# Rafael Joseph v. Office of Personnel Management

> Merit Systems Protection Board · April 3, 2024

URL: https://www.frixlaw.com/law-library/cases/9957351

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** April 3, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9957351

## How later opinions describe it (automated extraction)

- explaining that an employee may rebut the presumption that his resignation was involuntary based on the narrow doctrine of coercive involuntariness

## Opinion text

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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9957351. Public record. Not legal advice.