The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERNA LEWIS, DOCKET NUMBER
Appellant, NY-0839-14-0278-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 20, 2015
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Kavin L. Edwards, New York, New York, for the appellant.
Donald Spector, Esquire, New York, New York, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal under the Federal Erroneous Retirement Coverage
Corrections Act (FERCCA) for lack of jurisdiction. For the reasons discussed
below, we GRANT the appellant’s petition for review and REMAND the case to
the field office for further adjudication in accordance with this Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant was formerly employed by the U.S. Postal Service (the
agency) in a Civil Service Retirement System (CSRS) covered position until she
resigned on August 12, 1980. Initial Appeal File (IAF), Tab 20, Subtab 3 at 9,
13. Subsequently, she applied for reinstatement with the agency on December 1,
1981, was rehired effective February 4, 1984, and was converted to the Federal
Employees’ Retirement System (FERS) on January 1, 1987. IAF, Tab 1 at 7,
Tab 14, Subtabs 5-6. The appellant retired from service on February 14, 2014.
IAF, Tab 1 at 3. Since approximately 2003, the appellant has exchanged
correspondence with both the agency and the Office of Personnel Management
(OPM) in which she claimed that she had been improperly placed in FERS instead
of CSRS after her reinstatement and requested an investigation of the
circumstances surrounding the delay in her reinstatement. IAF, Tab 1 at 7-8,
Tab 11 at 2-3, Tab 20, Subtab 1 at 44-57, Subtabs 2-4. According to the
appellant, but for the agency’s improper actions in delaying her reinstatement, she
would have been placed in CSRS. IAF, Tab 20, Subtab 1 at 1-6.
¶3 The appellant thereafter filed an appeal of a May 8, 2014 letter from OPM
which informed her that, after her reinstatement on February 4, 1984, she was
properly placed in FERS instead of CSRS, effective January 1, 1987, because she
had less than 5 years of creditable civilian service as of December 31, 1986. IAF,
Tab 1 at 7. The appellant also asserted that, under the terms of her collective
bargaining agreement, she should have been rehired by the agency at an earlier
date. Id. at 4; IAF, Tab 7 at 3, 5. In addition, the appellant contended that in
failing to reinstate her sooner, the agency violated 5 C.F.R. § 300.103,
discriminated against her on the basis of her race, committed prohibited personnel
practices, and that its actions constituted harmful procedural error and were not in
accordance with law. IAF, Tab 1 at 4, Tab 7 at 3, 5-6.
¶4 The administrative judge issued an order to show cause directing the
appellant to file evidence and argument to prove that her FERCCA appeal was
3
within the Board’s jurisdiction. IAF, Tab 3. The appellant submitted several
responses to the administrative judge’s order. IAF, Tab 7 at 2-3, 5.
¶5 Without holding the appellant’s requested hearing, the administrative judge
dismissed the appeal for lack of jurisdiction. IAF, Tab 22, Initial Decision (ID).
Specifically, the administrative judge found that the appellant failed to establish
jurisdiction over her FERCCA appeal because she failed to show that she was
placed in the wrong retirement plan. ID at 4. According to the administrative
judge, during a June 27, 2014 status conference, the appellant indicated that she
was not seeking to raise a claim pursuant to 5 C.F.R. § 300.103. ID at 4. The
administrative judge also found that “based on further development of the facts,”
the appellant was actually raising a FERCCA, not an improper restoration, claim.
ID, at 2, n.1. The administrative judge further found that, in the absence of an
otherwise appealable action, the Board lacked jurisdiction over the appellant’s
remaining claims of discrimination, action not in accordance with law, prohibited
personnel practice, and harmful procedural error. ID at 4, n.3.
¶6 The appellant has filed a petition for review in which she asserts, inter alia,
that the administrative judge erred in dismissing her FERCCA claim for lack of
jurisdiction because OPM’s decision informing her that she was correctly placed
in FERS affected her rights under FERCCA, and therefore constitutes an
appealable decision under 5 C.F.R. § 839.1302. Petition for Review (PFR) File,
Tab 1 at 27-28. 2 The agency has filed a response in opposition to the appellant’s
petition. PFR File, Tab 3. The appellant has filed a reply. PFR File, Tab 4.
2
For the first time on review, the appellant argues that she was reduced in grade and
pay and contends that the agency violated 42 U.S.C. § 2000e-16(a). PFR File, Tab 1
at 10-18. The Board generally 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). The appellant has not attempted to show that her
new arguments are based on new or material evidence not previously availab le. PFR
File, Tab 1. Accordingly, the appellant’s new arguments will not be considered on
review.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 As stated above, the administrative judge found that the Board lacked
jurisdiction over the appeal under FERCCA. ID at 4. FERCCA addresses the
problems created when employees are in the wrong retirement plan for an
extended period. Poole v. Department of the Army, 117 M.S.P.R. 516, ¶ 13
(2012); 5 C.F.R. § 839.101(a). An employee may seek relief under FERCCA if
the employee experienced a “qualifying retirement coverage error,” defined as an
“erroneous decision by an employee or agent of the Government as to whether
Government service is CSRS covered, CSRS Offset covered, FERS covered, or
Social Security-Only covered that remained in effect for at least 3 years of
service after December 31, 1986.” Poole, 117 M.S.P.R. 516, ¶ 13; 5 C.F.R.
