Opinion

William J Randolph v. Office of Personnel Management

Court
Merit Systems Protection Board
Filed
Jan 16, 2025
Status
Unpublished
Cited by
0 cases
Authority
More cited than 33.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM J. RANDOLPH, DOCKET NUMBER

Appellant, SF-0845-20-0012-I-1

v.

OFFICE OF PERSONNEL DATE: January 16, 2025

MANAGEMENT,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

William J. Randolph , Citrus Heights, California, pro se.

Carla Robinson , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

REMAND ORDER

The appellant has filed a petition for review of the initial decision, which

reversed and remanded the reconsideration decision of the Office of Personnel

Management (OPM) that had reduced the appellant’s total service time by the

amount of his military service time because he had not waived his military retired

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

pay (MRP). The administrative judge determined that the appellant was entitled

to creditable service under the Federal Employees’ Retirement System (FERS) for

his military service time but only for the periods during which the appellant was

on paid leave from his civilian position as a dual status military technician while

serving on active military duty. Initial Appeal File (IAF), Tab 21, Initial

Decision (ID). On review, the appellant argues that he should also receive credit

for the period of time he was on leave without pay (LWOP) from his civilian

position while he was serving on active military duty. Petition for Review (PFR)

File, Tab 1. 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. 2

2

In considering the appellant’s arguments about the impact of OPM’s Handbook, the

administrative judge cited to Chevron, U.S.A., Inc. v. Natural Resource Defense

Council, Inc., 467 U.S. 837 (1984). The Supreme Court overruled Chevron in Loper

Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). Because the administrative judge

gave no deference to the OPM Handbook in his decision, we need not revisit the issue.

In any event, we do not find OPM’s Handbook inconsistent with the Board’s ruling in

this case, as a fuller reading of it supports the Board’s conclusion that the appellant

cannot receive MRP and creditable service for the same time period. See OPM, Civil

Service Retirement System and FERS Handbook for Personnel and Payroll Office,

Section 22A3.1-3 (stating that an employee must waive MRP to receive credit for

service under FERS subject to certain conditions); see also id. at Section 22A4.1-1

(confirming that to receive credit for service an employee must waive MRP),

https://www.opm.gov/retirement-center/publications-forms/csrsfers-handbook/c022.pdf .

3

Therefore, we DENY the petition for review and AFFIRM the initial decision.

Consistent with the initial decision, we REVERSE OPM’s reconsideration

decision and REMAND this matter to OPM to recalculate the appellant’s annuity

by granting him service credit for the periods of military service during which he

was on paid leave from his civilian position.

ORDER

We ORDER OPM to recalculate the appellant’s annuity to include periods

of creditable concurrent service when the appellant was on paid leave from his

civilian position while in military service. In that decision, OPM shall advise the

appellant of the right to file an appeal with the Board if he disagrees with that

new decision. See 5 U.S.C. §§ 8347(d)(1), 8461(e)(1); 5 C.F.R. §§ 831.110,

841.308. Any such appeal must be filed consistent with the Board’s regulations.

OPM must complete this action no later than 20 days after the date of this

decision.

We also ORDER OPM to tell the appellant promptly in writing when it

believes it has fully carried out the Board’s Order and of the actions it has taken

to carry out the Board’s Order. We ORDER the appellant to provide all necessary

information OPM requests to help it carry out the Board’s Order. The appellant,

if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).

4

No later than 30 days after OPM tells the appellant it has fully carried out

the Board’s Order, the appellant may file a petition for enforcement with the

office that issued the initial decision on this appeal if the appellant believes that

OPM did not fully carry out the Board’s Order. The petition should contain

specific reasons why the appellant believes OPM has not fully carried out the

Board’s Order, and should include the dates and results of any communications

with OPM. See 5 C.F.R. § 1201.182(a).

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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