The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS ROSSMEISSL, DOCKET NUMBER
Appellant, DE-0842-22-0256-I-1
v.
OFFICE OF PERSONNEL DATE: January 3, 2025
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas Rossmeissl , Tucson, Arizona, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision by the Office of Personnel Management finding that
he was ineligible to receive annuity benefits under the Federal Employees’
Retirement System (FERS) because he had applied for and received a refund of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
his retirement deductions. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous 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. 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.
The administrative judge correctly found that, because the appellant
received a refund of his FERS deductions after separating from his employing
agency, the appellant was ineligible to receive a FERS deferred annuity. Initial
Appeal File (IAF), Tab 12, Initial Decision (ID) at 3; see 5 U.S.C. § 8424(a).
Further, the appellant has not been reemployed in a covered position since his
January 2001 resignation. IAF, Tab 10, Hearing Recording (testimony of
appellant); IAF, Tab 4 at 10, Tab 7 at 4. For all of these reasons, he is not
entitled to receive an annuity or redeposit his withdrawn deductions. See
5 U.S.C. §§ 8422(i), 8424(a).
The appellant’s arguments that he was misinformed about the consequences
of applying for a refund, that he could not read the fine-print warning of such
consequences in the Standard Form 3106, and that he had difficulty hearing the
conversation with the employer representative who discussed the refund with
him, do not provide a basis to disturb the initial decision. Petition for Review
(PFR) File, Tab 1 at 4-6. Federal retirement law does not provide an exception
based on insufficient or misleading information about the consequences of
3
applying for and receiving a refund of retirement deductions, and the Board lacks
the authority to award an annuity based on such equitable considerations. See
Conway v. Office of Personnel Management, 59 M.S.P.R. 405, 412 (1993);
Danganan v. Office of Personnel Management, 55 M.S.P.R. 265, 269 (1992),
aff’d, 19 F.3d 40 (Fed. Cir. 1994) (Table)); Mahan v. Office of Personnel
Management, 47 M.S.P.R. 639, 641 (1991). Further, we have considered the
appellant’s assertions on review but find that he has not provided a persuasive
basis to disturb the administrative judge’s finding that he failed to prove his claim
that he was misinformed. ID at 4-5.
In addition, we find that the appellant’s arguments of adjudicatory bias,
prejudice, and improper professional association between the administrative judge
and the agency representative provide no basis for disturbing the initial decision.
PFR File, Tab 1 at 4-6. The appellant did not file a motion before the
administrative judge asking him to withdraw, as required by 5 C.F.R.
§ 1201.42(b). Further, he has not established his claims on review. In particular,
the Board will not infer bias based on an administrative judge’s case -related
rulings, Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013),
and we find that the appellant’s broad allegation of bias is insufficient to rebut
the presumption of the administrative judge’s honesty and integrity, see Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386 (1980). We find that the
administrative judge considered the pertinent evidence in the record in finding
that the appellant failed to prove by preponderant evidence that he is entitled to
the FERS annuity. ID at 2-5; see Mithen v. Department of Veterans Affairs,
122 M.S.P.R. 489, ¶ 14 (2015) (holding that an administrative judge’s failure to
mention all of the evidence of record does not mean that he did not consider it in
reaching his decision), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). Additionally,
we see no reason to disturb the administrative judge’s findings on review because
the administrative judge evaluated the credibility of the evidence and argument
presented by the appellant concerning misinformation and the impact of his issues
4
with his vision and hearing. ID at 4-5; see Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative
judge’s findings when he considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); see also Haebe v. Department of
Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002).
Further, the appellant has not described or provided evidence of improper
comments or actions between the administrative judge and the agency
representative on the phone before the hearing started. PFR File, Tab 1 at 4. He
states that he picked up indications that they may have known each other or
worked with each other in the past. Id. We find that these assertions do not
provide a reasonable basis for questioning the administrative judge’s impartiality.
See 28 U.S.C. § 455; Department of Health and Human Services v. Jarboe ,
2023 MSPB 22, ¶ 12; Lee v. Environmental Protection Agency, 115 M.S.P.R. 533,
¶¶ 20-22 (2010). 2 Nor do we find indication of “a deep-seated favoritism or
antagonism that would make fair judgment impossible.” See Bieber v.
Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky
v. United States, 510 U.S. 540, 555 (1994)).
NOTICE OF APPEAL RIGHTS 3
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
2
To the extent that the appellant asserts that the administrative judge should have
referred this matter to a settlement judge and never responded to a phone call he made
after the issuance of the initial decision, PFR File, Tab 1 at 4-5, we find that these
assertions neither establish any material error in the processing of the appeal nor
suggest any bias or impartiality on the part of the administrative judge.
3
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.
5
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
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
6
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. 420 (2017). If you have a representative in this case,
and your representative receives this decision before 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,
7
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
(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
8
of appeals of competent jurisdiction. 4 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.
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.
4
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.
9
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.