[00:00:00] Speaker 02:
And we will hear argument next and number 15 31 60 Rover versus office of personnel management.

[00:00:49] Speaker 02:
Mr. Jackman?

[00:01:01] Speaker 02:
May I begin by at least by trying to focus you on what is at least in the forefront of my mind and then you can explain either the answer or why it shouldn't be in the forefront of my mind.

[00:01:14] Speaker 02:
We issued an order that produced some letters

[00:01:18] Speaker 02:
because we were focusing on aspects of the board's opinion, OPM's submission, OPM's brief here, your brief, and came to focus, particularly after the letters, on what seems like a factual question.

[00:01:38] Speaker 02:
How much money in the relevant years, 2006, 2007, 2008, did Mr. Grover actually receive?

[00:01:48] Speaker 02:
What was he paid?

[00:01:51] Speaker 02:
And this is my current understanding of the record, from everything in the record before the board.

[00:01:58] Speaker 02:
There are a couple of these documents, the individual retirement records, that are, let's call them, schizophrenic about the question.

[00:02:08] Speaker 02:
The right hand column says he got at least 17.5 in overtime, the deduction figures

[00:02:17] Speaker 02:
arithmetically imply he didn't.

[00:02:21] Speaker 02:
What are we supposed to do about that?

[00:02:24] Speaker 02:
And, but most basically you had something in the record where either you or an expert or something said, based on the pay stubs, he got the 17.5.

[00:02:35] Speaker 02:
We don't have that in the record.

[00:02:37] Speaker 02:
So how do, what are we to make of the possible facts and the record facts?

[00:02:43] Speaker 02:
Start with the possible facts.

[00:02:45] Speaker 02:
What is the basis for your asserting he got the 17.5 in overtime in each of the three years?

[00:02:52] Speaker 00:
The answer to that judge is that he actually got more than double that sometimes and nearly double that other times.

[00:03:00] Speaker 05:
What's in the record, what is the proof?

[00:03:03] Speaker 05:
Is there a pay stubs?

[00:03:11] Speaker 00:
I have a pay stub with me.

[00:03:15] Speaker 05:
Let me just ask this question.

[00:03:17] Speaker 05:
We called for the entire record from the MSPB, and they sent it to us in electronic form.

[00:03:24] Speaker 05:
And sometimes those records include everything, sometimes they don't.

[00:03:29] Speaker 05:
You were representing Mr. Grover in front of the MSPB?

[00:03:33] Speaker 00:
Yes, sir.

[00:03:34] Speaker 05:
Did you introduce into evidence actual pay slips as pay stubs?

[00:03:41] Speaker 05:
No.

[00:03:43] Speaker 05:
You made reference to the pay stubs in the form of a letter of council, then council, for Mr. Jackman had written a letter saying this is how you properly compute and referring to pay stubs that had also apparently been, according to your lawyer, in front of the OPM.

[00:04:02] Speaker 05:
OPM had seen the pay stubs.

[00:04:05] Speaker 05:
That's what's in that letter.

[00:04:07] Speaker 05:
But you're telling us now that the pay stubs themselves were not in front of the board.

[00:04:12] Speaker 00:
I can't, you know, as I think of a judge, there were several proceedings before the Merit Systems Protection Board, and I was not participating in the first one at which evidence was introduced, which is why I sought to help the court by including the letter from his first lawyer who made the calculations as to what it should be.

[00:04:35] Speaker 05:
Yes, the ones on which you now depend.

[00:04:37] Speaker 05:
Yes.

[00:04:39] Speaker 00:
Yes.

[00:04:39] Speaker 00:
Well, I think the

[00:04:42] Speaker 00:
The question of whether or not he received the full $17,500 for his high three years could be, if it's not already in the record, and I believed it was, but I haven't seen the record, could be submitted because my information from my client, who worked 32 plus years for the government,

[00:05:06] Speaker 00:
was that he knew full well that he had worked far more than the 17,500.

[00:05:10] Speaker 00:
That was a limit.

[00:05:13] Speaker 00:
He couldn't claim more than that.

[00:05:15] Speaker 00:
And so we never considered that to be a problem.

[00:05:18] Speaker 00:
It's not been disputed that he had 17,500 to be included in his high three.

[00:05:27] Speaker 02:
Well, in a way, I think it has been.

