Angel David Morales v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANGEL DAVID MORALES, DOCKET NUMBER

Appellant, NY-0353-14-0030-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: March 31, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Angel David Morales, Guaynabo, Puerto Rico, pro se.

Leslie L. Rowe, Esquire, New York, New York, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

found that the Board lacks jurisdiction over his claims that the agency failed to

properly credit him for annual and sick leave, Social Security benefits, Thrift

Savings Plan (TSP) contributions, Medicare, retirement, and life insurance after

he returned to work following full recovery from a compensable injury after more

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

than 16 years. Generally, we 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. We AFFIRM the initial

decision as MODIFIED by this order to add further analysis supporting the

administrative judge’s conclusion that the appellant did not make a nonfrivolous

allegation that the agency violated his restoration rights. We have considered the

appellant’s alternative assertion that the Board has jurisdiction over the agency’s

decision not to award him retirement credit as an administrative action or order

affecting his rights or interests under federal retirement law, but we conclude that

the Board lacks jurisdiction over this claim in the absence of a final decision from

the Office of Personnel Management (OPM).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The following facts are undisputed: (1) the appellant was injured while on

duty as a Distribution Window Clerk on or around February 27, 1997; (2) at the

time he was injured, he was a Grade 05, Step K level and had a salary of

$35,409.00; (3) he received Office of Workers’ Compensation Programs (OWCP)

payments until approximately September 16, 2013, when he was restored to a

Distribution Window Clerk position at the Grade 6, Step O level with a salary of

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$54,777.00; (4) on September 21, 2013, he was awarded the Sales and Services

Distribution Associate position that he had bid on, with the same annual base

salary, grade, and step. See Initial Appeal File (IAF), Tab 19, Exhibits A-C. The

appellant apparently filed two separate Board appeals in October 2013, but only

one docket number was generated. See IAF, Tab 1. In the first appeal, the

appellant alleged that the agency did not properly credit him for annual and sick

leave, Social Security, TSP contributions, Medicare, retirement, and life

insurance, for the duration of his time that he had received OWCP benefits, he

checked the box indicating that the agency action that he was appealing was

“[f]ailure to restore/reemploy/reinstate or improper restoration/reemployment/

reinstatement,” and he relied on 5 U.S.C. § 8151(a) and 5 C.F.R. §§ 353.107,

353.304(a) to support his assertions. See IAF, Tab 1 at 1-8. The second appeal

contained the same factual narrative as the first appeal, but the appellant appeared

to be appealing an OPM or agency retirement decision or action. See id. at 9-17.

¶3 The administrative judge issued an initial decision that dismissed the appeal

for lack of jurisdiction. IAF, Tab 28, Initial Decision (ID). In pertinent part, she

found that the appellant’s two appeals were “duplicative,” and she primarily

analyzed the appellant’s assertions as a potential restoration appeal. See ID at 2

n.2. The administrative judge discussed relevant precedent from the Board and

the U.S. Court of Appeals for the Federal Circuit, and she concluded that the

appellant did not make a nonfrivolous allegation of Board jurisdiction over his

restoration appeal. See ID at 6-10. She briefly added that the appellant failed to

make a nonfrivolous allegation that his retirement had been affected. ID at 9. In

light of her jurisdictional ruling, the administrative judge stated that she need not

consider the appellant’s allegation that the agency failed to notify him of his

Board appeal rights pertaining to an alleged improper restoration, and, in any

event, the appellant had failed to explain how his substantive rights were

prejudiced. See ID at 10 n.5.

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¶4 The appellant has filed a petition for review, the agency has filed a

response, and the appellant has filed a reply. Petition for Review (PFR) File,

Tabs 1, 3-4. On review, the appellant argues generally that the Board has

jurisdiction under two theories: (1) under its authority to review whether the

agency satisfied its restoration obligations pursuant to 5 U.S.C. § 8151(a) and

OPM’s implementing regulations; and (2) under its authority to review

determinations affecting an individual’s rights or interests under federal

retirement law. PFR File, Tab 1. He largely reiterates his arguments made

below, and he also includes excerpts from the agency’s Employee and Labor

Relations Manual (ELM), the OPM Civil Service Retirement System (CSRS) and

Federal Employees’ Retirement System (FERS) Handbook, and statements from

the Social Security Administration and Federal Retirement Thrift Investment

Board. See id., Exhibits 1-4.

¶5 The Board’s jurisdiction is not plenary; it is limited to those matters over

which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant bears

the burden to show that the Board has jurisdiction over the appeal. 5 C.F.R.

