Opinion

Azza Meshal v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: May 3, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

AZZA MESHAL, DOCKET NUMBER

Appellant, SF-0831-21-0514-I-1

OFFICE OF PERSONNEL DATE: May 3, 2023

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Azza Meshal, San Jose, California, pro se.

Alison Pastor, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

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)

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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.

denying her request for a waiver of the interest on a required deposit to receive

credit for a period of noncontributory service under the Civil Service Retirement

System (CSRS). 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 la w 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 t he 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 The relevant facts are largely undisputed. The appellant was employed by

the Department of the Army (Army) from May 24 to September 29, 1982, and

October 4, 1982, to January 15, 1983, in a temporary appointment as an

Engineering Technician. Initial Appeal File (IAF), Tab 9 at 50-51. On

January 16, 1983, the Army converted her position to a career-conditional

appointment covered under CSRS, and her pay was subject to CSRS retirement

deductions until her retirement on August 31, 2020. Id. at 37, 41, 54. As

relevant here, from October 4, 1982, to January 15, 1983, her position was subject

only to the payment of Social Security taxes under the Federal Insurance

Compensation Act, and no retirement deductions were withheld from her salary.

Id. at 50. In a retirement estimate dated August 30, 2020, the Army provided the

appellant with the required deposit amount plus interest for the relevant period of

noncontributory service. Id. at 58.

¶3 Subsequently, by letter dated November 3, 2020, OPM notified her that she

could make one of the following elections affecting the computation of her

retirement annuity: pay a deposit with interest for her service from October 4,

1982, to January 15, 1983, or do not pay a deposit. Id. at 22-24. The appellant

requested OPM to waive the interest amount for such deposit, claiming that the

failure or delay to make deductions or pay the deposit was not her fault. Id. at 21.

OPM issued an initial decision denying her request to waive the interest, and she

requested reconsideration. Id. at 17, 19. On August 16, 2021, OPM issued a final

decision sustaining its initial decision based on its determination that it had no

authority to waive the statutory requirement of paying interest on deposits. Id.

at 8-10.

¶4 The appellant filed an appeal with the Board challenging OPM’s final

decision and requesting a hearing. IAF, Tab 1 at 2. Following a telephonic

hearing, the administrative judge issued an initial decision affirming OPM’s

reconsideration decision and finding that the appellant failed to prove her

entitlement to retirement annuity benefits based on her noncontributory service

when she has not paid any deposit with interest for such service . IAF, Tab 11,

Hearing Audio (HA), Tab 13, Initial Decision (ID) at 1, 8.

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

(PFR) File, Tab 1. The agency has filed a nonsubstantive response. PFR File,

Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 An employee’s creditable civilian service after July 31, 1920, for which

retirement deductions have not been made will not be included in computing the

amount of her CSRS annuity unless she makes a deposit, with interest, for such

service. Buie v. Office of Personnel Management, 386 F.3d 1127, 1131 (Fed. Cir.

2004); see 5 U.S.C. § 8334(c), (e); 5 C.F.R. § 831.303(b). The administrative

judge found, and the parties do not dispute on review, that the appellant never

made a deposit for her period of noncontributory service from Octo ber 4, 1982, to

January 15, 1983, and the required deposit amount plus interest totaled

$1,637.00. 3 PFR File, Tab 1 at 3; ID at 6; IAF, Tab 1 at 4, Tab 9 at 8-9;

HA (statement of the appellant). We discern no basis for disturbing these

findings.

¶7 Rather, the appellant reasserts on review that the interest accrued on her

deposit should be waived based on equity. PFR File, Tab 1 at 3; IAF, Tab 9

at 17, 21. The administrative judge found that the payment of interest on a

deposit was a statutory requirement that the Board lacks authority to waive based

on equitable considerations. ID at 5-7. We agree.

¶8 OPM and the Board have no discretion to waive statutorily imposed

requirements, and the government cannot be estopped from denying benefits

precluded by law even if the claimant was denied benefits because of her reliance

on the mistaken advice of a government official. Hayden v. Office of Personnel

Management, 58 M.S.P.R. 286, 293 (1993) (citing Office of Personnel

Management v. Richmond, 496 U.S. 414 (1990)). As relevant here, the statutory

and regulatory provisions set forth at 5 U.S.C. § 8334(c), (e) and 5 C.F.R.

§ 831.303(b) require the payment of interest on a deposit and delineate the

accrual of that interest. The appellant argues that the interest “should be waived

because [she] was not given accurate or timely information about the deposit

requirement” due to OPM’s administrative error. PFR File, Tab 1 at 3. The

administrative judge properly found that there is no basis under statute,

regulation, or equity for waiving the appellant’s interest obligation due to lack of

notice, even if OPM gave her “false, improper, or misleading information

concerning eligibility criteria for a retirement benefit, and [she] relied on that

OPM calculated the required deposit as $236.98 and the accrued interest as $1,400.02.

IAF, Tab 9 at 62-67.

information to her detriment.” ID at 7. We also discern no error in his finding

that her requested waiver did not fall into any recognized exception “that allow[s]

OPM the discretion to waive or forgive certain debts.” 4 ID at 6. Thus, we find

the appellant has failed to prove her entitlement to retirement annuity benefits

based on her noncontributory service from October 4, 1982, to January 15, 1983,

when she has not paid any deposit with interest for such service.

¶9 Accordingly, we deny the appellant’s petition for review and affirm the

initial decision.

NOTICE OF APPEAL RIGHTS 5

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 d o 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

The administrative judge found that the exceptions codified at 5 U.S.C. § 8346(b) and

5 C.F.R. §§ 831.1401, 831.2104(a) were inapplicable to the appellant’s request for a

waiver. We agree.

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.

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.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 Circuit or any court of appeals of

competent jurisdiction. 6 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

following address:

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.