NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3020
HAROLD JOHNSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
UNITED STATES POSTAL SERVICE,
Intervenor.
Harold Johnson, of Jonesboro, Georgia, pro se.
Jeffrey A. Gauger, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With him on the brief were B. Chad
Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.
Dawn E. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for intervenor. With her on the
brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Patricia M. McCarthy, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3020
HAROLD JOHNSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
UNITED STATES POSTAL SERVICE,
Intervenor.
Petition for review of the Merit Systems Protection Board in AT0752060903-I-1.
___________________________
DECIDED: July 10, 2008
___________________________
Before RADER, BRYSON, and LINN, Circuit Judges.
PER CURIAM.
The Merit Systems Protection Board dismissed for lack of jurisdiction Mr. Harold
Johnson’s adverse action claim alleging involuntary retirement. Because the Board
properly dismissed Mr. Johnson’s claim, this court affirms.
I
Mr. Johnson retired from his full time position as a Postal Service Level 5 Letter
Carrier for the Fayetteville Post Office in Fayetteville, North Carolina, on October 30,
1997, at age 56. Mr. Johnson worked for the Postal Service for 16 years and 9 months.
In order to qualify for an immediate Civil Service Retirement System (CSRS) annuity,
Mr. Johnson waived his military retired pay to obtain credit for his 20 years of military
service towards his retirement. Mr. Johnson’s divorce settlement gave a portion of Mr.
Johnson’s military benefits to his former wife. By operation of statute, Mr. Johnson’s
former wife continued to receive a portion of Mr. Johnson’s CSRS annuity.
Mr. Johnson did not make a deposit for his 20 years of active military service. As
a result, Mr. Johnson’s retirement benefits were recalculated when he reached 62 and
became eligible for Social Security benefits under 5 U.S.C. § 8332(j)(i). Because the
reduced annuity payment no longer considered his 20 years of active military service,
Mr. Johnson requested that the Office of Personnel Management (OPM) discontinue the
apportionment to his former wife. Mr. Johnson argued that his benefits were no longer
based on his military service and that his former wife was no longer entitled to a portion
of his retired pay. Without any discretion to halt the apportionment to Mr. Johnson's
former wife, the OPM did not stop those payments.
The MSPB affirmed the OPM’s decision and determined that this case is
governed by 5 U.S.C. § 8332(c)(4). Under § 8332(c)(4), if an employee waives military
retired pay in favor of a CSRS annuity, that waiver automatically authorizes OPM to
deduct and withhold the amount that would have been paid to the former spouse under
the court order. In other words, by waiving his military retired pay to combine his
2008-3020 2
military and civilian service in order to qualify for a CSRS annuity, Mr. Johnson gave his
consent as a matter of law that the amount of his military pay apportioned to his former
wife would continue to be deducted from his annuity.
The Board forwarded Mr. Johnson’s case to the Atlanta Regional Office for
docketing as a separate adverse action. The Board recognized Mr. Johnson’s
argument that he did not receive adequate information at the time of his retirement
concerning the effects of waiving his military retired pay as an allegation of involuntary
retirement.
Before the Atlanta Regional Office, Mr. Johnson argued that his resignation was
involuntary due to (1) improper explanations from his agency about the implications of
his waiver of retired military pay; and (2) coercion by his supervisor. The administrative
judge did not find these arguments persuasive. On February 8, 2007, the Board
dismissed Mr. Johnson’s involuntary retirement claim for lack of jurisdiction. The Board
denied Mr. Johnson’s petition for review.
Mr. Johnson timely appealed to this Court. On appeal, Mr. Johnson requests
reconsideration of his involuntary retirement claim.
II
This court possesses limited authority to review a Board decision. The Board’s
decision must be affirmed unless it is: (1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law; (2) obtained without procedures required
by law, rule, or regulation having been followed; or (3) unsupported by substantial
evidence. 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307,
2008-3020 3
1311 (Fed. Cir. 2003). This court reviews without deference cases involving the Board's
jurisdiction. Middleton v. Dept. of Defense, 185 F.3d 1374, 1379 (Fed. Cir. 1999).
Several statutes, rules and regulations set the Board's jurisdiction. Saunders v.
Merit Sys. Prot. Bd., 757 F.2d 1288, 1290 (Fed. Cir. 1985). This court has recognized
that the Board has no jurisdiction over voluntarily resignations. Cruz v. Dept. of Navy,
934 F.2d 1240, 1248 (Fed. Cir. 1991). Because employee resignations and retirements
are presumed to be voluntary, this presumption may only be rebutted by a showing of
sufficient evidence to establish that the retirement or resignation was involuntary.
Middleton v. Dept. of Defense, 185 F.3d at 1379. Thus, the former employee bears the
heavy burden of pleading and proving that his retirement was involuntary, and thus,
within the jurisdiction of the Board. Id. This can be shown with evidence that the
retirement was the product of: (1) misinformation or deception by the agency, or (2)
coercion by the agency. Staats v. United States Postal Service, 99 F.3d 1120, 1124
(Fed. Cir. 1996).
On appeal, Mr. Johnson argues that the administrative judge miscalculated the
time that Mr. Johnson needed to work to earn a CSRS annunity without taking into
account his military service. The administrative judge had figured that time would have
been 13 additional years of work. In fact, Mr. Johnson only needed to work an
additional four years. This miscalculation was harmless, however. An after-the-fact
calculation of years required to earn a particular retirement benefit is not relevant to the
voluntariness of Mr. Johnson's retirement.
Mr. Johnson also argues that his retirement was involuntary because the agency
did not provide him with the relevant information regarding his retirement options. In his
2008-3020 4
deposition, Mr. Johnson testified that he received letters from the Postal Service
explaining his retirement options. He attended a Postal Service retirement seminar that
outlined the effects of a waiver of retired military pay. Moreover, Mr. Johnson’s
retirement application included instructions regarding eligibility and waiver of retired
military pay. Mr. Johnson signed this application.
For these reasons, this court cannot conclude Mr. Johnson’s retirement was
involuntary due to misrepresentation or lack of information by the Postal Service.
Because Mr. Johnson has not rebutted the presumption that his retirement was
voluntary, this case falls outside the MSPB’s jurisdiction.
For these reasons, this court affirms the Board’s dismissal for lack of jurisdiction.
AFFIRMED
COSTS
Each party shall bear its own costs.
2008-3020 5