§ 1201.56(a)(2)(i). For the following reasons, we agree that the appellant did not

make a nonfrivolous allegation of improper restoration pursuant to 5 U.S.C.

§ 8151(a). We further find that the appellant has not been subjected to an

appealable administrative action or order affecting his interests under federal

retirement law at this time; however, however, we notify him that he may raise

these claims under federal retirement law to OPM for consideration.

The appellant did not make a nonfrivolous allegation that the agency violated his

restoration rights as described in 5 U.S.C. § 8151(a).

¶6 The Federal Employees’ Compensation Act (FECA) provides, among other

things, that federal employees who suffer compensable injuries enjoy certain

restoration rights. Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 9 (2012);

see 5 U.S.C. § 8151. Congress has explicitly granted OPM the authority to issue

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regulations governing agencies’ obligations in this regard, and OPM has issued

regulations requiring agencies to make certain efforts toward restoring

compensably injured individuals to duty, depending on the timing and extent of

their recovery. Latham, 117 M.S.P.R. 400, ¶ 9; see 5 U.S.C. § 8151; 5 C.F.R.

§ 353.301. 2

¶7 We have considered the appellant’s assertion that the agency, upon his

reemployment, failed to properly credit him for sick and annual leave, Social

Security benefits, Medicare, TSP contributions, retirement, and life insurance for

the 16 years that he was receiving OWCP benefits pursuant to 5 U.S.C. § 8151(a)

and 5 C.F.R. §§ 353.107, 353.304(a). Pursuant to 5 U.S.C. § 8151(a), an

individual who returns to duty following a compensable injury is entitled to

service credit for the periods of leave without pay (LWOP) or separation during

which he received OWCP compensation. In pertinent part, section 8151(a) states

that the entire time during which the employee was receiving compensation under

5 U.S.C. chapter 81 shall be credited to the employee for the purposes of

within-grade step increases, retention purposes, and other rights and benefits

based upon length of service. 3 The issue before us is whether “other rights and

2

For instance, an employee, like the appellant, who is separated because of a

compensable injury and whose full recovery takes longer than 1 year from the date

eligibility for compensation began, is entitled to priority consideration, agencywide, for

restoration to the position he left or an equivalent one provided he applies for

reappointment within 30 days of the cessation of compensation. 5 C.F.R. § 353.301(b);

see 5 U.S.C. § 8151(b)(2). An injured employee in the executive branch, including the

U.S. Postal Service, who believes that his reemployment priority rights have been

violated, may appeal to the Board under the provisions of the Board’s regulations.

Nevins v. U.S. Postal Service, 107 M.S.P.R. 595, ¶ 10 (2008); see 5 C.F.R.

§ 353.304(a). The appellant does not appear to have alleged below that the agency

violated h is reemployment priority rights.

3

The regulation at 5 C.F.R. § 353.107, which generally tracks the language of section

8151(a), see Gallo v. United States, 529 F.3d 1345, 1349 (Fed. Cir. 2008), states that,

upon reemployment, an employee absent because of a compensable injury is generally

entitled to be treated as though he had never left, and such an individual receives credit

for the entire period of the absence for purposes of rights and benefits based upon

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benefits based upon length of service” in section 8151(a) includes sick and annual

leave, Social Security benefits, Medicare, TSP contributions, retirement, and life

insurance. We conclude that the answer is no.

¶8 Regarding the appellant’s assertion that he was entitled to retirement credit,

we have considered precedent from the Board and the Federal Circuit that

analyzes 5 U.S.C. § 8151(a). Based on our review of this precedent, we find that

FERS retirement credit is not a right or benefit based upon the appellant’s length

of service. 4 As noted by the administrative judge in the initial decision, ID at 9,

our reviewing court, in True v. Office of Personnel Management, 926 F.2d 1151,

1156 (Fed. Cir. 1991), concluded that neither section 8151(a) nor section 8332(f)

permits non-actual service to be counted toward the 5-year actual reemployment

requirement of 5 U.S.C. § 8344(a). In reaching its conclusion, the court analyzed

the legislative history of section 8151(a). True, 926 F.2d at 1155-56. The court

noted that: (1) the original proposed legislation provided that the time an

individual spent receiving OWCP benefits also would be credited for the purpose

of “annuity computation under the civil service retirement provisions”; (2) the

Senate passed the legislation with an amendment that struck out “annuity

computation under the civil service retirement provisions”; and (3) the House

concurred in the Senate amendments, including the deletion of the provision

regarding civil service retirement in section 8151(a). See id. at 1155. Based on

this legislative history, the court concluded that Congress expressly considered

and rejected the possibility of allowing FECA beneficiaries to count non-actual

service toward fulfilling the retirement annuity credit requirements of section

8344(a). Id. at 1156.

seniority and length of service, including with in-grade increases, career tenure,

completion of probation, leave rate accrual, and severance pay.