[00:05:29] Speaker 02:
I mean, I agree that the government has presented

[00:05:34] Speaker 02:
um, a number of different arguments, which I think have shifted over time and that a principal argument that, in fact, I'd say the main argument in the red brief was a legal argument, which I basically take their letter or their more recent letter to abandon, which is that they're not, they don't have to count that money even if he got it, because there wasn't, there weren't deductions taken from it at the time.

[00:05:57] Speaker 02:
Um, I think their principal position now is he just didn't get the money and

[00:06:02] Speaker 02:
And the reason for that is that the only document in the record is perfectly in equipoise about whether he got the money, and it was your burden to prove that he got it instead of that he didn't.

[00:06:14] Speaker 02:
The perfect equipoise is the right-hand column says he did, but the numbers showing the deductions arithmetically show that he didn't, assuming that they took deductions for everything they were supposed to, which means

[00:06:30] Speaker 02:
What are they supposed to do?

[00:06:31] Speaker 02:
It's your burden.

[00:06:33] Speaker 02:
That's why you have burdens of proof to resolve matters that the record doesn't resolve.

[00:06:39] Speaker 02:
It's kind of impossible, Judge.

[00:06:41] Speaker 00:
If you look at page one of my brief, they changed their position eight different times in this case.

[00:06:47] Speaker 02:
Well, they were doing a bunch of different sort of complicated calculations.

[00:06:53] Speaker 02:
But on the basic question, did he get the money, the record now looks like

[00:07:00] Speaker 02:
There's just these IRRs, basically joint appendix page 49, 40, 41.

[00:07:05] Speaker 02:
They all say the same thing.

[00:07:07] Speaker 02:
Right-hand column says, we think he did.

[00:07:10] Speaker 02:
The actual calculations rest on the premise that he didn't.

[00:07:16] Speaker 02:
By the money, I mean at least 17.5, just so we're clear.

[00:07:19] Speaker 02:
Not a trivial amount of it, but at least 17.5.

[00:07:23] Speaker 02:
And I think they agree now that if he got the 17.5,

[00:07:29] Speaker 02:
That has to be counted, but you didn't prove that he did.

[00:07:33] Speaker 00:
In the submission of May 26th, OPM wrote... Give me a side note.

[00:07:40] Speaker 00:
It's the letter that you responded.

[00:07:43] Speaker 02:
Oh, the recent, May 26th.

[00:07:45] Speaker 00:
This year, yeah.

[00:07:46] Speaker 00:
That's right.

[00:07:46] Speaker 00:
Which page?

[00:07:47] Speaker 00:
The second paragraph starts, the corrected individual retirement records that the National Finance Center certified to OPM from Mr. Grover,

[00:07:57] Speaker 00:
appear to indicate in the remarks that the statutory maximum of $17,500 of overtime pay was included in Mr. Grover's earnings for fiscal years 2005 to 2008.

[00:08:09] Speaker 00:
So at least that side of it tells you that, as far as I'm concerned, he did receive.

[00:08:15] Speaker 00:
They say they included it.

[00:08:18] Speaker 02:
I don't think, at least in my mind, there's

[00:08:21] Speaker 02:
lack of clarity about this.

[00:08:23] Speaker 02:
That's only half of the story.

[00:08:24] Speaker 02:
The other half is that the rest of the same document indicates he didn't.

[00:08:32] Speaker 02:
Which means if you have the burden, you haven't proved which of the two columns to simplify is correct, the higher one.

[00:08:44] Speaker 02:
And if you don't, the question is, what are we to do?

[00:08:47] Speaker 02:
So one possibility is that if you stand here and you say,

[00:08:52] Speaker 02:
I have seen the documents that show that he got the 17-5.

[00:08:59] Speaker 02:
Maybe the board didn't actually really focus on that question.

[00:09:02] Speaker 02:
Maybe you should have another opportunity to ask them to now consider material not in the record, and they can decide whether you forfeited it by not doing it in a timely fashion.

[00:09:19] Speaker 02:
I'm not quite sure.

[00:09:21] Speaker 02:
There doesn't any longer seem to be a dispute about the law.

[00:09:24] Speaker 02:
Only a simple fact.

[00:09:25] Speaker 02:
Did you get the money?

[00:09:29] Speaker 00:
I think when they come back later in the same paragraph and say that, moreover, Mr. Grover's IRRs clearly indicate deductions from some amount of overtime pay.

[00:09:41] Speaker 00:
is where they are reaching the conclusion that he didn't get all of it.

