VICTORY AT LAST! (pending appeal….)
“We ORDER OPM to rescind its December 12, 2017 final decision, stop apportioning the annuity supplement, and refund all previously apportioned annuity supplement amounts to the appellant. OPM must complete this action no later than 20 days after the date of this decision.”
If you are at this page, you’ve probably heard the outstanding news! SEVEN years after OPM’s ill-fated “policy change” of June 2016, whereby OPM decided to automatically apportion the RAS, a brave soldier has won his battle with OPM. This page is structured with the newest material appended at the bottom, so scroll DOWN↓ to see the latest.
If you have been affected by OPM’s June 2016 policy, I encourage you to read the 20-page Opinion and Order below. It’s an easy read and makes perfect sense as you read through it. After reading it, you may say, “that was a no-brainer,” but remember, the MSPB in DC was without a quorum for over FIVE years. Between January 7, 2017, and March 3, 2022, the Merit Systems Protection Board did not have a quorum of members and therefore could not vote on any petitions for review or other cases requiring action by the Board.
Link to the MSPB’s 11/28/2023 Opinion and Order: MSPB Opinion and Order – Moulton
The beauty of this MSPB Order is that OPM can’t appeal again to the MSPB. This was the ruling on the appeal.
Unfortunately, I was unaware that OPM (apparently) can appeal the MSPB decision to the US Court of Appeals. As disgusting as it sounds, OPM is appealing the MSPB decision. I’m against it. We have been waiting for 8 years for this ruling. After two appeals at the MSPB regional level; an OIG report admonishing OPM for this action and four additional senior MSPB judges expanding and confirming this outcome, OPM hopes for a change. Why? Is there someone in OPM that has dug their heels in this so hard they have lost sight of what is right here? Has OPM figured out the immense cost of compliance with the MSPB Opinion and Order?
You can read the 8-page Motion to Stay document HERE. I am hosting it on my website. According to the application for stay, there are 71 other cases like the Moulton case waiting to be heard by the MSPB.
I can’t understand OPM’s thought process here, other than a “hail Mary” attempt. OPM must certainly recognize the magnitude of the task ahead in re-adjudicating thousands of COAPs and millions of dollars of funds and is trying to find a way not to have to complete that work.
Even if, by some freakish chain of events, OPM is successful in their appeal in the U.S. Court of Appeals for the Federal Circuit, such a decision can be revered by legislation, such as the RAS Clarity Act.
On 1/30/2024, OPM’s appeal to the U.S. Court of Appeals for the Federal Circuit was docketed as case 24-109. The case was received on 1/26/2024. On 5/3/2024, case 24-109 was closed and merged into case 24-1774. If you are following this case on PACER, follow case 24-1774 in the U.S. Court of Appeals – Federal Circuit.
Last PACER check: 12/23/2024
Salient Documents:
Document 2 – Petition For Review Of A Final Decision Of The Merit Systems Protection Board In No. DE-0841-18-0053-I-1
Document 6 – MSPB’s Response to OPM’s Petition for Judicial Review
Document 10 – Order – Granting OPM’s petition for review of final order issued by the MSPB. OPM’s opening brief is due 60 days after 5/3/2024
Document 14 – Motion of OPM to extend time to 8/23/2024 to file brief
Document 16 – OPM’s “Brief of Petitioner” 23pg document with 17 pgs of “actual” brief
Document 20 – Ron Moulton’s Legal Team’s brief – 47 pgs – filed on 10/2/2024
Document 21 – MSPB’s Brief -51 pgs filed on 10/2/2024
Document 22 – FLEOA’s “amicus” Brief – 22 pgs filed on 10/9/2024
Document 23 – OPM Requests 44-day extension to file their reply brief. Filed on 10/16/2024 – Court approves
Document 28 – FLEOA files “corrected amicus brief” – filed on 10/21/2024
Document 29 – OPM’s “Reply Brief of Petitioner” – 14 pgs filed on 12/6/2024
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OPM will get an opportunity to respond to these arguments in a reply brief (due 12/6/2024). At some point, all three briefs (four, including FLEOA’s) will be shared with the three judges on the Federal Circuit who will decide the case. After the judges read the briefs, there will be an opportunity for oral arguments. During these oral arguments the judges will ask questions. The process can take quite a while. It could be a year before oral arguments are heard.
