Henry R. Sowell v. Office of Personnel Management ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HENRY R. SOWELL, DOCKET NUMBER
Appellant, DA-0831-14-0168-I-1
v.
OFFICE OF PERSONNEL DATE: September 16, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Henry R. Sowell, Robeline, Louisiana, 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
reversed the Office of Personnel Management’s (OPM) reconsideration decision.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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, and based on the
following points and authorities, 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 OPM issued a final decision informing the appellant that it had recomputed
his Civil Service Retirement System (CSRS) annuity benefit to eliminate credit
for his post-1956 military service when he began to receive Social Security
benefits at age 62 because he had not paid a deposit into the retirement fund for
that service prior to his retirement. Initial Appeal File (IAF), Tab 5 at 6. On
appeal, the administrative judge found that, at the time of the appellant’s 2006
retirement, his employing agency did not provide any misleading or incorrect
information, there are no apparent errors in the appellant’s retirement package,
and the appellant elected not to pay the deposit before he retired. IAF, Tab 11,
Initial Decision (ID) at 7. However, she found that the appellant established that
an OPM representative told him that he might be able to pay the deposit when he
received Social Security benefits. ID at 7. She found that this statement
constituted administrative error. ID at 7. She reversed the reconsideration
decision and ordered OPM to allow the appellant to make a deposit into the
retirement fund covering his post-1956 military service. ID at 7.
¶3 On petition for review, the appellant reiterates the contention that he made
below that his employing agency should have informed him of the requirement to
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make a deposit for his post-1956 military service when he was employed so that
he could have paid the deposit during his employment, thus avoiding
accumulating interest. Petition for Review File, Tab 1.
¶4 An employee who retires after September 7, 1982, is entitled to receive
credit for active military service performed after 1956 under both the CSRS and
the Social Security system if he deposits an amount equal to 7 percent of his total
post-1956 military pay, plus interest, with the Civil Service Retirement and
Disability Fund. Lamb v. Office of Personnel Management, 112 M.S.P.R. 335,
¶ 9 (2009); see 5 U.S.C. § 8334(j). If the employee fails to make such a deposit,
OPM must recalculate the annuity payments when he first becomes eligible for
Social Security benefits to exclude credit for the post-1956 service. 5 U.S.C.
§ 8332(j); Lamb, 112 M.S.P.R. 335, ¶ 9. Those who retire on or after October 1,
1983, must make such a deposit before their separation from service upon which
entitlement to an annuity is based. Lamb, 112 M.S.P.R. 335, ¶ 9; 5 C.F.R.
§ 831.2104. The Board will order OPM to permit a post-separation deposit,
however, if there was administrative error by the individual’s employing agency
or OPM and the failure to make the deposit prior to retirement was the product of
that administrative error. Lamb, 112 M.S.P.R. 335, ¶ 9; King v. Office of
Personnel Management, 97 M.S.P.R. 307, ¶¶ 4, 15 (2004), aff’d sub nom. Grant
v. Office of Personnel Management, 126 F. App’x 945 (Fed. Cir. 2005); 5 C.F.R.
§ 831.2107(a)(1).
¶5 The Board has found that there is no administrative error by the employing
agency when, as here, an employee is provided with and completes the 1990
version of Standard Form (SF) 2801 electing not to make a deposit for his
post-1956 military service. King, 97 M.S.P.R. 307, ¶¶ 16-17. The SF-2801
informs the employee that, if any of his military service occurred on or after
January 1, 1957, the employee must pay a deposit for this service to his
employing agency before separation to continue to receive CSRS credit for that
service after the employee becomes eligible for Social Security benefits. Id., ¶ 7.
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The SF-2801 further informs the employee that he cannot pay OPM for post-1956
military service after he retires. Id. Section B of the instructions explains that if
the employee does not pay the military service deposit while still employed, and
he is eligible for Social Security benefits, at age 62, OPM will recompute his
annuity at that time to eliminate credit for the post-1956 military service. Id.
¶6 The record reflects that the agency provided the appellant with the 1990
version of the SF-2801 and that he completed it. IAF, Tab 5 at 11. The SF-2801
shows that the appellant had military service from October 20, 1972, to
December 11, 1980. Id. at 18. The agency also provided the appellant with OPM
Form 1515 “Service Credit Payments for Post-1956 Military Service.” Id. at 29.
The appellant placed an “X” in the box indicating “I do not want to make (or
complete) this deposit” and signed the form. Id. Thus, the appellant was advised
of his right to make a deposit for his post-1956 military service and of the
consequences if he did not do so.
¶7 An employing agency must inform an employee with post-1956 military
service before his retirement is effected that he must make a deposit into the
retirement fund in order to receive both CSRS and Social Security credit for that
service. Here, the record shows that the employing agency met that requirement.
However, there is no requirement that the agency assist the employee to avoid
accumulating interest on that deposit by informing the employee of the need to
make the deposit early in the employee’s term of employment. The appellant’s
contention on petition for review is unavailing. We agree with the administrative
judge that the appellant did not show that the employing agency committed
administrative error. 2
2
Due to our denial of the petition for review, we need not resolve whether the petition
was timely filed.
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ORDER
¶8 We ORDER OPM to set a time limit under 5 C.F.R. § 831.2107(a)(1) by
which the appellant may make the military deposit to his former employing
agency. OPM must complete this action no later than 20 days after the date of
this decision.
¶9 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 took to
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).
¶10 No later than 30 days after OPM tells the appellant that 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 that OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with the agency. 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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
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
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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.