The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH D. DAY, DOCKET NUMBER
Appellant, AT-0845-19-0772-I-1
v.
OFFICE OF PERSONNEL DATE: February 28, 2024
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
John David Folds , Esquire, Washington, D.C., for the appellant.
Cynthia Reinhold and Alison Pastor , 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 and the agency has filed a
cross petition for review of the initial decision, which dismissed the appellant’s
retirement appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT both the appellant’s petition for review and the agency’s cross petition
for review, VACATE the initial decision, and REMAND the case to the Office 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Personnel Management (OPM) for further adjudication in accordance with this
Remand Order.
BACKGROUND
After approximately 20 years of active duty with the Army, punctuated by
periods of service with the U.S. Postal Service, the appellant retired as a civilian
employee with the Department of the Army, effective December 31, 2018, and
began to receive an annuity. Initial Appeal File (IAF), Tab 8 at 53-56, 58-60. On
June 24, 2019, OPM notified him that the calculation of his retirement annuity
resulted in his owing a redeposit for two periods of civilian service with the
Postal Service for which he had requested and received refunds of his retirement
contributions. Id. at 32-34. Specifically, the appellant could either pay the full
amount of the required redeposit, with interest ($64,146.00), or have his monthly
annuity reduced from $1,277.00 to $964.00, to account for the fact that his
annuity calculation would not include the periods of service for which OPM
asserts he received a refund. Id. at 32-34. OPM further advised the appellant
that, because he had been placed in an erroneous retirement system for more than
3 years (he was placed in the Federal Employees’ Retirement System but should
have been in the Civil Service Retirement System Offset), he was entitled to
relief under the Federal Erroneous Retirement Coverage Correction Act
(FERCCA). 2 Id. The appellant insisted that he had never received either of the
two refunds referenced by OPM. IAF, Tab 1 at 28-29, 46, 48, 52-53. On July 3,
2019, OPM issued a final decision in which it stated that it had no authority to
waive the interest on the appellant’s redeposit and had reduced his annuity
2
FERCCA was enacted on September 19, 2000, to address “the problems created when
employees are in the wrong retirement plan for an extended period.” 5 C.F.R.
§ 839.101(a); see Pub. L. No. 106-265, Title II, 114 Stat. 762, 765 (codified at 5 U.S.C.
§ 8331 note), and it provides such employees the opportunity to correct the placement
error and, in many cases, to choose between retirement systems. See Wallace v. Office
of Personnel Management, 88 M.S.P.R. 375, ¶ 7 (2001).
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accordingly. Id. at 14. The notice afforded the appellant appeal rights to the
Board. Id.
On appeal, the appellant again repeated that he never received the larger of
the two refund checks which, according to OPM, was mailed to him in 1991 in
the amount of $17,408.16, 3 and he described his efforts to prove his non-receipt.
IAF, Tab 1 at 1-4. He requested a hearing. Id. at 6. During the prehearing
conference, the administrative judge stated that the issue to be addressed was
whether OPM’s final decision of July 3, 2019, requiring the appellant to pay
interest on the redeposit, was proper. IAF, Tab 12.
Following the requested hearing, the administrative judge issued an initial
decision. IAF, Tab 16, Initial Decision (ID). He found that, while certain actions
taken under FERCCA may be appealed to the Board, 5 C.F.R. § 839.1302(a),
other actions taken by OPM are considered to be discretionary, 5 C.F.R.
§ 839.1203(b), and are not subject to administrative or judicial review. 5 C.F.R.
§ 839.1303; ID at 3-5. The administrative judge then found that OPM’s final
decision of July 3, 2019, declining to waive interest on the redeposit amount, was
a discretionary decision to not compensate the appellant for a monetary loss
proximately resulting from a retirement coverage error, and that, as such, the
appellant had no right to appeal that decision. ID at 4. Accordingly, the
administrative judge dismissed the appeal for lack of jurisdiction. ID at 1, 5.
In his petition for review, the appellant argues that the Board does have
jurisdiction over his appeal as it affects his retirement interests, Petition for
Review (PFR) File, Tab 1 at 2-4, and he states that he has new evidence in
support of his claim that he did not receive the 1991 check, id. at 4-7. The
appellant requests that the Board remand the appeal to OPM for reconsideration
of its decision requiring him to make the redeposit with interest. Id. at 9. In its
cross petition for review, OPM also requests that the appeal be remanded and
3
The appellant explained that he was “most concerned” with the larger of the two
checks, IAF, Tab 1 at 4. During the hearing, he acknowledged receipt of the earlier,
considerably smaller check. IAF, Tab 16, Initial Decision at 2 n.1
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argues, although for different reasons, that dismissal of the appeal for lack of
jurisdiction was improper. PFR File, Tab 4 at 12. OPM argues that both its final
decision and the administrative judge’s decision addressed a matter that was not
raised, that is, whether interest was required on the redeposit, but that neither
decision addressed the appellant’s claim that he never received the refund of his
retirement contributions in 1991. Id. at 11-12. OPM requests that the Board
remand the appeal so that it may issue a new reconsideration decision on that
issue. Id at 12. In his reply to OPM’s cross petition, the appellant concurs with
OPM. PFR File, Tab 6.
When, as here, OPM fails to adjudicate all claims and dispositive issues
before it, the Board may remand the case to OPM to conduct a full review of the
matter. Bynum v. Office of Personnel Management, 618 F.3d 1323, 1332-33 (Fed.
Cir. 2010); Ott v. Office of Personnel Management, 120 M.S.P.R. 453, 455-56
(2013). We therefore agree with the parties’ requests for remand.
ORDER
For the reasons discussed above, we vacate the initial decision and remand
this case to OPM for further adjudication. On remand, in accordance with the
applicable burdens of proof set forth in Rint v. Office of Personnel Management,
48 M.S.P.R. 69, 71-72, aff’d, 950 F.2d 731 (Fed. Cir. 1991) (Table), OPM shall
issue a new final decision addressing the appellant’s claim of non -receipt of his
1991 retirement contributions, and the effect of the resolution of that claim on the
computation of his annuity. OPM shall advise the appellant of his right to file an
appeal with the Board’s Atlanta Regional Office if he disagrees with the new
decision. See Litzenberger v. Office of Personnel Management, 88 M.S.P.R. 419,
424 (2001).
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
5
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 reasons 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).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.