The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDERICK B. MIZE, DOCKET NUMBER
Appellant, DE-0831-13-1586-I-1
v.
OFFICE OF PERSONNEL DATE: August 4, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Frederick B. Mize, Carlsbad, New Mexico, pro se.
Karla W. Yeakle, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM’s) reduction of the
appellant’s retirement annuity d ue to his failure to make a deposit for his
post-1956 military service prior to his retirement. Generally, we grant petitions
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
such as this one only when: 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
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, and based on the following points and authorities, 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 served in the military with the U.S. Army from July 15, 1970,
to July 10, 1973. Initial Appeal File (IAF), Tab 7 at 29. He was employed with
the Department of the Interior from November 25, 1973, to February 6, 1981, and
with the U.S. Postal Service from February 7, 1981, to August 3, 2005, when he
retired under the Civil Service Retirement System (CSRS) without having paid a
deposit for his post-1956 military service. Id. at 12, 29, 31, 33. On July 30,
2013, OPM notified the appellant in a final decision that it had recomputed his
monthly CSRS annuity benefit by eliminating credit for his post-1956 military
service because he had not made a deposit for that service and he had become
eligible for Social Security benefits. 2 Id. at 5-7.
2
OPM’s July 30, 2013 decision rescinded and replaced its final decision dated August
6, 2012, which was the subject of the appellant’s previous appeal in Mize v. Office of
Personnel Management, MSPB Docket No. DE-0831-12-0465-I-1 (Mize I). See IAF,
Tab 5 at 26. In Mize I, the Board vacated OPM’s August 6, 2012 final decision and
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¶3 The appellant filed a Board appeal 3 challenging OPM’s decision to reduce
his annuity to eliminate credit for his post-1956 military service and asserting that
he should be permitted to make a deposit for that service. IAF, Tabs 1, 9. He did
not request a hearing. IAF, Tab 10.
¶4 Based on the parties’ submissions, the administrative judge issued an initial
decision affirming OPM’s decision. IAF, Tab 11, Initial Decision (ID) at 2, 7.
The appellant has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The agency has filed a response to the petition for review. PFR File,
Tab 4. The appellant has filed a reply to the agency’s response. PFR File, Tab 5.
ANALYSIS
¶5 An annuitant who retires after September 7, 1982, is entitled to receive
credit for active duty military service performed after 1956 under both the CSRS
and the Social Security system if he deposits an amount equal to seven percent of
his total post-1956 military pay, plus interest, with the Civil Service Retirement
and Disability Fund. Hooten v. Office of Personnel Management, 114 M.S.P.R.
205, ¶ 6 (2010); see 5 U.S.C. § 8334(j). If the annuitant fails to make such a
deposit, OPM must recalculate the annuity payments when the annuitant first
becomes eligible for Social Security benefits to exclude credit for the post-1956
military service. Hooten, 114 M.S.P.R. 205, ¶ 6. Those who retire on or after
October 1, 1983, must make the deposit before their separation from service upon
which entitlement to an annuity is based, 5 C.F.R. § 831.2104. The Board will
remanded the appeal to OPM for issuance of a new final decision addressing the
appellant’s challenge to the calculation of the reduction in his monthly annuity benefits.
Mize I (Nonprecedential Final Order, June 6, 2013).
3
The appellant’s initial submission below was titled “Petition for Enforcement,” and
this appeal was originally docketed as a compliance appeal. IAF, Tabs 1, 2. In
response to the administrative judge’s acknowledgement order, OPM moved for
dismissal of the petition for enforcement based on the issuance of its July 30, 2013
decision. IAF, Tab 5. This appeal was then redocketed as an appeal of OPM’s July 30,
2013 decision. IAF, Tab 6.
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order OPM to permit a post-separation deposit, however, if there was
administrative error by the individual’s employing agency or OPM and the
annuitant’s failure to make the deposit prior to retirement was the product of that
administrative error. King v. Office of Personnel Management, 97 M.S.P.R. 307,
¶ 15 (2004), aff’d sub nom. Grant v. Office of Personnel Management, 126 F.
App’x 945 (Fed. Cir. 2005); 5 C.F.R. § 831.2107(a)(1). The Board has found
administrative error where the agency provides material misinformation regarding
the deposit or the consequences of failing to make the deposit, to the employee
prior to his separation. Lancaster v. Office of Personnel Management,
112 M.S.P.R. 76, ¶ 8 (2009). The appellant has the burden of proving that an
administrative error took place by a preponderance of the evidence. Id.
¶6 As the administrative judge noted in both his close of record order and the
initial decision, the appellant raised what appears to be a claim of administrative
error during the proceedings below by arguing that he should be permitted to
make a post-separation deposit for his post-1956 military service because of
alleged “bad advi[c]e” he received. IAF, Tab 9, Tab 10 at 3, ID at 5-6. In
particular, the appellant asserted that, at the time of his retirement, he was
advised that if he “did not pay a full 40 quarters 4 into Social Security,” then his
nonpayment of a deposit for his post-1956 military service prior to his retirement
would not result in a reduction in the amount of his retirement annuity when he
4
The appellant appears to be referring to “quarters of coverage.” A quarter of coverage
is the basic unit for determining whether a worker is insured under the Social Security
program. See http://www.ssa.gov/OACT/COLA/QC.html. Employees who earn wages
or generate self-employment income subject to Social Security withholdings accrue
quarters of coverage, which are also called credits or Social Security credits, see id.,
based on the wages earned or self-employment income generated during the course of a
calendar year, 42 U.S.C. § 213(a)(2)(ii); see Froom v. Office of Personnel Management,
107 M.S.P.R. 607, ¶ 3 n.2 (2008). An employee may earn up to a maximum of four
quarters of coverage per year. See http://www.ssa.gov/OACT/COLA/QC.html. Anyone
born in 1929 or later must earn a total of at least forty quarters of coverage to be
eligible for Social Security retirement benefits. See
http://www.socialsecurity.gov/pubs/EN-05-10035.pdf.
