prior to retirement was due to administrative error.
Id.; 5 C.F.R. §§ 831.2104(a), 831.2107(a)(1). The Board may find administrative
error and waive the deposit deadline in the following circumstances: (1) the
employee can show that he relied on misinformation in electing not to make the
deposit; (2) an application package contains obvious errors or internal
inconsistencies that OPM or the employing agency is obligated to investigate and
4
resolve before processing the application; or (3) an emp loyee elected to make the
deposit and the paperwork is in order, but neither the employing agency nor OPM
followed through to ensure the deposit was made. McDevitt, 118 M.S.P.R. 204,
¶ 7. The appellant has the burden of proving by a preponderance of the evidence
that an administrative error took place. Lancaster v. Office of Personnel
Management, 112 M.S.P.R. 76, ¶ 8 (2009).
¶6 Here, the appellant alleges he did not make a deposit for his military service
because he relied on a confusing and incomplete SSA estimated statement of
benefits that misled him into believing that he did not have sufficient credits to
qualify for Social Security benefits. IAF, Tab 1 at 3, 7-9. The administrative
judge did not make a finding on whether the appellant proved the allegation
because he found that an error of that type could not constitute an administrative
error. ID at 4-5. We disagree.
¶7 The U.S. Court of Appeals for the Federal Circuit has held that, if an
employee asks for information regarding the amount of the military deposit or the
consequences of failing to make the deposit, the Government commits
administrative error “if its response either misrepresents the dollar amoun ts in
question or is so indirect, inaccurate, or incomplete as to confuse or mislead the
employee as to the amount of the deposit or the effect of any failure to make the
deposit on the annuity recalculation.” McCrary v. Office of Personnel
Management, 459 F.3d 1344, 1349 (Fed. Cir. 2006). The court cited approvingly
the Board’s decision in Fleak v. Office of Personnel Management, 57 M.S.P.R.
338, 340 (1993). Id. at 1348. In Fleak, the Board found administrative error
after the appellant established he did not make a deposit for his military service
because he relied on an SSA estimated statement of benefits that erroneously
informed him that he did not have sufficient credits to qualify for Social Security
benefits. Fleak, 57 M.S.P.R. at 340. Accordingly, we find that an appellant may
establish administrative error by showing he did not make the required deposit
because an SSA statement was sufficiently indirect or incomplete as to confuse
5
him concerning the amount of credits he had earned. See McCrary, 459 F.3d
at 1348-49; Fleak, 57 M.S.P.R. at 340.
¶8 However, we also find that the appellant failed to prove that the statement
in question was sufficiently indirect or incomplete as to reasonably confuse him
and cause him to elect not to make a deposit for his military service. The
appellant has not submitted a copy of the allegedly confusing SSA statement into
the record. For purposes of this decision, we have accepted his representation of
the content of the SSA statement. He claims that the “Social Security Statement”
confused him because in one section it declared, “‘You have earned enough
credits’ for retirement benefits,” but another section contained the words , “If you
have enough work credits.” PFR File, Tab 1 at 2. The appellant asserts that these
two conflicting statements led him to believe that the SSA statement was a
courtesy notice sent to inform him about the benefits he would qualify for if he
attained the necessary 40 credits. Id. at 2-3. He alleges that he assumed that
once he obtained 40 credits, SSA would send him a statement that explicitly
notified him that he had obtained 40 credits. Id. at 3. We find that the appellant
has not demonstrated that his assumption that he had not earned enough credits
was reasonably based on any information provided to him by the Government,
particularly because the SSA statement stated he had “earned enough credits .”
Id.; cf. Thomas, 107 M.S.P.R. 334, ¶¶ 18-19 (finding that the appellant’s mistaken
belief that led him to not make a deposit was based on his own erroneous
assumptions and was not attributable to the Government). Accordingly, we find
that he has not established administrative error in this case.
¶9 Further, we take official notice that SSA provides a sample of a “Soc ial
Security Statement” on its publicly available website that contains the same
statements and information that the appellant references . 2 5 C.F.R. § 1201.64. In
2
A more recent sample SSA statement is also available. Social Security
Administration, https://www.ssa.gov/myaccount/materials/pdfs/SSA-7005-SM-
SI%20Wanda%20Worker%20Young.pdf (last visited June 22, 2022).
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the sample, the declaration “You have earned enough credits,” is provided under a
section entitled “Your Estimated Benefits.” The words, “If you have enough
work credits,” are provided under a separate section entitled “How Your Benefits
Are Estimated.” It is clear to any reasonable reader that the former section was
specific to the addressee, while the latter section provides information on how
SSA calculates benefits estimates more generally. We find that these statements
are not indirect or incomplete as to reasonably confuse, much less mislead ,
someone into believing that they did not have sufficient credits to qualify for
Social Security benefits.
¶10 Although the recording of the first telephonic hearing was lost, we find that
a remand is unnecessary because the appellant has not alleged that the initial
decision failed to accurately summarize all the arguments and evidence he
presented. PFR File, Tab 1; see Harp v. Department of the Army, 791 F.2d 161,
163 (Fed. Cir. 1986) (rejecting a claim that the unavailability of a hearing
transcript constituted harmful error per se; the court noted that “such loss is not
fatal” to the court’s ability to review a Board appeal, depending upon whether the
appellant can establish that he was prejudiced by the loss of the hearing
transcript, whether the appellant can show that the administrative judge failed to
consider or misused any particular testimony from the hearing, and whether other
evidence existed in the record that would support the administrative judge’s
findings); Smith v. Office of Personnel Management, 100 M.S.P.R. 500, ¶ 6
(2005) (finding that remand is generally unnecessary if the existing record is
sufficient for meaningful review and the appellant has not alleged that any
particular testimony was misconstrued by the administrative judge). Nor did the
appellant otherwise allege that he was prejudiced by the loss of the recording.
PFR File, Tab 1; see Jezouit v. Office of Personnel Management, 97 M.S.P.R. 48,
¶ 12 (2004) (finding that, to obtain reversal of an initial decision on the ground
that the administrative judge abused his discretion in excluding evidence, the
7
petitioning party must show on review that relevant evidence , which could have
affected the outcome, was disallowed), aff’d, 121 F. App’x 865 (Fed. Cir. 2005).
¶11 For the reasons set forth above, we deny the appellant’s petition for review
and affirm the initial decision, as modified by this Final Order, still affirming
OPM’s reconsideration decision.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 appli cable 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 choi ces 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.
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.
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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:
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 parti cular
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
9
representative in this case, and your representative r eceives 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
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
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(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 challenge to the Board’s
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. 4 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.
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisd iction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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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.
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.