                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     VERNA LEWIS,                                    DOCKET NUMBER
                         Appellant,                  NY-0839-14-0278-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: March 20, 2015
                   Agency.



                       THIS ORDER IS NO NPRECEDENTIAL 1

           Kavin L. Edwards, New York, New York, for the appellant.

           Donald Spector, Esquire, New York, New York, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                      REMAND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal under the Federal Erroneous Retirement Coverage
     Corrections Act (FERCCA) for lack of jurisdiction. For the reasons discussed
     below, we GRANT the appellant’s petition for review and REMAND the case to
     the field office for further adjudication in accordance with this Order.

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

                                      BACKGROUND
¶2        The appellant was formerly employed by the U.S. Postal Service (the
     agency) in a Civil Service Retirement System (CSRS) covered position until she
     resigned on August 12, 1980. Initial Appeal File (IAF), Tab 20, Subtab 3 at 9,
     13. Subsequently, she applied for reinstatement with the agency on December 1,
     1981, was rehired effective February 4, 1984, and was converted to the Federal
     Employees’ Retirement System (FERS) on January 1, 1987. IAF, Tab 1 at 7,
     Tab 14, Subtabs 5-6. The appellant retired from service on February 14, 2014.
     IAF, Tab 1 at 3.      Since approximately 2003, the appellant has exchanged
     correspondence with both the agency and the Office of Personnel Management
     (OPM) in which she claimed that she had been improperly placed in FERS instead
     of CSRS after her reinstatement and requested an investigation of the
     circumstances surrounding the delay in her reinstatement.      IAF, Tab 1 at 7-8,
     Tab 11 at 2-3, Tab 20, Subtab 1 at 44-57, Subtabs 2-4.           According to the
     appellant, but for the agency’s improper actions in delaying her reinstatement, she
     would have been placed in CSRS. IAF, Tab 20, Subtab 1 at 1-6.
¶3        The appellant thereafter filed an appeal of a May 8, 2014 letter from OPM
     which informed her that, after her reinstatement on February 4, 1984, she was
     properly placed in FERS instead of CSRS, effective January 1, 1987, because she
     had less than 5 years of creditable civilian service as of December 31, 1986. IAF,
     Tab 1 at 7. The appellant also asserted that, under the terms of her collective
     bargaining agreement, she should have been rehired by the agency at an earlier
     date. Id. at 4; IAF, Tab 7 at 3, 5. In addition, the appellant contended that in
     failing to reinstate her sooner, the agency violated 5 C.F.R. § 300.103,
     discriminated against her on the basis of her race, committed prohibited personnel
     practices, and that its actions constituted harmful procedural error and were not in
     accordance with law. IAF, Tab 1 at 4, Tab 7 at 3, 5-6.
¶4        The administrative judge issued an order to show cause directing the
     appellant to file evidence and argument to prove that her FERCCA appeal was
                                                                                           3

     within the Board’s jurisdiction.     IAF, Tab 3.    The appellant submitted several
     responses to the administrative judge’s order. IAF, Tab 7 at 2-3, 5.
¶5         Without holding the appellant’s requested hearing, the administrative judge
     dismissed the appeal for lack of jurisdiction. IAF, Tab 22, Initial Decision (ID).
     Specifically, the administrative judge found that the appellant failed to establish
     jurisdiction over her FERCCA appeal because she failed to show that she was
     placed in the wrong retirement plan. ID at 4. According to the administrative
     judge, during a June 27, 2014 status conference, the appellant indicated that she
     was not seeking to raise a claim pursuant to 5 C.F.R. § 300.103. ID at 4. The
     administrative judge also found that “based on further development of the facts,”
     the appellant was actually raising a FERCCA, not an improper restoration, claim.
     ID, at 2, n.1. The administrative judge further found that, in the absence of an
     otherwise appealable action, the Board lacked jurisdiction over the appellant’s
     remaining claims of discrimination, action not in accordance with law, prohibited
     personnel practice, and harmful procedural error. ID at 4, n.3.
¶6         The appellant has filed a petition for review in which she asserts, inter alia,
     that the administrative judge erred in dismissing her FERCCA claim for lack of
     jurisdiction because OPM’s decision informing her that she was correctly placed
     in FERS affected her rights under FERCCA, and therefore constitutes an
     appealable decision under 5 C.F.R. § 839.1302. Petition for Review (PFR) File,
     Tab 1 at 27-28. 2 The agency has filed a response in opposition to the appellant’s
     petition. PFR File, Tab 3. The appellant has filed a reply. PFR File, Tab 4.


