The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID A. STEVENS, DOCKET NUMBER
Appellant, AT-0842-21-0545-M-1
v.
OFFICE OF PERSONNEL DATE: March 13, 2026
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
David A. Stevens , Munford, Tennessee, pro se.
Eva Ukkola and Carla Robinson , Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
This appeal is before the Board on remand from the U.S. Court of Appeals
for the Federal Circuit for the Board to reconsider its determination that it lacks
jurisdiction over the appeal. For the reasons discussed below, we VACATE the
April 4, 2024 Final Order in Stevens v. Office of Personnel Management, MSPB
Docket No. AT-0842-21-0545-I-1, GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the administrative judge’s initial decision affirming the July 14, 2021
reconsideration decision of the Office of Personnel Management (OPM), and
REMAND the case to OPM to issue a new reconsideration decision in accordance
with this Remand Order. We also FORWARD to the regional office for
docketing as a separate appeal a claim against the Department of the Navy (Navy)
under 5 C.F.R. § 847.107.
BACKGROUND
The appellant was continuously employed by the Navy from January 5,
1987, until his retirement on March 31, 2019. Stevens v. Office of Personnel
Management, MSPB Docket No. AT-0842-21-0545-I-1, Initial Appeal File (IAF),
Tab 18 at 4, 73. He was first appointed to a Nonappropriated Fund
Instrumentality (NAFI) position and enrolled in the Navy’s NAFI retirement
program. 2 IAF, Tab 1 at 4, Tab 18 at 73. On September 29, 1993, his position
was converted to a General Schedule (GS) position, and he was automatically
enrolled in the Federal Employees’ Retirement System (FERS). IAF, Tab 1 at 4,
Tab 18 at 73. On August 15, 1994, the appellant accepted a NAFI position and
was re-enrolled in the Navy’s NAFI retirement program. IAF, Tab 1 at 4, Tab 18
at 73. On March 1, 1998, his position was again converted to a GS position, and
he was re-enrolled in FERS. IAF, Tab 1 at 4, Tab 18 at 73.
On March 6, 1998, the appellant signed form NAF-CS-1 that provided him
with the irrevocable option to either: (1) retain NAFI retirement coverage
regardless of future moves between NAFI and civil service positions, or (2) enter
the FERS retirement plan without receiving any service credit in FERS for time
spent under the NAFI plan.” IAF, Tab 18 at 31. The appellant elected option 2.
2
A nonappropriated fund instrumentality is generally one to which the government has
provided funds to initiate operations and the government loan is repaid out of profits
earned by the activity. Thus, the activity is created by the government, with
government funds, for government personnel. Military exchanges and similar entities
are the major types of NAFIs. Suarez v. Office of Personnel Management, 58 M.S.P.R.
639, 641 n.1 (1993).
3
Id. He subsequently applied for a refund of his NAFI retirement contributions
and received a lump sum check by letter dated April 2, 1998. Id. at 28, 30.
The appellant retired effective March 31, 2019, and applied for an
immediate FERS annuity. Id. at 4, 99-108. The Navy completed the appellant’s
Certified Summary of Federal Service form and noted that his NAFI service was
not creditable towards his FERS annuity due to his prior election. Id. at 104. On
May 18, 2019, the appellant sent a letter to OPM requesting to make a one -time
election to combine his NAFI service and FERS service toward a single
retirement benefit under section 1043 of the National Defense Authorization Act
for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 434-39 (codified
at 5 U.S.C. § 8347) (PL 104-106) and OPM Benefits Administration Letter (BAL)
96-108, which provided guidance on PL 104-106. IAF, Tab 5 at 36. In his letter,
the appellant acknowledged that he had previously elected not to retain NAFI
coverage, but he noted that he was never offered the opportunity to elect to
combine his NAFI service and his FERS service toward one single benefit. Id.
On December 16, 2019, OPM issued an initial decision denying the appellant’s
request to combine his NAFI service and FERS service because he had not signed
election form “Election of FERS with Credit for NAFI service under
[PL] 104-106” before August 11, 1997, the deadline under PL 104-106. 3 Id.
at 43-44. The appellant requested reconsideration, arguing that OPM guidance
indicated that the August 11, 1997 deadline could be waived for any employee,
like him, who did not receive timely notice of such an election opportunity. Id.
at 47, 53, 56. By letter dated December 18, 2020, OPM notified the appellant
that, for his NAFI service to be credited for FERS purposes under PL 104-106,
the election must have been made by August 11, 1997, and it informed him that
3
On April 17, 2020, OPM issued another initial decision in which it similarly found
that the appellant was not entitled to credit his NAFI service based on the fact that OPM
had not received any transfer of contributions from the NAFI retirement plan that it
could use to apply to his annuity to make the NAFI service creditable. IAF, Tab 5
at 61. The appellant requested reconsideration. Id. at 65.
