                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MIGUEL J. CORTEZ, JR.,                          DOCKET NUMBER
                   Appellant,                        AT-844E-15-0476-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: March 1, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Miguel J. Cortez, Jr., Berkeley Lake, Georgia, pro se.

           Cynthia Reinhold, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the reconsideration decision issued by the Office of Personnel
     Management (OPM) denying his request to have his early retirement annuity
     recalculated at age 62. Generally, we grant petitions such as this one only when:


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the initial decision contains erroneous findings 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. See 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. Except as expressly MODIFIED by
     this Final Order to address the appellant’s argument that an OPM employee
     misled him in a January 26, 2013 letter, we AFFIRM the initial decision.
¶2           Effective December 4, 1999, OPM granted the appellant disability
     retirement from his position with the agency, with 20 years and 4 months of
     service. 2    Initial Appeal File (IAF), Tab 5 at 10, 61.        OPM terminated his
     disability annuity benefits effective June 30, 2006, finding him restored to
     earning capacity when his calendar year earnings for 2005 exceeded 80% of his
     basic pay for the position he held before retirement.             Id. at 10, 44.      In
     March 2007, the appellant submitted an application for immediate retirement.
     IAF, Tab 5 at 32-34. At that time, the appellant was eligible for early retirement
     pursuant to 5 U.S.C. § 8414(b) because he had reached the minimum retirement
     age of 50 years and had at least 20 years of creditable service. 3 Id. at 10-12,

     2
         The appellant’s birthdate is August 5, 1951.
     3
       Pursuant to 5 C.F.R. § 844.403, when an individual’s disability annuity is terminated
     because his earning capacity has been restored and he is not employed by the
     Government, the individual is entitled to an annuity under 5 U.S.C. § 8414(b) if he is at
     least 50 years old when the disability annuity ceased and had 20 or more years of
     service at the time of retiring for disability. The appellant was 55 years old when he
     applied for immediate retirement. IAF, Tab 13.
                                                                                      3

     40-43.    OPM approved the appellant’s early retirement application under the
     discontinued service provision of the Federal Employees’ Retirement System
     (FERS) and his annuity commenced on July 1, 2006. Id. at 10.
¶3           In September 2013, the appellant wrote to OPM requesting that, since he
     had turned 62 years of age, OPM recalculate his annuity to credit the period that
     he received FERS disability benefits, which was December 4, 1999 through
     June 30, 2006. Id. at 47-48. OPM denied his application and his subsequent
     request for reconsideration stating that only disability retirement annuities are
     recalculated at age 62, and he was receiving retirement annuity benefits under
     5 U.S.C. § 8414(b), which did not provide for the recalculation of his annuity. Id.
     at 11, 17.
¶4           The appellant filed an appeal with the Board challenging OPM’s March 16,
     2015 reconsideration decision denying his request to have his early retirement
     annuity recalculated at age 62. IAF, Tab 1. The appellant argued that, pursuant
     to 5 U.S.C. § 8455(b)(2), his disability retirement should have been restored on
     January 1, 2013, because in 2012 he earned less than 80% of the current rate of
     pay for the position that he occupied before retiring on disability. IAF, Tab 13
     at 1.    The appellant also stated that he has not recovered from his original
     disability or been reemployed in Federal service. Id. The appellant argued that
     because his disability retirement annuity should have been restored, OPM was
     required by 5 U.S.C. § 8542(b)(1) to recalculate his annuity to credit the period
     that he received a disability annuity from December 4, 1999 through June 30,
     2006. Id. at 1-2. In the alternative, the appellant argued that when he entered
     into retirement status OPM should have calculated his total creditable service to
     include the 78 months that he was in disability status because the definition of
     “creditable service” in 5 U.S.C. § 8411 does not exclude “disability service
     periods.” Id. at 2.
¶5           Based on the written record, the administrative judge affirmed OPM’s
     reconsideration decision finding that the appellant failed to meet his burden of
                                                                                        4

     proving by preponderant evidence that he was entitled to have his early retirement
     annuity redetermined at age 62 to credit the period that he received FERS
     disability annuity benefits. 4 Initial Decision (ID) at 5. The administrative judge
     found that, pursuant to 5 U.S.C. § 8411(b), any period after his separation from
     service on December 3, 1999, which was his last day on paid status, could not be
     added to his creditable service for his early retirement. ID at 4-5. In reaching his
     decision, the administrative judge found that 5 U.S.C. § 8452(b) provides for a
     disability annuitant’s annuity to be redetermined once the annuitant turned
     62 years old but that did not apply here because the appellant was receiving an
     early retirement annuity when he turned 62. ID at 3. The administrative judge
     also found that under 5 U.S.C. § 8455(b)(4) the appellant’s receipt of an early
     retirement annuity, pursuant to 5 U.S.C. § 8414(b) in chapter 84, subchapter II,
     rendered him ineligible for reinstatement of his disability annuity under 5 U.S.C.
     § 8455(b)(2). ID at 4.
¶6           The appellant filed a petition for review reasserting the arguments he raised
     on appeal. Petition for Review (PFR) File, Tab 1; IAF, Tabs 7, 13. The agency
     responded in opposition to his petition, and the appellant replied.       PFR File,
     Tabs 4-5.
¶7           The appellant’s arguments on review constitute mere disagreement with the
     administrative judge’s explained findings on appeal and do not warrant a full
     review by the Board. We affirm the initial decision as modified to address the
     appellant’s argument that an OPM employee misled him in a January 26, 2013
     letter by stating:
              By law, the recalculation of your disability benefits will occur when
              you reach age 62. At that time all disability service accumulated
              from the date of your retirement through your 62nd birthday will be
              recomputed and added to the 20 years and 4 months of original
              service you had at the onset of your disability retirement.
     PFR File, Tab 1 at 5; IAF, Tab 7 at 2, 6.
     4
         The appellant waived his right to a hearing. IAF, Tab 3 at 1.
                                                                                           5

¶8         The appellant argues on review that OPM is required to recalculate his
     retirement annuity to credit the period that he received a disability annuity
     because he detrimentally relied on the information provided by OPM in the
     January 26, 2013 letter, 6 ½ years after OPM approved his application for early
     retirement. 5   PFR File, Tab 1 at 5-7.      The Government, however, cannot be
     estopped from denying benefits not otherwise permitted by law, even if the
     claimant was denied monetary benefits because of his reliance on the mistaken
     advice of a Government official, Office of Personnel Management v. Richmond,
     496 U.S. 414, 416, 432 (1990), and we agree with the administrative judge’s
     finding that no authority permits OPM to redetermine the appellant’s annuity to
     credit the period that he received a disability annuity or to reinstate his disability
     annuity, ID at 5. We therefore deny the petition for review.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            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 have the right to
     request review of this final decision by the U.S. Court of Appeals for the Federal
     Circuit. You must submit your request to the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

     The court must receive your request for review no later than 60 calendar days
     after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,

     5
       Although the appellant raised this argument on appeal, the administrative judge did
     not specifically address it in the initial decision. PFR File, Tab 1 at 4-5; IAF, Tab 7
     at 2, 6. We nonetheless find that the appellant has not shown how the administrative
     judge’s error prejudiced his substantive rights. See Panter v. Department of the Air
     Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not
     prejudicial to a party’s substantive rights provides no basis for reversal of an initial
     decision).
                                                                                  6

2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        Additional information 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, 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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
