Andrew Blasco v. Office of Personnel Management ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW J. BLASCO, DOCKET NUMBER
Appellant, PH-0831-16-0141-I-1
v.
OFFICE OF PERSONNEL DATE: June 24, 2022
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew J. Blasco, Kensington, Connecticut, pro se.
Carla Robinson, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The Office of Personnel Management (OPM) has filed a petition for review
of the initial decision, which reversed its decision finding that the appellant was
not entitled to retirement benefits. For the reasons discussed below, we GRANT
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
OPM’s petition for review and REVERSE the initial decision. OPM’s
reconsideration decision is AFFIRMED.
BACKGROUND
¶2 The appellant was employed by the Department of Veterans Affairs (DVA)
from 1977 to 1988 as a Biomedical Equipment Support Specialist on a full -time
schedule. On his separation, he sought and received a refund of his Civil Service
Retirement System (CSRS) retirement contributions. Initial Appeal File (IAF),
Tab 8 at 39. He was reemployed in 1989 on an intermittent schedule under an
appointment that was excluded from CSRS coverage. Id. at 25. On April 22,
1993, while still under an intermittent schedule, his appointment was converted to
one that conferred CSRS coverage. 2 Id. On November 11, 2014, the appellant
filed an application for a deferred annuity, id. at 21-28, based on his
November 30, 2014 retirement, id. at 30.
¶3 OPM denied the appellant’s application, initially and on reconsideration ,
explaining that, when he retired, he was age 62 with 18 years, 2 months, and
12 days of creditable service, and that, due to the nature of his intermittent
appointment, he did not meet the “one out of two” requirement for an annuity.
IAF, Tab 8 at 6-8, 16. In its reconsideration decision, OPM referred to 5 U.S.C
§ 8333(b), stating that the appellant “did not complete 1 year of continued service
within the 2 years immediately preceding [his] separation in a position subject to
the [Civil Service] Retirement Act.” Id. at 8.
¶4 On appeal, the appellant argued that, during his last period of employment,
he was in a covered position because contributions were withheld from his pay,
and that therefore he did meet the “1 out of 2” requirement. IAF, Tab 16. He
requested a hearing. IAF, Tab 1 at 1.
2
The appellant was under CSRS Offset, which is the same as CSRS, but it is also
coordinated with Social Security. IAF, Tab 16 at 14.
3
¶5 Thereafter, the administrative judge issued an initial decision in which he
considered the parties’ differing views on the applicability of 5 U.S.C. § 8333(b)
to the appellant’s situation. IAF, Tab 26, Initial Decision (ID). Specifically, the
administrative judge considered OPM’s position that “covered service” must be
calculated like “creditable service” which requires a determination of actual time
worked, meaning that an intermittent employee like the appellant must have
worked the equivalent of 1 “work year” of creditable, covered service during his
last 2 years of service to qualify for retirement benefits, which the appellant did
not. 3 ID at 3-4. The administrative judge also considered the appellant’s position
that the applicable law only requires that 1 of his last 2 years of service have been
covered service, and that the creditable service calculation is irrelevant. The
administrative judge found the appellant’s position “persuasive,” ID at 4, and “the
more reasonable” of the two, ID at 6, and on that basis reversed OPM’s
reconsideration decision, ID at 1, 7. The administrative judge remanded the case
to OPM and ordered it to process the appellant’s retirement benefits application
and calculate his annuity consistent with the administrative judge’s initial
decision, and then to issue a new reconsideration decision. ID at 7.
¶6 The agency has filed a petition for review, Petition for Review (PFR) File,
Tab 1, to which the appellant has responded, PFR File, Tab 3.
ANALYSIS
¶7 The appellant’s entitlement to an annuity is governed by chapter 83 of
title 5 of the U.S. Code. Two types of Federal service are pertinent to a
determination of whether an individual is entitled to a retirement annuity under
the Civil Service Retirement Act (CSRA)—“creditable service” and “covered
service.” Almost all Federal service is creditable service. Covered service is
more limited in scope, referring to Federal employees who are “subject to” the
3
The appellant worked 1 month and 10 days in 2013 and 27 days in 2014, his last
2 years of service. IAF, Tab 8 at 18-19.
4
CSRA, i.e., employees who must deposit part of their basic pay into the Civil
Service Retirement and Disability Fund (the Fund). Noveloso v. Office of
Personnel Management, 45 M.S.P.R. 321, 323 (1990), aff’d, 925 F.2d 1478 (Fed.