[00:09:45] Speaker 02:
But look, if you look at JA 49 and you look in the middle column and it shows what the deductions are and just invert the arithmetic, he didn't get that that does not include the 17.5.

[00:09:58] Speaker 00:
Yes, I agree with you, Judge.

[00:09:59] Speaker 00:
The question that I'm putting to the court is they have no right to change the meaning of the statute.

[00:10:06] Speaker 00:
The statute doesn't give them a right to calculate retirement earnings by

[00:10:10] Speaker 00:
how much deductions were taken.

[00:10:12] Speaker 05:
That's a separate point.

[00:10:14] Speaker 00:
Yes.

[00:10:14] Speaker 05:
And if you were, I think, need, for purposes of arguing, to assume that you lost that argument.

[00:10:22] Speaker 05:
I mean, if you have an argument in your brief about methodology to say their method of arriving at a three-year number by using the amount deducted and then reverse mathematics to get them an actual pay, you're saying that's illegal.

[00:10:38] Speaker 00:
Yes.

[00:10:39] Speaker 05:
So I'm saying if you're right on that, you win.

[00:10:42] Speaker 05:
So just assume for purposes of argument you lose on that.

[00:10:48] Speaker 05:
The court says OPM is entitled to pass a regulation.

[00:10:52] Speaker 05:
And pursuant to the regulation, they use the deduction, mathematic computation method.

[00:10:58] Speaker 05:
And we think that's just fine.

[00:11:01] Speaker 05:
You need to assume for purposes of this argument that you lost that issue.

[00:11:06] Speaker 05:
I'm just telling you to assume that.

[00:11:09] Speaker 05:
So you started by almost referring to something saying you had a piece of paper here that wasn't a record, but it was a tape paste of or something like that?

[00:11:17] Speaker 00:
Yes, I do have one.

[00:11:18] Speaker 00:
There's a note on it from the client saying, as you can see, there's no way to tell if overtime was taxed or not.

[00:11:28] Speaker 00:
But since it is added to my basic pay amount with deductions listed below of $1,423, I would think all earnings have been taxed.

[00:11:38] Speaker 00:
He gave me this because the pay stub is not something that one can make much out of unless one's looking for a service comp date, which is obvious, or the pay and grade level of the individual, which you'll find.

[00:11:51] Speaker 00:
But whether deductions are taken from overtime, they don't break it out.

[00:11:56] Speaker 00:
They just list it.

[00:11:58] Speaker 00:
The employee has no way of knowing until he reaches... But from that document, can you compute

[00:12:04] Speaker 05:
that the amount he was paid exceeds his base salary and thereby does include overtime pay?

[00:12:11] Speaker 02:
And exceeds it by more than the very small amount of overtime pay that the individual retirement record indicates he did get.

[00:12:22] Speaker 00:
Overtime is shown here.

[00:12:24] Speaker 00:
Is there?

[00:12:25] Speaker 00:
Yes, you can tell the overtime at double rate

[00:12:29] Speaker 05:
Does it give a number, a dollar number for the overtime?

[00:12:32] Speaker 00:
It does here give the number of hours of, for this pay period, 6.75 hours.

[00:12:41] Speaker 00:
It gives the number for the year to date at 37 hours, 38 hours, I'm sorry.

[00:12:49] Speaker 00:
The overtime pay for this pay period being $500, $517.05 to be exact.

[00:12:58] Speaker 00:
overtime pay year-to-date, and they're listing this as the fourth pay period.

[00:13:03] Speaker 00:
So in the end of the fourth pay period... He's already had $2,500.

[00:13:08] Speaker 02:
He's already had $2,500 in overtime pay.

[00:13:13] Speaker 00:
Oh yes, he has.

[00:13:14] Speaker 00:
$2,897 in overtime pay.

[00:13:16] Speaker 05:
And it's the fourth pay period of the year?

[00:13:19] Speaker 05:
Yes.

[00:13:19] Speaker 05:
Do you have any reason to believe that the document that you have, would there be other documents for other pay periods?

[00:13:27] Speaker 00:
There should have, there could have been, let me not, let me not put a burden on a lawyer who's not here.

[00:13:31] Speaker 00:
I thought that it was in the record.

[00:13:33] Speaker 00:
I never saw the whole record because at one point, some 1500 pages were submitted to the court.

[00:13:40] Speaker 05:
That was as a result of your discovery request.

[00:13:43] Speaker 02:
Yes.

