Rafael Joseph v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RAFAEL A. JOSEPH, DOCKET NUMBER

Appellant, PH-0841-22-0032-I-1

v.

OFFICE OF PERSONNEL DATE: April 3, 2024

MANAGEMENT,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Rafael A. Joseph , Philadelphia, Pennsylvania, pro se.

Carla Robinson , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

The appellant has filed a petition for review of the initial decision, which

found without holding a hearing that he was not entitled to an annuity under the

Federal Employees’ Retirement System due to the prior refund of his retirement

deductions. For the reasons discussed below, we GRANT the appellant’s petition

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

for review, VACATE the initial decision, and REMAND the case to the regional

office for further adjudication in accordance with this Remand Order.

BACKGROUND

On October 31, 2011, after almost 30 years of Federal service, the appellant

resigned from his employment with the United States Postal Service. Initial

Appeal File (IAF), Tab 1 at 7; Joseph v. Office of Personnel Management, MSPB

Docket No. PH-0842-21-0117-I-1, Initial Appeal File (0117 IAF), Tab 6 at 71,

75-80. The Office of Personnel Management (OPM) refunded the appellant’s

retirement deductions in August 1986, with a payment of $2,430.43, and in May

2012, with a payment of $11,554.49. IAF, Tab 6 at 5; 0117 IAF, Tab 6 at 80, 83,

94.

The appellant previously filed a Board appeal in March 2016, seeking

review of OPM’s refund of his retirement deductions. Joseph v. Office of

Personnel Management, MSPB Docket No. PH-0841-16-0228-I-1, Initial Appeal

File (0228 IAF), Tab 1 at 2, 8. He argued that OPM erred in finding him eligible

for a refund and in failing to provide information regarding the consequences of

receiving a refund on his retirement benefits. Id. at 8-9. OPM asserted that it had

not yet issued a reconsideration (or final) decision and moved to dismiss the

appeal for lack of Board jurisdiction. 0228 IAF, Tab 6 at 4. It indicated that,

once the appeal was dismissed, it would issue “a decision to the appellant about

his eligibility for a retirement benefit effective on his resignation date.” Id. An

administrative judge dismissed the appellant’s March 2016 appeal for lack of

Board jurisdiction because OPM had not yet issued a reconsideration decision.

0228 IAF, Tab 11, Initial Decision. The U.S. Court of Appeals for the Federal

Circuit (Federal Circuit) affirmed that dismissal in June 2019 based, in part, on

OPM’s representation that it would issue a reconsideration decision on the

3

appellant’s claims. 2 Joseph v. Merit Systems Protection Board, 776 F. App’x 676

(Fed. Cir. 2019).

In November 2021, the appellant filed the instant appeal, again seeking

Board review of whether OPM should have refunded his retirement deductions

and if it provided him with proper information when it did so. IAF, Tab 1 at 1-4,

Tab 11 at 3-4. The appellant claimed OPM had failed to issue a final decision on

these matters. IAF, Tab 1. OPM filed a motion to dismiss the appeal, asserting

that it had issued an initial decision on January 28, 2019, advising the appellant

that he was not due any retirement benefits because it had previously refunded his

retirement deductions. IAF, Tab 6 at 4-5. It stated that “the appellant needs to

ensure that he has requested reconsideration . . . if he hasn’t already done so.” Id.

at 4. The appellant questioned whether he had received OPM’s January 28, 2019

initial decision. IAF, Tab 11 at 2.

The administrative judge scheduled a hearing. IAF, Tab 8. However, she

canceled the hearing after the appellant indicated that he would not call witnesses

or submit any additional evidence. IAF, Tab 9 at 1, Tab 10 at 1. The

administrative judge issued an initial decision stating, without explanation, that

the Board has jurisdiction over the appeal. IAF, Tab 12, Initial Decision (ID)

at 1. She affirmed OPM’s January 28, 2019 initial decision. ID at 1-2, 4-5. She

reasoned that the appellant was not eligible for an annuity because he lacked the

necessary years of service and had received a refund of his retirement deductions.

ID at 4-5.

The appellant has filed a petition for review with the Board. Petition for

Review (PFR) File, Tabs 1, 6. OPM has submitted a nonsubstantive response to

the petition for review. 3 PFR File, Tab 4.

2

The appellant filed a petition for review of the administrative judge’s initial decision

with the Board. 0228 Petition for Review (0228 PFR) File, Tabs 1. However, he later

withdrew his petition. 0228 PFR File, Tabs 11, 13, 16.

3

With his petition for review, the appellant included a request that the Department of

Justice (DOJ) appear as an amicus curiae. PFR File, Tab 6 at 6-8. However, because

4

DISCUSSION OF ARGUMENTS ON REVIEW

We agree with the administrative judge that the Board has jurisdiction over this

appeal even though OPM has not issued a reconsideration decision.

