NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2009-3160 

MARGARET L. THOMAS, 

Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

Respondent. 

Margaret L. Thomas, of Madison, Georgia, pro se. 

William P. Rayel, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With him on 

the brief were Tony West, 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NOTE: This disposition is nonprecedential.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 

 

2009-3160 

MARGARET L. THOMAS 

 Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT 

 Respondent. 

Petition for review of the Merit Systems Protection Board in TA-0831-07-0861-I-2. 

___________________________ 

DECIDED: October 16, 2009 

___________________________ 

Before MAYER, RADER, and MOORE, Circuit Judges. 

PER CURIAM. 

I. 

 The Merit Systems Protection Board (“MSPB or Board”) affirmed the decision of 

the Office of Personnel Management (“OPM”) that denied Ms. Margaret L. Thomas’s 

request for an adjustment of her high-three average retirement salary and gross 

monthly annuity rates. Because the Board properly relied upon Ms. Thomas’s Individual 

Retirement Record (“IRR” or “SF-2806”) when calculating her retirement salary and 

annuities, this court affirms. 
II. 

 Ms. Thomas worked for the United States Postal Service (“USPS”) from 1969 

until 1992. On August 22, 1992, she retired under the disability provisions of the Civil 

Service Retirement System. Thereafter, Ms. Thomas received a retirement salary 

based upon her “average pay,” defined as: 

[T]he largest annual rate resulting from averaging an employee’s or 

Member’s rates of basic pay in effect over any 3 consecutive years of 

creditable service. . . . 

5 U.S.C. § 8331(4) (2008) (emphasis added). Ms. Thomas received a retirement salary 

of $29,280.00 and monthly annuities based on the salary for fifteen years without 

complaint. In 2007, however, Ms. Thomas requested that OPM recalculate her 

retirement salary, offering paystubs as evidence that the retirement salary had originally 

been miscalculated. OPM responded to Ms. Thomas on March 20, 2007, and July 9, 

2007, that it did not have the authority to change her IRR, but must rely upon the 

certified IRR provided from the USPS. Based on the certified IRR, OPM concluded that 

Ms. Thomas’s high-three average retirement salary was calculated correctly. 

Ms. Thomas appealed OPM’s July 9, 2007, reconsideration decision to the 

MSPB on July 25, 2007. On September 27, 2007, the administrative judge (“AJ”) 

denied Ms. Thomas’s request to compel discovery from OPM to obtain documentary 

evidence that her IRR and retirement salary were incorrect. The AJ noted that, under 5 

C.F.R. § 831.103(a) (2005), the IRR “is the basic record for action on all claims for 

annuity or refund.” Thomas v. Office of Pers. Mgmt., No. AT-0831-07-0861-I-1 

(M.S.P.R. Sept. 27, 2007). “[O]ther documents pertaining to the appellant’s pay during 

the relevant time period are not likely to lead to the discovery of admissible evidence 

2009-3160 2
since the Board will only be considering her [IRR] in determining whether appellant’s 

annuity has been correctly computed.” Id. Accordingly, the AJ denied Ms. Thomas’s 

motion. 

At that point, Ms. Thomas filed a motion to recuse the AJ. On October 9, 2007, 

the AJ denied this motion but extended the close of the record in the appeal to 

November 1, 2007, to allow Ms. Thomas to obtain a corrected IRR from the USPS. See

Thomas v. Office of Pers. Mgmt., No. AT-0831-07-0861-I-1 (M.S.P.R. Oct. 9, 2007). 

Not having received a corrected IRR by then, the AJ granted Ms. Thomas’s motion on 

November 6, 2007, to dismiss the appeal without prejudice and allow her sufficient time 

to obtain a corrected IRR. 

By January 21, 2009, Ms. Thomas still had not obtained a corrected IRR from the 

USPS. Sympathizing with Ms. Thomas’s position, the AJ had no choice but to affirm 

OPM’s reconsideration. See Thomas v. Office of Pers. Mgmt., No. AT-0831-07-0861-I1 (M.S.P.R. Jan. 21, 2009). The AJ found that OPM was entitled to rely on the 

information in the IRR “unless and until the IRR is amended by the [USPS].” Id. On 

March, 31, 2009, the full Board denied Ms. Thomas’s petition for review of the AJ’s 

initial decision, becoming final on this date. Ms. Thomas timely appealed to this court. 

III. 

This court must affirm the Board’s decision unless it is “(1) arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with 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) (1998); see also Chase-Baker v. Dep’t of 

Justice, 198 F.3d 843, 845 (Fed. Cir. 1999). 

2009-3160 3
The Board correctly concluded that OPM could only rely on the certified IRR 

when reviewing Ms. Thomas’s average annual retirement salary and monthly annuities. 

In addition to pay stubs, Ms. Thomas offers, among other things, W-2s and emails 

between her and USPS employees as evidence of her higher average retirement salary. 

To calculate Ms. Thomas’s retirement salary, the Board considered that: 

(a) Standard Form 2806 (Individual Retirement Record) is the basic record 

for action on all claims for annuity or refund, and those pertaining to 

deceased employees, deceased Members, or deceased annuitants. 

(b) When the records of the department or agency concerned are lost, 

destroyed, or incomplete, the department or agency shall request the 

General Accounting Office, through OPM, to furnish the data that it 

considers necessary for a proper determination of the rights of the 

claimant. When an official record cannot develop the required information, 

the department, agency, or OPM should request inferior or secondary 

evidence which is then admissible. 

5 C.F.R. § 831.103 (emphasis added). 

The Board and OPM interpreted § 831.103 to mean that they may not question 

the accuracy of an IRR when calculating a retirement salary. This court accords the 

OPM’s interpretation of its own regulations substantial deference. See Easter v. United 

States, 575 F.3d 1332, 1339 (Fed. Cir. 2009); Lee v. Office of Pers. Mgmt., 301 Fed. 

