Michael McMahon v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL J. MCMAHON, DOCKET NUMBER
Appellant, PH-0831-17-0313-I-1
v.
OFFICE OF PERSONNEL DATE: May 17, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael J. McMahon, Henryville, Pennsylvania, pro se.
Michael Shipley, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) finding
that he had received a refund of his retirement deductions to the Civil Service
Retirement System (CSRS) following his resignation from the Federal service.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of s tatute or regulation
or the erroneous application 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 di scretion,
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. 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 The appellant was employed by the U.S. Postal Service until his resignation
in February 1989. Initial Appeal File (IAF), Tab 6 at 15. According to records
produced by OPM, he requested a refund of his retirement deductions that month,
and OPM authorized the release of funds in two separate payments in March and
October 1989. Id. at 12-16. In April 2017, the appellant applied for deferred
retirement benefits. Id. at 6-11. OPM denied his request in May 2017, finding
that he was not eligible to receive annuity benefits under the CSRS because he
had applied for and received a refund of his retirement deductions. Id. at 4-5. He
subsequently filed an appeal with the Board. IAF, Tab 1. Following a telephonic
hearing, the administrative judge issued an initial decision affirming OPM’s
decision. IAF, Tab 14, Initial Decision (ID) at 1, 6.
¶3 On review, the appellant repeats his assertion that he does not remember
receiving the refund checks authorized by OPM more than 28 years prior.
Petition for Review (PFR) File, Tab 1 at 4. He notes that the Application for
Refund of Retirement Deductions (OPM Form 1425) in the record containing his
3
signature also contains a signature from an agency official indicating that the
agency had received a Standard Form 2802 (SF-2802) regarding the refund
request, which cannot be retrieved. Id. Regarding the issue of whether he
received notice of the consequences of receiving a refund of his retirement
deductions to a future annuity, the appellant argues that the administrative judge
erred in “thinking that everyone receives the proper documentation when they
resign or retire from a job.” Id. Finally, he asserts that there was no “paper trail
of evidence on the agency’s part” to prove that he received the refund of his
retirement deductions and that a reasonable person would believe that he had not
received the refund. Id. at 5.
¶4 For the reasons set forth in the initial decision, the appellant has failed to
show by preponderant evidence 2 that he is entitled to the CSRS annuity he seeks.
ID at 2-6; see Cheeseman v. Office of Personnel Management, 791 F.2d 138,
140-41 (Fed. Cir. 1986). Although he argues that OPM has not provided
documentary evidence showing that he received the refund checks, the appellant
bears the burden of proving nonreceipt of refunded retirement deductions and he
has failed to do so. PFR File, Tab 1 at 5; see Manoharan v. Office of Personnel
Management, 103 M.S.P.R. 159, ¶ 12 (2006). OPM’s normal business records
showing the appellant’s application for a refund of his retirement deductions and
OPM’s authorization of the two refund checks are entitled to substantial weight.
See Rint v. Office of Personnel Management, 48 M.S.P.R. 69, 72, aff’d, 950 F.2d
731 (Fed. Cir. 1991) (Table). The administrative judge found that the appellant’s
testimony that he did not recall requesting or receiving a refund, despite
acknowledging that his signature was on the application form, did not overcome
OPM’s evidence regarding the refund. ID at 4; see Hillen v. Department of the
Army, 35 M.S.P.R. 453, 460 (1987). The administrative judge made a reasonable
2
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
credibility determination based on a review of the record as a whole, and we find
no basis to disturb it on review. See Haebe v. Department of Justice, 288 F.3d
1288, 1302 (Fed. Cir. 2002). The appellant’s reference on review to an alleged
additional SF-2802 completed with his request for a refund of his retirement
deductions provides no basis for disturbing the administrative judge’s explained
findings giving substantial weight to OPM’s busine ss records. PFR File, Tab 1
at 4.
¶5 As noted in the initial decision, the record is unclear whether the copy of
OPM Form 1425 signed by the appellant contained the reverse side with notice
language regarding the forfeiture of his annuity rights and neither party produced
a copy of the reverse side. ID at 5. To the extent that the appellant argues that
the administrative judge’s reference to the description of the contents of OPM
Form 1425 in the unpublished opinion in Wade v. Office of Personnel
Management, 466 F. App’x 886 (Fed. Cir. 2012), constituted a finding that the
form he completed contained this notice language, he mischaracterizes the initial
decision. PFR File, Tab 1 at 4; ID at 5. The administrative judge made no
finding in the initial decision whether the appellant received no tice of the
consequences of obtaining a refund of his retirement deductions. ID at 4-5.
Rather, the administrative judge correctly found that it was immaterial whether
the appellant received such notice or the agency provided him an outdated form.
ID at 5-6 (citing Youngblood v. Office of Personnel Management, 108 M.S.P.R.
278, ¶ 13 (2008); Danganan v. Office of Personnel Management, 55 M.S.P.R.
265, 269 (1992), aff’d, 19 F.3d 40 (Fed Cir. 1994) (Table)). The appellant
requested and received a refund of his CSRS retirement deductions and is not a
current Federal employee making retirement deductions. Therefore, he is not
entitled to receive an annuity or redeposit his withdrawn deductions. See
5 U.S.C. §§ 8334(d)(1), 8342(a). Federal retirement law does not provide an
exception based on insufficient or misleading information about the consequences
of applying for and receiving a refund of retirement deductions, and the Board
5
lacks the authority to award an annuity based on such equitable considerations.
See Conway v. Office of Personnel Management, 59 M.S.P.R. 405, 412 (1993);
Danganan, 55 M.S.P.R. at 269; Mahan v. Office of Personnel Management,
47 M.S.P.R. 639, 641 (1991).
¶6 Accordingly, we deny the petition for review and affirm the initial decision.
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available a ppeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within thei r
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
7
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdi ction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. C ourt of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.