4

The record reflects that the appellant is covered by FERS. See, e.g., IAF, Tab 1 at 12,

Tab 8 at 10 (the appellant’s Postal Service Form 50(PS-50)).

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¶9 The appellant asserted below that True was inapplicable because it involved

reemployed annuitants. See IAF, Tab 20 at 15-16. Although it is accurate that

Mr. True was a reemployed annuitant, the court subsequently expanded the

holding of True to cases that did not involve reemployed annuitants. In Gallo v.

Department of Transportation, 689 F.3d 1294 (Fed. Cir. 2012), the court

addressed a situation in which the employee, like the appellant, had fully

recovered after more than 1 year and sought retirement credit for the time that she

had received OWCP benefits. The court rejected Ms. Gallo’s argument that,

pursuant to 5 C.F.R. § 353.107, she was entitled to retirement credit that she

would have received had she not been injured, explaining that it “unequivocally

held in True that § 8151(a) does not encompass civil service retirement credit, a

right based on actual employment time, not including time that an employee was

receiving OWCP compensation.” 689 F.3d at 1300, 1302-03 (citing True,

926 F.2d at 1156). Because decisions from the Federal Circuit are controlling

authority for the Board, Fairall v. Veterans Administration, 33 M.S.P.R. 33, 39,

aff’d, 844 F.2d 775 (Fed. Cir. 1987), we conclude that the appellant’s claims for

retirement credit do not constitute a nonfrivolous allegation of Board jurisdiction

over restoration matters pursuant to 5 U.S.C. § 8151(a).

¶10 We also have considered the appellant’s argument that Hatch v. Office of

Personnel Management, 100 M.S.P.R. 204 (2005), is applicable to this matter.

See PFR File, Tab 1 at 24-25. We disagree. Hatch addressed the issue of

whether a partially-recovered employee who receives OWCP benefits while

working part-time should be treated as a full-time employee for the purpose of

computing retirement benefits. The Board’s decision to credit as full-time service

for retirement purposes Mr. Hatch’s part-time work schedule is not relevant to

our assessment of whether 5 U.S.C. § 8151(a) grants the Board jurisdiction to

consider the appellant’s assertion that he should receive retirement credit for the

entire time that he was out on LWOP and receiving OWCP benefits. See Palmer

v. Merit Systems Protection Board, 550 F.3d 1380, 1385 (Fed. Cir. 2008)

8

(explaining that the Board’s decision in Hatch had “no bearing” on whether the

Board has jurisdiction over Mr. Palmer’s appeal of improper restoration following

partial recovery from a compensable injury).

¶11 Regarding the appellant’s assertion on review that the agency should have

credited him with sick and annual leave, both the Federal Circuit and the Board

have concluded that sick and annual leave are not rights and benefits based on

length of service under 5 U.S.C. § 8151(a). See Palmer, 550 F.3d at 1384-85;

Burtch v. U.S. Postal Service, 47 M.S.P.R. 518, 521, aff’d, 949 F.2d 404 (Fed.

Cir. 1991) (Table).

¶12 The parties agreed below that the appellant was entitled to a leave accrual

rate based on his more than 16 years of federal employment, which would include

the time for which he received OWCP benefits. See IAF, Tab 5 at 1-2. To the

extent that the appellant argues on review that he is entitled to leave accrual in

this regard, PFR File, Tab 1 at 8-9, he has not nonfrivolously alleged a basis for

Board jurisdiction because the record reflects that he is properly accruing leave at

a rate of 8 hours per pay period, see IAF, Tab 11 at 12 (the appellant’s September

2013 PS-50); IAF, Tab 8 at 18 (ELM 512.311 stating that an employee should

earn 8 hours of annual leave with 15 years or more of creditable service); see also

Palmer, 550 F.3d at 1384-85 (“The rate at which leave accrues during each pay

period is a benefit based on length of service.”); Burtch, 47 M.S.P.R. at 521

(same).

¶13 The appellant has relied on various provisions of the ELM and excerpts

from OPM’s Guide to Processing Personnel Actions to support his assertion that

he should have been credited for leave, Social Security benefits, TSP

contributions, Medicare, and life insurance. See PFR File, Tab 1; IAF, Tab 20.