§ 839.102. An employee who has been the subject of a qualifying retirement
coverage error under FERCCA may be entitled to various forms of relief,
including a choice of retirement plans. Poole, 117 M.S.P.R. 516, ¶ 13.
Moreover, a decision that affects an individual’s rights or interests under
FERCCA, such as an agency’s determination that a retirement coverage error is
not subject to FERCCA, is appealable to the Board. 5 C.F.R. § 839.1302(a).
¶8 Via letter dated May 8, 2014, OPM informed the appellant that she had not
experienced a retirement coverage error and she had been properly placed in
FERS, effective January 1, 1987. IAF, Tab 1 at 7. The appellant contends that
this is inaccurate and seeks to be transferred from FERS to CSRS. Id. at 4; IAF,
Tab 20, Subtab 1 at 1. Whether the appellant experienced a retirement coverage
error is an issue that affects the appellant’s rights under FERCCA. See 5 C.F.R.
§ 839.1302(a). Consequently, we find that the Board has jurisdiction over the
appellant’s FERCCA claim and the administrative judge erred in dismissing the
appeal for lack of jurisdiction.
¶9 Under federal retirement law, an individual who was rehired after
December 31, 1983, after a break in CSRS covered service of more than 1 year,
and who had less than 5 years of federal service as of December 31, 1986, was
5
automatically placed in FERS, effective January 1, 1987. 3 5 U.S.C.
§ 8402(b)(2)(B); see CSRS and FERS Handbook for Personnel and Payroll
Offices, Section 10A1.1-2 (Apr. 1988), available at http://www.opm.gov/
retirement-services/publication-forms/csrsfers-handbook/. Based on the record
below, it appears undisputed that the appellant was rehired, effective February 4,
1984, and she had less than 5 years of federal civilian service as of December 31,
1986. IAF, Tab 1 at 7; ID at 3. We are unable to resolve the appeal, though,
because the appellant requested but did not receive a hearing. See Muyco v.
Office of Personnel Management, 114 M.S.P.R. 694, ¶ 14 (2010); see
also 5 U.S.C. § 7701(a)(1) (an appellant who files an appeal before the Board has
the right to a hearing for which a transcript will be kept).
¶10 However, both the Board and its reviewing court have held that where an
appeal presents solely questions of law, the Board has the discretion to decide a
case without a full evidentiary hearing. Carew v. Office of Personnel
Management, 878 F. 2d 366, 367-68 (Fed. Cir. 1989); Jezouit v. Office of
Personnel Management, 97 M.S.P.R. 48, ¶¶ 12-13 (2004), aff’d, 121 F. App’x
865 (Fed. Cir. 2005). Where there is no dispute of material fact and the outcome
of the appeal is a matter of law, the hearing required under 5 U.S.C. § 7701(a)(1)
may be limited to an opportunity to present oral argument on the dispositive legal
3
Former federal employees, such as the appellant, who were previously covered by
CSRS but who had a break in service greater than 365 days, and were rehired on or
after January 1, 1984, were placed in a hybrid of CSRS and FERS called CSRS Interim.
Congress established the CSRS Interim retirement program in 1983, to cover the
transition period between the CSRS and a new retirement program to be created in the
future. Federal Employees’ Retirement Contribution Temporary Adjustment Act of
1983, Pub. L. No. 98-168, Title II, 97 Stat. 1106 (Nov. 29, 1983). On June 6, 1986,
Congress passed legislation establishing FERS, a new retirement plan for federal
employees. 5 U.S.C. § 8401 et seq. The CSRS Interim retirement program was
eventually phased out and CSRS Interim employees who did not have at least 5 years
federal civilian service as of December 31, 1986, were automatically transferred to
FERS coverage on January 1, 1987. 5 U.S.C. § 8402(b); 5 C.F.R. § 842.104(d).
6
issue. Muyco, 114 M.S.P.R. 694, ¶ 14. Accordingly, on remand, unless the
appellant identifies a genuine dispute of material fact regarding her FERCCA
claim, the hearing regarding this claim may be limited to oral argument on the
issue of whether she had a qualifying retirement coverage error under FERCCA.
See id.
¶11 The appellant also generally reasserts her arguments below that the agency
violated its collective bargaining agreement, discriminated against her, and
engaged in harmful procedural error when it failed to follow appropriate rules and
regulations regarding her delayed reinstatement, and she contends that the
administrative judge erred in failing to inform her of her jurisdictional burden
concerning such claims. PFR File, Tab 1 at 7-8, 23-24. As the administrative
judge correctly noted, however, the appellant clarified during the June 27, 2014
status conference that she was actually making these contentions in support of her
FERCCA claim, for which she has received jurisdictional notice, and that she is
not now seeking restoration to the position she occupied prior to her retirement.
We leave it to the administrative judge to consider such contentions in the first
instance in the context of her FERCCA claim.
ORDER
For the reasons discussed above, we REMAND this case to the field office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.