Hunt v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LAURA A. HUNT,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3001
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. CH0831090791-C-1.
AND
__________________________
LAURA A. HUNT,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3154
__________________________
HUNT v. MSPB 2
Petition for review of the Merit Systems Protection
Board in Case No. CH0831100708-I-1.
___________________________
Decided: March 27, 2012
___________________________
LAURA A. HUNT, of Chicago, Illinois, pro se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent Merit Systems Protection Board in
appeal no. 2011-3001. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
WILLIAM J. GRIMALDI, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent Officer of Per-
sonnel Management in appeal no. 2011-3154. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and STEVEN J. GILLINGHAM,
Assistant Director.
__________________________
Before RADER, Chief Judge, NEWMAN, and REYNA, Circuit
Judges.
PER CURIAM.
These appeals have been consolidated for review, both
appeals arising from decisions of the Merit Systems Protec-
tion Board (MSPB) concerning decisions of the Office of
Personnel Management (OPM) relating to Ms. Hunt’s
3 HUNT v. MSPB
retirement annuity. 1 We discern no reversible error in the
agency rulings presented on these appeals. The record does
not show whether any issues remain unresolved, particu-
larly Ms. Hunt’s request to redeposit her retirement deduc-
tions. We remand to the MSPB for consideration of this
issue, in the event that it is unresolved.
BACKGROUND
Ms. Hunt commenced employment with the Postal Ser-
vice in 1964, and served a total of over twelve years. She
experienced an on-the-job injury in May 1984. OPM denied
her request for disability retirement based on this injury,
and the MSPB affirmed on May 16, 1986. Her appeal to
this court from that decision was dismissed as untimely
filed. Hunt v. Office of Pers. Mgmt., 838 F.2d 1223 (Fed. Cir.
1988) (Table).
Ms. Hunt began receiving a retirement annuity on May
29, 2000, when she reached age sixty-two, in the reported
amount of $288 per month. On January 22, 2002 OPM
notified Ms. Hunt that her annuity had been adjusted to
$313 per month, based on supplemental information con-
cerning her salary. The record mentions ensuing cost-of-
living increases, to about $400 per month.
On June 1, 2008 Ms. Hunt requested review of OPM’s
2002 recalculation of her annuity. On May 15, 2009 OPM
dismissed this request as untimely. On June 17, 2009 Ms.
Hunt appealed this dismissal to the MSPB. On August 13,
2009 OPM rescinded its May 15, 2009 dismissal, stating
that OPM would issue a new decision concerning its 2002
recalculation because the 2002 decision had not advised Ms.
1 Hunt v. Office of Pers. Mgmt., 114 M.S.P.R. 590(2010); Hunt v. Office of Pers. Mgmt., CH0831100708-I-1
(M.S.P.B. Mar. 21, 2011).
HUNT v. MSPB 4
Hunt of her right to request reconsideration and the time
period for filing such a request. On September 1, 2009 OPM
issued a new decision concerning Ms. Hunt’s annuity,
stating that the recalculation of $313 in 2002 was correct,
and also stating that the “annual actuarial reduction for
unpaid redeposit” was $240. On September 16, 2009 Ms.
Hunt requested reconsideration by OPM of its September 1,
2009 decision.
On October 9, 2009 the Administrative Judge (AJ) dis-
missed Ms. Hunt’s appeal filed June 17, 2009 for “lack of
jurisdiction,” stating that “OPM rescinded its reconsidera-
tion decision. Absent a final decision . . . the Board lacks
jurisdiction over the matters appealed.” Hunt v. Office Pers.
Mgmt., CH08310791-I-1, at 2 (M.S.P.B. Oct. 9, 2009).