4
only the Navy could waive the deadline under 5 C.F.R. § 847.304 and provided
him with the Navy contact information to request a waiver. Id. at 77. The
appellant requested a waiver, IAF, Tab 5 at 79, 83, Tab 18 at 23; however, the
Navy indicated that it was not responsible for providing a waiver and referred
him back to OPM, IAF, Tab 5 at 83.
On July 14, 2021, OPM issue a reconsideration decision affirming its initial
decision and finding that the appellant’s NAFI service was not creditable towards
his retirement under FERS. Id. at 88-90. OPM concluded without explanation
that the appellant did not meet the requirements of 5 C.F.R. § 847.202(d). 4 Id.
at 88. OPM also stated that the appellant was not eligible to combine his FERS
and NAFI service toward one retirement benefit under section 1043 of
PL 104-106 because OPM guidance BAL 96-108, issued on August 10, 1996,
targeted employees who were in FERS-covered positions at that time, and the
appellant had been in a NAFI-covered position then. Id. at 89. OPM also stated
that the appellant’s conversion to a FERS position in 1998 was not a qualifying
move under BAL 96-108 because it was not prior to August 10, 1996, and it noted
that the appellant had signed form NAF-CS-1 electing not to remain in the NAFI
retirement program and had subsequently received a refund of his NAFI
retirement contributions. Id.
The appellant subsequently filed a Board appeal disputing OPM’s
numerous conclusions and the fact that it did not address the Navy’s failure to
grant him a waiver. IAF, Tab 1 at 6. On January 28, 2022, the administrative
judge issued an initial decision based on the written record, affirming OPM’s
reconsideration decision. IAF, Tab 23, Initial Decision (ID) at 1. The
administrative judge found that the appellant’s March 1, 1998 conversion to a
FERS position was not a qualifying move under 5 C.F.R. § 847.202(f) because it
4
This appears to be an error. OPM seems to be referring to 5 C.F.R. § 847.202(f).
Additionally, OPM concluded that the appellant did not meet the requirements of
5 C.F.R. § 831.305, which is not relevant to the particular facts of the appellant’s case.
IAF, Tab 5 at 89.
5
did not occur prior to August 9, 1996. ID at 4. He further stated that he
considered the authorities that the appellant submitted on appeal, including
BAL 96-108, but he found that none of those authorities provided a means for the
appellant to obtain service credit for his NAFI service because he must have
transferred from a position under NAFI to a position under FERS prior to
August 9, 1996. ID at 5. The administrative judge did not address whether the
appellant’s first conversion from a NAFI position to a FERS-covered position on
September 29, 1993, was a qualifying move.
The appellant filed a timely petition for review. Stevens v. Office of
Personnel Management, MSPB Docket No. AT-0842-21-0545-I-1, Petition for
Review (PFR) File, Tab 1. On April 4, 2024, the Board issued a Final Order
vacating the initial decision and dismissing the appeal for lack of jurisdiction.
PFR File, Tab 6. The Board found that under 5 C.F.R. §§ 846.106-.107, the
appellant should have raised the issue of whether he was eligible to retroactively
elect to have his prior NAFI service treated as creditable service for purposes of
his FERS annuity with the Navy instead of OPM. Id. at 5-7. The Board found
that it lacked jurisdiction over the matter because the Navy had not issued a final
written decision setting forth its findings and conclusions containing a notice of
appeal rights that the appellant could then appeal to the Board. Id. at 8.
The appellant appealed the Board’s decision to the Federal Circuit. Stevens
v. Office of Personnel Management, MSPB Docket No. AT-0842-21-0545-L-1,
Litigation File (LF), Tab 1. While the case was pending before the court, the
Board filed a motion for remand to reconsider its jurisdiction over the appellant’s
appeal of OPM’s reconsideration decision, LF, Tab 9, which the court granted,
LF, Tab 10.
6
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over the appellant’s appeal of OPM’s reconsideration
decision.