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Some great news! On 6/28/2024, the Supreme Court of the United States issued a ruling on case 22-451. The ruling is 114 pages in length, but in a nutshell, the Court overturned Chevron, a landmark 1984 case that gave federal agencies too much power. This ruling will bode very well for Mr. Moulton and the MSPB. OPM relied heavily on the Chevron doctrine in defending their actions on the RAS, and that rug has now been pulled out from under them.
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News articles on the overturning of the Chevron Doctrine (this truly is BIG news):
https://www.axios.com/2024/06/28/supreme-court-chevron-doctrine-ruling
https://www.washingtonpost.com/politics/2024/06/28/supreme-court-chevron-federal-agency-authority/
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Expect this to be a lengthy process. While this matter is under appeal, OPM will not be making any RAS refunds or changing their policy.
One of my readers was kind enough to share with me the letter that he sent to his US Representative, asking her to lobby OPM not to appeal and to institute the MSPB decision. I encourage you to download the Word file HERE and adapt as your own and lobby your U.S. Representative.
For those of you that are FLEOA members, FLEOA appears to be providing legal counsel to its members, so check in with FLEOA if you are an affected party.
If you want to learn more about t he US Courts of Appeal, click HERE.
News Articles Published on this Matter:
Fedsmith: https://www.fedsmith.com/2023/12/07/divorce-fers-annuity-supplement/
Personal Experiences Shared with Me:
Several folks have written to OPM to ask when their RAS will be refunded and received the following letter.
From a person with an MSPB claim pending:
“What’s funny Dan, I went back to the last name and number of the OPM appointee who took over as the contact on my MSPB appeal way back in 2019 (that was the 3rd individual change since 2018 appeal) leaving a voice mail last week with all my pertinent information and request to consider discussing a settlement……….Nothing!
This afternoon I finally got a human being to talk with at OPM with my request to consider Settlement with my pending 2018 MSPB appeal or any plans by OPM to return my appeal to be Re-Adjudicated in accordance with the November 28th MSPB order. The lady was quite pleasant and put me on a roughly 10/15 minute hold returning and stating the decision was too recent for OPM to decide how they plan to approach. She advised I put a request into OPM, “Attention Customer Inquiry” with my questions. Obviously Dan it’s no surprise to me and most certainly yourself.”
From another person with an MSPB claim pending:
Thanks again for providing the latest on the FERS RAS issue (I’m checking your site every few days). As you would expect, my MSPB conference call on 12/12 with the admin Judge assigned to my case wasn’t very productive. He is unable to take action while OPM decides if they wish to appeal. The OPM rep also believed that the Kuebbeler case (referenced in OPM’s stay request) was still pending appeal at the same court of appeals. The Judge reported that his clerks saw that Kuebbeler withdrew the appeal and told the OPM attorney to follow-up on the issue if they wish to use it as a reason to delay settlement with me. When I contacted OPM to try and settle before the conference, their only offer was to send me a settlement agreement to “pay back the overpayment” which I presumed was for me to “pay back” the retrospective amount. That was a non-starter – and I still haven’t received anything.
As an aside – I was running some internet searches to see the order of OPM Directors and found that the current OPM Director, Kiran Ahuja, was also the OPM Chief of Staff from 2015-2017. The second ranked internet return was her Wiki page where she identifies an as activist in the first sentence of her description.https://en.wikipedia.org/wiki/Kiran_Ahuja Maybe this knowledge is already out there – but it was new to me and seems to fit the situation.
Respectfully,
Dan