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 may be 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 4 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?
On 12/15/2023, 17 days after the MSPB decision was announced, Mr. Moulton received the following email from OPM’s Office of the General Counsel :
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From: “Kidd-Miller, Allison” <Allison.Kidd-Miller@opm.gov>
Date: 12/15/23 9:52 AM (GMT-07:00)
To: Ron Moulton
Cc: “Lohr, Nicole M.” <Nicole.Lohr@opm.gov>
Subject: Moulton v. OPM
Good morning, Mr. Moulton. I work with Nicole Lohr, one of the OPM representatives in your case at the Merit Systems Protection Board (MSPB), Moulton v. OPM, No. DE-0841-18-0053-I-1. I am reaching out to you directly as I understand that you do not have an attorney.
We are considering whether to appeal the decision in your case to the United States Court of Appeals for the Federal Circuit. We have 60 days to make that decision. However, the MSPB’s order directs OPM to comply within 20 days. On Monday, we plan to file a motion with the MSPB explaining that we are considering appeal, and seeking a “stay” of its order. If granted, this would mean that OPM would not comply with the MSPB’s order until the time to appeal has run, or any appellate proceedings have concluded, whichever is later.
We are sending this email to give you notice of our intent to file that motion and to ask for your position on our request for a stay. You can respond directly to me through this email. Thank you.
Allison Kidd-Miller
Deputy General Counsel
Office of the General Counsel
Office of Personnel Management
Allison.Kidd-Miller@opm.gov
(202) 549-0906
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On 12/18/2023, OPM noticed Ron Moulton that they were filing a Motion to Stay of Intervenor, Director of the Office of Personnel Management.
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From: Johnson, Roxann S. <Roxann.Johnson@opm.gov>
Sent: Monday, December 18, 2023 2:46 PM
To: Ron Moulton
Subject: Service – Motion for Stay and Notice of Entry of Appearance
Good Afternoon, Mr. Moulton,
Please see attached, for purposes of service, my notice of entry of appearance and the Director’s Motion for a Stay of the U.S. Merit Systems Protection Board’s Opinion and Order in Moulton v. Office of Personnel Management, Docket # DE-0841-18-0053-I-1.
Sincerely,
Roxann Johnson
Representative for Office of Personnel Management
and for Intervenor, Director of the Office of
Personnel Management
U.S. Office of Personnel Management
Office of the General Counsel
1900 E Street, NW
Washington, DC 20415-1300
Telephone: (202) 606-1700
Fax: (202) 606-0082
Roxann.Johnson@opm.gov
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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 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 US 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 United States Court of Appeals for the Federal Circuit was docketed. The case was received on 1/26/2024.
The 69-page “Petition For Review Of A Final Decision Of The Merit Systems Protection Board In No. DE-0841-18-0053-I-1” can be viewed HERE. As additional documents are filed in this matter, I will post them on this page.
Filed 2/20/2024: MSPB’s Response to OPM’s Petition for Judicial Review
Last PACER check: 4/26/2024 at 8pm – no new salient documents
Expect this to be a somewhat 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 insitute the MSPB decision. I encourage you to download the Word file HERE and adapt as your own and lobby your US 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