Under 5 U.S.C. § 8461(e)(1), the Board has jurisdiction to review “an
administrative action or order affecting the rights or interests of an individual”
under FERS. Eller v. Office of Personnel Management, 121 M.S.P.R. 551, ¶ 8
(2014). Because OPM’s reconsideration decision affects the appellant’s rights or
interests under FERS, the Board has jurisdiction over this appeal. 5 U.S.C.
§ 8461(e)(1); 5 C.F.R. § 841.308. Accordingly, we vacate the April 4, 2024 Final
Order finding that the Board presently lacks jurisdiction over this matter.
OPM’s reconsideration decision failed to adjudicate all of the claims and
dispositive issues before OPM.
The general purpose of section 1043 of PL 104-106 was to allow certain
FERS and NAFI employees who had a qualifying move after December 31, 1965,
and before August 10, 1996—the effective date of the implementing regulations
at 5 C.F.R. part 847—to combine all of their NAFI and regular civil service
toward a single retirement benefit. IAF, Tab 5 at 34, Tab 18 at 127. The
regulations at 5 C.F.R. part 847 subpart B (§ 847.201 to § 847.211) contain
information about prospective retirement coverage elections, and subpart D
(§ 847.401 to § 847.443) contains information about the types of retroactive
elections available, the eligibility requirements, and the effect of such elections
under section 1043(c)(2). 5 C.F.R. § 847.102(a)(2), (4). Subpart C (§ 847.301 to
§ 847.305) contains information about the procedures applicable to retroactive
retirement coverage and alternative credit elections under section 1043(c)(2).
5 C.F.R. § 847.102(a)(3).
Qualifying moves under subpart B are defined at 5 C.F.R. § 847.202. As
noted above, 5 C.F.R. § 847.202(f) specifically defines a qualifying move
occurring between January 1, 1987, and August 9, 1996. Notably, qualifying
moves under subpart D are defined at 5 C.F.R. § 847.402. Specifically, 5 C.F.R.
7
§ 847.402(b) defines a qualifying move occurring after December 31, 1965, and
before August 10, 1996, that would allow an employee the opportunity to elect to
continue retirement coverage under a NAFI retirement system retroactive to the
date of the qualifying move.
The regulations specify that the employing agency is responsible for
notifying its employees of the opportunity to make an election under this part, for
determining if an employee who wishes to make an election under subpart B or D
is qualified to do so, and for counseling employees with respect to the election.
5 C.F.R. § 847.105(a); see also 5 C.F.R. § 847.302. Employees were required to
make their retroactive elections under subpart D by August 11, 1997. 5 C.F.R.
§ 847.304(a). However, the regulations state that “the employing agency must
waive the time limit . . . in the event that an employee did not receive such notice
or counseling.” 5 C.F.R. § 847.304(b); see also 5 C.F.R. § 847.206(b). The
regulations explicitly declare that failure to provide notice to the employee of the
opportunity to elect to continue retirement coverage under subpart D is
justification for waiving the time limit under section 847.304. 5 C.F.R.
§ 847.302.
OPM issued BAL 96-108 to provide benefits officers with the necessary
information they would need to inform employees about PL 104 -106, to counsel
eligible employees about the elections they could consider, and to process any
employee elections. IAF, Tab 5 at 34. BAL 96 -108 specifically covered “the
election opportunities available to current FERS employees.” Id. However, it
also explicitly stated in section C that “[c]urrent NAFI employees may also
qualify to elect to combine all their service toward a single retirement benefit”
and that “[t]he election opportunities for current NAFI employees will be
addressed in guidance issued by DoD and Coast Guard.” Id. It does not appear
that such guidance was ever issued though.
In this case, over the course of his correspondence with OPM, the appellant
received many different responses as to why OPM believed he was not entitled to
8
have his NAFI service credited toward his retirement under FERS. As discussed
above, OPM stated without explanation in its reconsideration decision that the
appellant did not meet the requirements of 5 C.F.R. § 847.202(f). IAF, Tab 5
at 89. OPM also stated that the appellant was not eligible because BAL 96 -108
targeted employees who were in FERS-covered positions, because the appellant’s
conversion to a FERS position on March 1, 1998, was not a qualifying move, and
because the appellant had signed the form NAF-CS-1 and received a refund of his
NAF contributions. Id. In the initial decision, the administrative judge agreed
with OPM that the appellant’s move from a NAFI position to a FERS position on
March 1, 1998, was not a qualifying move under 5 C.F.R. § 847.202(f). ID
at 4-5.
