Opinion

Ronald Watkins v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jul 19, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RONALD KEITH WATKINS, DOCKET NUMBER

Appellant, DC-0831-16-0353-I-1

OFFICE OF PERSONNEL DATE: July 19, 2022

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ronald Keith Watkins, Silver Spring, Maryland, pro se.

Karla W. Yeakle, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, 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 he was

ineligible for an immediate retirement annuity under the Civil Service Retirement

System (CSRS). Generally, we grant petitions such as this one only in the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

following circumstances: 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. 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).

BACKGROUND

¶2 In 2003, the appellant was removed from his position with the District of

Columbia (D.C.) Department of Corrections (DOC). Initial Appeal File (IAF),

Tab 18 at 31. He filed a complaint under the D.C. Whistleblower Protection Act

in D.C. Superior Court. Id. at 12-13. A jury returned a verdict in his favor, and

the judge ordered 18 months of front pay, in lieu of reinstatement, among other

damages and costs. Id. at 13, 18-20. The Court of Appeals for the District of

Columbia affirmed the judgment. Id. at 17.

¶3 Beginning in 2013, the appellant requested immediate retirement from the

D.C. Government under the retirement system for D.C. employees. IAF, Tab 2

at 50. After his requests were unsuccessful, he filed a retirement appeal in

D.C. Superior Court, requesting benefits under the D.C. Government’s retirement

system. Id. In an order granting D.C.’s motion to dismiss, the judge found that

the court lacked jurisdiction over his appeal because the appellant was an

employee as defined by CSRS, and directed him to file a retirement application

with OPM. Id. at 51. The D.C. Court of Appeals affirmed the decision in 2015.

Id. at 52.

¶4 In August 2015, the appellant applied to OPM for an immediate retirement

annuity under CSRS. IAF, Tab 18 at 27. In a February 8, 2016 reconsideration

decision, OPM denied his retirement application because he had not attained the

requisite age for immediate or deferred retirement. Id. at 7-9. According to

OPM, he had separated from service with the D.C. Government on November 6,

2005, at the age of 48, with 21 years, 7 months, and 16 days of creditable service.

Id. at 7-8.

¶5 The appellant filed this appeal, essentially arguing that his front pay award

in the whistleblower case was tantamount to reinstatement, and thus, he was s till

employed by the DOC because the agency never removed him after his de facto

reinstatement. IAF, Tab 2 at 2. Furthermore, he alleged that his entitlement to

retirement benefits had been adjudicated previously by the D.C. courts and that

OPM’s denial of his application contravened those prior orders. IAF, Tab 1

at 5-6, Tab 2 at 2. Finally, he asserted that he was entitled to immediate

retirement given his service as a law enforcement officer (LEO) and that he was

now over 50 years old. IAF, Tab 10 at 5-6.

¶6 After holding the requested hearing, the administrative judge affirmed

OPM’s denial of the appellant’s retirement application. IAF, Tab 1 at 3, Tab 38,

Initial Decision (ID) at 1, 7. He found that the prior D.C. court decisions directed

the appellant to submit a CSRS retirement application to OPM, without

determining his entitlement to an immediate retirement annuity. ID at 4 -5. He

further found that OPM properly concluded that the appellant accrued no

creditable service after DOC terminated him on November 6, 2005, upon the

expiration of his front pay award. ID at 5-7. He therefore found that the

appellant had not attained the requisite combination of age and creditable service

at the time of his separation to qualify for immediate retirement u nder 5 U.S.C.

§ 8336(a), (b), or (c)(1). ID at 7.

¶7 The appellant has filed a timely petition for review. 2 Petition for Review

(PFR) File, Tab 1. The agency has filed a response, to which the appe llant has

replied. PFR File, Tabs 4, 5.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 The appellant alleges that the administrative judge erred in finding him

ineligible for immediate retirement benefits under 5 U.S.C. § 8336(a), (b), and

(c)(1). PFR File, Tab 1 at 5-18, 23, Tab 5. As argued below, he contends that he

continues to accrue creditable service because the administrative judge in his

whistleblower reprisal case awarded him front pay, which he cla ims is tantamount

to reinstatement and any purported termination occurring after his de facto

reinstatement violates his right to due process. PFR File, Tab 1 at 6 -8, 18-23. He

reiterates that the D.C. courts determined that he was entitled to receive

retirement benefits upon submitting an application to OPM because he was and

continues to be an employee. Id. at 5-8. He alleges that these D.C. court

decisions are entitled to preclusive effect. Id. at 5-7, 17-19. Upon consideration

of the appellant’s arguments, we find no basis for disturbing the administrative

judge’s finding that he was ineligible for an immediate retirement annuity under

CSRS.

