Larry D. Williams v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY D. WILLIAMS, DOCKET NUMBER
Appellant, CH-3443-15-0630-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: June 17, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Larry D. Williams, Huntsville, Alabama, pro se.
Jessica L. Lietaer, Esquire, Denver, Colorado, 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
dismissed the appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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, 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 While working for the U.S. Postal Service (Postal Service), the appellant
initiated, in August 2002, a payroll deduction of $50 per month to buy back 2 his
military service time to be credited toward his Federal retirement under the Civil
Service Retirement System (CSRS). Initial Appeal File (IAF), Tab 1. After he
had made payments for 10 years, the agency informed him that the original total
amount, $6,093.51, had been miscalculated and increased the total amount he had
to pay by $2,905. Id. The appellant filed an appeal, alleging that he should not
have to pay the increase in the total. Id. The administrative judge informed the
appellant that the Board may not have jurisdiction over his appeal and ordered
him to file evidence and argument to prove that the action is within the Board’s
jurisdiction. IAF, Tab 2 at 2. The appellant did not respond.
¶3 The agency filed a motion to dismiss the appeal for lack of jurisdiction,
arguing that military buyback is administered by the Office of Personnel
Management (OPM). IAF, Tab 6. The agency contends that the Initial Estimated
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The payment process that the appellant began in 2001 is commonly called military
buyback. Military buyback refers to the process by which former active duty military
members who have post-1956 years of military service not credited toward military
retirement can buy that time so that it counts toward Federal retirement under the
Federal Employees’ Retirement System or the Civil Service Retirement System. Initial
Appeal File (IAF), Tab 6.
3
Earnings during military service appears to have come from the Defense Finance
and Accounting Service through OPM and that, to the extent that the purported
increase in the appellant’s total payments required to buy back his military time is
an action that falls within any agency’s jurisdiction, the appropriate agency is
OPM, not the Postal Service. Id. at 6.
¶4 The administrative judge agreed that the appropriate agency to address the
appellant’s concerns is OPM. IAF, Tab 7, Initial Decision (ID). She found that
the appellant failed to show that he asked OPM to decide the correctness of the
increase in the total amount due for him to buy back his post-1956 military
service. ID at 2. She found that the Board generally lacks jurisdiction over an
appeal of a retirement matter when OPM has not issued a final decision on the
matter. Id. She also found that the appellant did not allege that the Postal
Service subjected him to an appealable adverse action. ID at 3. Accordingly, she
dismissed the appeal for lack of jurisdiction. 3 Id.
¶5 In his petition for review, the appellant submits, for the first time, a copy of
an email that he sent to U.S. Senator Grassley’s office. Petition for Review File,
Tab 1. In that email, the appellant states that he disagrees with the Postal Service
about the $2,905 that he allegedly owes and that the Postal Service calculated the
amount that he owed in 2002 as $6,093. Id.
¶6 Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted
for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant has
3
The appellant became aware of the increase in his buyback total payment on
March 20, 2015, and filed his appeal on August 19, 2015, more than 30 days later. See
5 C.F.R. § 1201.22 (an appeal must be filed with the Board no later than 30 days after
the effective date of the action being appealed). Thus, the appeal appeared to be
untimely filed. The administrative judge issued an order on timeliness. IAF, Tab 3.
The appellant did not respond. However, the administrative judge did not reach the
timeliness issue because she dismissed the appeal for lack of jurisdiction.
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made no such showing. Moreover, the appellant has not shown that the evidence
is material. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)
(finding that the Board will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision). As with the documentary evidence that he
submitted below, the appellant has not drawn any particular connection between
the evidence that he furnished on review and any basis for the Board to find that
it has jurisdiction over allegations of Postal Service error in calculating a buyback
amount. See Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed.
Cir. 1985) (determining that the Board’s jurisdiction is limited to those matters
over which it has been given jurisdiction by law, rule, or regulation). The
appellant has failed to show that the Postal Service has taken an action that is
within the Board’s jurisdiction, and he has failed to meet his burden of proving by
preponderant evidence that his appeal is within the Board’s jurisdiction. 5 C.F.R.
§ 1201.56(a)(2)(i).
¶7 The record is unclear whether the Postal Service calculated the appellant’s
buyback amount. The record establishes that the appellant elected, before his
retirement, to pay a deposit for his post-1956 military service by submitting to his
employing agency a completed Standard Form (SF) 2803, Application to Make
Deposit or Redeposit. However, which entity calculated the amount due from the
appellant is not established in the record. IAF, Tab 1 at 8. The Postal Service
asserts that OPM administers issues pertaining to applications to make a deposit
or redeposit. IAF, Tab 6 at 5. The document in question, though, does not
calculate the appellant’s buyback amount. The record does show, however, that
the Postal Service informed the appellant of the amount that he had to pay to buy
back his military service. IAF, Tab 1 at 11.
¶8 The Board’s case law offers some support to the agency’s assertion that
OPM administers matters concerning applications to make a deposit or redeposit.
See Brown v. Office of Personnel Management, 9 M.S.P.R. 122 (1981) (OPM
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denying on reconsideration an appellant’s SF 2803, Application to Make Deposit
or Redeposit to the Civil Service Retirement System). Under these
circumstances, we find that the administrative judge’s suggestion in the initial
decision that the appellant first must seek a decision from OPM regarding the
calculation of the proper amount that he owes to buy back his military time was
warranted. As the appellant has not received a final decision from OPM, the
administrative judge did not err in finding that the Board does not have
jurisdiction on that basis. See, e.g., Morin v. Office of Personnel
Management, 107 M.S.P.R. 534, ¶ 8 (2007), aff’d, 287 F. App’x 864 (Fed. Cir.
2008) (finding that, generally, the Board has jurisdiction over OPM’s
determinations affecting an appellant’s rights or interests under the CSRS only
after OPM has issued a reconsideration decision).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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 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 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.