McNeel v. Office of Personnel Management , 520 F. App'x 961 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EMMETT W. MCNEEL,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3019
______________________
Appeal from the Merit Systems Protection Board in
No. DE0831090175-X-1.
______________________
Decided: April 3, 2013
______________________
EMMETT W. MCNEEL, of Portland, Texas, pro se.
KENNETH S. KESSLER, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the were STUART F. DELERY, Principal Deputy Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and HAROLD D. LESTER, JR., Assistant Director.
______________________
2 EMMETT MCNEEL v. OPM
Before NEWMAN, DYK, and PROST, Circuit Judges.
PER CURIAM.
Emmett W. McNeel seeks review of a final decision of
the Merit Systems Protection Board (“Board”). We affirm.
BACKGROUND
Mr. McNeel was a former employee with the Depart-
ment of the Navy. He began receiving disability retire-
ment annuity payments on December 9, 1993. These
benefits were discontinued effective March 1, 1997, how-
ever, pursuant to 5 U.S.C. § 8337(d), based on information
from a medical doctor finding that Mr. McNeel had recov-
ered from his disabling medical condition.
Between 1999 and 2000, Mr. McNeel twice requested,
albeit unsuccessfully, that the Office of Personnel Man-
agement (“OPM” or “agency”) reinstate his disability
retirement annuity. Mr. McNeel’s third request in 2003
proved successful. After some back-and-forth with the
agency and four appeals to the Board, on May 5, 2011,
OPM was ordered to retroactively reinstate Mr. McNeel’s
disability annuity effective November 19, 1999, the date
of his first request. In addition, the administrative judge
ordered OPM to calculate and pay to Mr. McNeel all
appropriate adjustments to his annuity payments which
result from the retroactive reinstatement, and to inform
Mr. McNeel in writing once it has complied with the
terms of the order. The administrative judge’s decision
became the final decision of the Board on June 9, 2011,
when neither party filed a petition for review.
On August 17, 2011, when Mr. McNeel had neither
heard nor received payments from the agency, he peti-
tioned the Board for enforcement of its order. On October
13, 2011, the administrative judge issued a recommenda-
tion finding the agency not to be in compliance with the
Board’s order. The agency responded on November 10,
2011, though its submission was later found to be defi-
EMMETT MCNEEL v. OPM 3
cient. Subsequently, the Board ordered the agency to
provide additional explanation and evidence of its compli-
ance with the May 5, 2011 order.
On April 19, 2012, the agency submitted to the Board
a full explanation, complete with supporting documenta-
tion, providing a history of the annuity payments owed for
various periods, the formulas used to calculate them, the
deductions and adjustments taken, and the dates of
payment to Mr. McNeel. The agency requested that the
petition for enforcement be dismissed.
On September 4, 2012, the Board reviewed the agen-
cy’s submissions and found the agency to be in compliance
with the May 5, 2011 order. The Board found that the
agency had correctly identified and calculated the periods
of underpayment, the amounts of annuities owed, the
deductions of federal taxes and life insurance premiums
taken, and the total gross amount that was paid to Mr.
McNeel. The Board also noted that Mr. McNeel had
acknowledged receipt of the payment.
In addition, the Board addressed two arguments Mr.
McNeel had made on reply. First, Mr. McNeel objected to
the sufficiency of the agency’s documentation because it
remains unclear to him how the total gross amount owed
was calculated. The Board responded that OPM had
adequately presented its calculations and provided office
records compiled in the ordinary course of business, which
are entitled to substantial weight. Accordingly, it was
Mr. McNeel’s burden to rebut the “relevant, material, and
credible evidence” with specific, nonconclusory, and
supported allegations to the contrary—which he failed to
do.
Second, Mr. McNeel sought “recourse” for the various
losses he suffered as a result of OPM’s delayed payment of
benefits. The Board declined, stating that it was without
authority to award damages for deficient payment of
disability retirement benefits.
4 EMMETT MCNEEL v. OPM
Mr. McNeel timely appealed the Board’s decision to
this court. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
We affirm the Board’s decision unless it is: “(1) arbi-
trary, 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); Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326,
1330 (Fed. Cir. 2005).
We note at the outset that the only issue properly
before the Board was whether OPM complied with the
May 5, 2011 order by actually paying and correctly calcu-
lating the total amount of retroactive disability annuity
owed to Mr. McNeel. On this issue, we agree with the
Board’s decision that based on all of the materials and
business records submitted by OPM, OPM has adequately
supported its calculations and paid Mr. McNeel the
amount he was due.
With respect to Mr. McNeel’s request on appeal and to
the Board that he be provided a detailed explanation of
how his annuity payments were calculated, we note and
agree with the Board that it is Mr. McNeel’s burden to
rebut the evidence supplied by OPM if he is unsatisfied
with OPM’s calculations. In addition, the Civil Service
Retirement statutes are detailed and specific regarding
eligibility for benefits, the conditions under which benefits
may be received, and how those benefits may be calculat-
ed. See 5 U.S.C. §§ 8331, 8337, 8339. OPM’s April 19,
2012 submission contained exactly that information, and
the Board found that OPM’s calculations were well-
supported. Absent any evidence or argument by Mr.
McNeel, we decline to disturb that finding.
EMMETT MCNEEL v. OPM 5
As to Mr. McNeel’s contention that he be entitled to
all back pay and Cost of Living Allowances owed between
1999 and 2003, his claims are barred by the doctrines of
res judicata and collateral estoppel because they have
been litigated before. See McNeel v. Office of Pers. Mgmt.,
No. DE08321080137-I-1, 2008 M.S.P.B. LEXIS 367 (Jan.
22, 2008). Mr. McNeel is thus precluded from re-
litigating these and similar claims for the reasons stated
in McNeel v. Office of Personnel Management, No.
DE0831090175-I-1, 113 M.S.P.R. 356 (Mar. 2, 2010).
Finally, this court lacks jurisdiction over the rest of
Mr. McNeel claims on appeal. Specifically, Mr. McNeel
contends that OPM never contacted him to negotiate the
settlement with respect to his retroactive annuity pay-
ments. Mr. McNeel also alleged error in his service
computation date, service separation date, and base and
average pay, which error resulted in an incorrect annuity
computation. However, because Mr. McNeel has not
raised these issues with OPM or the Board for a final
determination, they are not properly before this court.
Sargent v. Dep’t of Health & Human Serv., 229 F.3d 1088,
1091 (Fed. Cir. 2000).
Mr. McNeel also challenges that he is entitled to
greater coverage and benefits under the Federal Employ-
ees Group Life Insurance (“FEGLI”) and the Federal
Employees Health Benefits (“FEHB”) programs. Jurisdic-
tion over disputes concerning FEGLI and FEHB are
governed by statute. Miller v. Office of Pers. Mgmt., 449
F.3d 1374, 1378 (Fed. Cir. 2006) (holding that pursuant to
5 U.S.C. § 8715, the district courts and the U.S. Court of
Federal Claims have jurisdiction over FEGLI disputes); 5
U.S.C. § 8912 (“[D]istrict courts[,] concurrent with the
United States [Court of Federal] Claims . . . have original
jurisdiction” over FEHB claims). As such, we are without
jurisdiction to consider Mr. McNeel’s FEGLI and FEHB
claims.
6 EMMETT MCNEEL v. OPM
AFFIRMED
COSTS
Each party shall bear its own costs.