The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MIGUEL J. CORTEZ, JR., DOCKET NUMBER
Appellant, AT-844E-15-0476-I-1
v.
OFFICE OF PERSONNEL DATE: March 1, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Miguel J. Cortez, Jr., Berkeley Lake, Georgia, 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 reconsideration decision issued by the Office of Personnel
Management (OPM) denying his request to have his early retirement annuity
recalculated at age 62. Generally, we grant petitions such as this one only when:
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 administrative
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, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Except as expressly MODIFIED by
this Final Order to address the appellant’s argument that an OPM employee
misled him in a January 26, 2013 letter, we AFFIRM the initial decision.
¶2 Effective December 4, 1999, OPM granted the appellant disability
retirement from his position with the agency, with 20 years and 4 months of
service. 2 Initial Appeal File (IAF), Tab 5 at 10, 61. OPM terminated his
disability annuity benefits effective June 30, 2006, finding him restored to
earning capacity when his calendar year earnings for 2005 exceeded 80% of his
basic pay for the position he held before retirement. Id. at 10, 44. In
March 2007, the appellant submitted an application for immediate retirement.
IAF, Tab 5 at 32-34. At that time, the appellant was eligible for early retirement
pursuant to 5 U.S.C. § 8414(b) because he had reached the minimum retirement
age of 50 years and had at least 20 years of creditable service. 3 Id. at 10-12,
2
The appellant’s birthdate is August 5, 1951.
3
Pursuant to 5 C.F.R. § 844.403, when an individual’s disability annuity is terminated
because his earning capacity has been restored and he is not employed by the
Government, the individual is entitled to an annuity under 5 U.S.C. § 8414(b) if he is at
least 50 years old when the disability annuity ceased and had 20 or more years of
service at the time of retiring for disability. The appellant was 55 years old when he
applied for immediate retirement. IAF, Tab 13.
3
40-43. OPM approved the appellant’s early retirement application under the
discontinued service provision of the Federal Employees’ Retirement System
(FERS) and his annuity commenced on July 1, 2006. Id. at 10.
¶3 In September 2013, the appellant wrote to OPM requesting that, since he
had turned 62 years of age, OPM recalculate his annuity to credit the period that
he received FERS disability benefits, which was December 4, 1999 through
June 30, 2006. Id. at 47-48. OPM denied his application and his subsequent
request for reconsideration stating that only disability retirement annuities are
recalculated at age 62, and he was receiving retirement annuity benefits under
5 U.S.C. § 8414(b), which did not provide for the recalculation of his annuity. Id.
at 11, 17.
¶4 The appellant filed an appeal with the Board challenging OPM’s March 16,
2015 reconsideration decision denying his request to have his early retirement
annuity recalculated at age 62. IAF, Tab 1. The appellant argued that, pursuant
to 5 U.S.C. § 8455(b)(2), his disability retirement should have been restored on
January 1, 2013, because in 2012 he earned less than 80% of the current rate of
pay for the position that he occupied before retiring on disability. IAF, Tab 13
at 1. The appellant also stated that he has not recovered from his original
disability or been reemployed in Federal service. Id. The appellant argued that
because his disability retirement annuity should have been restored, OPM was
required by 5 U.S.C. § 8542(b)(1) to recalculate his annuity to credit the period
that he received a disability annuity from December 4, 1999 through June 30,
2006. Id. at 1-2. In the alternative, the appellant argued that when he entered
into retirement status OPM should have calculated his total creditable service to
include the 78 months that he was in disability status because the definition of
“creditable service” in 5 U.S.C. § 8411 does not exclude “disability service
periods.” Id. at 2.
¶5 Based on the written record, the administrative judge affirmed OPM’s
reconsideration decision finding that the appellant failed to meet his burden of
4
proving by preponderant evidence that he was entitled to have his early retirement
annuity redetermined at age 62 to credit the period that he received FERS
disability annuity benefits. 4 Initial Decision (ID) at 5. The administrative judge
found that, pursuant to 5 U.S.C. § 8411(b), any period after his separation from
service on December 3, 1999, which was his last day on paid status, could not be
added to his creditable service for his early retirement. ID at 4-5. In reaching his
decision, the administrative judge found that 5 U.S.C. § 8452(b) provides for a
disability annuitant’s annuity to be redetermined once the annuitant turned
62 years old but that did not apply here because the appellant was receiving an
early retirement annuity when he turned 62. ID at 3. The administrative judge
also found that under 5 U.S.C. § 8455(b)(4) the appellant’s receipt of an early
retirement annuity, pursuant to 5 U.S.C. § 8414(b) in chapter 84, subchapter II,
rendered him ineligible for reinstatement of his disability annuity under 5 U.S.C.
§ 8455(b)(2). ID at 4.
¶6 The appellant filed a petition for review reasserting the arguments he raised
on appeal. Petition for Review (PFR) File, Tab 1; IAF, Tabs 7, 13. The agency
responded in opposition to his petition, and the appellant replied. PFR File,
Tabs 4-5.
¶7 The appellant’s arguments on review constitute mere disagreement with the
administrative judge’s explained findings on appeal and do not warrant a full
review by the Board. We affirm the initial decision as modified to address the
appellant’s argument that an OPM employee misled him in a January 26, 2013
letter by stating:
By law, the recalculation of your disability benefits will occur when
you reach age 62. At that time all disability service accumulated
from the date of your retirement through your 62nd birthday will be
recomputed and added to the 20 years and 4 months of original
service you had at the onset of your disability retirement.
PFR File, Tab 1 at 5; IAF, Tab 7 at 2, 6.
4
The appellant waived his right to a hearing. IAF, Tab 3 at 1.
5
¶8 The appellant argues on review that OPM is required to recalculate his
retirement annuity to credit the period that he received a disability annuity
because he detrimentally relied on the information provided by OPM in the
January 26, 2013 letter, 6 ½ years after OPM approved his application for early
retirement. 5 PFR File, Tab 1 at 5-7. The Government, however, cannot be
estopped from denying benefits not otherwise permitted by law, even if the
claimant was denied monetary benefits because of his reliance on the mistaken
advice of a Government official, Office of Personnel Management v. Richmond,
496 U.S. 414, 416, 432 (1990), and we agree with the administrative judge’s
finding that no authority permits OPM to redetermine the appellant’s annuity to
credit the period that he received a disability annuity or to reinstate his disability
annuity, ID at 5. We therefore deny the petition for review.
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 review of this final decision by the U.S. 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,
5
Although the appellant raised this argument on appeal, the administrative judge did
not specifically address it in the initial decision. PFR File, Tab 1 at 4-5; IAF, Tab 7
at 2, 6. We nonetheless find that the appellant has not shown how the administrative
judge’s error prejudiced his substantive rights. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision).
6
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 U.S. 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 U.S. 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 U.S. 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 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.