Appx. 926, 928 (Fed. Cir. 2009) (deferring to OPM’s interpretation of 5 C.F.R. § 831.103 

because “it is not unlawful or plainly contrary to the text of the regulation”); see also

Rainone v. Office of Pers. Mgmt., 249 Fed. Appx. 823, 825 (Fed. Cir. 2007) (same). 

Because Ms. Thomas’s IRR was not “lost, destroyed or stolen,” OPM was justified in 

relying on the information in the IRR and discounting Ms. Thomas’s other evidence. 

Ms. Thomas argues that OPM and the Board submitted no proof that the IRR is 

correct. The burden, however, is on Ms. Thomas to show that that the IRR is 

2009-3160 4
inaccurate. See Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 141 (Fed. Cir. 

1986); Lee, 301 Fed. Appx. at 928. If Ms. Thomas believes that the IRR is incorrect, 

then she must obtain a corrected IRR from the USPS. The AJ provided Ms. Thomas an 

opportunity to do so. Ms. Thomas, however, was unsuccessful in her attempt. If Ms. 

Thomas is unsatisfied with the USPS’s production of her IRR, she may file suit in 

federal district court for a review of this issue, but not the MSPB. See Lee, 301 Fed. 

Appx. at 929 (noting that 5 U.S.C. § 552a(g)(1)(c) grants a cause of action in federal 

district court when an agency fails to maintain accurate records upon which a benefit 

determination is based). 

Ms. Thomas also asserts that the AJ abused his discretion by denying her 

discovery and recusal motions. According to Ms. Thomas, discovery is needed so that 

the AJ can properly understand the case and ensure that “all positive letters, forms, etc. 

that are in appellant’s favor are in the record.” Pet. R. Br. at 8; Pet. Br. at 3. MSPB 

regulations permit the AJ to limit discovery if “the burden or expense of the proposed 

discovery outweighs its likely benefit.” 5 C.F.R. § 1201.72(d)(3) (2008). 

Here, the AJ correctly noted that the IRR was the basic record for all annuity 

claims. Further, § 831.103(b) allows other evidence only if the IRR is “lost, stolen or 

incomplete.” Ms. Thomas alleged that her IRR was incorrect, not lost, stolen or 

incomplete. Thus, the documents that Ms. Thomas sought through discovery were not 

admissible under § 831.103. As a result, the AJ did not abuse his discretion when he 

denied Ms. Thomas’s discovery request because the burden on OPM outweighed the 

likely benefit to Ms. Thomas. 

2009-3160 5
Ms. Thomas has waived any argument regarding her recusal motion. Recusal of 

an AJ at the MSPB is governed by 5 C.F.R. § 1201.42 (2006), which states: “[I]f the 

judge denies the motion, the party requesting withdrawal may request certification of the 

issue to the Board as an interlocutory appeal under § 1201.91 of this part. Failure to 

request certification is considered a waiver of the request for withdrawal.” § 1201.42(c) 

(emphasis added). No record exists of Ms. Thomas’s request for certification of this 

issue to the Board. Thus, she has waived the issue of her request for withdrawal. 

Nevertheless, the result would be the same if this court were to reach the merits 

of this issue because the AJ did not abuse his discretion by denying the recusal motion. 

A strong presumption of good faith exists on the part of administrative judges. See

Sanders v. U.S. Postal Serv., 801 F.2d 1328, 1331 (Fed. Cir. 1986); King-Zeithamel v. 

Office of Pers. Mgmt., 178 F.3d 1312 (Fed. Cir. 1998). Ms. Thomas’s motion for recusal 

was based upon the AJ’s denial of her discovery motion. Absent “a high degree of 

favoritism or antagonism [so] as to make fair judgment impossible,” an administrative 

judge’s rulings alone cannot overcome the presumption of good faith. See Chianelli v. 

Envtl. Protection Agency, 8 Fed. Appx. 971, 981 (Fed. Cir. 2001) (quoting Liteky v. 

United States, 510 U.S. 540, 555 (1994)); Currier v. U.S. Postal Serv., 79 M.S.P.R. 177, 

182 (1998). Because Ms. Thomas has presented no evidence of favoritism or 

antagonism, this court finds that the AJ did not abuse his discretion in denying her 

recusal motion. 

Ms. Thomas also complains that the AJ failed to impose sanctions under 5 

C.F.R. § 1201.43 (2006) and failed to order OPM to comply with 5 C.F.R. § 1201.25 

(2006), which governs the content of an agency’s response to a Board appeal. Both 

2009-3160 6
2009-3160 7

contentions lack merit. The imposition of sanctions is at the discretion of the AJ. Ms. 

Thomas presented no evidence of sanctionable conduct by any party. Moreover, the 

record shows that OPM fully complied with § 1201.25, providing all relevant documents 

and a detailed explanation for its decision. 

 Finally, Ms. Thomas alleges that she was denied due process of law under the 

Fifth Amendment of the United States Constitution and discriminated against because 

“she has the same right as all other employees who’s annuities [were] set-up using” a 

correct average salary. Pet. Br. at 9. Again, if Ms. Thomas believes that her IRR 

contains incorrect information, the proper avenue for her grievance is first with the 

USPS, and then a district court if necessary. Ms. Thomas’s remaining allegations 

against the USPS were not raised before OPM or the Board and, as such, may not be 

reviewed by this court. 

 Because the Board and OPM permissibly relied upon the certified IRR from the 

USPS to calculate and review Ms. Thomas’s high-three average retirement salary and 

monthly annuities, and Ms. Thomas’s other bases for reversal lack merit, this court 

affirms the Board’s decision. 

AFFIRMED 

No costs.