[00:13:43] Speaker 02:
That was given to you, but at least... Well, not to me.

[00:13:46] Speaker 02:
I meant your client.

[00:13:47] Speaker 02:
Given to us, yes.

[00:13:48] Speaker 02:
Yes, you collectively.

[00:13:50] Speaker 02:
But as far as I can tell from the 500 page record

[00:13:55] Speaker 02:
that we got from the MSPB that's just not in there.

[00:14:01] Speaker 05:
Let me ask one question going to that.

[00:14:03] Speaker 05:
You mentioned that we do know that there were more than one proceeding at the MSPB.

[00:14:08] Speaker 05:
Were they all under the same docket number?

[00:14:11] Speaker 05:
Do you happen to know whether the earlier proceedings at which time other documents may have been submitted in the MSPB would be under a different docket number at the MSPB?

[00:14:24] Speaker 05:
You may not know, we can check that ourselves, but I mean it's a possibility that perhaps the pay stubs were averted to in the opinion of the MSPB.

[00:14:34] Speaker 00:
I'm looking to see what had happened.

[00:14:44] Speaker 00:
During an appeal of the previous case, OPM rescinded its final decision and the case was dismissed.

[00:14:51] Speaker 00:
OPM petitioner was forced to file yet another appeal on March 22nd, 2011.

[00:14:57] Speaker 00:
So I think they were separate.

[00:14:59] Speaker 00:
I believe I represented him in the second one and the previous lawyer represented him in the first.

[00:15:04] Speaker 00:
And it may be that the board only submitted to this court the 500 pages that were in the second submission in the second case, but not the first one.

[00:15:14] Speaker 01:
Okay.

[00:15:14] Speaker 01:
Well, you, you have gone into your rebuttal time.

[00:15:16] Speaker 01:
Why don't we hear from the government and restore your rebuttal?

[00:15:32] Speaker 02:
Can I start with a question that I thought the answer was clear under your letter?

[00:15:40] Speaker 02:
You agree now that if he received, in fact received, put aside problems of proof of this, but if he in fact received more than the 17.5 in overtime, but deductions were not taken from that, though they should have been, so they were mistakenly not taken.

[00:15:58] Speaker 02:
that the 17.5 has to be included in the high three calculation for the annuity.

[00:16:04] Speaker 04:
Yes, that's correct, Your Honor.

[00:16:05] Speaker 04:
However, what we would submit is that OPM has interpreted its own regulations to bind it to the figure on the IRR.

[00:16:13] Speaker 04:
So in other words,

[00:16:14] Speaker 04:
That would have to be demonstrated on a certified record from the employing agency, in this case, Customs and Border Protection.

[00:16:21] Speaker 04:
So it wouldn't be sufficient, even at the board level, had Mr. Grover demonstrated through pay stubs, W-2s, or what have you.

[00:16:28] Speaker 04:
For example, in this court examined a case of Thomas v. O'Keefe.

[00:16:33] Speaker 05:
So even if Mr. Grover had come forward at the MSPB with paycheck stubs certified by the Customs as the amount that was paid,

[00:16:44] Speaker 05:
And it showed more than 17-5 and over time in each of the three years.

[00:16:49] Speaker 05:
And he presented that evidence to the board.

[00:16:51] Speaker 05:
You would say the board, as a matter of law, would have been required to reject his claim.

[00:16:58] Speaker 04:
That's correct, Your Honor.

[00:16:59] Speaker 05:
Assuming, as we have here, that we have a certified... Because as a matter of law, the only possible way to compute this is through the deductions.

[00:17:07] Speaker 05:
And the only proof of the deductions is on the document

[00:17:11] Speaker 05:
that the agency creates.

[00:17:12] Speaker 05:
That's what you're saying, right?

[00:17:14] Speaker 04:
No, Your Honor, not through the deductions.

[00:17:16] Speaker 04:
That limitation is not what we're saying.

[00:17:18] Speaker 05:
However, they are limited to the certified IRRs or certified... Well, the certified IRR, in this case, shows deductions.

[00:17:27] Speaker 04:
Yes, Your Honor.

[00:17:28] Speaker 05:
It doesn't show total pay.

[00:17:30] Speaker 04:
That's correct, Your Honor.

[00:17:31] Speaker 05:
And you reason from the deductions to the total pay.

[00:17:34] Speaker 04:
That's correct.

