Opinion

Michael Carroll v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Feb 15, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL S. CARROLL, DOCKET NUMBER

Appellant, DA-0845-19-0185-I-1

OFFICE OF PERSONNEL DATE: February 15, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael S. Carroll , Plano, Texas, pro se.

Linnette Scott and Tiffany Slade , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The Office of Personnel Management (OPM) has filed a petition for review

of the initial decision, which reversed its final decision to rescind its approval of

the appellant’s application for a Federal Employees’ Retirement System (FERS)

disability retirement annuity. Generally, we grant petitions such as this one only

in the following circumstances: the initial decision contains erroneous findings

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED to

address the effect of the appellant’s reemployment on his eligibility for a

disability retirement annuity, we AFFIRM the initial decision.

BACKGROUND

The following facts are undisputed. The appellant was a CG -09

Compliance Examiner for the Federal Deposit Insurance Corporation (FDIC),

covered under FERS. Initial Appeal File (IAF), Tab 8 at 35. On February 20,

2015, the FDIC removed him for performance reasons. Id. On or about

February 19, 2016, the appellant filed an application for a disability retirement

annuity. IAF, Tab 9 at 2. While his disability retirement application was still

pending, on May 15, 2016, the appellant resumed Federal service with the Social

Security Administration (SSA). Id. On April 19, 2017, OPM granted the

appellant’s disability retirement application. Id. On June 28, 2017, the appellant

resigned from his position with the SSA. Id. On July 17, 2017, OPM received an

Individual Retirement Record from the SSA, apparently learning for the first time

of the appellant’s reemployment with that agency. IAF, Tab 8 at 5, 40-47.

On June 25, 2018, OPM issued an initial decision rescinding its approval of

the appellant’s disability retirement application based on the appellant’s

reemployment with the SSA. 2 IAF, Tab 8 at 24-26. OPM reasoned that the

appellant’s reemployment constituted a voluntary withdrawal of his application.

Id. at 24. The appellant requested reconsideration, and on January 30, 2019,

OPM issued a final decision affirming the initial decision. Id. at 9-16. In its final

decision, OPM reasoned that the appellant’s disability retirement application was

not made from the position of his “current employment” with SSA. Id. at 9.

The appellant filed a Board appeal, challenging the merits of OPM’s final

decision. IAF, Tabs 1, 9. He waived his right to a hearing. IAF, Tab 12. After

the close of the record, the administrative judge issued an initial decision

reversing OPM’s final decision. IAF, Tab 15, Initial Decision (ID). He found

that OPM’s regulations at 5 C.F.R. § 844.203(c)(2) prescribe a specific set of

circumstances in which OPM is permitted to rescind a decision allowing an

application for FERS disability retirement, and that those circumstances were not

present in the instant appeal. ID at 4-6.

OPM has filed a petition for review, disputing the administrative judge’s

legal analysis. Petition for Review (PFR) File, Tab 1. The appellant has filed a

response. PFR File, Tab 5.

ANALYSIS

An employee who completes at least 18 months of civilian service

creditable under FERS and becomes disabled shall, upon application to OPM, be

granted a disability retirement annuity. 5 U.S.C. § 8451(a)(1)(A); see generally

5 C.F.R. part 844, subpart B. In making its decision, OPM will review the

disability retirement application and its supporting documentation to determine

whether the applicant meets the eligibility criteria of 5 C.F.R. § 844.103.

Prior to that rescission, OPM took an overpayment action against the appellant’s

annuity. The appellant filed a Board appeal, OPM rescinded its decision, and the

administrative judge dismissed the appeal for lack of jurisdiction. Carroll v. Office of

Personnel Management, MSPB Docket No. DA-0845-18-0317-I-1, Initial Decision

(June 21, 2018).

5 C.F.R. § 844.203(c)(1). OPM’s authority to rescind a decision granting FERS

disability retirement is limited as follows:

OPM may rescind a decision to allow an application for disability

retirement at any time if OPM determines that the original decision

was erroneous due to fraud, misstatement of fact, or upon the

acquisition of additional medical or other documentation.

5 C.F.R. § 844.203(c)(2).

In this case, the administrative judge found that the appellant did not make

any misstatements of fact or commit fraud upon which OPM relied in granting the

disability annuity, and that OPM did not obtain new medical information that

called into question its original decision. ID at 5 & n.6. Based on this, he

concluded that none of the regulatory criteria for rescinding the decision had been

met. ID at 5-6. On petition for review, OPM argues that its decision was based

on a regulatory reason that the administrative judge did not address, i.e., the

receipt of “other documentation” pertaining to the appellant’s employment with

the SSA. PFR File, Tab 1 at 7-8, 12-14. Because the administrative judge did not

address this issue, we address it here.

We agree with OPM that its rescission was based on the acquisition of

additional documentation related to the appellant’s employment with the SSA.

