UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RICHARD L. MILLER,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DE-0831-14-0340-M-1

DATE: August 15, 2022

THIS ORDER IS NONPRECEDENTIAL1

Richard L. Miller, Colorado Springs, Colorado, pro se.

Jane Bancroft, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

remanded his retirement appeal to the Office of Personnel Management (OPM) 

for recalculation of his Civil Service Retirement System (CSRS) annuity,

consistent with the order issued by the U.S. Court of Appeals for the 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

Federal Circuit (Federal Circuit). Generally, we grant petitions such as this one 

only in the following circumstances: the initial decision contains erroneous 

findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative judge’s rulings during either the course 

of the appeal or the initial decision were not consistent with required procedures

or involved an abuse of discretion, and the resulting error affected the outcome 

of the case; or new and material evidence or legal argument is available that, 

despite the petitioner’s due diligence, was not available when the record closed. 

Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). For the reasons discussed below, we DENY the appellant’s petition 

for review and REMAND the case to OPM for further adjudication in accordance 

with this Remand Order.

BACKGROUND

¶2 As the Board noted previously, the appellant has a complicated history of 

civilian and military service that began in 1970 and concluded in 2012. Miller v. 

Office of Personnel Management, 124 M.S.P.R. 62, ¶ 2 (2016), aff’d in part, 

rev’d in part, and remanded, 903 F.3d 1274 (Fed. Cir. 2018). The appellant 

retired from Federal service in 2012. Miller v. Office of Personnel Management, 

MSPB Docket No. DE-0831-14-0340-I-1, Initial Appeal File (IAF), Tab 4 at 5. 

In a March 28, 2014 reconsideration decision, OPM granted the appellant’s 

application for immediate CSRS retirement, but excluded several periods from 

his creditable civilian service computation. Id. at 5-7.

¶3 The appellant filed an appeal of OPM’s March 28, 2014 reconsideration 

decision. IAF, Tab 1. The administrative judge issued an initial decision finding 

that the appellant was entitled to civilian service credit for part of the disallowed 

period and potentially entitled to civilian service credit for the remainder of that 

period; therefore, he remanded the case to OPM for consideration of the 
3

outstanding issue regarding the appellant’s creditable service and recalculation 

of the appellant’s annuity. IAF, Tab 22, Initial Decision (ID) at 7-9. OPM filed 

a petition for review of the initial decision. Miller v. Office of Personnel 

Management, MSPB Docket No. DE-0831-14-0340-I-1, Petition for Review

(PFR) File, Tab 1. In a precedential opinion, the Board reversed the initial 

decision and affirmed OPM’s reconsideration decision. Miller, 124 M.S.P.R. 62, 

¶¶ 1, 20.

¶4 The appellant appealed the Board’s decision to the Federal Circuit. Miller,

903 F.3d at 1276-77. The Federal Circuit issued a precedential decision, 

affirming the Board’s decision in part, reversing in part, and remanding for 

further adjudication consistent with its orders therein. Id. at 1277, 1286. The 

court concluded that, for the periods of June 21 to June 30, 1982 (period one),

and August 27 to October 25, 1990 (period two), the appellant had performed 

concurrent military and civilian service and that he was entitled to CSRS credit 

for his civilian service, even if he also received credit towards his military 

retirement for his military service performed during those periods. Id.

at 1282-85. The court further held that, for the final period at issue, August 22, 

1994, to December 22, 1995 (period three), the appellant had performed military 

service with no concurrent civilian service and he was barred, under 5 U.S.C. 

§ 8332(c)(2), from receiving civilian service credit for that military service 

because he had not made a deposit or waived his military retirement pay for this 

period. Miller, 903 F.3d at 1285-86. The Federal Circuit ordered the Board to 

remand the appeal to OPM for recalculation of the appellant’s CSRS retirement 

annuity consistent with those findings. Id. at 1286.

