Edward Oliver v. Office of Personnel Management ( 2022 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    EDWARD E. OLIVER,                               DOCKET NUMBER
    Appellant,                        NY-0831-16-0059-I-1
    v.
    OFFICE OF PERSONNEL                             DATE: April 13, 2022
    MANAGEMENT,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Edward E. Oliver, Mastic, New York, pro se.
    Karla W. Yeakle, Washington, D.C., for the agency.
    BEFORE
    Raymond A. Limon, Vice Chair
    Tristan L. Leavitt, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    dismissed for lack of jurisdiction his appeal of the decision of the Office of
    Personnel Management (OPM) to reduce his retirement annuity by eliminating
    credit for his post-1956 military service. For the reasons discussed below, we
    GRANT the appellant’s petition for review and REVERSE the initial decision to
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    afford the appellant an opportunity to make a deposit for his post -1956 military
    service.
    BACKGROUND
    ¶2         On May 21, 2012, OPM issued a final decision to reduce the appellant’s
    annuity by eliminating credit for his post-1956 military service because he had
    become 62 years old and had not made a deposit for such service. Initial Appeal
    File (IAF), Tab 9 at 20-21. After the appellant filed an appeal with the Board,
    OPM rescinded its decision and indicated that it would give the appellant an
    opportunity to make a belated deposit on his post-1956 service. 
    Id. at 12-13, 17
    .
    Accordingly, on August 9, 2012, because OPM’s rescission of its final decision
    deprived the Board of jurisdiction, the administrative judge dismissed the appeal
    for lack of jurisdiction.   Oliver v. Office of Personnel Management, MSPB
    Docket No. NY-0831-12-0189-I-1, Initial Decision (Aug. 9, 2012).
    ¶3         On December 1, 2015, the appellant filed this appeal, asserting that OPM
    continued to provide him with a reduced annuity and failed to offer him the
    opportunity to make the belated deposit. IAF, Tab 1. On February 2, 2016, OPM
    responded by noting that on August 27, 2012, it had asked the Defense Finance
    and Accounting Service (DFAS) to provide the appellant’s estimated earnings
    during his military service and that DFAS had thus far not responded . IAF, Tab 9
    at 4, 10. OPM stated that it could not provide the appellant with a bill for the
    required deposit without the earnings information. 
    Id. at 4
    .
    ¶4         On December 20, 2016, OPM stated during a telephone conference with the
    administrative judge and the appellant that DFAS still had not provided the
    appellant’s estimated earnings.      IAF, Tab 11.       On August 7, 2017, the
    administrative judge ordered OPM to indicate whether it intended to take any
    further action regarding the appellant’s case. IAF, Tab 14.
    ¶5         On August 9, 2017, OPM responded by asserting that it had received the
    earnings information from DFAS and had informed the appellant by letter dated
    3
    March 8, 2016, that he needed to make a deposit within 30 days. IAF, Tab 15
    at 4. OPM asserted that the appellant had not responded to the notice , which it
    attached to its pleading. 
    Id. at 4, 6-7
    .
    ¶6         Also on August 9, 2017, the administrative judge issued a Notice and Order
    indicating that, based on OPM’s submissions, she believed the appeal would have
    to be dismissed for lack of jurisdiction. IAF, Tab 16. She ordered the appellant
    to provide a response by August 23, 2017, regarding why he believed the Board
    had jurisdiction over the appeal. 
    Id.
     On August 24, 2017, after the appellant
    failed to respond, the administrative judge dismissed the appeal for lack of
    jurisdiction. IAF, Tab 17, Initial Decision.
    ¶7         The appellant has filed a petition for review, asserting that until August 16,
    2017, when he received OPM’s August 9, 2017 pleading, he had not received a
    copy of its notice dated March 8, 2016. Petition for Review (PFR) File, Tab 1
    at 4. OPM has filed a response. PFR File, Tab 4.
    DISCUSSION OF ARGUMENTS ON REVIEW
    ¶8         The Board has jurisdiction over OPM determinations affecting an
    appellant’s rights or interests under the Civil Service Retirement System only
    after OPM has issued a final decision. Morin v. Office of Personnel Management,
    
