William Johns v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM K. JOHNS, DOCKET NUMBER

Appellant, DA-0839-22-0371-I-1

v.

DEPARTMENT OF THE ARMY, DATE: April 29, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

William K. Johns , Pine Bluff, Arkansas, pro se.

Paul Andrew Schorn , 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

dismissed his Federal Erroneous Retirement Coverage Corrections Act

(FERCCA) appeal as untimely filed without good cause shown. For the reasons

set forth herein, we GRANT the appellant’s petition for review. We REVERSE

the administrative judge’s conclusion that the appellant failed to show good cause

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 the untimeliness of his appeal and REMAND the matter to the Dallas

Regional Office for further adjudication in accordance with this Remand Order.

BACKGROUND

On May 31, 2022, the agency issued a final decision indicating that the

appellant had been erroneously placed in the Civil Service Retirement System

(CSRS) rather than in the CSRS Offset system on December 29, 1994, following

a “break-in-service” that lasted more than 1 year. 2 Initial Appeal File (IAF),

Tab 1 at 16-17. The agency’s decision explained that, because this error had

lasted for over 3 years, the appellant was entitled to corrective action under

FERCCA. Id. at 16. The decision indicated that the agency was required to

convert the appellant to the CSRS Offset system; however, the agency would

make corresponding “corrections for retirement deductions and Social Security.”

Id. The decision notified the appellant that, if he wished to appeal the matter, he

must file an appeal with the Board within 30 days of his receipt of the decision.

Id. at 17. The decision also informed the appellant that, if he had any questions

or needed any additional information, he could contact a particular agency

employee, A.W. Id.

On July 19, 2022, the appellant filed a Board appeal challenging the

agency’s May 31, 2022 decision, explaining that he was in the process of retiring.

Id. at 4, 27. He did not request a hearing on the matter. Id. at 1. On his initial

appeal form, the appellant asserted that he had received the agency’s final

decision letter on July 8, 2022. Id. at 2. Presumably to support this assertion, the

appellant provided a July 8, 2022 email sent to him by A.W. Id. at 14-15. In this

email, A.W. conveyed that “the correction to CSRS Offset must stand,” and she

explained that, if the appellant felt that agency human resources personnel had

2

The CSRS Offset system is a version of CSRS for employees whose service is subject

to deductions for both CSRS and the Old Age, Survivors and Disability Insurance

program under the Social Security Act. Warren v. Department of Transportation,

116 M.S.P.R. 554, ¶ 2 (2011), aff’d, 493 F. App’x 105 (Fed. Cir. 2013); see Wible v.

Department of the Army, 120 M.S.P.R. 333, ¶ 6 (2013) (summarizing the relationship

between CSRS, the Federal Employees’ Retirement System, and CSRS Offset).

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not handled his “appointment” correctly, he could appeal “through the Merit

Systems Protection Board.” Id. at 14. She indicated that the appellant could

“include a copy of this email with [his] claim in order to meet the 30 -day

requirement for appealing [the] final decision.” Id.

After notifying the appellant that his appeal may be untimely and providing

him with an opportunity to address the timeliness issue, IAF, Tab 6, the

administrative judge issued an initial decision dismissing the matter as untimely

filed without good cause shown, IAF, Tab 15, Initial Decision (ID) at 6-7. The

administrative judge concluded, based on documents submitted by the appellant,

that he had received the agency’s decision letter not later than June 5, 2022, and,

therefore, that his appeal was “at least 14 days late.” ID at 4. She also found that

the appellant had failed to show good cause for his untimeliness. ID at 4-6. In so

finding, she reasoned that the appellant’s explanation for his delay appeared to be

that he had communicated with the agency via email prior to submitting his Board

appeal; however, she found that the appellant had failed to explain why his

communications with the agency precluded him from timely filing with the

Board. ID at 5-6.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. 3 The agency has not filed a response.

3

The appellant provides additional documents with his petition for review, i.e., medical

records and documents regarding his receipt of the initial decision. PFR File, Tab 1

at 3-11. The Board generally will not consider evidence submitted for the first time

with the petition for review absent a showing that it was unavailable before the record

was closed despite the party’s due diligence. See Avansino v. U.S. Postal Service,

3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). In any event, these documents are

not material to the outcome of this matter. See Russo v. Veterans Administration,

3 M.S.P.R. 345, 349 (1980) (stating that the Board will not grant a petition for review

based on new evidence absent a showing that it is of sufficient weight to warrant an

outcome different from that of the initial decision).

