The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MERRITT C. BROWN, DOCKET NUMBER
Appellant, AT-0841-14-0541-I-1
v.
OFFICE OF PERSONNEL DATE: August 4, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Merritt C. Brown, Punta Gorda, Florida, pro se.
Cynthia Reinhold, Washington, D.C., 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
affirmed the final decision of the Office of Personnel Management (OPM)
denying his request for corrective action under the Federal Erroneous Retirement
Coverage Corrections Act (FERCCA). Generally, we grant petitions such as this
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 was formerly employed by the Library of Congress in a Civil
Service Retirement System (CSRS) covered position from March 13, 1969, until
he resigned effective June 4, 1969. Initial Appeal File (IAF), Tab 3 at 14, Tab 7
at 64. Subsequently, from September 8, 1986, to August 11, 2000, the appellant
was a Foreign Service Officer with the U.S. Department of State. IAF, Tab 3
at 15, Tab 7 at 26, 60-62. Upon his appointment to the Foreign Service, the
appellant became covered by the Foreign Service Retirement and Disability
System (FSRDS). IAF, Tab 3 at 15. Effective January 1, 1987, he was converted
to the Foreign Service Pension System (FSPS) because he had less than 5 years of
Federal civilian service. 2 Id. at 16. On August 2, 2004, the appellant became
2
This action was taken pursuant to the Federal Employees’ Retirement System (FERS)
Act of 1986, which established FERS and FSPS. Pub. L. No. 99-335, § 415, 100 Stat.
616 (1986). FSPS is equivalent to FERS. Id. at § 411.
3
employed by the Occupational Safety and Health Review Administration
(OSHRA) and was placed in FERS. Id. at 19. The appellant remained in FERS
until he retired, effective December 31, 2011. 3 IAF, Tab 7 at 55.
¶3 On August 2, 2012, the appellant notified OPM that he believed that he had
been erroneously placed in FERS upon his reemployment with OSHRA in
August 2004, and requested relief under FERCCA. IAF, Tab 3 at 21-24. In both
its initial and final decisions, OPM informed the appellant that he was properly
placed in FERS because he did not have 5 years of creditable civilian service
under CSRS. IAF, Tab 7 at 9-11, 18-19. Specifically, OPM advised that,
although the appellant’s Library of Congress service from March 13, 1969, to
June 4, 1969 (2 months and 22 days) constituted creditable service under CSRS,
his FSPS service did not because it was not service under subchapter I of
chapter 8 of Title I of the Foreign Service Act of 1980. Id. at 10.
¶4 The appellant filed a timely Board appeal of OPM’s final decision in which
he contended that he should have been excluded from FERS under 5 C.F.R.
§ 842.104(c), he should have been provided an opportunity to elect to remain in
FSPS and his annuity should have been calculated under FSPS rules. IAF, Tab 1
at 5-6, Tab 3 at 11-12. The appellant also argued that he should have been
covered under FSPS because, under 3 Foreign Affairs Manual (FAM) § 6125.3, “a
FSPS election becomes irrevocable on the date it becomes effective,” which
happened here, given that he completed 14 years of creditable civil service under
FSPS. IAF, Tab 3 at 11-12.
¶5 After holding a hearing, the administrative judge issued an initial decision
affirming OPM’s final decision. IAF, Tab 16, Initial Decision (ID). The
administrative judge found that the appellant was not excluded from FERS
3
The appellant was employed by OSHRA from August 2, 2004, to January 13, 2007.
IAF, Tab 3 at 19, Tab 7 at 24. From January 14, 2007, to December 31, 2011, the
appellant was employed by the Public Defender Service of the District of Columbia.
IAF, Tab 3 at 20, Tab 7 at 55.
4
coverage pursuant to 5 C.F.R. § 842.104(c) because he did not have at least
5 years of civilian service creditable under CSRS, including the FSRDS; rather,
he had almost 14 years of service under FSPS, a different system. ID at 4. The
administrative judge also rejected the appellant’s argument that all of his service
should be creditable under FSPS because, although an individual can receive
credit under FSPS for a period of prior FERS service if he waives credit under
FERS and makes a necessary deposit to FSPS, the law does not provide for credit
for a period of FERS service after leaving the Department of State. ID at 4-5.