[00:17:34] Speaker 04:
And that's a long-standing practice that OPM has employed, not only for COPA overtime, but for other irregular pay,

[00:17:40] Speaker 04:
that's uh... various from pay period to pay period.

[00:17:43] Speaker 05:
I understand what you're saying about their methodology but you're saying as a matter of law a judge, an administrative judge at the MSPB would be barred from ruling in favor of Mr. Grover when he proves beyond peradventure of doubt that he received 17.5 each year simply because the document the OPM created doesn't credit him with that.

[00:18:06] Speaker 04:
Well, OPM did not create the document, Your Honor.

[00:18:08] Speaker 05:
Well, the document, OPM, relies on the document that was created where it was created.

[00:18:12] Speaker 04:
That's correct, Your Honor, and that's what the Board has consistently held and this Court has consistently, although in non-precedential cases... Well, the A.J.

[00:18:19] Speaker 03:
in Appendix 22, you know, in making the decision that the IRRs are fine, says, quote, the appellant has produced no evidence from his employing agency or elsewhere that the IRR is inaccurate or incomplete.

[00:18:35] Speaker 03:
It sounds like the implication there is that the AJ would be open to receiving something, perhaps pay stubs, indicating that what's on the IRR is inaccurate or incomplete.

[00:18:48] Speaker 03:
Here it seems like the administrative judge is open to doing what I think it's supposed to be doing, which is a fact inquiry on whether or not this individual received the pay that he's contending he did.

[00:19:04] Speaker 04:
Well, perhaps, Your Honor, we should leave aside the situation then of what would have happened if Mr. Grover had submitted pay stubs, and focus on the situation that we have here, which as the Court has noted, Mr. Grover did not submit pay stubs that appear in the record anyway.

[00:19:19] Speaker 05:
Are you familiar with the record of the earlier proceedings?

[00:19:22] Speaker 04:
I received most likely the same record that the Court received.

[00:19:26] Speaker 05:
Can you assert to us that there's only one docket number for all these proceedings over the years?

[00:19:32] Speaker 04:
In fact, Your Honor, I looked after hearing your question, and it appears there was more than one docket number.

[00:19:37] Speaker 04:
And there was a different docket number.

[00:19:39] Speaker 05:
So are you certain that in the earlier docket numbers, we would not find pay stubs?

[00:19:44] Speaker 04:
I'm not certain, Your Honor.

[00:19:45] Speaker 05:
What happens if we found them in the earlier?

[00:19:48] Speaker 04:
Well, again, Your Honor, the MSPB, as well as OPM, as well as this court, have consistently held that there is no jurisdiction based on OPM's own interpretation of its regulation 5 CFR 831.103.

[00:20:02] Speaker 04:
that they are bound to what's in the IRR.

[00:20:04] Speaker 04:
So in other words, it's not that this cannot be fixed, Your Honor.

[00:20:07] Speaker 04:
It's that it must be fixed through the certified employee.

[00:20:10] Speaker 04:
Right.

[00:20:10] Speaker 05:
But as you said earlier, we don't have that question in front of us.

[00:20:13] Speaker 04:
That's correct, Your Honor, to my knowledge.

[00:20:15] Speaker 04:
Now, if there were before the board at some point, it's certainly clear that it wasn't before the board in the IRR.

[00:20:22] Speaker 05:
There's no circuit ruling on that process, right?

[00:20:26] Speaker 05:
Not true.

[00:20:26] Speaker 05:
A board procedure.

[00:20:28] Speaker 05:
it's bound by the IRR?

[00:20:30] Speaker 04:
No, in fact, there are non-precedential, but in Thomas v. Office of Personnel Management, there are two other cases with the same result, but the Thomas case has the most similar facts to here.

[00:20:41] Speaker 04:
In that case, Mrs. Thomas was receiving an annuity for 15 years that she raised no complaint with, and then after 15 years said, wait a second, I looked at this, and my W-2s, my pay stubs, and all these other documents indicate that I actually got more.

[00:20:55] Speaker 04:
She brought that to the MSPB,

[00:20:57] Speaker 04:
produced the pay stubs, produced her W-2s, produced emails from the employing agency that said, yes, you're right.

[00:21:04] Speaker 04:
You got more than this IRR indicated.

[00:21:07] Speaker 04:
The board still said, OPM has interpreted its regulation and found that it's bound by the IRR.

[00:21:12] Speaker 04:
The IRR says otherwise, and we can't touch that.