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ANALYSIS

We reverse the administrative judge’s conclusion that the appellant failed to show

good cause for his untimeliness.

The appellant does not appear to challenge the administrative judge’s

conclusion that his Board appeal was untimely filed; however, he seemingly

argues that good causes exists for his filing delay. PFR File, Tab 1 at 2. For the

following reasons, we reverse the administrative judge’s conclusion that the

appellant failed to show good cause for his untimeliness.

The Board may waive the time limit for filing an appeal if the appellant has

shown good cause for the delay. Smith v. Office of Personnel Management,

117 M.S.P.R. 527, ¶ 6 (2012); 5 C.F.R. § 1201.22(c). To establish good cause for

the untimely filing of an appeal, a party must show that he exercised due

diligence or ordinary prudence under the particular circumstances of the case.

Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To

determine whether an appellant has shown good cause, the Board will consider

the length of the delay, the reasonableness of his excuse and his showing of due

diligence, whether he is proceeding pro se, and whether he has presented evidence

of the existence of circumstances beyond his control that affected his ability to

comply with the time limits or of unavoidable casualty or misfortune which

similarly shows a causal relationship to his inability to timely file his appeal.

Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63

(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).

Here, after the administrative judge notified the appellant of the timeliness

issue, he submitted a series of emails that he exchanged with A.W. following his

receipt of the agency’s decision letter. E.g., IAF, Tab 10 at 9-11. In a June 5,

2022 email sent to A.W., the appellant conveyed his belief that he should have

remained under CSRS throughout his Federal tenure, and he inquired where he

could file an appeal or grievance. Id. at 9-10. A.W. responded on June 7, 2022,

by stating, in pertinent part, as follows: “It sounds like I will need to review your

5

electronic Official Personnel Folder [] again. I’m in training this week, but I’ll

plan to take a look next week.” Id. at 9. Her response did not mention the Board.

Subsequently, in a June 14, 2022 email, A.W. indicated that it appeared as though

the agency’s May 31, 2022 decision was correct; however, she also stated as

follows: “I’m not seeing any documentation showing that you elected to continue

CSRS coverage while [working in a nonappropriated fund (NAF)] position. If

you have anything that reflects this, please forward it to me and I’ll be happy to

review.” Id. at 10. On July 5, 2022, A.W. sent the appellant a follow-up email

stating as follows: “I did receive the documents you sent regarding your NAF

service. I will review them in detail and let you know if any changes are

necessary, hopefully yet this week. Thank you for your patience.” Id. at 11

(grammar in original). Thereafter, as summarized above, A.W. sent the appellant

a July 8, 2022 email indicating that the agency’s decision “must stand,” but that

the appellant could provide her July 8, 2022 email to the Board to “meet the

30-day requirement for appealing [the] final decision.” Id. at 13.

Although the Board has previously found that an appellant pursuing a

remedy in another forum does not constitute good cause for an untimely appeal,

e.g, Little v. Government Printing Office, 99 M.S.P.R. 292, ¶ 9 (2005), given the

particular circumstances of this case, we find that the agency’s actions may have

misled and confused the pro se appellant regarding the applicability of the 30 -day

filing deadline, see Miles v. Department of Veterans Affairs , 84 M.S.P.R. 418, ¶ 6

(1999) (explaining that the Board construes pro se pleadings liberally) . To this

end, as summarized above, following the issuance of the May 31, 2022 decision,

the agency’s designated point of contact repeatedly conveyed to the appellant that

the agency was actively reconsidering whether his placement in CSRS on

December 29, 1994, was, in fact, incorrect, i.e., whether an error implicating

FERCCA had even occurred. See Poole v. Department of the Army, 117 M.S.P.R.

516, ¶ 13 (2012) (indicating that FERCCA addresses problems created when

employees are in the wrong retirement plan for an extended period); 5 C.F.R.

6

§ 839.101(a). Accordingly, the appellant may reasonably have been anticipating

a subsequent final agency decision on the matter. Indeed, insofar as he indicated

on his initial appeal form that he had received the agency’s final decision letter

on July 8, 2022, IAF, Tab 1 at 2, the appellant presumably believed that A.W.’s

July 8, 2022 email constituted such a decision, id. at 14-15. 4 Given A.W.’s

assertion that the appellant could provide the Board with the July 8, 2022 email to

“meet the 30-day requirement,” it appears that this belief was shared by at least

some agency personnel involved in this matter. 5 Id. at 14. Accordingly, we find

that good cause exists for the appellant’s untimely filing and we reverse the

initial decision in this regard. See Funk v. Department of the Army, 52 M.S.P.R.