Lastly, the administrative judge rejected the appellant’s arguments that OSHRA
failed to provide him with notice of a right to make an election under 3 FAM
§ 6126.3, and that he had irrevocably elected FSPS coverage under 3 FAM
§ 6125.3, finding that such sections did not apply to the appellant. 4 ID at 5-6.
Having determined that the appellant was properly placed in FERS, the
administrative judge found that the appellant was not entitled to corrective action
under FERCCA. ID at 6-7.
¶6 The appellant has filed a petition for review in which he reiterates his
arguments below. Petition for Review (PFR) File, Tab 1 at 9-13. The agency has
filed a response in opposition to the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 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
4
The FAM provisions cited by the appellant address employee elections of retirement
benefits. See 3 FAM 6100 Foreign Service Retirement and Disability System and
Foreign Service Pension System, 3 FAM §§ 6125, 6126, U.S. Department of State,
available at http://www.state.gov/m/a/dir/regs/fam/03fam/3_6100/index.htm. We agree
with the administrative judge that the provisions do not apply to the appellant who did
not have a right to an election because he was automatically converted to FSPS.
5
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.
¶8 The applicable law supports the administrative judge’s finding that the
appellant was properly placed under FERS in August 2004, because he did not
have 5 years of creditable civilian service. After December 31, 1986, employees
who are rehired are automatically covered by FERS unless they have 5 years of
creditable civilian service. See 5 U.S.C. § 8402(b)(2)(A); 5 C.F.R. § 842.104(c);
CSRS and FERS Handbook for Personnel and Payroll Offices, Section
10A1.3-4(B), Office of Personnel Management (Apr. 1998), available at http:
//www.opm.gov/retirement-services/publication-forms/csrsfers-handbook/. Upon
his rehire in August 2004, the appellant had 2 months and 22 days of prior CSRS
service and 13 years and 10 months of prior FSPS service. Thus, he would have
met the 5-year test only if his prior FSPS service constitutes creditable civilian
service. As set forth below, we agree with the administrative judge that it does
not.
¶9 Section 8402(b)(2)(A) of chapter 5 excludes from FERS employees who
have been separated from service after “having been subject to subchapter I of
chapter 8 of title I of the Foreign Service Act of 1980” and “having completed at
least 5 years of civilian service creditable under subchapter I of chapter 8 of
title I of the Foreign Service Act of 1980.” 5 U.S.C. § 8402(b)(2)(A).
Subchapter I of chapter 8 of Title I of the Foreign Service Act of 1980 contains
provisions detailing the FSRDS. See Federal Employees’ Retirement System Act
of 1986, Pub. L. No. 99-335, §§ 402, 415, 100 Stat. 609, 614-15 (1986)
(amending chapter 8 of Title I of the Foreign Service Act of 1980 to designate
6
subchapter I- Foreign Service Retirement and Disability System and
subchapter II- Foreign Service Pension System). An individual in FSPS is not a
participant in the FSRDS. Id. at § 414. Thus, although the appellant had more
than 13 years of FSPS service, such service is not creditable under CSRS.
¶10 OPM’s implementing regulations similarly require 5 years of civilian
service creditable under CSRS rules for an individual to be excluded from
automatic FERS coverage. 5 C.F.R. § 842.104(c). Creditable service includes
service performed under another retirement system if the employee can waive
benefits under the other system and make a deposit to CSRS to obtain credit. See
CSRS and FERS Handbook for Personnel and Payroll Offices, Sections
10A1.1-2(A), 12A5.1-6(B). There is no provision providing for FSPS credit
under CSRS. See 5 U.S.C. § 8332. Rather, FSPS service is creditable under
FERS. 5 See 5 U.S.C. § 8411(b)(4) (defining creditable service under FERS to
include a period of service that was creditable under FSPS if the employee waives
credit for such service under FSPS and makes a payment to FERS).
¶11 Thus, we agree with the administrative judge that the appellant was
properly placed in FERS because he did not have at least 5 years of creditable
service under CSRS rules. Accordingly, we discern no reason to disturb the
initial decision that affirmed OPM’s final decision, finding that the appellant was
not subject to a retirement coverage error and, therefore, was not entitled to
corrective action under FERCCA.
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:
5
Indeed, the appellant decided to transfer his FSPS contributions to FERS. See IAF,
Tab 7 at 82-84.
7
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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
8
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.