Dana R. Wallace v. Office of Personnel Management ( 2014 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    DANA R. WALLACE,                                DOCKET NUMBER
    Appellant,                         SF-0831-13-0247-I-1
    v.
    OFFICE OF PERSONNEL                             DATE: August 28, 2014
    MANAGEMENT,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Dana R. Wallace, Lakewood, Washington, pro se.
    Christopher H. Ziebarth, Washington, D.C., for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Anne M. Wagner, Vice 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 finding
    that the appellant was receiving the correct retirement annuity under the
    provisions of the Firefighter Pay Reform Act (FPRA), Pub. L. No. 105-277. For
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    the reasons discussed below, we DENY the appellant’s petition for review and
    AFFIRM the initial decision AS MODIFIED. Except as expressly modified by
    this Final Order, the initial decision is the Board’s final decision.
    BACKGROUND
    ¶2          Effective July 3, 2010, the appellant retired from his Fire Protection
    Inspector position with the Department of the Army under the Civil Service
    Retirement System (CSRS). See 
    5 U.S.C. § 8336
    (c); Initial Appeal File (IAF),
    Tab 10 at 99, 118. In December 2011, the appellant filed an appeal with the
    Board alleging that the amount of his retirement annuity was incorrect due to
    errors on the Individual Retirement Record (IRR) that the Army had provided
    OPM.      Wallace v. Office of Personnel Management, MSPB Docket No.
    SF-0831-12-0163-I-1 (0163), Initial Appeal File (IAF), Tab 1 at 3-4. Because
    OPM had not issued a final decision on the appellant’s claim, the administrative
    judge dismissed the appeal for lack of jurisdiction by initial decision dated
    February 16, 2012, and remanded the appeal to OPM for a final decision. 0163,
    Initial Decision (Feb. 16, 2013).
    ¶3          On February 8, 2013, the appellant filed this appeal, alleging that OPM had
    not issued a final decision on his claim that the amount of his retirement annuity
    was incorrect due to errors on his IRR.           Wallace v. Office of Personnel
    Management, MSPB Docket No. SF-0831-13-0247-I-1 (0247), IAF, Tab 1. The
    administrative judge issued an acknowledgement order in which she informed the
    appellant that his appeal must be dismissed for lack of jurisdiction unless he
    amended the appeal to show that a final decision had been issued, and the
    administrative judge ordered the appellant to file evidence and argument to prove
    that this action is within the Board’s jurisdiction. 0247, IAF, Tab 2 at 2.
    ¶4          In a submission dated February 26, 2013, the appellant asked the Board to
    “review regulations issued by OPM or the implementation of OPM regulations by
    an agency . . . .” 0247, IAF, Tab 5 at 2. More specifically, the appellant asked
    3
    the Board to review “the implementation and enforcement of the rules and
    regulations that are under Title V overtime pay and Title 29 [Fair Labor
    Standards Act] (FLSA) overtime pay.” 
    Id.
     The administrative judge notified the
    appellant that his request would not be considered as part of this appeal because
    any challenge to the implementation of OPM’s regulations must be filed with the
    Clerk of the Board, not the regional office. 0247, IAF, Tab 8.
    ¶5         In its February 26, 2013 response to the acknowledgment order, OPM
    moved to dismiss the appeal for lack of jurisdiction because it had not issued a
    final decision in this matter. 0247, IAF, Tab 4. Two days later, however, OPM
    issued a final decision affirming its initial decision in which it had found that the
    appellant was receiving the correct annuity under the FPRA. 0247, IAF, Tab 6.
    In its final decision, OPM stated that it must compute benefits based on the
    certified pay records of the employing agency. 
    Id. at 3
    .
    ¶6         Based on the written record, the administrative judge issued an initial
    decision in which he affirmed OPM’s final decision, finding that appellant failed
    to show any error in OPM’s calculation of his annuity based on the IRR certified
    by his employing agency. 2 0247, IAF, Tab 13, Initial Decision (ID) at 1, 5-6.
    The administrative judge stated that the appellant’s remedy for any error in his
    IRR relating to his basic pay is to “petition the Department of the Army to review
    his claims of error and to amend his IRR, if warranted, and to forward the
    amended IRR to OPM for its consideration and for any adjustment required to his
    annuity.”   ID at 6.    In addition, the administrative judge again advised the
    2
    The administrative judge also found that, although the appellant’s appeal was
    premature in that it was filed before OPM issued its final decision, the appeal became
    ripe for adjudication when OPM issued its final decision while the appeal was pending
    before the administrative judge. ID at 4-5 (citing Garnace v. Office of Personnel
    Management, 
    51 M.S.P.R. 375
     (1991) (the Board’s practice is to adjudicate an appeal
    that is premature when filed but becomes timely while pending before the Board)). We
    discern no reason to disturb this finding.
