                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MERRITT C. BROWN,                               DOCKET NUMBER
                   Appellant,                        AT-0841-14-0541-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 4, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Merritt C. Brown, Punta Gorda, Florida, 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 final decision of the Office of Personnel Management (OPM)
     denying his request for corrective action under the Federal Erroneous Retirement
     Coverage Corrections Act (FERCCA). Generally, we grant petitions such as this


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     one only when: 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 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).

                                      BACKGROUND
¶2         The appellant was formerly employed by the Library of Congress in a Civil
     Service Retirement System (CSRS) covered position from March 13, 1969, until
     he resigned effective June 4, 1969. Initial Appeal File (IAF), Tab 3 at 14, Tab 7
     at 64. Subsequently, from September 8, 1986, to August 11, 2000, the appellant
     was a Foreign Service Officer with the U.S. Department of State. IAF, Tab 3
     at 15, Tab 7 at 26, 60-62.    Upon his appointment to the Foreign Service, the
     appellant became covered by the Foreign Service Retirement and Disability
     System (FSRDS). IAF, Tab 3 at 15. Effective January 1, 1987, he was converted
     to the Foreign Service Pension System (FSPS) because he had less than 5 years of
     Federal civilian service. 2 Id. at 16. On August 2, 2004, the appellant became


     2
      This action was taken pursuant to the Federal Employees’ Retirement System (FERS)
     Act of 1986, which established FERS and FSPS. Pub. L. No. 99-335, § 415, 100 Stat.
     616 (1986). FSPS is equivalent to FERS. Id. at § 411.
                                                                                     3

     employed by the Occupational Safety and Health Review Administration
     (OSHRA) and was placed in FERS. Id. at 19. The appellant remained in FERS
     until he retired, effective December 31, 2011. 3 IAF, Tab 7 at 55.
¶3        On August 2, 2012, the appellant notified OPM that he believed that he had
     been erroneously placed in FERS upon his reemployment with OSHRA in
     August 2004, and requested relief under FERCCA. IAF, Tab 3 at 21-24. In both
     its initial and final decisions, OPM informed the appellant that he was properly
     placed in FERS because he did not have 5 years of creditable civilian service
     under CSRS.     IAF, Tab 7 at 9-11, 18-19.       Specifically, OPM advised that,
     although the appellant’s Library of Congress service from March 13, 1969, to
     June 4, 1969 (2 months and 22 days) constituted creditable service under CSRS,
     his FSPS service did not because it was not service under subchapter I of
     chapter 8 of Title I of the Foreign Service Act of 1980. Id. at 10.
¶4        The appellant filed a timely Board appeal of OPM’s final decision in which
     he contended that he should have been excluded from FERS under 5 C.F.R.
     § 842.104(c), he should have been provided an opportunity to elect to remain in
     FSPS and his annuity should have been calculated under FSPS rules. IAF, Tab 1
     at 5-6, Tab 3 at 11-12.    The appellant also argued that he should have been
     covered under FSPS because, under 3 Foreign Affairs Manual (FAM) § 6125.3, “a
     FSPS election becomes irrevocable on the date it becomes effective,” which
     happened here, given that he completed 14 years of creditable civil service under
     FSPS. IAF, Tab 3 at 11-12.
¶5        After holding a hearing, the administrative judge issued an initial decision
     affirming OPM’s final decision.       IAF, Tab 16, Initial Decision (ID).     The
     administrative judge found that the appellant was not excluded from FERS


     3
       The appellant was employed by OSHRA from August 2, 2004, to January 13, 2007.
     IAF, Tab 3 at 19, Tab 7 at 24. From January 14, 2007, to December 31, 2011, the
     appellant was employed by the Public Defender Service of the District of Columbia.
     IAF, Tab 3 at 20, Tab 7 at 55.
                                                                                          4

     coverage pursuant to 5 C.F.R. § 842.104(c) because he did not have at least
     5 years of civilian service creditable under CSRS, including the FSRDS; rather,
     he had almost 14 years of service under FSPS, a different system. ID at 4. The
     administrative judge also rejected the appellant’s argument that all of his service
     should be creditable under FSPS because, although an individual can receive
     credit under FSPS for a period of prior FERS service if he waives credit under
     FERS and makes a necessary deposit to FSPS, the law does not provide for credit
     for a period of FERS service after leaving the Department of State. ID at 4-5.
     Lastly, the administrative judge rejected the appellant’s arguments that OSHRA
     failed to provide him with notice of a right to make an election under 3 FAM
     § 6126.3, and that he had irrevocably elected FSPS coverage under 3 FAM
     § 6125.3, finding that such sections did not apply to the appellant. 4 ID at 5-6.
     Having determined that the appellant was properly placed in FERS, the
     administrative judge found that the appellant was not entitled to corrective action
     under FERCCA. ID at 6-7.
¶6         The appellant has filed a petition for review in which he reiterates his
     arguments below. Petition for Review (PFR) File, Tab 1 at 9-13. The agency has
     filed a response in opposition to the appellant’s petition. PFR File, Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7         FERCCA addresses the problems created when employees are in the wrong
     retirement plan for an extended period.        Poole v. Department of the Army,
     117 M.S.P.R. 516, ¶ 13 (2012); 5 C.F.R. § 839.101(a). An employee may seek
     relief under FERCCA if the employee experienced a “qualifying retirement
     coverage error,” defined as an “erroneous decision by an employee or agent of the
     4
      The FAM provisions cited by the appellant address employee elections of retirement
     benefits. See 3 FAM 6100 Foreign Service Retirement and Disability System and
     Foreign Service Pension System, 3 FAM §§ 6125, 6126, U.S. Department of State,
     available at http://www.state.gov/m/a/dir/regs/fam/03fam/3_6100/index.htm. We agree
     with the administrative judge that the provisions do not apply to the appellant who did
     not have a right to an election because he was automatically converted to FSPS.
                                                                                     5