In her initial decision, the administrative judge found that the Board has

jurisdiction over this appeal. ID at 1. The parties do not dispute the Board’s

jurisdiction on review, and we agree with her conclusion. PFR File, Tabs 4, 6.

However, because the administrative judge did not explain her jurisdictional

finding and also stated that the appellant had not requested a reconsideration

decision, we explain the basis of the Board’s jurisdiction here. ID at 5; see

Parrish v. Merit Systems Protection Board, 485 F.3d 1359, 1362 (Fed. Cir. 2007)

(“The Board has the authority, indeed the obligation, to determine its own

jurisdiction over a particular appeal.” (citation omitted)).

If OPM has not issued a reconsideration decision on an appellant’s

entitlement to a retirement benefit, the Board generally lacks jurisdiction over an

appeal of that matter. 5 U.S.C. § 8461(e)(1); Fletcher v. Office of Personnel

Management, 118 M.S.P.R. 632, ¶ 5 (2012); 5 C.F.R. § 841.308. However,

notwithstanding the absence of such a decision, the Board will take jurisdiction

over an appeal concerning a retirement matter in which OPM has refused or

improperly failed to issue a final decision. Okello v. Office of Personnel

Management, 120 M.S.P.R. 498, ¶ 14 (2014). The appellant argued below that he

was entitled to a reconsideration decision on the refund issues he raised here

because OPM was ordered to issue one. IAF, Tab 1 at 1, Tab 11 at 2.

It is undisputed that OPM has not issued a reconsideration decision. The

appellant first appealed OPM’s decision to refund his retirement deductions to the

Board in March 2016. 0228 IAF, Tab 1. He did not assert that he had applied for

a retirement annuity or contacted OPM to contest the refund prior to filing his

appeal. In fact, he took the position that OPM should have provided him notice

DOJ never appeared in this appeal, there is no amicus curiae brief for us to consider.

See 5 C.F.R. § 1201.34(e) (explaining the procedures for appearing as an amicus curiae

before the Board).

5

of his reconsideration rights “at the time of his separation.” 0228 IAF, Tab 8

at 4. Within a month of the appellant filing his appeal, OPM filed a submission

stating that it had not issued a reconsideration decision and indicated that it

would issue a decision once the appeal was resolved. 0228 IAF, Tab 6 at 4. In

dismissing that appeal, the administrative judge stated he would “hold OPM to

that promise.” 0228 ID at 2.

Similarly, in its June 2019 decision on the appellant’s subsequent appeal to

the Federal Circuit, the court indicated that OPM had represented that “it w[ould]

be issuing a final decision on the merits.” Joseph, 776 F. App’x at 678 n.3.

Based on OPM’s representation, the Federal Circuit determined that OPM had not

refused or improperly failed to issue a reconsideration decision as contemplated

in Okello. Id. OPM asserted below that it issued an initial decision on January

28, 2019, for which the appellant had not requested reconsideration. When a

party takes a position in prior litigation on which it is successful, it is barred by

the doctrine of judicial estopped from taking the contrary position in subsequent

litigation. Bencomo v. Department of Homeland Security, 115 M.S.P.R. 621, ¶ 7

(2011) (citing New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (stating the

same)), aff’d per curiam, 468 F. App’x 986 (Fed. Cir. 2012). OPM’s position in

the instant appeal that it issued an initial decision in January 2019, and that it

would not issue a reconsideration decision until the appellant requested one, is

contrary to its previous representation to the Federal Circuit, as of June 2019, that

it would issue a reconsideration decision. Compare IAF, Tab 6 at 4, with Joseph,

776 F. App’x at 678 n.3. Thus, we are not persuaded that OPM has met its

obligations to the appellant solely by issuing an initial decision that advised him

of his right to request reconsideration.

Further, the appellant apparently raised the refund matter in a February

2021 appeal from OPM’s determination that he untimely filed an application for a

disability retirement annuity. 0117 IAF, Tab 1 at 3, Tab 14, Initial Decision

(0117 ID) at 1. The administrative judge in that case affirmed OPM’s timeliness

6

determination. 0117 ID at 1, 6. However, she warned, “If OPM does not issue a

reconsideration [decision] on the refund of contributions issue, or determine that

the appellant is entitled to an annuity,” its failure to do so “could confer Board

jurisdiction over the appeal.” 0117 ID at 5.

OPM’s repeated failure to issue a reconsideration decision on the

appellant’s refunds since March 2016, i.e., for over 6 years and through the

course of 2 appeals in which the appellant repeatedly raised the matter, is an

improper failure to issue a final decision. E.g., Okello, 120 M.S.P.R. 498, ¶ 15

(finding Board jurisdiction when OPM failed to issue a reconsideration decision

after an appellant diligently sought one for 6 years, and observing that OPM had

disregarded a prior promise to issue a new decision); Easter v. Office of

Personnel Management, 102 M.S.P.R. 568, ¶ 8 (2006) (concluding the Board had

jurisdiction when OPM did not acknowledge or issue an initial decision on a

disability retirement application for over 18 months, and gave no explanation for

its failure to do so). Its failure also contradicts its prior successful

representations that the Board did not have jurisdiction under Okello because it

intended to issue such a decision. 0228 IAF, Tab 6 at 4; 0228 ID at 2; 0117 IAF,

Tab 10 at 2; 0117 ID at 5; Joseph, 776 F. App’x at 678 n.3.