OPM’s response to the September 16, 2009 request for
reconsideration was not speedily forthcoming, and on May
27, 2010 Ms. Hunt filed a “petition for enforcement” with
the MSPB, stating that OPM violated the AJ’s October 9,
2009 dismissal by not issuing a new decision. On June 11,
2010 the AJ denied the petition for enforcement on its
merits, stating that OPM was in compliance with the AJ’s
October 9, 2009 decision because OPM had issued a new
decision on September 1, 2009. Ms. Hunt filed a petition for
review with the full MSPB, and on August 24, 2010 the
Board on its own motion vacated the AJ’s decision of June
11, 2010, and dismissed the petition for enforcement for lack
of jurisdiction. The Board held that the AJ erred in ruling
on the merits of Ms. Hunt’s petition for enforcement because
the MSPB had no jurisdiction of the underlying appeal
because the OPM had rescinded its decision, thus divesting
the MSPB of jurisdiction because there was no final decision
by OPM. Hunt, 114 M.S.P.R. at 592 (“Because the appel-
lant’s appeal of OPM’s original reconsideration decision was
dismissed for lack of jurisdiction, the appellant’s petition for
5 HUNT v. MSPB
enforcement of the initial decision in that appeal should also
have been dismissed for lack of jurisdiction.”). Ms. Hunt
appealed that dismissal to this court on October 4, 2010; the
appeal was docketed as No. 2011-3001, was briefed by Ms.
Hunt and the MSPB, and on July 6, 2011 was submitted for
our decision.
Meanwhile, on June 1, 2010 OPM issued a final decision
denying Ms. Hunt’s request for reconsideration of the 2002
annuity recalculation. On June 9, 2010 Ms. Hunt appealed
this decision to the MSPB, stating that she was entitled to
compensation for her 1984 injury, and asking that she be
permitted to redeposit the $3,355 in retirement contribu-
tions that she had withdrawn in 1969. On October 1, 2010
the AJ ruled that OPM correctly determined Ms. Hunt’s
annuity, and did not decide the question of redeposit on its
merits. The full Board denied review, and Ms. Hunt ap-
pealed to this court. The appeal was docketed as No. 2011-
3154, was briefed by Ms. Hunt and OPM, and was submit-
ted for decision on August 23, 2011. We have combined the
appeals.
The Annuity Calculation
Ms. Hunt requests review of the amount of her retire-
ment annuity, as recalculated by OPM in 2002 and eventu-
ally affirmed by the MSPB. The MSPB correctly held that
Ms. Hunt’s proposed annuity calculation of 85% of her final
salary five years and thereafter 90% of that salary with 5%
interest is contrary to 5 U.S.C. §§8338, 8339, and that “OPM
has no discretion to deviate from the computation formulas
fixed by statute.” Hunt, at 2. The rulings concerning the
annuity calculation are affirmed.
HUNT v. MSPB 6
Disability Retirement
The question of entitlement to disability retirement due
to the on-the-job injury in 1984 was appealed to the MSPB
in 1986. No further timely appeal was taken. That decision
is final; no basis for reopening that issue has been shown.
Redeposit of Contributions
Ms. Hunt asked the MSPB to permit her to redeposit
her withdrawn retirement contributions. The AJ’s opinion
of October 1, 2010 states that when Ms. Hunt turned sixty-
two “she was informed that if she paid back the $3,355 in
retirement contributions she withdrew, she would not have
a reduced retirement. She stated she did not have the
money at that time. She now requests that the Board allow
her to make that redeposit.” 5 C.F.R. §831.112(a)(2) imple-
ments redeposit pursuant to 5 U.S.C. §8334:
§831.112(a) Determinations involving an employee’s
ability to make a deposit or redeposit. A person may
make a deposit or redeposit under section 8334 of
title 5, United States Code, if he or she is an ‘em-
ployee.’ For purposes of this paragraph, an em-
ployee is--
...
(2) A former employee (whose annuity has
not been finally adjudicated) who retains civil ser-
vice retirement annuity rights based on a separa-
tion from a position in which retirement deductions
were properly withheld and remain (or have been
redeposited in whole or in part) in the Civil Service
Retirement Disability Fund.
The AJ stated that until OPM has determined whether Ms.
Hunt meets the statutory and regulatory requirements
7 HUNT v. MSPB
related to redeposit, there is nothing for the MSPB to re-
view. The Board stated that Ms. Hunt “must first obtain a
reconsideration decision from OPM regarding that request
before the Board will have jurisdiction over that request.”
Hunt, at 3. It is unclear, from the record provided to this
court, whether Ms. Hunt requested such a reconsideration
decision, and whether OPM responded to any such request.
We remand to the MSPB for resolution of this issue.
AFFIRMED IN PART, REMANDED IN PART
No costs.