[00:21:15] Speaker 04:
This court said, OPM has interpreted its own regulation in that way.

[00:21:19] Speaker 04:
It doesn't say that, but it's consistent with the regulation.

[00:21:22] Speaker 04:
Therefore, OPM's interpretation

[00:21:24] Speaker 04:
is entitled to our deference, and we're not going to overturn that, even though it's clear in that case.

[00:21:29] Speaker 02:
Can I ask, did any of those cases involve IRRs that it seems to me, like the one here, that it seems to me are perfectly Janus-faced about what the truth is?

[00:21:44] Speaker 04:
It doesn't appear to be the case, Your Honor, and that's one distinction where there is some conflicting evidence here.

[00:21:50] Speaker 04:
However, it appears not only that the most convincing evidence

[00:21:53] Speaker 04:
is the deduction amounts, and not only that, but OPM has a long-standing practice, as we've stated in our letter, of using the deduction amounts that's perfectly consistent with statute and regulation, and that's entitled to deference.

[00:22:04] Speaker 04:
And so, using those procedures, in addition to the fact that those are listed in a part

[00:22:11] Speaker 04:
IRR that's clearer than some notes in a remarks column that don't even have explicit references.

[00:22:15] Speaker 03:
Could you give us a plausible explanation of why the remarks section says what it says?

[00:22:21] Speaker 04:
It could be a variety.

[00:22:22] Speaker 04:
I wouldn't want to speculate, Your Honor.

[00:22:24] Speaker 04:
It could be listing the statutory maximum.

[00:22:27] Speaker 03:
The only plausible explanation I can think of is because he got that money.

[00:22:32] Speaker 04:
Again, in theory, it could be because it's listing the statutory maximum.

[00:22:36] Speaker 04:
It could be referring to something else entirely.

[00:22:38] Speaker 04:
In fact, the only reference

[00:22:39] Speaker 04:
to copra pay is on a different page of the IRR at the very bottom where it states copra APS with an asterisk which the typical it would appear based on the handbook that OPM puts out should be noted every time there's a reference to copra pay.

[00:22:55] Speaker 04:
It wasn't done here, but at any rate OPM did what it always does and it does consistently not for this one individual but for every similarly situated individual.

[00:23:04] Speaker 04:
in calculating through the deductions, because the deductions are statutorily required to be taken, calculating through the deductions what the pay actually was.

[00:23:15] Speaker 05:
And the insurance is also statutorily required to give credit for up to $17.50 of overtime in the I-3 calculation?

[00:23:23] Speaker 04:
If it's received, Your Honor, that's correct.

[00:23:25] Speaker 05:
And so in this great country, we live in the person who decides whether he received it or not is the payor, not the payee.

[00:23:34] Speaker 04:
That's correct, Your Honor, but not OPM.

[00:23:35] Speaker 05:
So they can just lie.

[00:23:36] Speaker 05:
That's great.

[00:23:37] Speaker 05:
They don't ever have to give them full credit.

[00:23:39] Speaker 05:
Why would the agency ever give them full credit for the 17-5 when they can't ever be caught, on your theory?

[00:23:47] Speaker 04:
Well, I can't answer that, Your Honor, but I would imagine they have a statutory responsibility to respond.

[00:23:52] Speaker 05:
Does that sound like the right rule of law to you?

[00:23:55] Speaker 05:
Well, certainly not, Your Honor.

[00:23:56] Speaker 05:
The statute says you're required to give credit for the full 17-5 if you received it, and the employee can prove

[00:24:03] Speaker 05:
in any court of law anywhere that he did receive 17-5, but he doesn't get credit for it.

[00:24:09] Speaker 04:
Well, what this court has held is that if the agency... So, again, the proper recourse is to the employing agency, the Customs and Border Protection.

[00:24:16] Speaker 04:
This court has even held in the Raynone case that there would be a cause of action under the Privacy Act, 5 U.S.C., Section 552A,

[00:24:26] Speaker 04:
for Mr. Grover to have taken the employing agency to district court if they refused to change the information based on what he had.

[00:24:33] Speaker 04:
So he could have gotten them to correct the records in that venue, but not through OPM, not through the MSPB process, and not through this court to the extent that he's saying what's on my IRRs is incorrect.

[00:24:43] Speaker 03:
I know you've cited a non-precedential opinion, but I mean,

[00:24:48] Speaker 03:
Can you explain why the bureaucracy walls will come crumbling down if they were allowed to prove that through pay stubs in front of an administrative judge at the MSPB that in fact they did receive the overtime?

