Richard Schweinler v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD SCHWEINLER, DOCKET NUMBER
Appellant, SF-0831-15-0802-I-1
v.
OFFICE OF PERSONNEL DATE: February 25, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Richard Schweinler, Hemet, California, pro se.
Roxann Johnson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his retirement appeal for lack of jurisdiction. 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 erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative 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, 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).
BACKGROUND
¶2 The appellant is a Federal annuitant who retired under the Civil Service
Retirement System (CSRS) on August 1, 2010. Initial Appeal File (IAF), Tab 1
at 4. On July 23, 2015, after the appellant reached age 62 and became eligible for
social security benefits, the Office of Personnel Management (OPM) issued a
final decision informing him that it had adjusted his CSRS annuity to eliminate
credit for military service he performed after 1956 because he had not made a
deposit into the retirement fund for that service. 2 Id. at 7-8.
¶3 On August 21, 2015, the appellant filed a timely Board appeal of OPM’s
July 23, 2015 decision. Id. at 2-5. In response, OPM asserted that it was
rescinding its final decision due to administrative error on the part of the
2
A civil service annuitant who retires after September 7, 1982, is entitled to credit for
post-1956 active duty military service under both the CSRS and the social security
system only if he deposits with the Civil Service Retirement and Disability Fund an
amount equal to 7% of his total post-1956 military pay. 5 U.S.C. §§ 8332(j)(1),
8334(j)(1)(A); Morin v. Office of Personnel Management, 107 M.S.P.R. 534, ¶ 10
(2007), aff’d, 287 F. App’x 864 (Fed. Cir. 2008); Clements v. Office of Personnel
Management, 93 M.S.P.R. 115, ¶ 6 (2002).
3
appellant’s former employing agency. IAF, Tab 4 at 4. OPM further asserted
that it would afford the appellant an opportunity to make a belated military
service deposit. Id. The administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction, finding that OPM’s rescission of its
decision divested the Board of jurisdiction. IAF, Tab 5, Initial Decision.
¶4 The appellant has filed a petition for review of the initial decision in which
he disputes OPM’s computation of his annuity and asserts that OPM has not
provided him with any information concerning the total amount of the deposit or
the timeframe within which he will be required to pay it. Petition for Review
(PFR) File, Tab 4 at 4-6. OPM has opposed the appellant’s petition. PFR File,
Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 Pursuant to 5 U.S.C. § 8347(d) and 5 C.F.R. § 831.110, the Board has
jurisdiction to hear appeals of final OPM decisions affecting an individual’s
rights or interests under the CSRS. Brown v. Office of Personnel Management,
51 M.S.P.R. 261, 263 (1991). If OPM completely rescinds its final decision, the
Board no longer retains jurisdiction over the appeal. Redmond v. Office of
Personnel Management, 106 M.S.P.R. 544, ¶ 4 (2007); Brown, 51 M.S.P.R.
at 263. Because OPM completely rescinded its final decision, the Board no
longer has jurisdiction over this appeal, and the administrative judge correctly
dismissed it.
¶6 On review, the appellant indicates that he expects OPM to provide him with
the information he needs to make the required deposit and expresses his concern
that he will not be able to pay the deposit within the designated timeframe. PFR
File, Tab 4 at 4-6. He also disputes OPM’s calculation of his annuity. Id.
Nonetheless, the appellant does not dispute that OPM rescinded its July 23, 2015
final decision, and he has provided no evidence indicating that OPM has issued a
new final decision.
4
¶7 Nor do the facts of this case indicate that OPM intends not to issue any
further decision in this matter. To the contrary, OPM has represented that it will
notify the appellant of the amount of the deposit and, in the event the appellant
does not make the requisite deposit, it will issue a new final decision informing
the appellant of its revised calculation of his annuity, eliminating credit for his
post-1956 military service. IAF, Tab 4 at 4; PFR File, Tab 7 at 4-5. Therefore,
we affirm the initial decision dismissing the appeal for lack of jurisdiction. See,
e.g., Rorick v. Office of Personnel Management, 109 M.S.P.R. 597, ¶ 5 (2008)
(finding the Board lacked jurisdiction because OPM rescinded its final decision
and asserted that it would issue a new final decision); Morin, 107 M.S.P.R. 534,
¶ 9 (finding the Board had jurisdiction where OPM rescinded its final decision,
did not express an intent to issue a new final decision, and the record reflected
that if the appellant did not make a deposit OPM intended to reduce his annuity
without issuing a new final decision).
¶8 If the appellant is dissatisfied with any subsequent final decision by OPM
regarding his annuity, he may appeal it to the Board. See Tamayo v. Office of
Personnel Management, 56 M.S.P.R. 620, 622 (1993); 5 C.F.R. §§ 831.109,
831.110.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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,
5
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 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
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.