¶5 After the matter was remanded to the Denver Field Office, the

administrative judge issued a close of record order, indicating his intent to 

remand the matter to OPM, consistent with the Federal Circuit’s order, and 

allowing the parties an opportunity to object to his order. Miller v. Office of 

Personnel Management, MSPB Docket No. DE-0831-14-0340-M-1, Appeal File 
4

(M-1 AF), Tab 3. Both parties submitted responses. M-1 AF, Tabs 6, 8. In his 

close of record submission, the appellant agreed that OPM should be ordered to 

recalculate his annuity based on his creditable civilian services for periods one 

and two. M-1 AF, Tab 6 at 5-6. He also did not dispute that he was not entitled 

to have his military service from period three credited towards his CSRS service 

computation. Id. However, he argued that he was entitled to various refunds of 

“overpayments” OPM collected from him relating to its erroneous disallowance 

of civilian service credit for periods one and two and to a refund of his 

“contributions,” such as his CSRS retirement, healthcare, and military deposit 

payments, that he paid to and/or were collected by his former employing agency 

during period three. Id. at 7-9. After considering the parties submissions, the 

administrative judge issued an initial decision, remanding the matter to OPM for 

recalculation of the appellant’s CSRS retirement annuity. M-1 AF, Tab 9, Initial 

Decision (M-1 ID) at 1-3.

¶6 The appellant has filed a petition for review. Miller v. Office of Personnel 

Management, MSPB Docket No. DE-0831-14-0340-M-1, Petition for Review 

File (M-1 PFR File), Tab 1. OPM has filed a pro forma response, to which the 

appellant has replied. M-1 PFR File, Tabs 5-6.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board will consider the appellant’s new evidence submitted on review.

¶7 On review, the appellant has filed a letter from OPM dated January 3, 2019, 

in which OPM notified the appellant that, based on his additional service 

performed for periods one and two, his net CSRS monthly annuity increased to 

$2,016.2 M-1 PFR File, Tab 1 at 13. He also submits his response to OPM’s 

 

2

The letter from OPM is dated January 3, 2018. M-1 PFR File, Tab 1 at 13. However, 

OPM appears to have made a typographical error regarding the date because the record 

reflects that it was issued on January 3, 2019. The letter references the Federal 

Circuit’s decision regarding this matter, Miller, 903 F.3d 1274, which was issued on 

September 10, 2018. M-1 PFR File, Tab 1 at 13. The appellant also notes in his 
5

letter, in which he continues to claim entitlement to a refund of contributions in 

connection with his civilian employment from period three. Id. at 14-17.

¶8 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence 

submitted for the first time with the petition for review absent a showing that it 

was unavailable before the record was closed despite the party’s due diligence. 

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant has 

made this showing. OPM did not issue the January 3, 2019 letter until after the 

initial decision’s issuance. M-1 PFR File, Tab 1 at 13; M-1 ID at 1. The 

appellant responded promptly to OPM’s letter in writing and acted with due 

diligence in submitting this documentation to the Board. M-1 PFR File, Tab 1 

at 3-4, 14-17, Tab 2 at 1 n.*. Therefore, we consider this evidence on review.

The Board lacks jurisdiction to consider the appellant’s challenges to OPM’s 

January 3, 2019 letter.

¶9 On review, the appellant asserts that OPM has recalculated his annuity to 

account for his creditable civilian service for periods one and two and 

“refund[ed] . . . the alleged overpayment,” as ordered by the Federal Circuit. 

M-1 PFR File, Tab 1 at 7. However, he argues that OPM failed to refund his 

CSRS contributions, insurance payments, and military deposit collected by his 

former employer during period three.3 Id. at 7-11.

¶10 Generally, the Board has jurisdiction over OPM determinations affecting an 

appellant’s rights and interests under CSRS only after OPM has issued a final 

decision in the matter. Reid v. Office of Personnel Management, 120 M.S.P.R. 

83, ¶ 6 (2013); see 5 U.S.C. § 8347(d)(1); 5 C.F.R. § 831.110. However, the 

absence of a reconsideration decision does not preclude Board review of a 

retirement decision when OPM fails to advise the appellant of his right to requ est 

 

response to OPM that the letter was issued on January 3, 2019. Id. at 14. We therefore 

find that OPM issued the letter on January 3, 2019.

