Michael E. Pollak v. Office of Personnel Management ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL E. POLLAK, DOCKET NUMBER
Appellant, DA-0841-15-0046-I-1
v.
OFFICE OF PERSONNEL DATE: May 7, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Michael E. Pollak, Houston, Texas, 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 Office of Personnel Management’s (OPM’s) final decision
calculating his retirement annuity benefits under the Federal Employees’
Retirement System (FERS). Generally, we grant petitions such as this one only
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
when: 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 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 OPM issued the appellant a final decision finding that he had 7 years,
6 months, and 2 days of creditable service toward his FERS retirement annuity.
Initial Appeal File (IAF), Tab 12 at 5-8. In its final decision, OPM explained that
the appellant was not entitled to credit for 5 months’ service with the U.S. Census
Bureau between May and September 2000, because (1) there was no evidence that
he was appointed to and served in such a position, and (2) there was no evidence
that retirement contributions were withheld from his salary during this alleged
period of employment. Id. at 6-8. OPM explained, moreover, that the law does
not allow an employee to make a deposit toward his retirement annuity for
periods of time that he worked but did not contribute toward his retirement
annuity occurring on or after January 1, 1989. Id. at 8; 5 U.S.C. § 8411(b)(3).
OPM additionally found that it properly calculated the appellant’s creditable
service as a “when actually employed” (WAE) tax specialist with the Internal
Revenue Service between November 2002 and November 2010. Id. at 6. OPM
explained that the appellant was credited for the periods of time he actually
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worked during this period of time and that he was additionally credited with up to
6 months’ service for each year between 2004 and 2007, for the time he was in a
nonpay status. 2 Id. at 6, 18, 21-22. OPM thus affirmed its decision that the
appellant had accrued 7 years, 6 months, and 2 days of creditable service toward
his FERS retirement annuity. Id. at 5, 20.
¶3 The appellant filed an initial appeal of OPM’s final decision. IAF, Tab 2.
The administrative judge held a telephonic hearing and affirmed OPM’s final
decision, finding that the appellant failed to establish by a preponderance of the
evidence that he was entitled to any additional creditable service toward the
calculation of his FERS annuity. IAF, Tab 18, Initial Decision (ID). The
appellant has filed a petition for review of the initial decision in which he raises
complaints about the processing of a separate federal district court complaint and
argues that he was wrongly denied work between 2003 and 2010. Petition for
Review (PFR) File, Tab 1. The agency has filed a response in opposition, and the
appellant has filed a reply. PFR File, Tabs 4-5.
¶4 The appellant bears the burden of proving by preponderant evidence that he
is entitled to the retirement benefits he seeks. See 5 C.F.R. 1201.56(a)(2), (c)(2);
see also Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140-41
(Fed. Cir. 1986), cert denied, 479 U.S. 1037 (1987). We agree with the
administrative judge that the record evidence does not support the appellant’s
claim to additional creditable service for a 5-month period of employment with
the U.S. Census Bureau in 2000. ID at 4. The appellant submitted no evidence of
such employment either below or on review, and we agree that he has not
established his alleged entitlement to an additional period of creditable service
for this time. ID at 4; see generally Conner v. Office of Personnel
Management, 120 M.S.P.R. 670, ¶ 6 (2014) (the Board has jurisdiction to review
2
The appellant was employed as a seasonal tax specialist and generally worked between
January and May in 2004, 2005, 2006, and 2007, and was in a nonpay status for the
remainder of each year. See IAF, Tab 12 at 23-26.
4
the accuracy and completeness of an individual retirement record (IRR) in the
context of appeals from OPM final decisions that rely on the IRRs), aff’d, No.
2014-3129, 2015 WL 1061870 (Fed. Cir. Mar. 12, 2015). Additionally, even
assuming that the appellant served in such a position, we further agree with the
administrative judge that OPM correctly concluded that, because there is no
evidence that the appellant made retirement contributions toward his retirement
annuity during this time, the applicable laws and regulations do not allow him to
subsequently make a deposit toward his retirement annuity for the time he
worked, but did not contribute to his annuity, on or after January 1, 1989.
See 5 U.S.C. § 8411(b)(3); see also 5 C.F.R. § 842.304(a)(2)(i).
¶5 We also agree with the administrative judge that OPM properly calculated
the appellant’s creditable service while employed as a WAE tax specialist with
the Internal Revenue Service. ID at 2, 4. The evidence reflects that the appellant
worked on a seasonable basis between 2004 and 2007, and that during these years
he was credited with 6 months’ service toward his retirement annuity for the
period of time each year he was in a nonpay status. ID at 2; IAF, Tab 12
at 23-26. Under 5 U.S.C. § 8411(d), an employee generally receives no more
than 6 months’ credit per year for extended leaves of absence without pay. See
Bain v. Office of Personnel Management, 978 F.2d 1227, 1230 (Fed. Cir. 1992);
see also 5 C.F.R. § 842.304(a)(4) (an employee is entitled to credit for all
purposes under FERS for a period of civilian service with the government while
on leave of absence without pay subject to a limit of 6 months per calendar year
except when performing military service or when receiving workers’
compensation benefits). OPM’s final decision reflects that the appellant was
given a 6-month credit for each year he was in a nonpay status between 2004 and
2007. IAF, Tab 12 at 18, 23-26. We therefore agree with the administrative
judge that OPM properly calculated the appellant’s creditable service between
2004 and 2007, based upon the periods of time he was in a nonpay status, and we
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AFFIRM OPM’s final decision finding the appellant accrued 7 years, 6 months,
and 2 days of creditable service toward his FERS retirement annuity.
¶6 Finally, we have considered the appellant’s remaining arguments on review
and find that they do not address the propriety of either the administrative judge’s
initial decision or OPM’s final decision concerning the calculation of his
creditable service. PFR File, Tabs 1, 5. As such, they present no basis to
overturn the initial decision. See Pacilli v. Department of Veterans
Affairs, 113 M.S.P.R. 526, ¶ 14 (denying a petition for review which failed to
make specific allegations of error), aff’d, 404 F. App’x 466 (Fed. Cir. 2010); see
also 5 C.F.R. § 1201.115.
¶7 The administrative judge’s initial decision affirming OPM’s final decision
is AFFIRMED and the appellant’s petition for review is DENIED.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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
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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.
If you are interested in securing pro bono representation for an appeal to the
United States 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 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.