                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2007-3149



                                JOSEPH L. RAINONE,

                                                           Petitioner,

                                          v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                           Respondent.


      Joseph L. Rainone, of North Baldwin, New York, pro se.

       A. Bondurant Eley, Trail Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Kathryn A. Bleecker, Assistant Director.

Appealed from: United States Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2007-3149

                                 JOSEPH L. RAINONE,

                                                 Petitioner,

                                            v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                 Respondent.


                           ___________________________

                           DECIDED: September 20, 2007
                           ___________________________


Before RADER, BRYSON, and MOORE, Circuit Judges.

PER CURIAM.

                                       DECISION

      Joseph L. Rainone petitions for review of a decision of the Merit Systems

Protection Board, No. NY-831E-05-0277-X-1, dismissing his petition for enforcement of

a prior Board decision holding that Mr. Rainone was entitled to disability retirement.

The Board concluded that it was jurisdictionally barred from determining whether the

individual retirement record (“IRR”) maintained by Mr. Rainone’s employing agency

correctly identified the date of his retirement for purposes of calculating his retirement

benefits. We affirm.
                                    BACKGROUND

      On May 15, 2006, the Board reversed the determination by the Office of

Personnel Management (“OPM”) that Mr. Rainone was not entitled to disability

retirement benefits under the Civil Service Retirement System. The Board found that

Mr. Rainone had been disabled since June 19, 1999, and was unable to perform useful

and efficient service in his position with the United States Postal Service between June

19, 1999, and the date of his voluntary retirement on January 31, 2004. Rainone v.

Office of Pers. Mgmt., 102 M.S.P.R. 88 (2006). OPM issued a payment to Mr. Rainone

according to that decision. In doing so, however, it used July 28, 2000, as his last day

in pay status for purposes of calculating the award. OPM used that date because, after

the Board’s decision, the Postal Service submitted to OPM a corrected IRR setting forth

July 28, 2000, as Mr. Rainone’s last day in pay status. Mr. Rainone filed a petition for

enforcement with the Board, asking that the Board order OPM to make an additional

disability retirement annuity payment for the period between June 19, 1999, and July

28, 2000. He contends that the evidence of record indicates that he did not return to

work after June 19, 1999, and that the corrected IRR is erroneous.

      The Board held that “OPM is entitled to rely on the information contained in the

IRR unless and until the IRR is amended by the employing agency.” It concluded that

“the Board lacks jurisdiction to review the employing agency’s certification of an IRR”

and that the Board was limited to reviewing whether OPM properly relied on the IRR in

making its calculations. Finding that OPM relied on Mr. Rainone’s corrected IRR, the

Board held that the agency was in compliance with the Board’s previous order and

dismissed the enforcement action.




2007-3149                                  2
                                    DISCUSSION

      The annuity of an employee who retires under 5 U.S.C. § 8337 due to a disability

“shall commence on the day after separation from the service or the day after pay

ceases and the service and age or disability requirements for title to [an] annuity are

met.” 5 U.S.C. § 8345(b)(2). OPM has promulgated regulations stating that the IRR “is

the basic record for action on all claims for annuity or refund.” 5 C.F.R. § 831.103(a).

Subsection (b) of that regulation states that, “[w]hen an official record cannot develop

the required information, the department, agency, or OPM should request inferior or

secondary evidence which is then admissible.”

      The Board has held that section 831.103(a) entitles OPM to rely on information in

the employing agency’s official IRR unless the agency amends that information.

O’Connell v. Office of Pers. Mgmt., 103 M.S.P.R. 579, 580-81 (2006). Based on that

regulation, the Board has ruled that it lacks jurisdiction to order OPM to obtain a

corrected IRR and has held that the Board is limited to determining whether OPM

“properly relied” on the submitted IRR when calculating the amount of any retirement

right. Id. at 580. The Board has explained that an employee’s recourse, in cases in

which the employee contends that the IRR is incorrect, is not to seek relief from the

Board but to seek correction of the IRR by the employing agency. Id. at 581; see

Maxwell v. Office of Pers. Mgmt., 78 M.S.P.R. 350, 357-59 (1998).

      OPM’s regulation does not by its terms state that neither OPM nor the Board may

question the accuracy of an agency’s IRR in the course of calculating a retirement

annuity. However, OPM and the Board have construed the regulation in that manner.

OPM’s interpretation of its own regulation is entitled to substantial deference. Auer v.




2007-3149                                  3
Robbins, 519 U.S. 452, 461-62 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S.

410, 414 (1945); Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352,

1363-64 (Fed. Cir. 2005).      Because OPM’s interpretation is not unlawful or plainly

contrary to the text of the regulation, we defer to that interpretation. We therefore

sustain the Board’s ruling that an employing agency’s IRR is binding on OPM and the

Board with respect to questions as to an annuitant’s employment record in cases in

which the IRR or other similar record is not lost, destroyed, or incomplete.

       As the Board has explained, the proper remedy for a person in Mr. Rainone’s

position is to seek relief from the federal employer in the first instance, requesting a

correction of his records. Absent a satisfactory resolution by the agency, the employee

may not seek relief from the Merit Systems Protection Board, but is required to pursue

his legal rights in district court under the Privacy Act of 1974, 5 U.S.C. § 552a.

       In this case, it may not be necessary for Mr. Rainone to seek relief through that

mechanism, as government counsel has advised us that the Postal Service has

reviewed Mr. Rainone’s records and has determined that a revision of his IRR may be in

order. The government has further suggested that, after the Postal Service makes a

final determination with respect to amending Mr. Rainone’s IRR, it may be appropriate

for us to remand this case to the Board with directions that the Board remand the case

to OPM for adjustment of Mr. Rainone’s benefits in light of the revision in his records. In

response to the government’s post-briefing submissions, Mr. Rainone has filed a motion

for a stay of proceedings in this court.

       Although we recognize that Mr. Rainone may be entitled to a change in the

amount of his award from OPM, we do not believe that remanding the case to the Board




2007-3149                                    4
is the proper course for us to follow. The Board has held that it lacks jurisdiction over

this matter, and we have upheld that ruling; it is therefore not clear that the Board has

any authority to order relief or to direct OPM to grant relief to Mr. Rainone. Nor do we

believe there is any reason to postpone ruling on the narrow legal issue presented in

this appeal, i.e., whether the Board has jurisdiction to review the correctness of an

employee’s IRR. Accordingly, we deny Mr. Rainone’s motion for a stay of proceedings.

In light of the representations made to the court by government counsel, we are

confident that the Postal Service will complete its reexamination of Mr. Rainone’s

employment records and amend his IRR, if appropriate, without further order from this

court or the Board. If Mr. Rainone is dissatisfied with the resolution of the matter after

the Postal Service decides whether and how to amend his IRR, his remedy is to seek to

vindicate his rights by an action under the Privacy Act.

       Mr. Rainone has also requested reimbursement of his docketing fee, a request

that we treat as a motion for an award of costs. We deny the motion for an award of

costs, however, because Mr. Rainone is not the “prevailing party” in this case, which he

must be in order to be entitled to an award of costs against the government. See 28

U.S.C. § 2412(a)(1).   While Mr. Rainone may ultimately obtain a larger award, any

benefit that he obtains will not be because he has prevailed on the legal issues he has

raised in his petition for review, but because of the Postal Service’s determination,

independent of any relief granted by this court, that he is entitled to an amendment of

his IRR.

       No costs.




2007-3149                                   5
