The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM H. BRIDGES, DOCKET NUMBER
Appellant, AT-0831-19-0209-I-1
v.
OFFICE OF PERSONNEL DATE: January 26, 2024
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
William H. Bridges , Memphis, Tennessee, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
regarding the calculation of his post-1956 military service deposit with interest
under the Civil Service Retirement System (CSRS). For the reasons discussed
below, we GRANT the appellant’s petition for review, we AFFIRM the portion of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 pertaining to the calculation of his post-1956 military service
deposit with interest, we VACATE the administrative judge’s findings regarding
his excess deductions claim, and we REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
As set forth in the initial decision, the appellant performed military service
from 1961 to 1976. Initial Appeal File (IAF), Tab 17, Initial Decision (ID) at 2.
The appellant was appointed to a position in the Federal civil service that was
covered under the CSRS on July 26, 1980, and he retired on January 31, 2013.
Id. In December 2012, the appellant elected to make a deposit for his post-1956
military service. IAF, Tab 5 at 119.
In 2016, OPM determined that the appellant had been underpaid $27,334.00
because his CSRS retirement annuity did not account for his post -1956 military
service. ID at 2; IAF, Tab 5 at 9, 26. OPM adjusted his annuity to include credit
for his military service and determined that the amount due for his post-1956
military service deposit with interest was $19,707.61, which was withheld from
the underpayment. ID at 2; IAF, Tab 5 at 9, 26. The appellant requested
reconsideration of OPM’s interest calculation, ID at 2; IAF, Tab 5 at 31-36, and
OPM issued a final decision affirming its calculation, ID at 2; IAF, Tab 5 at 9-11.
The appellant appealed OPM’s final decision to the Board, and he
requested a hearing. IAF, Tab 1 at 1-7. After holding a telephonic hearing, the
administrative judge issued an initial decision affirming OPM’s final decision.
ID at 1, 6.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has filed a response, PFR File, Tab 4, to which the appellant
has replied, PFR File, Tab 5.
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DISCUSSION OF ARGUMENTS ON REVIEW
We affirm the administrative judge’s findings regarding the calculation of the
appellant’s post-1956 military service deposit with interest.
On petition for review, the appellant reasserts his argument that OPM
should have applied a fixed 3% interest rate instead of a variable interest rate to
his post-1956 military service deposit. PFR File, Tab 1 at 6, 9; IAF, Tab 1 at 5,
Tab 9 at 11-12. He contends that his May 2019 submission before the
administrative judge contains “everything [she] needed to make a correct
decision” in this case, PFR File, Tab 1 at 4, and he requests the Board to review
that pleading before rendering a decision, id. at 7-8. He further asserts that the
administrative judge misconstrued his claim because he requested the Board to
establish the correct interest rate based on his time of service and hire date—not
to affirm or deny OPM’s reconsideration decision. Id. at 3. With his petition for
review, the appellant has provided an annotated copy of the initial decision and
has resubmitted documentation that already is a part of the record before the
administrative judge. Id. at 11-12, 15-18, 23-25, 29-34; IAF, Tab 1 at 9, Tab 5
at 92, 102, Tab 9 at 18, 24-27, 41.
We discern no reason to disturb the initial decision based on the appellant’s
reassertion of arguments and resubmission of evidence that were properly
considered by the administrative judge. Specifically, the administrative judge
found that the appellant’s argument regarding a fixed 3% interest rate was
unpersuasive because it was based on his misinterpretation of various
Government publications and guidance that do not specifically apply to post-1956
military service deposits. ID at 3-4. For the reasons provided in the initial
decision, we agree with the administrative judge’s finding that OPM correctly
used the applicable interest rates on the appellant’s post-1956 military service
deposit. ID at 3, 6; see 5 U.S.C. § 8334(e)(3), (j)(2). Moreover, we discern no
error in the administrative judge’s decision to affirm OPM’s final decision in
which OPM expressly considered the appellant’s dispute regarding the amount of
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interest due on his military service deposit. IAF, Tab 5 at 9-11; see Brown v.
Office of Personnel Management, 51 M.S.P.R. 261, 263 (1991) (explaining that
the Board generally has jurisdiction over appeals of final OPM decisions under
5 U.S.C. § 8347(d) and 5 C.F.R. § 831.110).
Further, we find that the appellant’s reassertion of his argument that OPM’s
use of a variable interest rate constitutes discrimination prohibited by the
Veterans’ Preference Act of 1944 (VPA) and the Civil Rights Act of 1964 is
unavailing because the terms under which interest must be paid on a post-1956
military service deposit are mandated by the CSRS retirement statute and do not
provide for waiver or alteration of the method of calculation. PFR File, Tab 1
at 6, 10; IAF, Tab 9 at 10, 49; see 5 U.S.C. § 8334(e), (j); see also, e.g.,
Simpkins v. Department of Labor, 107 M.S.P.R. 651, ¶ 19 (2008) (construing
analogous provisions under the Federal Employees’ Retirement System in
observing that the relevant statute and regulations do not allow for waiver of
interest). For the same reason, we find that the appellant’s resubmission of
documentation concerning the construction of the VPA is immaterial to the
outcome of this appeal. PFR File, Tab 1 at 27; IAF, Tab 5 at 75. To the extent
the appellant is arguing that the relevant CSRS statutory provisions are
unconstitutional by submitting a copy of the Supremacy Clause of the U.S.
Constitution, PFR File, Tab 1 at 26, we decline to consider this argument because
the Board has held consistently that it lacks the authority to adjudicate the
constitutionality of statutes, e.g., Malone v. Department of Justice, 14 M.S.P.R.
