Stacey C. Duncan v. Office of Personnel Management ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STACEY C. DUNCAN, DOCKET NUMBER
Appellant, SF-0842-15-0458-I-1
v.
OFFICE OF PERSONNEL DATE: September 1, 2015
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Mary Ann Comes, San Clemente, California, for the appellant.
Cynthia Reinhold, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed an appeal from a letter dated March 4, 2015, from the
Office of Personnel Management (OPM) stating that her temporary service with
the Federal Deposit Insurance Corporation (FDIC) from 1987 to 1995 was not
creditable under Federal Employees’ Retirement System (FERS). Initial Appeal
File (IAF), Tab 1. OPM filed a motion to dismiss for lack of jurisdiction, arguing
that its letter was only an initial, not a final, decision, on the issues raised by the
appellant. IAF, Tab 4. OPM added that, after reviewing the appellant’s
arguments on appeal, her concerns may be better resolved by the FDIC because
OPM does not have the authority to correct a former employee’s Standard
Form 50. Id. The administrative judge granted OPM’s motion, finding that the
appellant did not provide any evidence that OPM had issued a final decision on
her request for credit for her service from 1987 to 1995, and thus that the Board
lacks jurisdiction over her appeal. IAF, Tab 8, Initial Decision. In her petition
for review, the appellant asserts that OPM’s March 4, 2015 letter constitutes a
final OPM decision affecting her rights under FERS. Petition for Review (PFR)
File, Tab 1.
¶3 An administrative action or order affecting the rights or interests of an
individual or the United States under FERS that is administered by OPM may be
appealed to the Board. 5 U.S.C. § 8461(e)(1). The Board has recognized three
situations in which OPM is deemed to have issued an appealable decision under
FERS. Two of those situations are prescribed by OPM’s regulations: OPM may
either (1) issue a reconsideration decision under 5 C.F.R. § 841.306, or (2) issue
an initial decision without reconsideration rights providing an opportunity to
appeal to the Board under 5 C.F.R. § 841.307. Either type of decision is final and
appealable to the Board under 5 C.F.R. § 831.308. See 5 C.F.R. §§ 831.306(e),
3
.307. The third situation derives from Board case law. Specifically, the Board
will take jurisdiction over an appeal concerning a retirement matter in which
OPM has refused or improperly failed to issue a final decision. E.g., McNeese v.
Office of Personnel Management, 61 M.S.P.R. 70, 74, aff’d, 40 F.3d 1250 (Fed.
Cir. 1994) (Table). In other words, even an initial decision subject to
reconsideration or the absence of any decision at all may, under appropriate
circumstances, constitute a final “administrative action or decision”
under 5 U.S.C. § 8461(e)(1). In any event, the Board has jurisdiction over an
OPM “final decision” regardless of whether it was issued in the form of a
“reconsideration decision.” The relevant inquiry is whether OPM has issued a
“final decision” under 5 C.F.R. § 841.308—not whether it has issued a
“reconsideration decision” under 5 C.F.R. § 841.306.
¶4 Here, the record indicates that, on December 10, 2014, OPM sent the
appellant a letter responding to her earlier inquiry to allow credit for her
temporary service with FDIC from 1987 to 1995. IAF, Tab 1. OPM found that
the service was not creditable. OPM did not indicate that this letter constituted
an initial decision and it did not provide the appellant with the right to seek
reconsideration. Id.
¶5 Nonetheless, the appellant sought reconsideration of OPM’s decision. By
letter dated December 13, she argued that a Special Committee had ordered that
FDIC convert all Liquidation Graded (LG) employees, of which she was one, to
General Schedule classification of eligible status effective from their original hire
dates through their dates of conversion in May 1995. 2 Id. On March 4, 2015,
2
In her December 13, 2014 letter to OPM, the appellant characterizes her
correspondence as a request for correction under the Federal Erroneous Retirement
Coverage Corrections Act (FERCCA). FERCCA addresses the problems created when
employees are in the wrong retirement plan for an extended period. Poole v.
Department of the Army, 117 M.S.P.R. 516, ¶ 13 (2012); 5 C.F.R. § 839.101(a). An
employee may seek relief under FERCCA from OPM. See Archer v. Office of
Personnel Management, 120 M.S.P.R. 68, ¶ 6 (2013). We make no finding about
4
OPM responded to the appellant’s letter of December 13, 2014, reiterating the
decision it made in its letter of December 10, 2014. Id. It found that the
appellant’s LG service remained noncreditable under FERS. Id.
¶6 Under these circumstances, we find that OPM’s March 4, 2015 letter is
tantamount to an appealable reconsideration decision that affects the appellant’s
rights or interests under FERS. Therefore, we conclude that the Board has
jurisdiction to adjudicate her appeal. See, e.g., Luna v. Office of Personnel
Management, 89 M.S.P.R. 465, ¶¶ 8-10 (2001).
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
whether the appellant’s request for FERS service credit was properly a request for relief
under FERCCA.