    107 M.S.P.R. 534
    , ¶ 8 (2007), aff’d, 
    287 F. App’x 864
     (Fed. Cir. 2008). If OPM
    completely rescinds a final decision, the Board no longer retains jurisdiction over
    the appeal in which that decision is at issue. Campbell v. Office of Personnel
    Management, 
    123 M.S.P.R. 240
    , ¶ 7 (2016).
    ¶9         However, if an outstanding issue remains after a rescission and it is clear
    that OPM will not issue another decision, the Board retains jurisdiction to
    adjudicate the matter. Morin, 
    107 M.S.P.R. 534
    , ¶ 9. Accordingly, when OPM
    has determined in its rescission letter that an appellant was entitled to make a
    belated deposit for his post-1956 military service and indicated its intent to
    reduce his annuity if the deposit was not made, and OPM did not issue a new final
    4
    decision, the Board has found the rescission letter to constitute a final decision by
    OPM to reduce the appellant’s annuity. 
    Id.
    ¶10         Here, OPM stated in its rescission letter that it determined that the appellant
    established his entitlement to make a belated deposit. IAF, Tab 9 at 17. In its
    response to the administrative judge’s inquiry of whether it intended to take any
    further action regarding the appellant, OPM asserted that it provided the appellant
    the opportunity to make a belated deposit on March 8, 2016, but that he failed to
    do so and thus “forfeited his opportunity to make said payment.” IAF, Tab 15
    at 4, Tab 14 at 2. It therefore appears that OPM has made a final decision to
    reduce the appellant’s annuity and does not intend to take any further action in
    this matter. Accordingly, we find the Board has jurisdiction over this appeal. See
    