PFR File, Tab 1 at 12-14. Therefore, this case is unlike Cerone v. Office of

Personnel Management, 85 M.S.P.R. 380, ¶¶ 5-7 (2000), and Longoria v. Office

of Personnel Management, 78 M.S.P.R. 242, 244-45 (1998), in which OPM’s

rescission was based solely on its re-evaluation of extant documentation.

Nevertheless, for the following reasons, we are not persuaded that this new

information supports OPM’s conclusion that its initial award of disability

retirement was in error.

First, OPM argues that, when it processed the appellant’s disability

retirement application, it “was not aware that the appellant could continue to

work because he applied and accepted a position with SSA after he resigned from

FDIC . . . while waiting for OPM’s decision from the FDIC position.” PFR File,

Tab 1 at 7. We construe this as an argument that the appellant’s employment

with the SSA constituted evidence that he was not, in fact, disabled from

employment in his FDIC position, or that he had actually recovered within 1 year

of the date of his application. Cf. 5 C.F.R. § 844.103(a)(3) (making eligibility for

disability retirement contingent on the disability persisting for at least 1 year

from the date of application). OPM’s regulations address this precise situation:

Reemployment by an agency at any time before age 60 is evidence of

recovery if the reemployment is under an appointment not limited to

a year or less, at the same or higher grade or pay level as the position

from which the disability annuitant retired.

5 C.F.R. § 844.401(d). It is undisputed that the appellant’s employment with the

SSA was at a lower pay level than his employment with the FDIC. IAF, Tab 8

at 41-42. We therefore find that the appellant’s reemployment with the SSA did

not constitute evidence of recovery, and that it does not otherwise tend to show

that the appellant was not disabled from performing useful and efficient service

as a CG-09 Compliance Examiner.

Second, OPM argues that it erred in granting the appellant’s disability

retirement application because it did not evaluate his application in light of his

“current” position with the SSA but instead evaluated it in light of his prior

position with the FDIC. PFR File, Tab 1 at 5-9. Under 5 C.F.R. § 844.102,

“disability” means “inability, because of disease or injury to render useful and

efficient service in the employee’s current position.” The question, therefore, is

whether the appellant’s “current” position was his position with the FDIC or his

position with the SSA. For the following reasons, we find that it was the former.

As a general rule, the Board must defer to an agency’s interpretations of

the regulations it promulgates, as long as the regulation is ambiguous and the

agency’s interpretation is neither plainly erroneous nor inconsistent with the

regulation. Gose v. U.S. Postal Service, 451 F.3d 831, 836 (Fed. Cir. 2006).

Such deference is warranted, however, only when the regulation at issue remains

genuinely ambiguous even after all the traditional tools of construction are

applied. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). In construing a

regulation, the Board will consider its plain language, the common meaning of

the terms, and the text of the regulation both as a whole and in the context of its

surrounding sections. Aqua Products, Inc. v. Matal, 872 F.3d 1290, 1316

(Fed. Cir. 2017).

In this case, OPM interprets the term “current position” in its FERS

disability retirement regulations to mean the last position held prior to its

decision on a disability retirement application. OPM does not explain why it

interprets the term this way, and the regulations do not expressly define it.

However, reading the definition of “disability” in 5 C.F.R. § 844.102 together

with condition of eligibility set forth in 5 C.F.R. § 844.103(a)(2), it is clear to us

that “current position” in this context means the position that the applicant held

when he became disabled. Because the appellant became disabled during his

employment with the FDIC, we find that CG-09 Compliance Examiner is his

“current position” for purposes of disability retirement.

In addition, we observe as a practical matter that a disability retirement

application must be based on a position that the applicant has already held or is

currently holding and not on some position that he might hold in the future.

Therefore, the term “current position” can only refer to a position held during or

prior to the date of the application. As OPM tacitly acknowledges on review, its

interpretation would require that the appellant’s application for disability

retirement from the FDIC be nullified and replaced with a new disability

retirement application from the SSA. PFR File, Tab 1 at 3. However, OPM’s

regulations do not authorize it to unilaterally nullify a disability retirement

application for any reason, much less when the application establishes the literal

eligibility requirements of 5 C.F.R. § 844.103.

Furthermore, we observe that OPM’s regulations contemplate that a

disability retirement annuitant may secure subsequent Federal employment while

he is still receiving his annuity. 5 C.F.R. §§ 844.401(d), 844.402(a). The

disability annuity may then terminate, but only if certain criteria are met, and

even then, it may not terminate immediately. Id. OPM has not explained why

Federal reemployment during the pendency of a disability retirement application

should serve to void the application ab initio and Federal reemployment after the

application is granted should not. We cannot discern any reason to make such a

distinction, but we can discern several reasons not to do so.