Cir. 1991) (Table).
¶8 There are two requirements that govern eligibility for an annuity under the
CSRA. 5 U.S.C. § 8333. The first is that the employee must have completed at
least 5 years of civilian service. 5 U.S.C. § 8333(a). There is no question that
the appellant met this requirement. In finding that he also met the second
requirement, the administrative judge agreed with the appellant that the law
requires only that 1 of his last 2 years have been covered service, 5 U.S.C.
§ 8333(b), which it was. ID at 5; IAF, Tab 8 at 31. 4
¶9 However, the administrative judge misreads 5 U.S.C. § 8333(b) as not
requiring that 1 of the appellant’s last 2 years also be creditable service.
Subpart (b) requires that an employee has completed, within the last 2 years
before any separation from service, except a separation because of death or
disability, at least 1 year of creditable civilian service that is covered service.
The issue here is whether, because of his intermittent schedule, the appellant had
1 year of creditable service out of his last 2 years of service.
¶10 Intermittent employment means employment without a regularly scheduled
tour of duty. 5 C.F.R. § 340.401(b). There is no dispute that the appellant had an
intermittent work schedule. IAF, Tab 16 at 14. OPM’s Civil Service Retirement
System (CSRS) and Federal Employees’ Retirement System (FERS) Handbook for
Personnel and Payroll Offices (Handbook) explains how such service is credited.
De Laet v. Office of Personnel Management, 70 M.S.P.R. 390, 394 (1996)
(recognizing that the Handbook is an authoritative interpretation of employee
4
Early on in the adjudication of this appeal, OPM took the positon that the appellant
had not been engaged in “covered service” for 1 of the last 2 years befor e his
separation. IAF, Tab 8 at 4. Ultimately OPM acknowledged that the appellant’s
service was covered because retirement contributions were deducted from his salary
during his last appointment. PFR File, Tab 1 at 9.
5
rights and agency responsibilities under Federal retirement laws); see Handbook
(April 1998), https://www.opm.gov/retirement-services/publications-
forms/csrsfers-handbook/ (last visited June 23, 2022). It provides that, with
certain exceptions not applicable here, such employees can only receive credit for
time they actually served. See Handbook, Section 20A3.1-1(C)(1); see also
Handbook, Section 50A2.1-3(G)(1) (generally, when an individual is employed
on an intermittent basis without a prearranged regularly scheduled tour of duty,
only the actual days in a pay status are credited). Therefore, even though the
appellant’s service was covered service, because he only worked 1 month and
10 days in 2013 and 27 days in 2014, his last 2 years of service, IAF, Tab 8
at 18-19, he did not complete 1 year of creditable civilian service prior to his
2014 separation, and therefore he is not entitled to an annuity. 5 5 U.S.C.
§ 8333(b).
¶11 In reversing the initial decision, we agree with OPM that the administrative
judge erred in crediting the appellant’s witnesses, DVA employees who worked in
the agency’s retirement counseling center, who testified at the hearing that, over
the years, other similarly situated employees had received retirement benefits
from OPM. ID at 6; Hearing Compact Disc. That testimony is not relevant to the
matter at issue because it involves statutory interpretation, which is a question of
law, and therefore such unsubstantiated anecdotal evidence has no bearing on this
case. Herrera v. United States, 849 F.2d 1416, 1417-18 (Fed. Cir. 1988). Nor do
we attach any significance to the fact that OPM originally found the appellant
eligible for benefits, IAF, Tab 16 at 5, and then, in its subsequent decision, found
that he was not, id. at 6, or that, even then, it incorrectly maintained that his
ineligibility was due to the fact that his service was not covered , id. Payments of
money from the Fund are limited to those authorized by statute, see Office of
5
Notwithstanding this disposition, the appellant is entitled to have returned to him the
amounts deducted from his pay during this period of service for which no eligibility for
an annuity has been established. 5 U.S.C. § 8333(b).
6
Personnel Management v. Richmond, 496 U.S. 414, 416 (1990), and the
requirements for eligibility for a retirement benefit are substantive legal
requirements that allow for no administrative discretion by OPM or by the Board.
Andrada v. Office of Personnel Management, 74 M.S.P.R. 226, 233, aff’d,
132 F.3d 55 (Fed. Cir. 1997) (Table).
NOTICE OF APPEAL RIGHTS 6
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 appeal 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 their
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
6
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.
7
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
8
you do, then you must file 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
9
(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. 7 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.
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction 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. Court 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.
10
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.