5
reached age 62. IAF, Tab 9. The appellant stated, “Since I had not worked that
many years it was reasonable not to make such a payment.” Id. The appellant
further asserted that, when he “check[ed] a few years later [he] had only
28 quarters” and thus believed that he could “work a quarter here and there,” yet
still remain under the forty quarter threshold for eligibility for Social Security
benefits. Id. The appellant also stated that, at that time, he reasonably believed
that each quarter in which he worked would count as only one quarter toward the
forty quarter threshold; however, a few years later he learned that “one quarter
work and [sic] any year counts for a year.” Id.
¶7 In his close of record order, the administrative judge described the
circumstances in which the Board may find administrative error and waive the
deposit deadline. IAF, Tab 10 at 3-5. The administrative judge also specifically
addressed the appellant’s administrative error claim, stating that: (1) the
appellant had not identified when or by whom he had been advised that, if he did
not earn forty quarters of coverage into Social Security, then his retirement
annuity at age 62 would not change regardless of whether he made the deposit, id.
at 3; (2) the administrative judge was not aware of any part of that advice that
was incorrect, id. (citing 42 U.S.C. §§ 402(a)(1) and 414(a)(1)); and (3) although
the appellant stated that at one point he checked and saw he had only twenty-eight
quarters, and that this circumstance led him to believe from his own calculations
that he could “work a quarter here and there and keep it under the 40 quarters
required,” he had not identified any agency or OPM official who gave him advice
about that matter, nor had he provided any details or dates about such advice, id.
at 3-4. In his order, the administrative judge also reminded the appellant of the
deadline for filing submissions and of his burden to prove his claim. Id. at 2, 5.
The appellant did not respond to the order.
¶8 In the initial decision, the administrative judge found that, because the
appellant has the burden to prove his entitlement to the benefit he seeks, his
failure to provide specific evidence of any incorrect advice he received about the
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impact of not making the deposit is fatal to his claim of administrative error. ID
at 6. The administrative judge also found that, because no administrative error
occurred, OPM acted properly in recomputing the appellant’s annuity when he
first became eligible for Social Security benefits to exclude credit for his
post-1956 military service. ID at 6-7. Therefore, the administrative judge found
that the appellant failed to prove his entitlement to pay the deposit for his military
service or otherwise to continue to receive credit for his military service in his
monthly annuity. ID at 7.
¶9 The appellant reasserts his administrative error claim on review, arguing for
the first time that he was told by Postmaster C.M., that as long as he only worked
eleven more quarters prior to age 62, his failure to pay a deposit for his post-1956
military service would not affect the amount of his retirement annuity. PFR File,
Tab 1. He asserts that he did not learn until he telephoned the Social Security
Administration (SSA) on the date that he filed his petition for review that an
individual earns credits toward eligibility for Social Security benefits based on
the amount of compensation earned rather than the number of quarters worked.
Id. The appellant states that, as a result of contacting the SSA, he discovered
that, although he had worked only one quarter in 2007 and one quarter in 2009,
his compensation was such that he earned three credits during 2007 and four
credits during 2009. Id. Thus, the appellant seems to assert, based on the
incorrect information he received from C.M. regarding the number of additional
quarters he could work prior to age 62 without reaching the forty credit threshold
for eligibility for Social Security benefits, that he inadvertently became eligible
for those benefits by earning more credits than he had expected to earn given the
number of quarters he worked.
¶10 The Board normally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Nowhere in his
7
petition for review does the appellant contend that his new argument as to what
he was told regarding the circumstances in which nonpayment of a deposit for his
post-1956 military service would affect his retirement annuity is based on new
and material evidence that was unavailable prior to the close of the record below.
PFR File Tab 1.
¶11 Based on our review of the record, we agree with the administrative judge
that the appellant failed to prove his administrative error claim. The gist of this
claim is that the appellant was incorrectly told at the time he retired that his
nonpayment of his post-1956 military deposit would not result in a reduction in
his retirement annuity when he reached age 62 unless he “paid a full 40 quarters
into Social Security.” IAF, Tab 9. As the administrative judge noted in the close
of record order, in the proceedings below, the appellant did not provide any dates
or details about this advice, such as when he was given this information or who
gave it to him. IAF, Tab 10. Although the administrative judge informed the
appellant of the shortcomings of his administrative error claim in the close of
record order, and the appellant had ample opportunity to elaborate on his claim
and address these shortcomings during the proceedings below, he made no effort
to provide specific evidence about the allegedly incorrect advice he received
regarding the consequences of not making a deposit for his post-1956 military
service. Although the appellant does provide additional information in his
petition for review in support of his claim, he does not explain his failure to
submit this evidence—which does not appear to be new or not previously
available—below. Given these circumstances, we discern no reason to disturb the
initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
8
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,
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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.