We have several problems with OPM’s response. Initially, we note that
OPM did not explain why it analyzed the appellant’s case under
section 847.202(f) when, as indicated above, subpart D of part 847 concerns
retroactive elections and appears to be applicable. Indeed, OPM’s initial
correspondence suggests that it considered part 847 subpart D to be relevant here.
IAF, Tab 5 at 43, 61, 77. Additionally, if the applicability of 5 C.F.R. § 847.202
is correct, OPM did not explain why the appellant’s first move from a NAFI
position to a FERS position on September 29, 1993—which falls within the
January 1, 1987 to August 9, 1996 timeframe contemplated by 5 C.F.R.
§ 847.202(f)—was not a qualifying move, and the administrative judge’s initial
decision did not address the issue either. Id. at 88-90; ID at 3-5. The appellant
has steadfastly maintained that the Navy erroneously failed to notify him of his
election opportunities during this time, and he explicitly acknowledged in his
Board appeal that his second conversion to a FERS position on March 6, 1996,
was not a qualifying move but that he believed that his first conversion to a FERS
position on September 29, 1993, met the timeline requirements. IAF, Tab 1 at 6,
Tab 5 at 57, 67-68.
9
Furthermore, as the appellant has persistently pointed out, BAL 96 -108
does not only mention FERS employees; it also stated that “[c]urrent NAFI
employees may also qualify to elect to combine all their service toward a single
retirement benefit,” and it indicated that such guidance would be forthcoming.
IAF, Tab 5 at 34, 89. OPM did not address this explicit recognition of NAFI
employees, discuss whether guidance was ever issued for NAFI employees, or
explain the effect on the appellant’s case if it was or was not. Similarly, again
OPM did not provide a reason as to why the appellant’s move to a FERS position
on September 29, 1993, was not a qualifying move under BAL 96-108 even
though it was prior to August 9, 1996. Id. at 89. And, although OPM stated that
the appellant signed the form NAF-CS-1 and received a refund of his NAF
contributions, it failed to address the appellant’s contention that a one-time
election under PL 104-106 is a separate matter. Specifically, the form NAF -CS-1
did not offer the appellant the opportunity to combine his FERS and NAFI service
towards one retirement benefit as outlined in PL 104-106 and did not include the
information specified in 5 C.F.R. § 847.303 (election forms). See PFR Tab 1 at 4.
In fact, OPM’s initial decision from December 16, 2019, indicates that the
relevant form is “Election of FERS with Credit for NAFI service under
[PL] 104-106.” IAF, Tab 5 at 43. To this end, OPM also failed to address the
appellant’s contention that the fact that it had not received any transfer of
contributions from the NAFI retirement plan that it could use to apply to the
appellant’s annuity to make his NAFI service creditable is only true because the
agency failed to comply with PL 104-106. Moreover, OPM did not address the
fact that the regulations provide that the employing agency, not OPM, is
responsible for determining if an employee is eligible to make an election. See
5 C.F.R. § 847.105.
When, as here, OPM fails to adjudicate all claims and dispositive issues
before it, the Board may remand the case to OPM to conduct a full review of the
matter. Byrum v. Office of Personnel Management, 618 F.3d 1323, 1332-33 (Fed.
10
Cir. 2010); Ott v. Office of Personnel Management, 120 M.S.P.R. 453, 455-56
(2013). In light of the foregoing omissions, we vacate the initial decision and
remand the appeal to OPM to issue a new reconsideration decision. In the new
decision, OPM should, consistent with the above, specifically explain what
authorities it finds applicable to the appellant’s case and why. In doing so, we
direct OPM to explain why its decision as a whole is not premature in the absence
of a final decision from the Navy on the appellant’s eligibility to make a
retroactive election. If 5 C.F.R. § 847.202(f) is indeed applicable to the
appellant’s case, OPM should explain its determination and reasoning regarding
whether the appellant’s first conversion from a NAFI position to a FERS -covered
position on September 29, 1993, was a qualifying move under 5 C.F.R.
