The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY ANN L. GLOBOKAR, DOCKET NUMBER
Appellant, CH-0839-16-0596-I-1
v.
NATIONAL AERONAUTICS AND DATE: April 7, 2023
SPACE ADMIN,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mary Ann L. Globokar, Strongsville, Ohio, pro se.
James Jackson, Esquire, and James P. Burkes, Esquire, Cleveland, Ohio,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action under the Federal Erroneous Retirement
Coverage Corrections Act (FERCCA). Generally, we grant petitions such as this
one only in the 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, des pite
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 The appellant was employed as a Budget Analyst. Initial Appeal File (IAF),
Tab 1. She contacted agency human resources staff in M ay 2016 and asserted
that the agency erroneously placed her in the Federal Employees ’ Retirement
System (FERS) instead of the Civil Service Retirement System (CSRS). IAF,
Tab 4 at 68. She stated that, although she did not have the requisite 5 years prior
to the creation of the FERS to exclude her from automatic FERS coverage, she
should have been given the requisite 5 years of service because the agency
intended her to enter on duty prior to her actual start date. Id. at 67-68. In
support of her claim, she submitted a May 9, 1983 letter that requested that she
3
enter on duty on June 20, 1983, which was prior to her actual entrance-on-duty
date on January 8, 1984. Id. at 71-72, 226.
¶3 On August 18, 2016, the agency issued a decision determining that the
appellant was not entitled to corrective action under FERCCA because she did not
have the requisite 5 years of service on December 31, 1986, that would exclude
her from automatic placement into FERS. 3 Id. at 59-60. The agency included a
worksheet that indicated that the appellant had 4 years, 3 months and 19 days of
service from September 1981 to December 31, 1986, and that, regardless of the
letter requesting that she enter on duty on June 20, 1983, the documentation
reflected that she did not enter on duty until January 8, 1984. Id. at 61.
¶4 The appellant filed the instant appeal requesting corrective action under
FERCCA. 4 IAF, Tab 1. She filed a brief in which she asserted, among other
things, that she was not required to serve 5 years to avoid automatic FERS
coverage because of her interpretation of 5 U.S.C. § 8402(b)(1), which waived the
5-year rule for certain individuals. The administrative judge issued an initial
decision on the basis of the documentary evidence affirming the agency’s
determination. IAF, Tab 16, Initial Decision (ID). She found that the appellant
was properly and automatically placed into the FERS, that the agency did not
3
FERCCA addresses the problems created when employees are in the wrong retirement
plan for an extended period. 5 U.S.C. § 8331 Note; 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 Government as to
whether Government service is CSRS covered, CSRS Offset covered, FERS cove red, or
Social Security–Only covered that remained in effect for at least 3 years of service after
December 31, 1986.” 5 C.F.R. § 839.102. We agree with the administrative judge that
the Board has jurisdiction over this appeal under 5 U.S.C. § 8347(d)(1) and 5 C.F.R.
§ 839.1302 because the appellant asserted that her service, including 1981 to the
present, was CSRS covered and she sought correction of an error in the agency’s
decision regarding that service. IAF, Tab 16, Initial Decision (ID) at 1-2.
4
The appellant originally requested a hearing but later waived that request and agreed
that the matter could be decided on the basis of the documentary evidence. IAF,
Tabs 1, 6.
4
commit a prohibited personnel practice, that the agency was not estopped from
placing the appellant into the FERS, and that there was no bindin g agreement to
hire the appellant at an earlier date. ID at 3-8.
¶5 The appellant has filed a petition for review, the agency has responded in
opposition to her petition, and the appellant has filed a reply. 5 Petition for
Review (PFR) File, Tabs 1-2, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Federal Employees’ Retirement System Act of 1986 (the “FERS Act”)
became effective on June 6, 1986. Pub. L. No. 99-335, 100 Stat. 514 (codified at
5 U.S.C. chapter 84). Pursuant to the FERS Act, an employee that had at least
5 years of civilian service performed before January 1, 1987, tha t is creditable
under the CSRS, is covered under the CSRS, unless that individual elect ed to
participate in the FERS. 5 U.S.C. § 8402(b)(2)(B). However, the FERS Act
excludes from automatic coverage certain high-ranking individuals in certain
situations, including, among others, the President and Vice President of the
United States, members of the Senior Executive Service, noncareer members of
the Senior Foreign Service, presidential appointees, and judges, as specified by
the Social Security Act, who performed service continuously fr om December 31,
1983. 5 U.S.C. § 8402(b)(1); 42 U.S.C. § 410(a)(5)(C), (D), (E), and (F).
5
The appellant also has filed a motion for leave to submit additional evidence. Petition
for Review (PFR) File, Tab 7. Pleadings allowed on review include a petition for
review, a cross petition for review, a response to a petition for review, a response to a
cross petition for review, and a reply to a response to a petition for review. 5 C.F.R.
§ 1201.114(a). No other pleading will be accepted unless the party files a motion with
and obtains leave from the Clerk of the Board. 5 C.F.R. § 1201.114(a)(5). Such a
motion must describe the nature of and need for the pleading. Id. In her motion, the
appellant proposes to submit “an additional document which supports her claim for
retirement classification” and further states that she has “found compelling evidence to
prove her claim for being enrolled in CSRS; hence to prove entitlement to corrective
action for retirement reclassification as allowed under FERCCA legislation.” PFR File,
Tab 7 at 4. We find this explanation insufficient and deny the appellant’s motion.