    4
    appellant that any claim regarding the implementation of OPM regulations must
    be filed with the Clerk of the Board. ID at 6.
    ¶7        The appellant has filed a petition for review, with a supplement. Petition
    for Review (PFR) File, Tabs 1-2. The agency has filed a response in opposition
    to the petition for review. PFR File, Tab 5.
    ANALYSIS
    The Board has jurisdiction to consider the appellant’s arguments regarding the
    accuracy of the IRR underlying the OPM final decision at issue in this appeal.
    ¶8        In affirming OPM’s final decision, the administrative judge noted that
    “[t]he Board has consistently held that OPM is entitled to rely on the information
    contained in the IRR unless and until the IRR is amended by the employing
    agency and that the Board lacks jurisdiction to review the employing agency’s
    certification of an IRR.”    ID at 6 (citing O’Connell v. Office of Personnel
    Management, 
    103 M.S.P.R. 579
    , ¶ 4 (2006)). The administrative judge stated that
    “[t]he Board is without jurisdiction to order OPM to obtain a ‘corrected’ IRR for
    an employing agency.” ID at 6.
    ¶9        While the appellant’s petition for review was pending, the Board issued
    Conner v. Office of Personnel Management, 
    120 M.S.P.R. 670
     (2014).              In
    Conner, the Board addressed the tension between some Board decisions
    (including O’Connell) and U.S. Court of Appeals for the Federal Circuit decisions
    regarding whether the Board may consider the appellant’s evidence challenging
    the accuracy and completeness of IRRs. 
    Id., ¶¶ 4-6
    . The Board noted that, in
    Lisanti v. Office of Personnel Management, 
    573 F.3d 1334
    , 1340 (Fed. Cir. 2009),
    the Federal Circuit found that, when an employee challenges an agency’s
    interpretation of the term “basic pay,” “OPM, and subsequently the Board, are
    required to entertain that claim absent some clear congressional intent to the
    contrary.” Conner, 
    120 M.S.P.R. 670
    , ¶ 5. In addition, the Board noted that, in
    Billinger v. Office of Personnel Management, 
    206 F.3d 1404
     (Fed. Cir. 2000), the
    Federal Circuit rejected OPM’s argument that it is entitled to rely on an
    5
    employing agency’s certification on retirement matters and that the Board lacks
    jurisdiction to review such certifications. Conner, 
    120 M.S.P.R. 670
    , ¶ 5.
    Recognizing that precedential decisions of the Federal Circuit are controlling
    authority for the Board, in Conner the Board overruled O’Connell and similar
    cases to the extent that they are inconsistent with Lisanti and Billinger. 
    Id., ¶ 6
    .
    The Board found that, consistent with Federal Circuit precedent, it has
    jurisdiction to review the accuracy and completeness of IRRs in the context of
    OPM final decisions that rely on them. 
    Id.
     We therefore have considered the
    appellant’s arguments regarding the accuracy and completeness of the IRR
    underlying the OPM final decision at issue in this appeal.
    There is no basis for finding that the appellant’s IRR is incorrect.
    ¶10         The FPRA changed the way in which pay is computed for GS-081
    firefighters whose regularly scheduled workweeks average 53 hours or more. 3
    See 0163, IAF, Tab 1 at 52. Prior to the enactment of the FPRA, firefighters were
    entitled to the same rate of basic pay that applied to General Schedule employees
    with a 40-hour workweek. 
    Id.
     In addition, they generally received standby duty
    pay, a form of premium pay, under 
    5 U.S.C. § 5545
    (c)(1) to compensate them for
    their extended tours of duty, which was paid as a percentage of basic pay not to
    exceed 25 percent of the employee’s rate of basic pay. 0163, IAF, Tab 1 at 52.
    For retirement purposes, basic pay included standby duty pay under 
    5 U.S.C. § 5545
    (c)(1). See 5 U.S.C. 8331(3)(C).
    ¶11         Further, firefighters covered by the FLSA overtime provisions also received
    additional pay under the FLSA. 0163, IAF, Tab 1 at 52. The overtime standard
    for firefighters under the FLSA is 53 hours per week (or 106 biweekly). 
    Id.
     For
    overtime hours within their regularly scheduled workweek, firefighters received a
    3
    It is undisputed that the appellant occupied a GS-081 position and that his regularly
    scheduled workweek averaged 53 hours or more. See 0247, IAF, Tab 6 at 3 (stating that
    the appellant worked an uncommon tour of duty of 144 hours per pay period), Tab 10 at
    105-13 (reflecting that the appellant occupied a GS-081 position).
