Conner v. Opm , 620 F. App'x 892 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HARRY J. CONNER,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2014-3129
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0831-12-0138-I-2.
______________________
Decided: March 12, 2015
______________________
HARRY J. CONNER, Memphis, TN, pro se.
NICHOLAS JABBOUR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM; JESSICA JOHNSON, Office of General Counsel,
Office of Personnel Management, Washington, DC.
______________________
2 CONNER v. OPM
Before DYK, SCHALL, and CHEN, Circuit Judges.
PER CURIAM.
DECISION
Harry J. Conner petitions for review of the final deci-
sion of the Merit Systems Protection Board (“Board”) that
sustained the decision of the Office of Personnel Manage-
ment (“OPM”) determining the amount of the lump-sum
credit to which he was entitled under 5 U.S.C. § 8342.
Conner v. Office of Pers. Mgmt., No. AT-0831-12-0138-I-2
(M.S.P.B. Apr. 10, 2014) (“Final Decision”). We affirm.
DISCUSSION
I.
Pursuant to 5 U.S.C. § 8342(a), a federal employee
who separates from government service is entitled to be
paid a “lump-sum credit.” What constitutes a lump-sum
credit is set forth in 5 U.S.C. § 8331(8).
Mr. Conner is the son of the late Mary Conner Nelson,
who was employed by the United States Postal Service for
a period of time beginning in September of 1965. As the
result of a compensable injury, on August 18, 1972, Ms.
Nelson stopped working and ceased receiving pay. On
August 21, 1972, she began receiving compensation from
the Office of Workers’ Compensation Programs (“OWCP”).
She was formally separated from employment in 1981 and
retired in 1982.
Ms. Nelson died on February 3, 2010. Following her
death, Mr. Conner applied for benefits as her surviving
child. On July 14, 2010, OPM issued a lump-sum benefit
decision awarding Mr. Conner $2,761.59. That sum was
calculated to be the lump-sum benefit payable pursuant
to 5 U.S.C. § 8342(c). In a reconsideration decision dated
May 28, 2012, OPM affirmed its 2010 decision.
CONNER v. OPM 3
Mr. Conner appealed to the Board. On October 30,
2013, following Mr. Conner’s withdrawal of his request for
a hearing, the administrative judge (“AJ”) to whom the
case was assigned issued an initial decision in which he
affirmed OPM’s benefits decision. Conner v. Office of
Pers. Mgmt., No. AT-0831-12-0138-I-2 (M.S.P.B. Oct. 30,
2013) (“Initial Decision”). On April 10, 2014, the Board
denied Mr. Conner’s petition for review and affirmed the
Initial Decision. Final Decision at 1, 9. This appeal
followed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
II.
Our scope of review in an appeal from a decision of
the Board is limited. We must affirm the Board’s decision
unless we find it to be (1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence. 5. U.S.C. § 7703(c); Kewley v. Dep’t
of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.
1998).
III.
Mr. Conner’s main argument on appeal is that the Fi-
nal Decision is not supported by substantial evidence.
Specifically, he contends that the evidence does not sup-
port the Board’s finding that Ms. Nelson was not in pay
status after August 18, 1972, and that therefore OPM
incorrectly calculated the lump-sum benefit to which he
was entitled. The significance of the Board’s finding of
non-pay status after August 18, 1972, is that if, in fact,
Ms. Nelson was in pay status after August 18, 1972,
deductions would have been made from her pay after that
date, and those deductions, plus interest, would have been
refundable to Ms. Nelson, or Mr. Conner as her heir, as a
lump-sum credit pursuant to 5 U.S.C. § 8331(8). In short,
if Ms. Nelson was, in fact, in pay status after August 18,
4 CONNER v. OPM
1972, Mr. Conner is entitled to a larger lump-sum pay-
ment than the one he received.
We have no difficulty concluding that the evidence of
record fully supports the Board’s finding as to when Ms.
Nelson was in pay status. Like OPM, the Board properly
relied on the Postal Service’s certification of Ms. Nelson’s
employment record, as set forth in her individual retire-
ment record (“IRR”). Final Decision at 5.
We are not persuaded by Mr. Conner’s argument that
various documents in the record are inconsistent with the
Board’s finding that Ms. Nelson was not in pay status
after August 18, 1972. Mr. Conner points to the Postal
Service’s issuance of a work performance certification in
November of 1972, as well as the fact that Ms. Nelson
received a promotion in July of 1973 and a reassignment
in July of 1975. None of these points, however, detracts
from what is set forth in the IRRs. The AJ noted that,
although in inactive status, Ms. Nelson would have re-
mained a Postal Service employee during the period from
1972 to 1981, when she was receiving OWCP payments.
Initial Decision at 6–8. Significantly, pursuant to 5
C.F.R. § 353.106(b), “[a]n employee absent because of
compensable injury may be carried on leave without pay
or separated.” Under these circumstances, it may have
been necessary for the Postal Service to consider Ms.
Nelson for promotion and reassignment. See 5 C.F.R.
§ 353.106(c) (“Agency promotion plans must provide a
mechanism by which employees who are absent because
of compensable injury . . . can be considered for promo-
tion.”); 5 C.F.R. § 351.702(c) (“An employee who is re-
leased from a competitive level during a leave of absence
because of compensable injury may not be denied an
assignment right solely because the employee is not
physically qualified for the duties of the position if the
physical disqualification resulted from the compensable
injury.”).
CONNER v. OPM 5
In his attempt to impeach Ms. Nelson’s IRRs, Mr.
Conner makes two additional arguments. First, he points
to a declaration he submitted to the Board in which he
recounted his personal memories of his mother’s employ-
ment with the Postal Service after August of 1972. We
see no error, however, in the AJ’s decision to assign
limited probative value to this testimony. Initial Decision
at 14–16. An AJ’s evaluation of a witness’s credibility is a
matter within his or her discretion. Kahn v. Dep’t of
Justice, 618 F.3d 1306, 1313 (Fed. Cir. 2010) (citing King
v. Dep’t of Health & Human Servs., 133 F.3d 1450, 1453
(Fed. Cir. 1998)). Second, Mr. Conner suggests at various
points in his brief that certain government documents
were forged or falsified. We reject this argument. Apart
from the fact that Mr. Conner provides no credible eviden-
tiary support for his allegation, there is a presumption
that government records have not been falsified. See, e.g.,
Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001)
(“The ‘presumption of regularity’ supports official acts of
public officers. In the absence of clear evidence to the
contrary, the doctrine presumes that public officers have
properly discharged their official duties.”).
Finally, we have considered, and found to be without
merit, Mr. Conner’s arguments that the AJ erred in
various procedural rulings and should have recused
himself and that the Board deprived him of due process.
IV.
For the foregoing reasons, the final decision of the
Board is affirmed.
AFFIRMED
No Costs.