The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOYCE L. HATCH, DOCKET NUMBER
Appellant, DA-0841-14-0315-I-1
v.
OFFICE OF PERSONNEL DATE: February 5, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Joyce L. Hatch, Houston, Texas, 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) reconsideration decision
concerning the calculation of her Federal Employees’ Retirement System (FERS)
annuity. Generally, we grant petitions such as this one only when: the initial
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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 appellant worked for the U.S. Postal Service. See, e.g., Initial Appeal
File (IAF), Tab 5 at 26, 29. In November 2001, she filed an application for
disability retirement. Id. at 26-30. OPM approved her application. Id. at 40-42.
The appellant’s disability retirement benefit was approximately $802 per month.
See id. at 25. However, OPM informed the appellant that her benefits would be
recalculated when she reached age 62, reducing her monthly check to that of a
basic annuity in the amount of approximately $315 per month. 2 Id. at 24-25;
see 5 C.F.R. §§ 842.403 (computation of a basic annuity); 844.302 (computation
of a disability annuity before age 62); 844.305 (adjustment of the disability
annuity upon reaching age 62).
¶3 In July 2012, after the appellant reached age 62 and her monthly benefit
decreased, she asked OPM to recalculate her annuity. See IAF, Tab 5 at 23. She
2
OPM also informed the appellant that she could increase her annuity from
approximately $315 to $366 per month if she timely submitted a deposit for a period of
time for which her retirement contributions had been previously refunded. IAF, Tab 5
at 24-25. However, the record contains no evidence that she ever submitted that
deposit, and the appellant has not raised the issue on review.
3
reportedly believed that her monthly benefit would increase not decrease, at age
62. See id. OPM responded in August 2012, indicating that her annuity had been
properly calculated and again explaining why her benefit decreased upon reaching
age 62. Id. at 21-22. OPM issued a reconsideration decision in March 2014,
affirming that determination. Id. at 6-7.
¶4 The appellant thereafter filed a Board appeal. 3 IAF, Tab 1. The
administrative judge affirmed OPM’s reconsideration decision. IAF, Tab 15,
Initial Decision (ID). The appellant has filed a petition for review. Petition for
Review (PFR) File, Tabs 1, 3. OPM has filed a response, and the appellant has
replied. PFR File, Tabs 5-6.
¶5 On review, the appellant reasserts that OPM made a mistake in calculating
her annuity. 4 See PFR File, Tab 1 at 3-4. She again suggests that OPM erred in
failing to include her service with the U.S. Postal Service from 1994-1996 in its
annuity calculation. See PFR File, Tab 3 at 1, 6-14, Tab 6 at 2. We find that the
administrative judge properly concluded that the appellant failed to meet her
burden of proof.
¶6 An individual seeking retirement benefits bears the burden of proving
entitlement to those benefits by preponderant evidence. 5 See Cheeseman v. Office
of Personnel Management, 791 F.2d 138, 140–41 (Fed. Cir. 1986) (finding that
3
The appellant did not request a hearing. IAF, Tab 1 at 3.
4
Below, the appellant also alleged that OPM’s recalculation was against equity and
good conscience, OPM engaged in harmful error, and OPM’s decision was the result of
retaliation for her having previously filed a discrim ination complaint with the Board.
IAF, Tab 1 at 5; see Hatch v. Office of Personnel Management, MSPB Docket No.
DA-0841-13-0064-I-1, Remand Order at 3-5 (Dec. 11, 2013) (ordering OPM to issue a
reconsideration decision regarding the appellant’s request for recalcu lation of her
annuity). The administrative judge found no merit to these claims. See ID at 4-7.
Because the appellant has not challenged the administrative judge’s well-reasoned
findin gs on these points, we will not revisit them.
