disability retirement applicant who was on active duty qualified by separating from the service “as the statute requires”
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- disability retirement applicant who was on active duty qualified by separating from the service “as the statute requires”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN C. COLLINS, II, DOCKET NUMBER
Appellant, SF-0841-14-0346-I-1
v.
OFFICE OF PERSONNEL DATE: August 14, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven C. Collins, II, Spring Valley, California, pro se.
Cynthia Reinhold, 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) reconsideration decision
finding that the December 12, 2012 effective date of his retirement annuity was
correct under the Federal Employees’ Retirement System (FERS). Generally, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
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).
¶2 The record reflects that the appellant submitted a completed disability
retirement application to OPM on February 9, 2012. Initial Appeal File (IAF),
Tab 4 at 11. The appellant had been off work from his position with the Social
Security Administration (SSA) since June 8, 2011, due to complications from
certain medical conditions. Hearing Compact Diskette (HCD); IAF, Tab 4 at 19.
Due to the delay in OPM’s processing of the appellant’s disability retirement
application, the SSA Human Resource Specialist made multiple attempts to
contact OPM to no avail. HCD (Sanchez testimony). Because the appellant had
been in leave without pay (LWOP) status for a year without any decision by OPM
on his disability retirement application, he was in danger of losing his medical
coverage. As a result, SSA and the appellant’s physician allowed the appellant,
either as an accommodation or through the Family and Medical Leave Act of
1993, to return to duty on June 18, 2012, in a modified work schedule so that he
could provide for his family, maintain his health insurance, and begin to repay the
health insurance premium debt he had accrued during the year of LWOP. HCD
3
(testimony of Garrett, Sanchez, and Collins). The appellant continued to work as
he could in a modified work schedule, until his application for disability
retirement was approved. See id. OPM was notified by email that the appellant
was on LWOP from June 11, 2011—June 11, 2012, and because he “needed to be
at work to continue his health benefits and provide for his family,” his last day in
a pay status was December 5, 2012. HCD (Sanchez testimony). The appellant’s
official Individual Retirement Record certified that his last day in pay status was
December 11, 2012. IAF, Tab 4 at 11.
¶3 On appeal, the appellant argued that he should receive disability retirement
annuities for the period of time he was unable to work a full eight hour day while
he waited for OPM to make a decision on his disability retirement application.
IAF, Tab 1. Specifically, the appellant asserted that the effective date of his
disability retirement should have taken into consideration the period of time he
was on LWOP from June 11, 2011, to June 11, 2012, and the modified work
schedule of no more than 5 hours a day that he worked from June 12, 2012, until
his last day in a pay status on December 5, 2012, in order to retain his medical
insurance. IAF, Tab 1.
¶4 Affirming OPM’s reconsideration decision, the administrative judge found
that the date a FERS annuity commences is not driven by the date an application
for disability retirement is filed, or the first day that an employee began to miss
days from work because of a disabling condition. Initial Decision (ID) at 6.
Rather, the administrative judge found that under 5 U.S.C. § 8464(a)(1)(C) a
disability retirement annuity “commences the day after separation from the
service or the day after pay ceases and the requirements for title to an annuity are
met.” ID at 6. The administrative judge found further that, because the
appellant’s date of separation and last day in a pay status was December 11, 2012,
OPM correctly determined that December 12, 2012, is the statutory date for the
commencement of the appellant’s annuity. ID at 6. The administrative judge
4
noted that the Board is provided no basis upon which to grant equitable relief
concerning the commencement date for the appellant’s annuity. ID at 7.
¶5 On review, the appellant challenges the initial decision and he argues that
he should not be held responsible for OPM’s delay in granting his disability
retirement application. Petition for Review (PFR), Tab 1. Specifically, the
appellant argues that he became disabled on June 11, 2011, rather than on
December 11, 2012. To support his claim that he became disabled in June 2011,
the appellant has submitted a letter from his doctor who was unable to testify at
the hearing. Id.
¶6 We have considered the appellant’s arguments on review concerning the
administrative judge’s weighing of the evidence, however, the applicable law and
the record evidence support the administrative judge’s findings that OPM
correctly determined December 12, 2012, as the commencement date for the
appellant’s disability retirement under 5 U.S.C. § 8464(a)(1)(C). Thus, we
discern no reason to reweigh the evidence or substitute our assessment of the
record evidence for that of the administrative judge. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-106 (1997) (finding no reason to disturb findings
when the administrative judge considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶7 Under 5 C.F.R. § 1201.56(a)(2), an employee bears the burden of
persuasion by a preponderance of the evidence in an appeal from OPM’s decision
on a voluntary disability retirement application. Chavez v. Office of Personnel
Management, 6 M.S.P.R. 404, 417 (1981). When a retirement applicant is
employed, OPM may allow the annuity only after the employee’s separation. See
Riggs v. Office of Personnel Management, 709 F.2d 1486, 1487 (Fed. Cir. 1983)
(disability retirement applicant who was on active duty qualified by separating
from the service “as the statute requires”); Young v. Office of Personnel
Management, 99 M.S.P.R. 563, ¶9 (2005). Specifically, 5 U.S.C.
5
§ 8464(a)(1)(C) and 5 C.F.R. § 844.301, explicitly provide that a disability
retirement annuity commences on the day after the employee is separated from
service or the day after his pay ceases and he meets the requirement for an
annuity. See Widmer v. Office of Personnel Management, 103 M.S.P.R. 363, ¶ 10
(2006); Young, 99 M.S.P.R. ¶ 10. In this case, the documentation submitted by
OPM shows that the appellant’s last day in a pay status was December 11, 2012.
Thus, as the administrative judge correctly found, the statute dictates that
December 12, 2012, is the correct date for the commencement of the appellant’s
disability retirement annuity.
¶8 To the extent that the appellant has submitted a written statement from his
physician for a first time on review, the Board need not consider it because the
appellant has made no showing that it was unavailable prior to the close of the
record below. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
Moreover, even if we were to consider his physician’s statement, it does not
change the fact that the appellant’s last day in a pay status was December 11,
2012. The Board is afforded no basis to grant equitable relief concerning the
statutory commencement date for an annuity. See Devlin v. Office of Personnel
Management, 120 M.S.P.R. 78, ¶ 9 (2013). Accordingly, while the appellant does
not agree with the administrative judge’s findings and determinations, he has
provided no basis upon which 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:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
6
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
SystemsProtection 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.