As to the January 28, 2019 initial decision it provided below, OPM did not

submit any evidence that it sent that decision to the appellant. 4 Rather, in an

unsworn statement, the agency’s representative stated that the unsigned letter,

which does not contain author’s name, “was sent to the appellant.” IAF, Tab 6

at 4-7. This assertion is not evidence and does not prove the decision was mailed.

See Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995)

(explaining that the statements of a party’s representative in a pleading generally

do not constitute evidence); Jordan v. Department of the Treasury, 64 M.S.P.R.

242, 244-45 (1994) (indicating that the mere statement of an appellant’s

4

It is also worth noting that the initial decision does not appear to address the issues

raised by the appellant regarding whether he should have received a refund, and if OPM

provided him with the proper information when doing so. IAF, Tab 1 at 2-3.

7

representative that a petition for review was mailed on a date prior to the deadline

for doing so, without any specific details concerning such mailing, did not

establish that it was placed in the mail stream on the claimed date). The appellant

suggested he did not receive the initial decision. IAF, Tab 11 at 2. Regardless of

the appellant’s receipt of this decision, for the reasons discussed above we find

that OPM conduct here amounts to an improper failure to issue a reconsideration

decision. Therefore, we agree with the administrative judge’s determination that

the Board has jurisdiction over the appeal.

We remand this appeal for the appellant to receive his requested hearing on the

merits.

On review, the appellant reasserts his arguments that OPM acted

improperly in refunding his retirement deduction. IAF, Tab 11; PFR File, Tab 6

at 2-5. For example, he asserts that OPM wrongfully refunded his deductions in

2012 despite his alleged eligibility for retirement under a voluntary early

retirement authority in 2009 or 2010. IAF, Tab 11 at 3; PFR File, Tab 6 at 4. We

find that this case must be remanded for a new determination on the merits.

The administrative judge apparently determined that the appellant was

requesting a hearing because she scheduled one. IAF, Tab 8. Although the

record does not contain an affirmative request for a hearing, we discern no basis

to disturb this determination. See generally Smith v. Department of the Army ,

3 M.S.P.R. 556 (1980) (stating that failure to definitively ascertain whether an

appellant desired a hearing was an effective denial of his hearing right). It is

consistent with the appellant’s request for a hearing in his March 2016 appeal.

0228 IAF, Tab 1 at 3. Further, in his prehearing submission in the instant appeal,

the appellant confirmed his desire for a hearing by expressing his intent to appear

at the scheduled hearing, albeit without witnesses or additional evidence, and by

including a quote reflecting the importance of courts in ensuring equal treatment.

IAF, Tab 9 at 1, 3; see Smith 3 M.S.P.R. at 74 (interpreting an appellant’s

8

statement in his appeal that he was prepared to present his evidence orally as an

indication that he anticipated a hearing).

A party appealing an OPM retirement determination is entitled to receive a

hearing regarding his appeal regardless of whether he would prevail on the merits

based on the undisputed facts. Gowan-Clark v. Office of Personnel Management ,

84 M.S.P.R. 116, ¶ 5 (1999). We find that the administrative judge erred in

finding the appellant’s receipt of refunds for his retirement deductions voided his

right to an annuity without holding the appellant’s requested hearing. Further,

her holding does not appear to address the actual issues raised by the appellant as

to whether OPM erred in refunding the deductions and provided proper

information when doing so. 5 PFR File, Tab 6 at 3-4. On remand, the

administrative judge should hold a hearing on the merits of the appellant’s claims.

Regarding any hearing, the appellant stated below that he did not intend to call

“any witnesses or submit any additional evidence because OPM has already

shown that this agency will not respond to court orders to make decisions.” IAF,

Tab 9 at 1. Notwithstanding that statement, it is not clear to us that the appellant

did not intend to testify on his own behalf. On remand, the administrative judge

should permit him to do so if he so wishes.

5

At one point in his petition for review, the appellant argues that he was claiming a

“constructive dismissal.” PFR File, Tab 6 at 6. In connection with this claim, he

argues that the Postal Service management failed to stop him from being mistreated by

his coworkers. Id.; see Staats v. U.S. Postal Service, 99 F.3d 1120, 1123-24 (Fed. Cir.

1996) (explaining that an employee may rebut the presumption that his resignation was

involuntary based on the narrow doctrine of coercive involuntariness). If he so desires,

the appellant may file a separate appeal from this alleged agency action with the

regional office. We make no findings here regarding the Board’s jurisdiction over, or

the timeliness of, such an appeal.

9

ORDER

For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.