We have considered these references, but none persuade us that these benefits are

based on length of service under 5 U.S.C. § 8151(a). For example, the appellant

cited numerous ELM provisions regarding back pay awards, see PFR File, Tab 1

at 13-14; IAF, Tab 20 at 11-12; however, the appellant did not receive a back pay

9

award, and, thus, those provisions are inapplicable. Additionally, the appellant

cited ELM 512.91 for the proposition that an employee who returns to pay and

duty status following a suspension period or an involuntary separation is entitled

to have annual leave recredited, see PFR File, Tab 1 at 12; IAF, Tab 20 at 9-10;

however, the appellant was not suspended or involuntarily separated.

¶14 For these reasons, we conclude that the appellant has not nonfrivolously

alleged that the Board has jurisdiction over the appeal as a claim of improper

restoration pursuant to 5 U.S.C. § 8151(a).

The Board lacks jurisdiction over the appellant’s assertion that the agency’s

decision not to award him retirement credit is an administrative action or order

affecting his rights and interests under federal retirement law.

¶15 We have considered the appellant’s alternative theory that the agency’s

decision not to award him retirement credit for the time that he received OWCP

benefits constitutes an administrative action or order affecting an individual’s

rights or interests under federal retirement law. PFR File, Tab 1 at 5;

see 5 U.S.C. § 8461(e); 5 C.F.R. § 1201.3(a)(2). As support for his assertion, the

appellant relied on section 582.4 of the ELM and 5 U.S.C. § 8332(f), both of

which appear to allow retirement credit for time spent receiving OWCP benefits.

IAF, Tab 20 at 6-9; PFR, Tab 1 at 6-8, 36 (section 582.4 of the ELM).

Additionally, the appellant referred to OPM’s CSRS and FERS Handbook, which

states that a federal employee who is not an annuitant who returns to federal

service after a period of separation is deemed to have been in a LWOP status

during that part of the separation period in which he received workers’

compensation benefits, and the period of deemed LWOP is creditable for years of

service counted towards eligibility and computation of benefits, and in the

computation of the high-3 salary. See OPM CSRS and FERS Handbook,

§ 102A3.1-1B, available at http://www.opm.gov/retirement-services/publications-

forms/csrsfers-handbook/c102.pdf?nocache=1 (last visited Mar. 24, 2015).

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¶16 Ordinarily, an appeal of an administrative action or order affecting an

individual’s rights or interests under a federal retirement system arises from an

OPM decision. Mandarino v. Department of Homeland Security, 118 M.S.P.R.

510, ¶ 7 (2012). Here, however, there is no OPM decision regarding the

appellant’s assertion that he was entitled to retirement credit, and there is no

evidence that OPM or Congress delegated to the agency the authority to

determine his entitlement to retirement credit as a matter of retirement law. Cf.

Adams v. Department of Defense, 688 F.3d 1330, 1335-36 (Fed. Cir. 2012) (the

appeal of an adverse Voluntary Early Retirement Authority ruling by the agency

is within the Board’s jurisdiction because Congress delegated such authority to

the agency); Mandarino, 118 M.S.P.R. 510, ¶ 7 (explaining that when an

employing agency makes a decision on a request for enhanced retirement

coverage under a delegation of authority from OPM, it “stands in OPM’s place,”

and the appeal is from the employing agency’s decision). 5

¶17 In the absence of an OPM decision, the Board lacks jurisdiction over the

appellant’s request to receive retirement credit for the 16 years that he received

OWCP benefits. However, we notify the appellant that he may request OPM to

make a determination on his entitlement to retirement credit.

Other issues

¶18 The Board generally will not consider evidence submitted for the first time

with the petition for review absent a showin g that it was unavailable before the

record was closed despite the party’s due diligence. Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980). The appellant has not made such a showing.

Moreover, he has not persuaded us that his TSP documentation, which appears to

be dated after the initial decision was issued, warrants an outcome different from

5

There does not appear to be any meaningful difference between the relevant FERS

provision in Adams, 5 U.S.C. § 8461(e), and the CSRS provision in Mandarino,

5 U.S.C. § 8347(d).

11

that of the initial decision. See Russo v. Veterans Administration, 3 M.S.P.R.

345, 349 (1980).

¶19 In light of our disposition, we need not address the appellant’s assertion on

review that the agency was obligated to provide him with Board appeal rights.

See PFR File, Tab 1 at 20-21.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request the United States Court of Appeals for the Federal Circuit to review this

final decision. 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

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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

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.