                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOE WILBUR WALKER,                              DOCKET NUMBER
                  Appellant,                         AT-0839-14-0234-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: September 29, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joe Wilbur Walker, Terry, Mississippi, pro se.

           Rayann Lund, Albuquerque, New Mexico, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s decision to deny as untimely his request for enhanced
     firefighter service credit.   Generally, we grant petitions such as this one only
     when: the initial decision contains erroneous findings of material fact; the initial


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant was employed with the agency’s U.S. Forest Service from
     August 1969 until his retirement in January 2006.         Initial Appeal File (IAF),
     Tab 4 at 9, 11. In a letter dated August 25, 2007, the appellant requested an
     individual ruling on whether he qualified for firefighter retirement coverage
     under the Civil Service Retirement System (CSRS). Id. at 11-12. The agency
     notified the Forest Service’s Director of Human Resources Management on
     September 23, 2013, of its decision to deny the appellant’s request as untimely
     filed. Id. at 9-10. In October 2013, the Forest Service notified the appellant of
     its decision, and of his right to appeal to the Board. Id. at 7-8.
¶3         The appellant timely filed an appeal. IAF, Tab 1. In his appeal, he alleged
     that he was late requesting coverage because an agency official advised him that
     he was not eligible. Id. at 4-5. In addition, he stated, “I included statements in[]
     my packet from my su[p]ervisors about why I missed the deadline to apply. I sent
     another letter in as requested explaining the situation.” Id. at 5.
                                                                                         3

¶4         The administrative judge scheduled a telephonic hearing, for which he
     approved the agency’s benefits officer as a witness for the agency, but
     disapproved the appellant’s requested witnesses as irrelevant. IAF, Tab 8. He
     also indicated that the appellant could testify as a witness on his own behalf. Id.
     at 3. After the hearing, the administrative judge issued an initial decision finding
     that the appellant’s excuse for his untimely request for firefighter retirement
     coverage was insufficient because he was aware that he could apply and that there
     was a deadline. See IAF, Tab 11, Initial Decision (ID) at 3-4.
¶5         The appellant has submitted a timely petition for review.          Petition for
     Review (PFR) File, Tab 1. The agency responded to the petition for review. PFR
     File, Tab 3.
     The appellant has failed to show that he was prevented by circumstances beyond
     his control from timely seeking enhanced service credit as a firefighter.
¶6         An individual seeking retirement benefits bears the burden of proving
     entitlement to those benefits by preponderant evidence.         Jordan v. Office of
     Personnel Management, 100 M.S.P.R. 623, ¶ 7 (2005); see also Watson v.
     Department of Navy, 262 F.3d 1292, 1298 (Fed. Cir. 2001) (law enforcement
     officers (LEOs) seeking early retirement credit bore the burden of proving
     entitlement by preponderant evidence). Under the CSRS, qualifying firefighters
     are entitled to an enhanced annuity. 5 U.S.C. §§ 8336(c), 8339(d)(1). Prior to
     1994, the applicable regulations provided for a September 30, 1989 deadline for
     filing a request for service credit. IAF, Tab 4 at 9; see also Menendez v. Office of
     Personnel Management, 83 M.S.P.R. 582, ¶ 6 (1999).               The Forest Service
     extended its deadline to December 31, 2003. IAF, Tab 4 at 9. Under current
     regulations, coverage in a firefighter position or credit for past service will not be
     granted for a period greater than 1 year prior to the date that the request is
                                                                                         4

