                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 17

                             Docket No. SF-0831-14-0582-I-1

                                     Clyde W. Beal,
                                        Appellant,
                                             v.
                           Office of Personnel Management,
                                         Agency.
                                    February 23, 2015

                  Clyde W. Beal, Barstow, California, pro se.

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

                                         BEFORE

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



                                 OPINION AND ORDER

¶1         This case is before the Board on the Office of Personnel Management’s
     (OPM’s) petition for review of the initial decision, which reversed OPM’s final
     decision finding that the appellant’s retirement annuity was properly computed
     without crediting his post-1956 military service. For the reasons set forth below,
     we DENY OPM’s petition and AFFIRM the initial decision.

                                     BACKGROUND
¶2         After serving in the United States Air Force from November 1, 1973, to
     December 5, 1981, Initial Appeal File (IAF), Tab 4 at 31, the appellant received a
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     temporary appointment to a Laborer position with the Department of the Navy.
     He was appointed to a permanent position as a Custodial Worker in 1982. Id. at
     28. He received benefits from the Office of Workers’ Compensation Programs
     for a period of time and ultimately retired on disability in 2003 under the Civil
     Service Retirement System (CSRS). Id. at 46, 50. In his retirement application,
     the appellant set out his prior military service and acknowledged that he had not
     paid a deposit to cover that service. Id. at 50. On March 23, 2011, OPM advised
     the appellant that, “[a]s a post 10/01/82 federal employee,” he was required to
     make a post-1956 military service deposit before separating from federal service,
     and that, because he had failed to do so, his military service could not be included
     in the computation of his annuity. Id. at 39; see 5 U.S.C. §§ 8332(c)(1)(B), (j),
     8334(j).   OPM upheld its decision on reconsideration but, on appeal, OPM
     rescinded the decision, indicating that it would give the appellant an opportunity
     to make the deposit, and, on that basis, the administrative judge granted OPM’s
     motion to dismiss the appeal. Beal v. Office of Personnel Management, MSPB
     Docket No. SF-0831-11-0769-I-1, Initial Decision (Aug. 17, 2011). By letter of
     September 29, 2011, OPM afforded the appellant 30 days in which to pay the
     deposit which, with interest, was calculated at $13,690.49, and reiterated that, if
     he did not do so, his annuity would be reduced when he reached age 62. IAF,
     Tab 4 at 40. The appellant did not pay the deposit.
¶3         On his petition for review of the initial decision, the Board affirmed the
     decision but, to the extent that the appellant argued that he should not have had to
     pay the deposit at all, the Board directed him to obtain a new reconsideration
     decision from OPM on that issue.       Beal v. Office of Personnel Management,
     MSPB Docket No. SF-0831-11-0769-I-1, Final Order at 2-4 (Aug. 9, 2013). In
     that April 25, 2014 reconsideration decision, OPM found that, although the
     appellant signed health benefits and life insurance forms on September 30, 1982,
     those documents did not demonstrate that he was an employee under the CSRS
     before October 1, 1982, because his employing agency did not certify his
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     enrollment until October 3, 1982, the date he reported to duty, and that therefore
     the appellant’s failure to have paid the deposit precluded his years of military
     service from being included in the calculation of his annuity. IAF, Tab 4 at 5-7.
¶4         On appeal, the appellant argued that he was hired when he signed those
     documents on September 30, 1982, he actually began work that day, and therefore
     he was not required to make a deposit in order to have his military service
     included in the computation of his annuity.       Id., Tabs 1, 8; see 5 U.S.C.
     § 8332(c)(1)(A).   For its part, OPM repeated its position that the employing
     agency’s Human Resources Office did not complete its processing of the
     appellant’s paperwork until October 3, 1982. IAF, Tab 4.
¶5         After conducting the requested hearing, the administrative judge issued an
     initial decision in which she reversed OPM’s decision.        Id., Tab 13, Initial
     Decision (ID) at 1, 10. She considered the evidence the appellant submitted in
     support of his claim that he started work on September 30, 1982, and the agency’s
     evidence which appeared to show that he started work on October 3, 1982. ID at
     6-7. The administrative judge credited the appellant’s testimony as to when he
     began working in his CSRS-covered position, ID at 7-8, concluding that, on
     September 30, 1982, the employing agency executed the appointment affidavit
     the appellant signed that date, he indicated his acceptance of the appointment,
     and he started working in the position. ID at 8. Accordingly, the administrative
     judge concluded that the appellant was not required to make a deposit to secure
     coverage of his post-1956 military service and that OPM’s contrary determination
     was in error. ID at 10. She ordered OPM to recalculate the appellant’s annuity
     from the beginning of his federal service, September 30, 1982, including as
     proper his post-1956 military service, without requiring him to make a deposit.
     ID at 11. OPM has filed a petition for review, Petition for Review (PFR) File,
     Tab 1, to which the appellant has responded in opposition, id., Tab 3.
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                                        ANALYSIS
¶6         OPM argues that the administrative judge exceeded her authority in
     reviewing the appellant’s supplemental records and erred in relying on his
     testimony. Id., Tab 1 at 12-13. In reaching her decision that she could review the
     accuracy and completeness of the appellant’s Individual Retirement Record
     (IRR), the administrative judge relied on the Board’s recent decision in Conner v.
     Office of Personnel Management, 120 M.S.P.R. 670, ¶¶ 5-6 (2014), ID at 10,
     wherein the Board in turn relied on Lisanti v. Office of Personnel Management,
     573 F.3d 1334 (Fed. Cir. 2009).      In Lisanti, the court acknowledged several
     Board decisions and two of its own nonprecedential decisions holding that an
     employing agency’s certified IRR is binding on, and not subject to review by,
     OPM or the Board. Id. at 1339-40. The court found, however, that none of its
     precedential decisions supported that notion and that, if an employee challenges a
     determination of the employing agency as reflected on his IRR, OPM, and
     subsequently the Board, must entertain that claim. Id. at 1340. The Board in
     Conner relied on that precedent, holding that the administrative judge properly
     considered evidence challenging the accuracy and completeness of the retired
     employee’s IRR. 1 Conner, 120 M.S.P.R. 670, ¶¶ 5-6.
¶7         Although OPM requests that we reconsider our decision in Conner, PFR
     File, Tab 1 at 13, we decline to do so as we are bound by U.S. Court of Appeals
     for the Federal Circuit precedent.       Garcia v. Department of Agriculture,
     110 M.S.P.R. 371, ¶ 12 (2009) (decisions of the Federal Circuit are controlling
     authority for the Board).   We are not persuaded that the administrative judge
     exceeded her authority in looking to what the agency describes as “supplemental
     documents” and the appellant’s testimony in determining the date of his