5
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, wou ld accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
4
the Board acted appropriately in placing the burden of proving an entitlement to
an annuity on the applicant); 5 C.F.R. § 1201.56(a). Here, the appellant sought
relevant records from the Social Security Administration (SSA) in concert with
her Board appeal, apparently to prove her work record from 1994-1996 and
entitlement to credit for that service. See IAF, Tab 1 at 14-15. Although she
received some records in response, IAF, Tab 14 at 1-4, the appellant suggested
both below and on review that SSA has yet to provide her with the records she
sought, id. at 5; PFR File, Tab 1 at 3-4, Tab 6 at 2. After the administrative judge
denied her appeal, the appellant sought, and received, her work history
information from another source. Compare ID at 1 (initial decision, dated
July 16, 2014), with PFR File, Tab 3 at 5 (the appellant’s July 17, 2014 request
for personnel records covering 1994-1996 from the National Personnel Records
Center), and id. at 3, 6-14 (the August 1, 2014 response from the National
Personnel Records Center, with the requested personnel records).
¶7 The appellant argues that her personnel records, submitted for the first time
on review, constitute new and material evidence not previously available. PFR
File, Tab 1 at 3-4; see generally Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
214 (1980) (under 5 C.F.R. § 1201.115, the Board generally will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was unavailable before the record was closed despite the party’s due
diligence). Even if the Board credits the appellant’s assertion that her
newly- submitted evidence was previously unavailable, despite due diligence, and
should be considered, she has still failed to meet her burden of proving that OPM
improperly calculated her annuity. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (the Board will not grant a petition
for review based on new evidence absent a showing that it is of sufficient weight
to warrant an outcome different from that of the initial decision).
¶8 The evidence at issue does support the appellant’s assertion that she
performed work for the U.S. Postal Service between 1994 and 1996. PFR File,
5
Tab 3 at 6-14. However, her work consisted of an intermittent series of
temporary appointments, 6 with the corresponding personnel records listing her
retirement plan listed as “FICA.” Id. at 6-11, 13; see 5 C.F.R. §§ 842.103(c)
(among other things, to be covered under FERS, an individual must have
retirement deductions withheld from pay and have agency contributions made),
842.105(a) (exempting many employees serving under short-term or temporary
appointments from FERS coverage). FICA refers to the Federal Insurance
Contributions Act, which is the statutory authority for the collection of Social
Security and Medicare taxes, not any federal retirement plan. See 26 U.S.C.
§§ 3101-3128. It was not until August 17, 1996, when the appellant received a
career appointment as a part-time mail handler, that her personnel records reflect
enrollment in the FERS retirement plan. IAF, Tab 5 at 12, 14. Her “retirement
comp date” for that career appointment was listed as August 17, 1996. Id. at 14.
¶9 As the administrative judge noted, OPM’s recalculation of the appellant’s
annuity upon reaching age 62 credited her with the service she performed
between August 17, 1996, and November 30, 1999, as well as the time she spent
on disability retirement, from December 1, 1999, through July 18, 2012, for a
total of approximately 15 years, 11 months. See ID at 5-6; IAF, Tab 5 at 6-7, 15.
Using that amount of time and the appellant’s salary history, OPM calculated her
monthly FERS disability annuity rate as $317 per month, beginning at age 62.
IAF, Tab 5 at 7, 15-16; see 5 C.F.R. §§ 842.403, 844.305. Although we are
sympathetic that this amount may pose financial difficulties for the appellant, we
find that she has failed to prove that she was entitled to a higher amount. The
appellant’s newly-submitted evidence demonstrates that she did complete some
6
On December 7, 1994, the appellant received a temporary appointment that was
eventually terminated on June 23, 1995. PFR File, Tab 3 at 6-9. She received another
temporary appointment on December 11, 1995, which was terminated on December 31,
1995. I d. at 10-11. On June 8, 1996, she received a final temporary appointment,
scheduled not to exceed September 5, 1996. Id. at 13. The evidence does not specify
when this final temporary appointment was terminated.
6
work during 2 additional calendar years, but that evidence does not prove that she
is entitled to credit for that work in calculating her annuity.
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
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
7
Merit Systems Protection Board appellants before the court. The Merit Systems
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.