§ 847.202(f). OPM should also specifically discuss BAL 96-108’s explicit
reference to then-current NAFI employees and the effect of this statement on the
appellant’s case, including whether the appellant’s move to a FERS position on
September 29, 1993, was a qualifying move under BAL 96-108. OPM should
also address the appellant’s argument that previously signing the form NAF-CS-1
and receiving a refund of NAF contributions does not foreclose his opportunity
for a one-time election under PL 104-106, as discussed above. OPM should take
into consideration the regulations at 5 C.F.R. § 847.303 and BAL 96-108 and
thoroughly explain its reasoning.
We forward for docketing as a new appeal a claim on the appellant’s behalf
against the Navy.
As discussed above, OPM’s regulations implementing section 1043 of
PL 104-106 make each agency responsible for notifying its employees of the
opportunity to make retroactive elections and for counseling employees with
respect to the election. See 5 C.F.R. §§ 847.101(a), .105(a). The regulations also
assigned each agency the responsibility of determining whether an employee
qualifies to make the election. See 5 C.F.R. §§ 847.105–.106. OPM’s regulations
give individuals the right to request the Board to review a final agency
11
determination of their eligibility to make an election. See 5 C.F.R. § 847.107(a).
Under OPM’s regulations, an appeal to the Board is the exclusive remedy for
review of agency decisions concerning eligibility to make retroactive elections
under 5 C.F.R. part 847 subparts B and D. See 5 C.F.R. § 847.107(b). When an
agency determines that an employee is not eligible to make an election under
5 C.F.R. part 847 subparts B or D, it must issue a final decision to the employee
in writing that sets forth the agency’s findings and conclusions and contains
notice of the right to request review by the Board. 5 C.F.R. § 847.106. An
agency’s decision to waive the time limit must also comply with the provisions of
§ 847.106, including notification of the right of appeal to the Board under
§ 847.107. 5 C.F.R. § 847.206.
As previously noted, the appellant contacted the Navy to request a waiver
per OPM’s direction, but the Navy informed him in a brief March 31, 2021 email
that it “was not responsible for providing a waiver with regard to [his]
PL 104-106 request to apply NAF service toward [his] current FERS benefit,” and
it referred him back to OPM. IAF, Tab 5 at 83; see also IAF, Tab 18 at 23-24,
27. There is little in the record regarding this determination, or lack thereof, or
what, if any, communications the appellant has had with the Navy between then
and the initiation of this litigation. See IAF, Tab 18 at 32-36.
Consequently, and in an effort to expedite this matter in which the
appellant has been seeking a clear and direct response for several years, we
forward for docketing as a separate appeal a claim against the Navy on the
appellant’s behalf under 5 C.F.R. § 847.107. In this appeal, the administrative
judge shall offer the parties an opportunity to present evidence and argument
regarding whether the Navy has issued the appellant a final decision on his
eligibility to make a retroactive election per 5 C.F.R. §§ 847.105 -.106. If the
administrative judge determines that the Navy has issued the appellant a final
written decision, the administrative judge should adjudicate the appeal as
appropriate, including determining whether the new appeal is timely. See
12
5 C.F.R. § 847.106. If the administrative judge determines that the Navy has not
issued a final written decision, consistent with the Board’s discussion in
Markanich v. Office of Personnel Management, 104 M.S.P.R. 323, ¶ 12 (2006),
we order the administrative judge to take jurisdiction over this case on the ground
that the Navy is refusing to issue such a decision. Markanich, 104 M.S.P.R. 323,
¶ 12 (finding a lack of jurisdiction in part because there was no evidence that the
appellant’s former employing agency had refused to issue her a final written
decision, which it was required to provide to her under 5 C.F.R. § 847.106(b), so
as to enable the appellant to file a Board appeal pursuant to 5 C.F.R.
§ 847.107(a)); see also McNeese v. Office of Personnel Management, 61 M.S.P.R.
70, 74 (the Board will accept jurisdiction over a retirement matter,
notwithstanding OPM’s failure to issue a reconsideration decision on the matter,
where OPM has, in effect, refused to issue a reconsideration decision), aff’d,
40 F.3d 1250 (Fed. Cir. 1994) (Table).
ORDER
For the reasons discussed above, we vacate the initial decision and remand
this case to OPM for further adjudication. On remand, OPM shall issue a new
reconsideration decision addressing the appellant’s claim, in accordance with the
discussion and instructions set forth above. OPM shall advise the appellant of his
right to file an appeal with the Board’s regional office if he disagrees with the
new decision. See Litzenberger v. Office of Personnel Management, 88 M.S.P.R.
419, 424 (2001).
We 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).
13
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.