5
¶7 The appellant argues that she can rely upon the May 1983 letter in support
of her claim against automatic placement into the FERS. PFR File, Tab 1 at 7-8.
She asserts that the letter is relevant and admissible hearsay evidence because it
demonstrates that she was eligible and qualified for hire for entrance on duty on
June 20, 1983, on the basis of her successful completion of the hiring
requirements. Id. The appellant does not dispute that, in fact, she did not have
5 years of covered service before January 1, 1987. Further, as the agency points
out, even if the appellant had accrued the additional covered service had the
agency hired her on June 20, 1983, instead of January 8, 1984, she still would not
have satisfied the requirement of 5 years of service. 6 IAF, Tab 4 at 13.
Accordingly, consistent with 5 U.S.C. § 8402(b)(2)(B), the appellant was
properly placed in the FERS retirement program. Further, regardless of whether
the appellant had entered on duty prior to December 31, 1983, as the
administrative judge stated, neither the student trainee position to which she was
appointed, nor the General Schedule Electronic Systems Mechanic Apprentice
position to which she was converted, were included in the aforementioned
positions that were statutorily excluded from the 5-year requirement. ID at 5;
IAF, Tab 4 at 218-32; 42 U.S.C. § 410(a)(5)(C), (D), (E), and (F). Accordingly,
consistent with 5 U.S.C. § 8402, the agency properly and automatically placed the
appellant in the FERS.
¶8 Nevertheless, the appellant reasserts that before 1986, agency officials
knew or should have known about the upcoming enactment of the FERS A ct on
the basis of prior legislation and executive actions that foreshadowed the FERS
Act and that she should not be required to prove how the agency’s ignorance of
the laws affected her. PFR File, Tab 1 at 5-7. However, as the administrative
6
Prior to January 1, 1987, the appellant had 4 years, 2 months, and 19 days of service
and the additional service from June 20, 1983, to January 8, 1984, would have added
less than 7 months, totaling less than the requisite 5 years of service. IAF, Tab 4 at 13,
61, 217-32; see 5 U.S.C. § 8402(b)(2)(B).
6
judge stated, it is well settled that public officers are presumed to perf orm their
duties in good faith. ID at 5; see, e.g., Preyor v. U.S. Postal Service, 83 M.S.P.R.
571, ¶ 22 (1999). We find the appellant’s assertion that agency officials delayed
her entrance on duty from June 20, 1983, to January 8, 1984, to interfere with her
rights under the FERS Act, which was not enacted until 1986, is insufficient to
overcome this presumption. See Preyor, 83 M.S.P.R. 571, ¶ 22 (finding that there
was nothing in the record to suggest that agency officials promoted the appellant
to deny him appeal rights, and thus the appellant failed to rebut the presumption
that public officials performed their duties in good faith and in accordance with
law and regulations).
¶9 Next, the appellant challenges the administrative judge’s finding that she
did not prove that the agency should be equitably estopped from placing her in
the FERS. PFR File, Tab 1 at 7. She asserts that the agency and the
administrative judge improperly required her to prove that the agency committed
misconduct. Id. She further asserts that it would be impossible for someone to
prove misconduct regarding the delay in processing her paperwork when this
delay occurred over 30 years ago, but that a reasonable person could infer that the
hiring date was significantly later, thus indicating circumstances, conditions,
events, or situations that caused the delay. Id. As the administrative judge
stated, however, even if the appellant had proven that the agency had engaged in
misconduct thus entitling her to equitable estoppel, 7 this doctrine is inapplicable
when, as here, the appellant is seeking variance from the terms of the FERS,
which would involve a larger payment from the U.S. Treasury. ID at 7; see Office
of Personnel Management v. Richmond, 496 U.S. 414, 416 (1990) (stating that
payments of moneys from the Federal treasury are limited to those authorized by
7
As the administrative judge explained, when seeking equitable esto ppel in a case
against Federal Government officials, an appellant must show that (1) the officials
engaged in affirmative misconduct, and (2) she reasonably relied upon the misconduct.
ID at 6-7; Perez Peraza v. Office of Personnel Management, 114 M.S.P.R. 457, ¶ 9
(2010).
7
statute, and the Government cannot be estopped from denying benefits not
otherwise permitted by law solely on equitable grounds); Resnick v. Office of
Personnel Management, 120 M.S.P.R. 356, ¶ 11 (2013).
¶10 The appellant emphasizes that, regardless of the cause, it was through no
fault of her own that she was placed in the FERS. Id. at 8. Nevertheless,
pursuant to 5 U.S.C. § 8402(b)(2)(B), she did not have the requisite 5 years of
service to exclude her from coverage under the FERS. Therefore, we find that
she is not entitled to corrective action under FERCCA. 8
¶11 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 9
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
8
The appellant has attached legislative and executive documents to her petition for
review and reply. PFR File, Tab 1 at 10-27, Tab 5 at 8-11. To the extent that these
documents were not submitted below before the administrative judge, we have not
considered this evidence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
(1980) (finding that, under 5 C.F.R. § 1201.115, the Board will not consider evidence
submitted for the first time with the petition for review absen t a showing that it was
unavailable before the record was closed despite the party's due diligence ). The
appellant has failed to demonstrate why she could not have submitted this evidence
prior to the close of the record below.
9
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.
8
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:
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.caf c.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.
9
(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:
10
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 Circuit or any court
of appeals of competent jurisdiction. 10 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).
10
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
11
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
following address:
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.