The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAYONARA N. DAVIS, DOCKET NUMBER
Appellant, DE-0841-15-0517-I-1
v.
OFFICE OF PERSONNEL DATE: March 24, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sayonara N. Davis, Denver, Colorado, 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 decision of the Office of Personnel Management (OPM) that denied
her request for retirement credit for certain periods of civilian service. Generally,
we grant petitions such as this one only when: the initial decision contains
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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. 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 On February 24, 2015, the appellant, an employee of the Department of the
Air Force, filed with OPM an Application to Make Service Credit Payment under
the Federal Employees’ Retirement System (FERS) for periods of civilian service
she performed under temporary appointments with various agencies. Initial
Appeal File (IAF), Tab 6 at 6-10. In a July 10, 2015 final decision, OPM denied
her request as to the post-January 1, 1989 service on the basis that, as it was
performed under temporary appointments, no deductions were withheld from the
appellant’s salary, and the law does not permit her to pay a deposit to receive
credit for that service. Id. at 4.
¶3 On appeal, the appellant challenged OPM’s decision and claimed that she
needed the additional 2 years of service to be able to take advantage of her
employing agency’s VERA/VSIP 2 opportunity. IAF, Tab 2 at 4. She requested a
hearing. Id. at 2.
¶4 After holding the requested hearing, the administrative judge issued an
initial decision affirming OPM’s decision. IAF, Tab 12, Initial Decision at 1, 3.
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Voluntary Early Retirement Authority/Voluntary Separation Incentive Program.
3
The appellant has filed a petition for review, Petition for Review (PFR) File,
Tab 1, to which the agency has responded in opposition, PFR File, Tab 4.
¶5 An employee is entitled to credit under FERS for civilian service performed
after December 31, 1986, which is covered service and for which deductions
required under 5 U.S.C. § 8422(a) have not been refunded, and for service
performed before 1989. 5 U.S.C. § 8411(b); 5 C.F.R. § 842.304(a)(1), (2). The
record does not show, nor does the appellant suggest, that the service she
performed on or after January 31, 1989, was other than nondeduction service.
IAF, Tab 6 at 6, 8, 10, Tab 2 at 4. Such service is not creditable for any purpose
and no provision of law or regulation permits a deposit for such service. See
Mukherjee v. Office of Personnel Management, 48 M.S.P.R. 640 (1991).
Therefore, we find that the administrative judge correctly found that the appellant
cannot make a deposit to receive credit for this service.
¶6 Although the appellant urges a different result on petition for review, she
has not offered any legal argument for her claimed entitlement to service credit;
moreover, she does not contend that the statutes and regulations upon which OPM
and the administrative judge relied are inapplicable. PFR File, Tab 1 at 4. The
appellant’s claim regarding actions by her employing agency that she perceives as
unfair, id., is raised for the first time on review. In the absence of a showing that
the argument is based on new and material evidence not previously available
despite the appellant’s due diligence, the Board will not consider it. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Based on the above,
we affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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:
4
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 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
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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.