Norman Johnson v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NORMAN A. JOHNSON, DOCKET NUMBER
Appellant, NY-831M-21-0122-I-1
v.
OFFICE OF PERSONNEL DATE: January 31, 2023
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Norman A. Johnson, Brooklyn, New York, pro se.
Carla Robinson, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal regarding an overpayment of Civil Service Retirement
System (CSRS) annuity benefits for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
contains erroneous findings of material fact; the initial decision is based on
an erroneous interpretation of statute or regulation or the erroneous a pplication of
the law to the facts of the case; the 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 affec ted 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. 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. 5 C.F.R. § 1201.113(b). However, we REMAND
the matter of the proper calculation of the appellant’s annuity and any resulting
overpayment to the Office of Personnel Management (OPM) for its further
consideration consistent with this Remand Order.
BACKGROUND
¶2 On July 2, 2021, the appellant filed a Board appeal challenging a June 21,
2021 determination by OPM that he had been overpaid $7,088.50 because of his
concurrent receipt of CSRS annuity benefits and Office of Workers’
Compensation Programs (OWCP) benefits between November 1, 2015, and
May 30, 2021. Initial Appeal File (IAF), Tab 1 at 3-4, 12. 2 The appellant also
disputed OPM’s calculation of his monthly CSRS deferred annuity payments. Id.
at 13-14. In so doing, he explained that he had already appealed OPM’s
2
OPM’s June 21, 2021 determination seemingly contradicted a prior finding that the
appellant could permissibly receive CSRS deferred annuity benefits and OWCP benefits
concurrently because they stemmed from two separate periods of Federal service. IAF,
Tab 1 at 6-7; Johnson v. Office of Personnel Management, MSPB Docket No. NY-0831-
17-0205-I-1, Initial Appeal File, Tab 11 at 6.
3
calculation of his monthly annuity payments to the Board only to have OPM
“rescind its prior decisions.” Id. at 14.
¶3 The administrative judge dismissed the matter for lack of jurisdiction
because OPM had not yet issued a final decision regarding the $7,088.50
overpayment. IAF, Tab 9, Initial Decision at 2. The appellant has filed a petition
for review of the initial decision. Petition for Review (PFR) File, Tab 1.
ANALYSIS
¶4 The Board generally has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under CSRS 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); see 5 U.S.C. § 8347(d)(1);
5 C.F.R. § 831.110. As an exception to this general rule, however, the Board may
assert jurisdiction over an appeal concerning a retirement matter in which OPM
has refused or improperly failed to issue a final decision. Hasanadka v. Office of
Personnel Management, 116 M.S.P.R. 636, ¶ 21 (2011).
¶5 Here, the appellant has, since 2017, repeatedly attempted to appeal a
2016 recalculation of his CSRS deferred annuity benefits. E.g., Johnson v. Office
of Personnel Management, MSPB Docket No. NY-0831-17-0205-I-1, Initial
Appeal File (0205 IAF), Tab 1 at 1. Indeed, on both April 26, 2017, and June 19,
2018, OPM issued reconsideration decisions concluding that, as a result of the
2016 recalculation, the appellant had been overpaid $13,860.40 in annuity
benefits between December 12, 2008, and October 30, 2015. 0205 IAF, Tab 11
at 5-6; Johnson v. Office of Personnel Management, MSPB Docket No. NY-0831-
18-0149-I-1, Initial Appeal File (0149 IAF), Tab 1 at 5-6. OPM, however,
subsequently rescinded both of these reconsideration decisions and, on
January 21, 2020, ultimately elected to waive recoupment of the $13,860.40 debt
stemming from the overpayment. 0205 IAF, Tab 13 at 4; 0149 IAF, Tab 15
at 4-5; Johnson v. Office of Personnel Management, MSPB Docket No. NY-0831-
4
20-0025-I-1, Initial Appeal File (0025 IAF), Tab 9 at 7. 3 Thus, the appellant has
yet to have the opportunity to litigate the 2016 recalculation of his benefits.
¶6 We agree with the administrative judge’s conclusion that OPM had not yet
issued a final decision regarding the $7,088.50 overpayment, which allegedl y
accrued between November 1, 2015, and May 30, 2021. 4 IAF, Tab 1 at 3.
However, the Board may assert jurisdiction over an appeal concerning a
retirement matter in which OPM has refused or improperly failed to issue a final
decision. As stated, the pro se appellant has repeatedly attempted to challenge
the 2016 recalculation of his CSRS deferred annuity benefits; this recalculation
would undoubtedly impact the $7,088.50 overpayment. It is unclear from the
record whether OPM’s apparent failure to provide the appellant with an
appealable decision regarding the 2016 recalculation of his CSRS deferred
annuity benefits is intentional; thus, we find that it is preferable to allow OPM to
clearly express its position regarding both the calculation of the appellant’s
annuity benefits and any overpayment related thereto before we determine
whether to exercise jurisdiction. See Hasanadka, 116 M.S.P.R. 636, ¶ 21.
3
In waiving collection of the $13,860.40 overpayment, OPM st ated that the
overpayment stemmed from “CSRS disability annuity payments”; however, the
appellant has not received CSRS disability retirement benefits since 1985. 0025 IAF,
Tab 9 at 7 (emphasis added); IAF, Tab 1 at 6, 11.
4
The appellant’s initial $13,860.40 debt purportedly accrued between December 12,
2008, and October 30, 2015, because of the 2016 recalculation of his CSRS deferred
annuity benefits. 0205 IAF, Tab 11 at 5-6. His current debt of $7,088.50 apparently
began to accrue on November 1, 2015, i.e., immediately thereafter. IAF, Tab 1 at 3-4.
The appellant’s current debt is purportedly related to his receipt of both CSRS deferred
annuity benefits and OWCP benefits. Id. at 3. The record, however, reflects that the
appellant has been continually receiving OWCP benefits since 1996. PFR File, Tab 1
at 11.
5
ORDER
¶7 We therefore remand both matters to OPM for its further consideration.
Should OPM issue a final decision 5 that is unfavorable to the appellant regarding
the recalculation of his CSRS deferred annuity benefits and/or any outstanding
debt related to an overpayment thereof, he may file a new appeal of that decision
to the Board. See 5 U.S.C. § 8347(d)(1); 5 C.F.R. § 831.110. The appellant’s
appeal must be filed within the time limits set forth in the Board’s regulations.
See 5 C.F.R. § 1201.22.
¶8 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 has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it 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).
No later than 30 days after OPM tells the appellant 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 OPM has not fully carried out the Board’s
5
OPM argued before the administrative judge that the June 21, 2021 determination
did not “appear[]” to constitute an initial decision because the determination did not
inform the appellant of his right to request reconsideration. IAF, Tab 6 at 4. However,
OPM has previously provided the appellant with an initial decision absent such
information. 0149 IAF, Tab 1 at 5-6, Tab 10 at 2, 20-21. Accordingly, we find that the
June 21, 2021 determination constitutes an initial decision.
6
Order, and should include the dates and results of any communications with
OPM. See 5 C.F.R. § 1201.182(a).
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.