     2
       For the first time on review, the appellant argues that she was reduced in grade and
     pay and contends that the agency violated 42 U.S.C. § 2000e-16(a). PFR File, Tab 1
     at 10-18. The Board generally will not consider an argument raised for the first time in
     a petition for review absent a showing that it is based on new and material evidence not
     previously available despite the party’s due diligence. Banks v. Department of the Air
     Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not attempted to show that her
     new arguments are based on new or material evidence not previously availab le. PFR
     File, Tab 1. Accordingly, the appellant’s new arguments will not be considered on
     review.
                                                                                   4

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7         As stated above, the administrative judge found that the Board lacked
     jurisdiction over the appeal under FERCCA. ID at 4. 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 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.
     Moreover, a decision that affects an individual’s rights or interests under
     FERCCA, such as an agency’s determination that a retirement coverage error is
     not subject to FERCCA, is appealable to the Board. 5 C.F.R. § 839.1302(a).
¶8         Via letter dated May 8, 2014, OPM informed the appellant that she had not
     experienced a retirement coverage error and she had been properly placed in
     FERS, effective January 1, 1987. IAF, Tab 1 at 7. The appellant contends that
     this is inaccurate and seeks to be transferred from FERS to CSRS. Id. at 4; IAF,
     Tab 20, Subtab 1 at 1. Whether the appellant experienced a retirement coverage
     error is an issue that affects the appellant’s rights under FERCCA. See 5 C.F.R.
     § 839.1302(a). Consequently, we find that the Board has jurisdiction over the
     appellant’s FERCCA claim and the administrative judge erred in dismissing the
     appeal for lack of jurisdiction.
¶9         Under federal retirement law, an individual who was rehired after
     December 31, 1983, after a break in CSRS covered service of more than 1 year,
     and who had less than 5 years of federal service as of December 31, 1986, was
                                                                                        5

      automatically placed in FERS, effective           January 1, 1987. 3      5 U.S.C.
      § 8402(b)(2)(B); see CSRS and FERS Handbook for Personnel and Payroll
      Offices, Section 10A1.1-2 (Apr. 1988), available at http://www.opm.gov/
      retirement-services/publication-forms/csrsfers-handbook/.      Based on the record
      below, it appears undisputed that the appellant was rehired, effective February 4,
      1984, and she had less than 5 years of federal civilian service as of December 31,
      1986. IAF, Tab 1 at 7; ID at 3. We are unable to resolve the appeal, though,
      because the appellant requested but did not receive a hearing.         See Muyco v.
      Office of Personnel Management, 114 M.S.P.R. 694, ¶ 14 (2010); see
      also 5 U.S.C. § 7701(a)(1) (an appellant who files an appeal before the Board has
      the right to a hearing for which a transcript will be kept).
¶10         However, both the Board and its reviewing court have held that where an
      appeal presents solely questions of law, the Board has the discretion to decide a
      case without a full evidentiary hearing.           Carew v. Office of Personnel
      Management, 878 F. 2d 366, 367-68 (Fed. Cir. 1989); Jezouit v. Office of
      Personnel Management, 97 M.S.P.R. 48, ¶¶ 12-13 (2004), aff’d, 121 F. App’x
      865 (Fed. Cir. 2005). Where there is no dispute of material fact and the outcome
      of the appeal is a matter of law, the hearing required under 5 U.S.C. § 7701(a)(1)
      may be limited to an opportunity to present oral argument on the dispositive legal


      3
        Former federal employees, such as the appellant, who were previously covered by
      CSRS but who had a break in service greater than 365 days, and were rehired on or
      after January 1, 1984, were placed in a hybrid of CSRS and FERS called CSRS Interim.
      Congress established the CSRS Interim retirement program in 1983, to cover the
      transition period between the CSRS and a new retirement program to be created in the
      future. Federal Employees’ Retirement Contribution Temporary Adjustment Act of
      1983, Pub. L. No. 98-168, Title II, 97 Stat. 1106 (Nov. 29, 1983). On June 6, 1986,
      Congress passed legislation establishing FERS, a new retirement plan for federal
      employees. 5 U.S.C. § 8401 et seq. The CSRS Interim retirement program was
      eventually phased out and CSRS Interim employees who did not have at least 5 years
      federal civilian service as of December 31, 1986, were automatically transferred to
      FERS coverage on January 1, 1987. 5 U.S.C. § 8402(b); 5 C.F.R. § 842.104(d).
                                                                                       6

      issue.     Muyco, 114 M.S.P.R. 694, ¶ 14.     Accordingly, on remand, unless the
      appellant identifies a genuine dispute of material fact regarding her FERCCA
      claim, the hearing regarding this claim may be limited to oral argument on the
      issue of whether she had a qualifying retirement coverage error under FERCCA.
      See id.
¶11            The appellant also generally reasserts her arguments below that the agency
      violated its collective bargaining agreement, discriminated against her, and
      engaged in harmful procedural error when it failed to follow appropriate rules and
      regulations regarding her delayed reinstatement, and she contends that the
      administrative judge erred in failing to inform her of her jurisdictional burden
      concerning such claims. PFR File, Tab 1 at 7-8, 23-24. As the administrative
      judge correctly noted, however, the appellant clarified during the June 27, 2014
      status conference that she was actually making these contentions in support of her
      FERCCA claim, for which she has received jurisdictional notice, and that she is
      not now seeking restoration to the position she occupied prior to her retirement.
      We leave it to the administrative judge to consider such contentions in the first
      instance in the context of her FERCCA claim.

                                             ORDER
               For the reasons discussed above, we REMAND this case to the field office
      for further adjudication in accordance with this Remand Order.




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