First, the regulations themselves make no such distinction. Second, the

starting point for computing a disability retirement annuity is the annuitant’s

average pay. 5 C.F.R. § 844.301(b)-(c). Therefore, OPM’s insistence that the

appellant’s disability retirement application be based on his subsequent separation

from a lower-paid position would deprive him of a benefit that the FERS

disability retirement regulations were meant to protect. Third, a disability

retirement annuity will generally commence on the day after the employee

separates. 5 C.F.R. § 844.301. Regardless of how long OPM’s adjudication

takes, the annuitant will eventually receive an annuity retroactive to his date of

separation. See Widmer v. Office of Personnel Management , 103 M.S.P.R. 363,

¶ 10 (2006). Therefore, OPM’s insistence that the appellant’s disability

retirement be based on his separation from the position in which he was

reemployed stands to deprive him of well over 2 years’ worth of disability

retirement annuity, again depriving him of a benefit that the regulations were

meant to protect. Fourth, an employing agency’s offer of accommodation at the

same grade or pay precludes disability retirement, but an offer of reassignment to

a position at a lower grade or pay level does not. Bell v. Office of Personnel

Management, 99 M.S.P.R. 133, ¶ 15 (2005); see 5 C.F.R. §§ 844.102,

844.103(a)(5). We see no reason that the appellant’s reemployment at the SSA in

a lower-paid position should preclude his disability retirement any more than

would a comparable offer of reassignment by the FDIC. Fifth, we find that

OPM’s interpretation would make an individual’s disability retirement rights

partially contingent on the amount of time that it takes OPM to process his

application, i.e., contingent on whether OPM finishes processing his application

before or after he secures reemployment. The Board has found in an analogous

context that disciplinary suspensions contingent on the amount of time that it

takes to complete the grievance process are arbitrary on their face. Milligan v.

U.S. Postal Service, 106 M.S.P.R. 414, ¶ 13 (2007). We decline to interpret

OPM’s regulations so as to introduce an element of arbitrariness into the FERS

disability retirement process.

Considering OPM’s FERS disability retirement regulations as a whole,

according to their plain language and in light of their overall purpose, we find

that there is no genuine ambiguity with respect to the term “ current position.”

We find that the appellant properly applied for disability retirement from his

CG-09 Compliance Examiner position with the FDIC, and that OPM erred in

rescinding its approval of that application based on the appellant’s reemployment

at the SSA. The appellant’s February 19, 2016 disability retirement application

was based on his then-current position of CG-09 Compliance Examiner and, as

OPM concluded, established his eligibility for disability retirement from that

position. The appellant’s subsequent reemployment with the SSA has no bearing

on whether he met the eligibility requirements of 5 C.F.R. § 844.103 with respect

to the position of Compliance Examiner.

In further support of our conclusion, we observe, as did the administrative

judge, that OPM’s regulations provide other more appropriate methods for

addressing this particular situation. ID at 4 & nn.4-5. Specifically,

reemployment by the Federal Government may be grounds for terminating a

disability annuity under 5 C.F.R. part 844, subpart D. 3 Unlike OPM’s attempted

OPM has not issued a final decision, or even an initial decision, on whether the

appellant’s reemployment with the SSA satisfied the regulatory criteria to terminate the

disability retirement annuity that should have commenced upon his separation from the

FDIC. We therefore lack jurisdiction to make any findings on this matter. See Daniel

v. Office of Personnel Management, 43 M.S.P.R. 599, 603 (1990); see also 5 U.S.C.

§ 1205(g) (prohibiting the Board from issuing advisory opinions). We note, however,

that the record in the instant appeal seems to show that the appellant’s rate of pay in the

SSA position was less than 80% of his rate of pay in the FDIC position. IAF, Tab 8

rescission action, the provisions of this subpart are tailored to address the

situation at hand, to do so in a way that would protect the disability benefits that

the appellant accrued prior to his reemployment, and to offer the possibility of a

reinstatement of benefits should the appellant’s disability recur or his earning

capacity again decrease.

ORDER

We ORDER OPM to cancel the rescission of the appellant’s disability

retirement annuity and to restore the appellant’s annuity effective retroactively to

the date of the rescission. OPM must accomplish this action within 45 days from

the date of this Order.

We also ORDER OPM to tell the appellant promptly in writing when it

believes it has fully carried out the Board’s Order and of the actions it has taken

to carry out the Board’s Order. We ORDER the appellant to provide all necessary

information OPM requests to help it carry out the Board’s Order. The appellant,

if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after OPM tells the appellant it has fully carried out

the Board’s Order, the appellant may file a petition for enforcement with the

office that issued the initial decision on this appeal if the appellant believes that

OPM did not fully carry out the Board’s Order. The petition should contain

specific reason why the appellant believes OPM has not fully carried out the

Board’s Order, and should include the dates and results of any communications

with OPM. See 5 C.F.R. § 1201.182(a).

at 40-41; cf. 5 C.F.R. §§ 844.401(d) (providing for termination of a disability annuity

based on Federal reemployment at the same or higher grade or pay level), 844.402(a)

(providing for termination of a disability annuity when the annuitant’s income reaches

80% of his former wages).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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

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. 420 (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. 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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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.