     1
       The Board in Conner overruled a number of specific Board cases and any others
     which, to the extent that they held that such consideration was not authorized, were
     inconsistent with Lisanti. Conner, 120 M.S.P.R. 670, ¶¶ 6-7.
                                                                                     5

appointment. PFR File, Tab 1 at 11-13. In so doing, the administrative judge
simply followed the Board’s direction in Conner, as based on the court’s
direction in Lisanti, to consider evidence that challenged the accuracy and
completeness of the appellant’s IRR. She considered documents in the record
that were executed on September 30, 1982, specifically the Standard Form 2817,
the appellant’s life insurance coverage, his designation of beneficiary, his health
benefits form, and his appointment affidavit, all signed and authorized on that
date.   ID at 6-7; IAF, Tab 4 at 10, 18, 26-27. The administrative judge also
considered the appellant’s hearing testimony that, after completing the paperwork
concerning his appointment on September 30, 1982, he was directed, and did
report directly, to his new position where he was trained by the incumbent he was
replacing who was leaving the position early. Hearing Compact Disc; IAF, Tab 8
at 2; ID at 2-3, 6-7. Applying the Hillen factors, 2 the administrative judge found
the appellant’s testimony not only consistent with the above-cited documents, but
also forthright and nonevasive.         ID at 7-8.        The administrative judge
acknowledged other documents in the record that were contrary to the appellant’s
version of events, namely, the Standard Form 50, which shows an effective date
of October 3, 1982, for the appellant’s conversion to his excepted appointment
and the beginning of his trial period, IAF, Tab 4 at 38, and the IRR which is in
accord, id. at 54; ID at 7. The administrative judge concluded, however, that the


2
  To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version he believes, and explain in detail why he found the chosen version more
credib le, considering such factors as: (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987).
                                                                                         6

      appellant’s testimony and the documents which supported his claim outweighed
      the entries in the IRR such that they are not worthy of credence. ID at 10.
¶8          Although OPM disputes the administrative judge’s authority to review the
      accuracy and completeness of the IRR, our reviewing court has clearly stated that
      the Board has such authority.         Lisanti, 573 F.3d at 1340; see Conner,
      120 M.S.P.R. 670, ¶¶ 5-6. And while OPM disputes the administrative judge’s
      consideration of the record evidence in resolving the dispositive issue in this
      case, we discern no reason to disturb her findings in that she considered the
      evidence as a whole, drew appropriate inferences, and made reasoned
      conclusions. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997);
      see Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (the
      Board may overturn credibility determinations only when it has “sufficiently
      sound” reasons for doing so).     We therefore affirm the administrative judge’s
      finding that the appellant’s appointment commenced on September 30, 1982, and
      that, as a result, he was not required to make a deposit to secure inclusion of his
      post-1956 military service in the computation of his annuity.

                                            ORDER
¶9          We ORDER OPM to recompute the appellant’s annuity from September 30,
      1982, including as proper his post-1956 military service without requiring him to
      make a deposit. OPM must complete this action no later than 20 days after the
      date of this decision.
¶10         We further ORDER OPM to tell the appellant promptly in writing when it
      believes it has fully carried out the Board’s Order and to describe the actions it
      took to carry out the Board’s Order. The appellant, if not notified, should ask
      OPM about its progress. See 5 C.F.R. § 1201.181(b).
¶11         No later than 30 days after OPM tells the appellant that it has fully carried
      out the Board’s Order, the appellant may file a petition for enforcement with the
      office that issued the initial decision in this appeal if the appellant believes that
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      OPM did not fully carry out the Board’s Order.       The petition should contain
      specific reasons why the appellant believes that OPM has not fully carried out the
      Board’s Order, and should include the dates and results of any communications
      with the agency. See 5 C.F.R. § 1201.182(a).
¶12         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                             NOTICE TO THE APPELLANT
                         REGARDING YOUR RIGHT TO REQUEST
                             ATTORNEY FEES AND COSTS
            You may be entitled to be paid by OPM for your reasonable attorney fees
      and costs. To be paid, you must meet the requirements set out at Title 5 of the
      United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b); or
      38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R. §§ 1201.201,
      1202.202, and 1201.203. If you believe you meet these requirements, you must
      file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE
      OF THIS DECISION. You must file your attorney fees motion with the office
      that issued the initial decision on your appeal.

                        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
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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 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.