    5 U.S.C. § 8347
    (d)(1); Morin, 
    107 M.S.P.R. 534
    , ¶ 9.
    ¶11         The Board will order OPM to allow an individual to make a post -separation
    deposit to his retirement account to receive retirement credit for post-1956
    military service pursuant to 
    5 U.S.C. §§ 8332
    (j) and 8334(j) only if the individual
    shows that OPM or his employing agency made an administrative error that
    caused his failure to timely make the deposit.      Hooper v. Office of Personnel
    Management, 
    108 M.S.P.R. 614
    , ¶ 7 (2008).          Here, however, OPM itself has
    found that the appellant established his entitlement to make a post-separation
    deposit. IAF, Tab 9 at 17.
    ¶12         OPM also has acknowledged that it now has the information it needs to bill
    the appellant for the required deposit. IAF, Tab 15 at 4-7. OPM’s only argument
    regarding why the Board should not order it to allow the appellant to make a
    post-separation deposit is that it already has provided him the opportunity to do
    so and that he failed to take advantage of that opportunity. 
    Id. at 4
    . However,
    OPM has failed to provide any evidence showing that it actually mailed the
    March 8, 2016 notice to the appellant. See 
    id. at 6-7
    .
    ¶13         In OPM’s August 9, 2017 pleading, its representative stated that OPM had
    billed the appellant via the March 8, 2016 notice.        
    Id. at 4
    .   However, the
    5
    representative acknowledged that the pleading did not assert facts that she knew
    from personal knowledge.       
    Id. at 3
    .   Notably, the signature of the notice’s
    purported author does not appear on OPM’s copy and OPM has not provided
    evidence that the notice was actually mailed. 
    Id. at 7
    .
    ¶14        Rather than provide any proof that it mailed the March 8, 2016 notice, OPM
    essentially argued that the record indicated that the appellant failed to act
    diligently in checking his mail.     
    Id. at 4
    .    OPM asserted that the appellant
    admitted that he did not regularly check his address of record, a post office (P.O.)
    Box. 
    Id.
    ¶15        In fact, in his December 23, 2015 pleading, the appellant stated that he had
    been checking his P.O. Box twice a month up to that point, but would from then
    on have his son check it more often.       IAF, Tab 3.    On review, the appellant
    indicated that after January 20, 2016, he began to personally check his P.O. Box
    every other day. PFR File, Tab 1 at 7. He also stated that through July 2017, he
    called OPM every 2 or 3 months and was repeatedly told that OPM had not yet
    made a decision or received the necessary information from DFAS . 
    Id. at 5-6
    .
    That OPM was waiting for a response from DFAS would have been consistent
    with OPM’s statement during the December 20, 2016 conferen ce call that DFAS
    still had not provided the appellant’s estimated earnings. IAF, Tab 11. In its
    response to the petition for review, OPM does not counter or otherwise a ddress
    the appellant’s assertions. PFR File, Tab 4.
    ¶16        For the reasons stated above, we find that the appellant has met his burden
    of establishing his entitlement to make a post-separation deposit, with interest.
    The appellant further requests a waiver of the interest on the deposit and an award
    of compensatory and punitive damages for OPM’s alleged age discrimination. 2
    2
    The appellant additionally requests back pay and front pay. PFR File, Tab 1 at 10-11.
    The Board’s jurisdiction in this appeal is limited to OPM’s decision to reduce the
    appellant’s annuity. See 
    5 U.S.C. § 8347
    (d). To the extent that the appellant requests
    back pay and front pay because he alleges that his retirement was involuntary, he may
    6
    PFR File, Tab 1 at 10-11. However, there is no statutory basis for the waiver of
    interest on such a deposit, 
    5 U.S.C. § 8334
    (e), (j), and the Board may not issue
    such a waiver based on equitable considerations, see Schoemakers v. Office of
    Personnel Management, 
    180 F.3d 1377
    , 1382 (Fed. Cir. 1999).              Nor does the
    Board have the authority to award punitive damages, Wingate v. U.S. Postal
    Service, 
    118 M.S.P.R. 566
    , ¶ 3 n.2 (2012), or compensatory damages for age
    discrimination claims, Antonio v. Department of the Air Force, 
    107 M.S.P.R. 626
    ,
    ¶ 13 (2008). Accordingly, we deny his requests. 3
    ORDER
    ¶17         We ORDER OPM to set a time limit under 
    5 C.F.R. § 831.2107
     by which
    the appellant may make the military deposit.         OPM’s notice to the appellant
    should include the amount of the deposit to be paid and an explanation of how it
    calculated that amount. OPM must complete this action no later than 20 days
    after the date of this decision.
    ¶18         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.       The appellant, if not notified, should ask OPM
    about its progress. See 
    5 C.F.R. § 1201.181
    (b).
    ¶19         No later than 30 days after OPM tells the appellant that 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 that OPM has not fully carried out the
    file a separate Board appeal against his former employing agency.         See 
    5 C.F.R. § 1201.3
    (a)(1).
    3
    The appellant also requests an award of attorney fees. PFR File, Tab 1 at 10 -11. Any
    motion for attorney fees must be filed within 60 da ys after the Board’s final decision.
    
    5 C.F.R. § 1201.203
    (d).
    7
    Board’s Order, and should include the dates and results o f any communications
    with the agency. 
    5 C.F.R. § 1201.182
    (a).
    ¶20         This is the final decision of the Merit Systems Protection Board in this
    appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (
    5 C.F.R. § 1201.113
    (c)).
    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 (U.S.C.), sections 7701(g), 1221(g), or 1214(g).             The
    regulations may be found at 
    5 C.F.R. §§ 1201.201
    , 1202.202, and 1201.203. If
    you believe you meet these requirements, you must file a motion for attorney fees
    and costs 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 OF APPEAL RIGHTS 4
    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
    4
    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.
    8
    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:
    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 partic ular
    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.
    9
    (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
    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.
    10
    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 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 th e
    U.S. Court of Appeals for the Federal Circuit or any court of appeals of
    competent jurisdiction. 5   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).
    5
    The original statutory provision that provided for judicial review of certain
    whistleblower claims by any court of appeals of competent jurisdiction 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 wit h 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
    .
    11
    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 visi t 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.
    

Document Info

Docket Number: NY-0831-16-0059-I-1

Filed Date: 4/13/2022

Precedential Status: Non-Precedential

Modified Date: 2/22/2023