52, 55 (1991) (finding it appropriate to waive the filing deadline when the record

showed that the appellant’s confusion was entirely believable and not a result of

his lack of diligence in pursuing his appeal).

We remand the matter for further adjudication.

As stated in its FERCCA decision, the agency concluded that the appellant

was erroneously placed in CSRS rather than in CSRS Offset when he was

“rehire[d]” on December 29, 1994. IAF, Tab 1 at 16. In his pleadings before the

administrative judge, the appellant disputed this conclusion, arguing that he was

properly placed in CSRS. Id. at 7. In response, the agency contended that,

although the appellant was properly placed in CSRS on March 21, 1982, he

should have been switched to CSRS Offset beginning on December 29, 1994.

4

We acknowledge the 11-day delay between the July 8, 2022 email, and July 19, 2022,

the date on which the appellant filed his Board appeal. However, given that the pro se

appellant likely believed that the July 8, 2022 email constituted a new final decision

that reset the 30-day filing period, this delay does not warrant a different outcome.

See Walls v. Merit Systems Protection Board, 29 F.3d. 1578, 1582 (Fed. Cir. 1994)

(reasoning that the appellant demonstrated due diligence and ordinary prudence in filing

his appeal within the regulatory time period as he construed it).

5

The agency argued before the administrative judge that the appeal was untimely filed

without good cause shown. IAF, Tab 12 at 4-7. Although the agency acknowledged the

appellant’s email communications with A.W., id. at 4 n.1, 6, it did not substantively

address the contents of the same.

7

IAF, Tab 5 at 4-5. To this end, the agency averred that, from September 16,

1990, to December 29, 1994, the appellant had served in an NAF position. Id.

The agency contended before the administrative judge that NAF positions are

generally “not in the civil service for purposes of Title 5,” including retirement

issues; thus, the agency argued that the appellant’s September 16, 1990, to

December 29, 1994 period of employment constituted a break in service that

removed him from CSRS. 6 IAF, Tab 5 at 4-6, Tab 8 at 4.

In retirement annuity cases, the paramount concern is whether the appellant

is entitled to the benefit he seeks. Moore-Meares v. Office of Personnel

Management, 105 M.S.P.R. 613, ¶ 8 (2007); Edney v. Office of Personnel

Management, 79 M.S.P.R. 60, ¶ 6 (1998) (explaining that, unlike the competing

interests of agency management and employee rights involved in a disciplinary

appeal, there is only one primary interest involved in a retirement appeal, that of

the applicant’s entitlement under law to a benefit). Although service in an NAF

position is generally not creditable, there are statutory exceptions to this general

rule. CSRS and FERS Handbook for Personnel and Payroll Offices , §§ 12A5.1-4,

20A2.1-5, https://www.opm.gov/retirement-center/publications-forms/csrsfers-

handbook/ (last visited April 29, 2024). Accordingly, on remand, the

administrative judge shall order both parties to submit additional evidence and

argument regarding the appellant’s employment history and his potential

entitlement to CSRS retirement benefits. The parties’ filings shall address

whether any such exceptions apply to the appellant. The administrative judge

shall thereafter issue a decision on the merits of the agency’s May 31, 2022

decision. 7

6

The agency’s close of the record submission substantively addressed only the

timeliness issue. IAF, Tab 12 at 4-7.

7

To the extent the administrative judge concludes on remand that the appellant should

have been placed in CSRS Offset on December 29, 1994, the appellant is not entitled to

any additional relief under FERCCA. To this end, if an employee is erroneously placed

in CSRS when he should have been placed in CSRS Offset, FERCCA’s implementing

regulations require that the employee’s coverage be corrected to CSRS Offset. See

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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.

Nasdahl v. Department of Veterans Affairs, 119 M.S.P.R. 283, ¶ 4 (2013); 5 C.F.R.

§ 839.701. Indeed, the only remedies available to such an employee are (1) the

agency’s adjustment of retirement deductions and Social Security taxes, which the

agency has already awarded to the appellant in this matter, and (2) a claim for losses in

accordance with 5 C.F.R. part 839, subpart L of FERCCA’s implementing regulations,

which is not reviewable by the Board. IAF, Tab 1 at 16; 5 C.F.R.

§§ 839.702, .1302(a), .1303.