     received. 2 Menendez, 83 M.S.P.R. 582, ¶ 6 (applying this rule in the case of an
     individual requesting LEO retirement credit); 5 C.F.R. § 831.906(e).
¶7         In the appellant’s written request for enhanced service credit, dated
     August 25, 2007, he acknowledged that his request was late. IAF, Tab 4 at 11.
     According to the appellant, J.G., an agency official, made a statement in 2003
     that only those with the words “Fire Fighter” on their job descriptions needed to
     attend a retirement briefing regarding the credit that the appellant now seeks. Id.;
     see Hearing Compact Disc (HCD). We agree with the administrative judge that
     the appellant’s reliance on this misinformation does not show that he was
     prevented by circumstances beyond his control from seeking coverage by the
     deadline. ID at 3-4; see McDowell v. Department of Defense, 76 M.S.P.R. 281,
     284 (1997) (holding that the appellant failed to show that he was prevented by
     circumstances beyond his control from timely seeking coverage even though
     agency officials told him that he was not eligible).
¶8         Regarding notification about enhanced service credit coverage, the
     appellant stated, “[w]e did not get the letter that was sent out in 1988 or 1989.”
     IAF, Tab 4 at 11. However, the appellant testified at the hearing that J.G. made
     him aware of the enhanced service credit in 2003. See HCD. The appellant chose
     to trust the representations of J.G., and did not attend the briefing.        See id.
     Regardless of whether he was aware of enhanced service credit or not, ignorance
     of a regulation itself is not a circumstance beyond an appellant’s control that
     prevents   him    from    making    a   timely    request   for   coverage.       See




     2
       The agency, and not the Office of Personnel Management, made a determination
     regarding the appellant’s claim. CSRS regulations indicate that an agency head may
     extend the time limit for filing a claim when, in the judgment of the agency head, the
     individual shows that he was prevented by circumstances beyond his control from
     making the request within the time limit. Menendez, 83 M.S.P.R. 582, ¶ 6; 5 C.F.R.
     § 831.906(f). The agency determined that the appellant was not prevented by
     circumstances beyond his control from making a timely request. IAF, Tab 4 at 7-10.
                                                                                     5

      Menendez, 83 M.S.P.R. 582, ¶ 8. We agree with the administrative judge that the
      appellant’s request was untimely. ID at 3-4.
      The appellant failed to object below to the administrative judge’s ruling on
      witnesses.
¶9         On review, the appellant argues that he was denied the opportunity to
      present documents and witnesses. PFR File, Tab 1 at 3-4. We see no error in the
      administrative judge’s determination to disapprove the appellant’s requested
      witnesses.   At the hearing, the administrative judge allowed the appellant to
      testify fully on his own behalf. See HCD. The administrative judge has wide
      discretion under 5 C.F.R. § 1201.41(b)(8), (10) to exclude witnesses where it has
      not been shown that their testimony would be relevant, material, and
      nonrepetitious.   Gonzalez v. Department of Transportation, 109 M.S.P.R. 250,
      ¶ 12 (2008). Likewise, administrative judges have broad discretion in controlling
      proceedings before them. Dangerfield v. U.S. Postal Service, 77 M.S.P.R. 678,
      684 (1998); 5 C.F.R. § 1201.41(b).      The order and summary of prehearing
      conference, in which the administrative judge made rulings on witnesses,
      permitted the parties to lodge any objections to the summary, if they had any.
      IAF, Tab 8 at 1. The appellant did not object to the summary and his failure to
      timely object to rulings on witnesses below precludes him from doing so on
      petition for review. See Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581
      (1988).
¶10        On review, the appellant lists a number of documents that were not
      considered by the agency in denying his request to waive the applicable time
      limits. PFR File, Tab 1 at 4. However, at the hearing, the appellant did not seek
      to admit any documents that were not previously made a part of the record, and
      we therefore cannot find any adjudicatory error. See IAF, Tab 5 at 3 (ordering
      the parties to submit hearing exhibits as part of their prehearing submissions),
      Tab 6 (reflecting that the appellant submitted no exhibits with his prehearing
      submissions), Tab 8 (indicating that both parties stated that there were no
                                                                                      6

      outstanding matters to be addressed prior to the hearing); see HCD (failing to
      reflect that the appellant requested to submit additional documentation into the
      record).
¶11         The appellant argues that his years of service entitle him to “individual
      consideration” of his claim. PFR File, Tab 1 at 4-5. His argument appears to
      constitute mere disagreement with the administrative judge’s findings and
      therefore provides no basis to grant the petition for review.     See Weaver v.
      Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980) (mere disagreement with
      the administrative judge’s findings and credibility determinations does not
      warrant full review of the record by the Board). Moreover, the appellant does not
      cite to any law that requires the administrative judge to give his claim special
      consideration for his years of service. Based on our review of the record, we find
      no reason to disturb the administrative judge’s initial decision affirming the
      agency’s determination.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States 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, 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).
                                                                                  7

     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 United States 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 United
States   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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