403, 406 (1983).
Accordingly, we affirm the initial decision as to the calculation of the
appellant’s post-1956 military service deposit with interest.
We remand the appeal to the regional office for adjudication of the appellant’s
excess deductions claim.
For the following reasons, we remand this appeal to the regional office for
further adjudication of the appellant’s claim that OPM should have allowed him
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to pay his post-1956 military service deposit with his excess deductions. PFR
File, Tab 1 at 5. Under the CSRS, retirement deductions that are taken beyond
approximately 42 years of service are considered “excess deductions” and are
subject to refund under 5 U.S.C. § 8342(h). Maurer v. Office of Personnel
Management, 236 F.3d 1352, 1353 (Fed. Cir. 2001). Section 8342(h) provides
that excess deductions “shall be applied toward any deposit due under [5 U.S.C.
§ 8334]” and that any remaining balance “is deemed a voluntary contribution.”
See Maurer, 236 F.3d at 1354 (construing 5 U.S.C. § 8342(h) as providing for a
repayment of excess deductions only after the sum is used to cover any deposit
due under 5 U.S.C. § 8334).
Here, the administrative judge found that, because the appellant retired
with 32 years, 11 months of service, the Government’s guidance regarding excess
contributions was inapplicable to him. ID at 5 n.1; IAF, Tab 9 at 16. 2 The
appellant challenges this finding on review, asserting that he retired with
46 years, 11 months of total creditable service including his 14 years of military
service. PFR File, Tab 1 at 6. For the first time on review, the appellant has
submitted documentation concerning his military service and evidence that he
received notice from OPM that he was due a lump-sum payment for excess
deductions. Id. at 13, 19-22; see 5 C.F.R. § 1201.115(e) (providing that the
Board reserves the authority to consider any issue in an appeal before it).
As an initial matter, we find that the Board has jurisdiction to consider the
appellant’s excess deductions claim because the record reflects that he raised the
issue before OPM with his request for reconsideration, but OPM did not consider
it in its final decision. IAF, Tab 5 at 9-11, 31, 34-36, 40-41; see O’Neill v. Office
of Personnel Management, 102 M.S.P.R. 298, ¶ 10 (2006) (finding jurisdiction
over a matter that OPM failed to address in its final decision despite the
appellant’s repeated requests). In addition, the appellant has continued to raise an
excess deductions claim throughout this Board proceeding, but OPM has not
2
The appellant has resubmitted such guidance on review. PFR File, Tab 1 at 14.
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addressed it. PFR File, Tab 1 at 5-6, 13-14, 18, 33, Tab 4; IAF, Tab 9 at 16, 21,
29-30, Tab 12; see DeGrant v. Office of Personnel Management, 107 M.S.P.R.
414, ¶ 13 (2007) (interpreting OPM’s silence on an issue during the pendency of
the appeal as an indication that it had no intention of issuing a decision on the
matter). Further, we agree with the appellant and find that he performed 46 years,
11 months of combined military and civilian service for purposes of 5 U.S.C.
§ 8342(h). IAF, Tab 5 at 102, 104, 113, 126-29. However, we cannot determine
based on the current record whether the appellant has been prejudiced by OPM’s
failure to apply his excess deductions toward the amount owed for his post-1956
military service deposit with interest in accordance with 5 U.S.C. § 8342(h) or, in
other words, whether the issue is moot. See Haskins v. Department of the Navy ,
106 M.S.P.R. 616, ¶ 22 (2007) (holding that an appeal may not be dismissed as
moot until the agency provides acceptable evidence showing that it has actually
afforded the appellant all of the relief that he could have received if the matter
had been adjudicated and he had prevailed). Therefore, we vacate the
administrative judge’s findings as to the appellant’s excess deductions claim and
remand the appeal to the regional office for further adjudication on that claim.
See, e.g., O’Neill, 102 M.S.P.R. 298, ¶¶ 10-11 (remanding the appeal to the
regional office for further adjudication of a matter over which OPM failed to
address in its final decision).
In light of our decision to remand this appeal, we decline to address the
appellant’s request to “suspend” the initial decision and to refer his case to the
Inspector General for review and a possible investigation. PFR File, Tab 1 at 7-8,
Tab 5 at 4. The petition for review process is the appropriate method for
challenging the initial decision. To the extent the appellant argues that the
administrative judge is biased based on her findings, we find that this is an
insufficient basis to rebut the presumption of honesty and integrity that
accompanies an administrative judge. PFR File, Tab 1 at 3, 7; see Fitzpatrick v.
Department of Justice, 91 M.S.P.R. 556, ¶ 16 (stating that the Board has held that
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an appellant’s disagreement with an administrative judge’s rulings and findings
neither establishes bias nor provides a basis for assigning a new administrative
judge on remand). Moreover, the appellant has failed to explain how any alleged
delay in issuing the initial decision has prejudiced his substantive rights. PFR
File, Tab 1 at 3, 7; see Keefer v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 6
(2002) (observing that the Board has held that an administrative judge’s delay in
issuing a ruling, without more, does not constitute reversible error).
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. In the new initial
decision on the excess deductions claim, the administrative judge should
incorporate by reference her prior analysis and findings regarding the calculation
of the appellant’s post-1956 military service deposit with interest so that he will
have a single decision with appropriate notice of appeal rights addressing those
issues. See, e.g., Goldberg v. Department of Homeland Security, 99 M.S.P.R.
660, ¶ 12 (2005).
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.