    6
    supplemental half-rate premium (in addition to basic pay and standby pay
    received for regularly scheduled hours).       
    Id.
       For irregular overtime hours,
    firefighters received time-and-a-half overtime pay. 
    Id.
    ¶12        The FPRA amended Title 5 of the U.S. Code by adding §§ 5542(f) and
    5545b, “Pay for Firefighters.” Section 5542(f) provides as follows:
    In applying subsection (a) of this section with respect to
    a firefighter who is subject to section 5545b--
    (1) such subsection shall be deemed to apply to hours of
    work officially ordered or approved in excess of 106
    hours in a biweekly pay period, or, if the agency
    establishes a weekly basis for overtime pay
    computation, in excess of 53 hours in an administrative
    workweek; and
    (2) the overtime hourly rate of pay is an amount equal to
    one and one-half times the hourly rate of basic pay
    under section 5545b (b)(1)(A) or (c)(l)(B) as applicable,
    and such overtime hourly rate of pay may not be less
    than such hourly rate of basic pay in applying the
    limitation on the overtime rate provided in paragraph
    (2) of such subsection (a).
    Section 5545b provides, in pertinent part:
    (b)(2) For the purpose of section[ ]. . . 8331(3) . . . and
    for such other purposes as may be expressly provided
    for by law or as [OPM] may by regulation prescribe, the
    basic pay of a firefighter subject to this subsection shall
    include an amount equal to the firefighter’s basic hourly
    rate . . . for all hours in such firefighter’s regular tour of
    duty (including overtime hours).
    ...
    (d)(1) A firefighter who is subject to this section shall
    receive overtime pay in accordance with section 5542,
    but shall not receive premium pay provided by other
    provisions of this subchapter.
    7
    (2) For the purpose of applying section 7(k) of the
    [FLSA] to a firefighter who is subject to this section, no
    violation referred to in such section 7(k) shall be
    deemed to have occurred if the requirements of section
    5542(a) are met, applying section 5542(a) as provided in
    subsection (f) of that section:       Provided, that the
    overtime hourly rate of pay for such firefighter shall in
    all cases be an amount equal to one and one-half times
    the firefighter’s hourly rate of basic pay under . . . this
    section . . . .
    ¶13         Thus, the FPRA eliminated standby duty pay, barred payment of any other
    premium pay, and treated the straight-time portion of overtime pay 4 for overtime
    hours in the firefighter’s regular tour of duty as basic pay for retirement and other
    purposes. However, the extra half-rate premium for those overtime hours is not
    basic pay for these purposes. See 0163, IAF, Tab 1 at 54-55.
    ¶14         In addition, 
    5 C.F.R. § 550.1305
     of the OPM regulations implementing the
    FPRA provides, in pertinent part:
    (a) The sum of pay for nonovertime hours that are part
    of a firefighter’s regular tour of duty (as computed
    under §550.1303) and the straight-time portion of
    overtime pay for hours in a firefighter’s regular tour of
    duty is treated as basic pay only for [certain purposes,
    including]:
    (1) Retirement deductions and benefits under chapters 83
    and 84 of title 5, United States Code[.]
    Consequently, federal firefighters who work a 72-hour week receive time-and-a--
    half for the 19 hours of overtime worked each week, but their retirement benefit
    is calculated as if they were receiving straight-time pay for this regularly
    scheduled overtime.
    4
    The straight-time portion of overtime pay is the firefighter’s hourly rate of basic pay
    multiplied by the number of overtime hours in the firefighter’s regular tour of duty.
    
    5 C.F.R. § 550.1305
    (b); see 0163, IAF, Tab 1 at 54.
    8
    ¶15        The appellant argues on review that the supplemental half-rate premium
    pay is part of his rate of basic pay under FLSA rules and therefore should have
    been included as part of his annualized salary on his IRR. PFR File, Tab 1 at 7.
    As explained above, however, pursuant to the FPRA and OPM’s implementing
    regulations, specifically, 
    5 C.F.R. § 550.1305
    , the straight-time portion of
    overtime pay for overtime hours in the firefighter’s regular tour of duty is treated
    as basic pay for retirement and other purposes; however, the extra half-rate
    premium for those overtime hours is not basic pay for these purposes. Therefore,
    we find that the appellant has failed to show any error in the calculation of his
    retirement annuity.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    The initial decision, as supplemented by this Final Order, constitutes the
    Board’s final decision in this matter. 
    5 C.F.R. § 1201.113
    . You have the right to
    request the United States Court of Appeals for the Federal Circuit to review this
    final decision.   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
    9
    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 your court
    appeal, you may visit our website at http://www.mspb.gov/probono for a list of
    attorneys who have expressed interest in providing pro bono representation for
    Merit Systems Protection Board appellants before the court. 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.