     Government as to whether Government service is CSRS covered, CSRS Offset
     covered, FERS covered, or Social Security-Only covered that remained in effect
     for at least 3 years of service after December 31, 1986.” Poole, 117 M.S.P.R.
     516, ¶ 13; 5 C.F.R. § 839.102.     An employee who has been the subject of a
     qualifying retirement coverage error under FERCCA may be entitled to various
     forms of relief, including a choice of retirement plans.    Poole, 117 M.S.P.R.
     516, ¶ 13.
¶8          The applicable law supports the administrative judge’s finding that the
     appellant was properly placed under FERS in August 2004, because he did not
     have 5 years of creditable civilian service. After December 31, 1986, employees
     who are rehired are automatically covered by FERS unless they have 5 years of
     creditable civilian service. See 5 U.S.C. § 8402(b)(2)(A); 5 C.F.R. § 842.104(c);
     CSRS and FERS Handbook for Personnel and Payroll Offices, Section
     10A1.3-4(B), Office of Personnel Management (Apr. 1998), available at http:
     //www.opm.gov/retirement-services/publication-forms/csrsfers-handbook/. Upon
     his rehire in August 2004, the appellant had 2 months and 22 days of prior CSRS
     service and 13 years and 10 months of prior FSPS service. Thus, he would have
     met the 5-year test only if his prior FSPS service constitutes creditable civilian
     service. As set forth below, we agree with the administrative judge that it does
     not.
¶9          Section 8402(b)(2)(A) of chapter 5 excludes from FERS employees who
     have been separated from service after “having been subject to subchapter I of
     chapter 8 of title I of the Foreign Service Act of 1980” and “having completed at
     least 5 years of civilian service creditable under subchapter I of chapter 8 of
     title I of the Foreign Service Act of 1980.”         5 U.S.C. § 8402(b)(2)(A).
     Subchapter I of chapter 8 of Title I of the Foreign Service Act of 1980 contains
     provisions detailing the FSRDS. See Federal Employees’ Retirement System Act
     of 1986, Pub. L. No. 99-335, §§ 402, 415, 100 Stat. 609, 614-15 (1986)
     (amending chapter 8 of Title I of the Foreign Service Act of 1980 to designate
                                                                                       6

      subchapter I- Foreign    Service      Retirement   and   Disability   System   and
      subchapter II- Foreign Service Pension System). An individual in FSPS is not a
      participant in the FSRDS. Id. at § 414. Thus, although the appellant had more
      than 13 years of FSPS service, such service is not creditable under CSRS.
¶10        OPM’s implementing regulations similarly require 5 years of civilian
      service creditable under CSRS rules for an individual to be excluded from
      automatic FERS coverage. 5 C.F.R. § 842.104(c). Creditable service includes
      service performed under another retirement system if the employee can waive
      benefits under the other system and make a deposit to CSRS to obtain credit. See
      CSRS and FERS Handbook for Personnel and Payroll Offices, Sections
      10A1.1-2(A), 12A5.1-6(B).      There is no provision providing for FSPS credit
      under CSRS. See 5 U.S.C. § 8332. Rather, FSPS service is creditable under
      FERS. 5 See 5 U.S.C. § 8411(b)(4) (defining creditable service under FERS to
      include a period of service that was creditable under FSPS if the employee waives
      credit for such service under FSPS and makes a payment to FERS).
¶11        Thus, we agree with the administrative judge that the appellant was
      properly placed in FERS because he did not have at least 5 years of creditable
      service under CSRS rules.     Accordingly, we discern no reason to disturb the
      initial decision that affirmed OPM’s final decision, finding that the appellant was
      not subject to a retirement coverage error and, therefore, was not entitled to
      corrective action under FERCCA.

                      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:


      5
       Indeed, the appellant decided to transfer his FSPS contributions to FERS. See IAF,
      Tab 7 at 82-84.
                                                                                      7

                           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).
     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 an appeal to the
United States 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
                                                                                8

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.
