Yahle v. Office of Personnel Management

31 F. App'x 639
CourtCourt of Appeals for the Federal Circuit
DecidedMarch 11, 2002
DocketNo. 01-3285
StatusPublished
Cited by1 cases

This text of 31 F. App'x 639 (Yahle v. Office of Personnel Management) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yahle v. Office of Personnel Management, 31 F. App'x 639 (Fed. Cir. 2002).

Opinion

MICHEL, Circuit Judge.

Vernice Yahle seeks review of a final decision by the Merit Systems Protection Board (“Board”) affirming the decision by the Office of Personnel Management (“OPM”) about the effective retirement date used to calculate the amount of Yahle’s disability retirement annuity. Yahle v. Office of Pers. Mgmt., No. CH-0841-00-0743-1-1 (March 19, 2001). Because Yahle had essentially accepted the retirement date that OPM used to calculate her annuity, and because the Board committed no errors of law in reaching this determination, we affirm.

Background

Yahle’s former federal employer, the Department of Veterans Affairs (“DVA”), discharged Yahle in 1993, after Yahle had worked there only during the six-month “probation” period. Yahle thereafter sued the DVA for unlawful discrimination, and the parties’ subsequent settlement agreement and court order stipulated that, in order to make Yahle eligible for disability retirement benefits, DVA would treat Yahle as if she had gone on “leave without pay” (“LWOP”) status from the time of her actual discharge (January 1993) to the time of the resignation date set in the settlement contract (November 1998). (J.A. 138-39.) The DVA also agreed to pay Yahle $20,000 in back pay and another $25,000 for emotional distress, as well as Yahle’s attorney fees.

To qualify for disability retirement benefits, a federal employee must have at least 18 months service. 5 U.S.C. § 8451(a)(1)(A). The more months worked, however, the more an employee who qualifies for these benefits will actually receive in terms of monthly payments. Generally speaking, months spent on LWOP status count about half as much as the months spent actually working for purposes of calculating the amount that an eligible employee will receive in disability retirement payments. See 5 U.S.C. § 8411(d) (stating that an employee who takes “leaves of absence without pay” will receive six months’ credit for every “calendar year” spent in LWOP status).

OPM Calculates Yahle’s Disability Retirement Annuity

In calculating the monthly amount owed to Yahle in disability retirement benefits, the Office of Personnel Management granted Yahle the 18-month minimum needed to so qualify. (J.A. 52-54.) Yahle argued to OPM that in calculating her monthly payments, OPM instead had to consider all the time she spent in LWOP status, as the DVA-Yahle settlement agreement states. (J.A. 56-57, 139.) OPM countered that, in its view, a contract did not and could not govern its calculations for determining the amount owed on a disability retirement annuity; and that OPM therefore had to give Yahle only the 18-month minimum needed to so qualify. (See J.A. 54.) Yahle appealed OPM’s decision to the Merit Systems Protection Board.

The Administrative Judge’s Telephonic Hearing with Yahle

In September 2000, Yahle submitted to the Administrative Judge (“AJ”) a “prehearing submission,” which identifies as one of the three issues for the Board: “(b) Whether the computation of [Yahle’s] annuity should be based upon 18 months of service up to June 20, 1994[,] or 42 months [642]*642of service up to November 4, 1998.” (J.A. 27.) A month later, in October 2000, the AJ held a telephonic status conference, at which Yahle and her lawyer acknowledged the “choice” Yahle now had about the retirement date she wanted to use for purposes of her annuity: June 1994 or November 1998. (See J.A. 22.) Yahle also acknowledged the consequences of choosing this latter 1998 date, including the consequences of having the annuity payments start at a later date, of having to “pay back benefits she received under” the earlier 1994 date, and of having “certain tax problems associated with” that 1998 date. (Id.)

The AJ and the parties also discussed the problem that Yahle had with the certified record that DVA had submitted to OPM for purposes of calculating Yahle’s annuity. This certified record does not reflect the $20,000 that Yahle received in “back pay” under the parties’ settlement agreement. According to the “summary of telephonic hearing conference,” Yahle and her lawyer indicated that they would attempt to address this matter with the DVA, not OPM; as the Administrative Judge noted, “OPM has no authority to change the information contained on this [certified record], and should OPM have properly calculated the appellant [Yahle’s] annuity based on the [record], I must uphold OPM’s determination.” (J.A. 23.)

Yahle subsequently elected to forego a hearing on the merits. Nothing in the record shows that, after the October 2000 telephonic hearing, Yahle had objected to OPM’s use of the June 1994 retirement date, as opposed to the November 1998 date.

The Board Affirms OPM’s Decision

In March 2001, the AJ upheld OPM’s decision. First, as stated in the AJ’s decision, Yahle did not object to OPM’s use of the June 1994 date (as opposed to the November 1998 date) by the time the AJ had closed the record. (J.A. 2 n. 1.) Again, if Yahle chose the November 1998 date, she would have also had to make “annuity overpayment^]” — presumably because she had already received payments from the government that she was not yet entitled to receive — and likely would have faced adverse tax consequences. According to the AJ, OPM had simply made the choice for her based on what OPM viewed as the “most advantageous” decision for Yahle.

Taking the effective retirement date of June 21, 1994, then, the AJ also rejected Yahle’s claim that OPM should have instead calculated the annuity amount by using the pay rates applicable in November 1998, not June 1994. “By definition,” the AJ reasoned, Yahle could not use pay rates that were in effect in 1998 when she had effectively retired in 1994. (See J.A. 3.) Citing 5 C.F.R. § 531.406(b)(2)®, the AJ also rejected Yahle’s assertion that OPM had erroneously failed to credit her for “within-grade step increases” for the time she spent in LWOP status. (Id.) As the AJ saw it, Yahle could not use the time spent in LWOP status toward the time requirements (or “waiting period”) for a “within-grade step increase,” since the regulation disallows such credit for any “nonpay” leave that exceeds two weeks. (See J.A. 3.)

Last, the AJ concluded that OPM did not err by refusing to take into account the $20,000 that Yahle had received in back pay for purposes of calculating her annuity. (J.A. 4) (citing 5 C.F.R. § 841.106). Under the AJ’s analysis, the regulations prohibit OPM from taking action on any annuity account based on anything other than the “individual retirement record” certified by an employing agency. (Id.) The certified record that OPM received from Yahle’s employing agency (the DVA) [643]*643did not list this $20,000 back pay award. (Id.) In addition, citing Board precedent, the AJ reasoned that OPM did not have to consider a lump-sum award of back pay in calculating an annuity. (Id.) (citing Reed v. Office of Pers. Mgmt., 32 M.S.P.R. 290, 293 (M.S.P.B.1987), aff'd, 837 F.2d 1097 (Fed.Cir.1987)).

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