¶9 An individual first employed by the D.C. Government before October 1,

1987, is an employee covered by CSRS. 5 U.S.C. § 8331(1)(G). A covered

employee is eligible for a basic immediate retirement annuity under CSRS, if at

the time of his separation from service, he is at least 55 years of age with 30 years

In June and July 2018, the appellant filed two requests to withdraw his petition for

review, but, in July 2018, filed three submissions rescinding his requests in response to

a Board order seeking to confirm his intent to withdraw. Petition for Review (PFR)

File, Tabs 10-15. In January 2019, the appellant filed two additional requests to

withdraw his petition for review, but subsequently filed a submission rescinding his

requests in response to the Board’s additional order seeking confirmation of his intent

to withdraw. PFR File, Tabs 17-20. As such, the Board will not rule on the appellant’s

requests to withdraw and instead issues this decision on the appellant’s petition for

review.

of creditable civilian service, or is at least 60 years of age with 20 years of

creditable civilian service. 5 U.S.C § 8336(a)-(b). If a covered employee has

20 years of LEO service, he is entitled to an immediate annuity at 50 years of age.

5 U.S.C. § 8336(c)(1).

¶10 Although the appellant argues that the decisions by the D.C. courts

effectively deemed his employment as continuing beyond November 6, 2005, we

disagree. PFR File, Tab 1 at 5-23. As properly discussed in the initial decision,

the appellant was a covered employee under 5 U.S.C. § 8331(1)(G), until his

separation on November 6, 2005. ID at 5-7. OPM credited the 18-month front

pay period towards the appellant’s CSRS retirement eligibility. IAF, Tab 18

at 7-8. The D.C. court decisions expressly found that the appellant would have

been terminated at the end of the 18-month period for reasons unrelated to his

whistleblowing. Id. at 13, 15, 17-20. DOC terminated him effective November 6,

2005, upon the expiration of the front pay period. Id. at 30. The appellant argues

that, under Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001), his

front pay was effectively the same as a reinstatement. PFR File, Tab 1 at 21-23.

In Pollard, the Court observed that “front pay awards . . . are made in lieu of

reinstatement,” and are permitted under Title VII. 532 U.S. at 846, 853-54. The

Court did not address whether an agency could remove an employee at the end of

the front pay period when, as here, reinstatement was not a viable option. Id.

at 853-54; IAF, Tab 18 at 15. Thus, contrary to the appellant’s arguments,

Pollard does not require that he be considered an employee after

November 2005. 3

Although the appellant was an employee for the purposes of the CSRS, he was not an

employee with Board appeal rights as defined by 5 U.S.C. § 7511. Therefore, the Board

does not have jurisdiction to address the merits of his separation, including his due

process claims. 5 U.S.C. §§ 7511, 7513; PFR File, Tab 1 at 18-21. As the

administrative judge correctly noted, the D.C. Government established an alternate

system for adjudicating removal actions of D.C. Government employees and assigned

jurisdiction over those actions to the D.C. Office of Employee Appeals. D.C. Code

§ 1-606.03; ID at 7 n.1.

¶11 Furthermore, we find that although a D.C. Superior Court judge found that

the appellant was covered by CSRS, he made no determination concerning the

appellant’s separation date, length of service, or eligibility for immediate

retirement. IAF, Tab 2 at 49-51. Rather, the judge directed him to file an

application with OPM because OPM had jurisdiction over his retirement appeal.

Id. at 51. Therefore, the appellant has shown no error in the administrative

judge’s finding that OPM established that DOC termin ated him from his covered

position on November 6, 2005, and that he performed no creditable service after

that date. ID at 6-7.

¶12 The appellant’s status as a former CSRS-covered employee, alone, is

insufficient to establish entitlement to immediate retireme nt benefits—he must

also have had the requisite combination of age and creditable service at the time

of his separation. 5 U.S.C § 8336(a)-(c). We find that, even if the appellant were

entitled to LEO credit, he did not meet the age requirement to qualify for

immediate retirement because he separated from service in 2005, before he was

50 years old. 5 U.S.C. § 8336(c)(1); IAF, Tab 18 at 8, 30. He therefore is not

entitled to immediate retirement benefits under those provisions. Nonetheless, as

noted in OPM’s reconsideration letter, he may be eligible for deferred retirement

after reaching the age of 62. IAF, Tab 18 at 8, 11; see 5 U.S.C. § 8338(a)

(establishing that an employee is eligible for deferred retirement under CSRS

beginning at age 62, if he has completed at least 5 years of creditable service).

¶13 Accordingly, we agree with the administrative judge that OPM correctly

denied the appellant’s application for an immediate CSRS retirement annuity, and

we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Cir cuit or any court

of appeals of competent jurisdiction. 5 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the