3

The Federal Circuit found that the appellant did not make a military deposit relating to 

his military service performed in period three. Miller, 903 F.3d at 1285-86.
6

a reconsideration decision and does not intend to issue any further decision on 

the appellant’s application. Reid, 120 M.S.P.R. 83, ¶ 6. In such a case, the 

Board will consider the totality of the circumstances to find that OPM’s failure 

to act constitutes an appealable administrative action affecting the appellant’s 

rights under Federal retirement laws. Okello v. Office of Personnel Management, 

120 M.S.P.R. 498, ¶ 15 (2014).

¶11 OPM’s January 3, 2019 letter did not address the appellant’s refund claims 

concerning period three, indicate that it was a final decision by OPM on the 

matter, or apprise the appellant of his right to request reconsideration. M-1 PFR 

File, Tab 1 at 13. The appellant contended that he has undergone nearly 6 years 

of litigation to obtain his requested relief from OPM. M-1 AF, Tab 6 at 6-7; see

Okello, 120 M.S.P.R. 498, ¶¶ 15-16 (finding that OPM’s failure to act for 6 years 

constituted an appealable administrative action because the appellant diligently 

sought a final decision during that time period). However, as the appellant 

recognized, the primary issue before OPM was his creditable service 

computation, which the Federal Circuit resolved in its 2018 decision. M-1 AF, 

Tab 6 at 9; see Miller, 903 F.3d at 1274, 1276-77, 1286. The appellant’s 

credible service computation is distinct from the issue of whether he is entitled 

to a refund of his CSRS contributions and military deposit. See Forsythe v. 

Office of Personnel Management, 85 M.S.P.R. 593, ¶ 10 (2000) (finding that the 

question of whether the appellant’s CSRS contributions should be retained in the 

retirement fund or refunded to him was a distinct issue from his entitlement to 

civilian service credit for his concurrent military and civilian servic e). The 

appellant has not presented information indicating that, since the resolution of 

the creditable service computation issue and OPM had an opportunity to squarely 

address the appellant’s refund claims, OPM has improperly refused or delayed 

issuing a reconsideration decision addressing his refund request. Under these 

circumstances, it is more appropriate to allow OPM the opportunity to express its 

opinion on these issues in the first instance. See Hasanadka v. Office of 
7

Personnel Management, 116 M.S.P.R. 636, ¶¶ 20-22 (2011) (finding no undue 

delay by OPM in not issuing a reconsideration decision on a matter raised by the 

appellant that was distinct from the issue the Board directed OPM to address on 

remand). We therefore find that OPM’s failure to issue a reconsideration 

decision does not constitute an appealable administrative action and that the 

Board lacks jurisdiction over the appellant’s refund claims.

ORDER

¶12 For the reasons discussed above, we remand this case to OPM in accordance 

with the Federal Circuit’s September 10, 2018 order for issuance of a new final

decision addressing the recalculation of the appellant’s CSRS retirement annuity

and for issuance of a final decision addressing the appellant’s refund request. 

OPM shall advise the appellant in any new final decision addressing the above 

issues of his right to file an appeal with the Board’s Denver Field Office if he 

disagrees with that decision. See Litzenberger v. Office of Personnel 

Management, 88 M.S.P.R. 419, 424 (2001). 

¶13 We also ORDER OPM to tell the appellant promptly in writing when it 

believes it has fully carried out the Board’s Order and of the actions it has taken 

to carry out the Board’s Order. We ORDER the appellant to provide all 

necessary information OPM requests to help it carry out the Board’s Order. The 

appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. 

§ 1201.181(b).

¶14 No later than 30 days after OPM tells the appellant it has fully carried out 

the Board’s Order, the appellant may file a petition for enforcement with the 

office that issued the initial decision on this appeal if the appellant believes that 

OPM did not fully carry out the Board’s Order. The petition should contain 

specific reasons why the appellant believes OPM has not fully carried out the
8

Board’s Order, and should include the dates and results of any communications 

with OPM. See 5 C.F.R. § 1201.182(a).

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board