[00:25:06] Speaker 03:
How does everything go haywire?

[00:25:08] Speaker 04:
Well, it's not that Mr. Grover or any similarly situated individual will be left without recourse.

[00:25:12] Speaker 04:
It's just that their recourse is not through that procedure, but through the employee.

[00:25:16] Speaker 03:
No, but I'm just trying to understand what would be wrong if that was the procedure.

[00:25:21] Speaker 04:
Well, it would violate the way that OPM has interpreted its own regulation, which is to say we are bound by the SF 2806, which under our regulation, 5 CFR 831.103A is the record on which we base this.

[00:25:37] Speaker 02:
Is there any kind of, I'm going to call it a statute of limitations issue with his now going back and getting this record fixed?

[00:25:51] Speaker 02:
Can he do that now without having lost rights?

[00:25:54] Speaker 04:
Yes, Your Honor.

[00:25:55] Speaker 04:
My understanding is he can, in fact, still have.

[00:25:58] Speaker 04:
Now, I can't speak to the Customs and Border Protection individual what their response would be, but OPM would not reject a new certified IRR from Customs and Border Protection if they received such an IRR that contained certified information reflecting that the pay was received.

[00:26:17] Speaker 04:
Whether or not retirement deductions were taken, they would in fact change the annuity retroactively as well.

[00:26:23] Speaker 02:
Retroactively to what is it, the 2008 retirement date?

[00:26:27] Speaker 02:
That's correct, Your Honor.

[00:26:28] Speaker 04:
Now, in terms of statute of limitations, I will note that I mentioned that the district court proceedings, that there may be a statute of limitations issue there with doing that at this point.

[00:26:38] Speaker 04:
But that would have been the recourse at the time.

[00:26:40] Speaker 04:
But that's all assuming that Customs and Border Protection refuses to change the IRR.

[00:26:44] Speaker 04:
In fact, they've already changed it once.

[00:26:46] Speaker 04:
The record does reflect that... More than once.

[00:26:50] Speaker 04:
OPM has changed the calculation several times.

[00:26:53] Speaker 04:
NFC has changed the certified information.

[00:26:56] Speaker 04:
Actually, you're right, Your Honor, more than once because the initial IRRs were deficient in that they did not have the two different rates of deductions listed.

[00:27:03] Speaker 04:
They corrected that issue.

[00:27:05] Speaker 04:
And then after the issue was raised at the MSPB by Mr. Grover, NFC certified new retirement deductions information which were factually different from the previously certified deductions.

[00:27:17] Speaker 04:
And it's on those deductions which appear in the record.

[00:27:20] Speaker 04:
that OPM bases its current calculation.

[00:27:22] Speaker 02:
So when I look at the board decision and the administrative judge's decision, what I take away from those is that the board didn't actually make a finding that on this record, he did not receive the 17-5 instead.

[00:27:42] Speaker 02:
And the AJ more or less made a contrary finding.

[00:27:45] Speaker 02:
Not clear, but it points in that direction.

[00:27:49] Speaker 02:
And the reason

[00:27:50] Speaker 02:
for the rejection of the claim was not that they thought that the record did not establish this amount, but rather that OPM was just simply flat out entitled to rely on inverting the deductions.

[00:28:07] Speaker 02:
I think whether or not the deductions were correct.

[00:28:11] Speaker 04:
I think that's correct, Your Honor, and that's consistent with the board's precedent and that was upheld in this court in the non-precedential cases that I cited.

[00:28:19] Speaker 04:
They basically didn't seem to, as you state, Your Honor, really engage with what the actual fact was.

[00:28:25] Speaker 04:
They applied the rule that they've consistently applied, which is that OPM is entitled to rely on that IRR.

[00:28:30] Speaker 04:
And whatever's on that IRR, basically whether it's right or not, that's what OPM is bound to.

[00:28:35] Speaker 02:
And in fact, if you look at the facts... The problem, of course, is that whatever is on the IRR is deeply

[00:28:41] Speaker 02:
ambiguous in this case?

[00:28:43] Speaker 04:
It is to some extent ambiguous to the extent that the remarks can be read to indicate that there was a greater amount of COPRA overtime pay paid to Mr. Grover than that that's reflected in the retirement deductions.

[00:28:54] Speaker 04:
But the retirement deductions not only are the more convincing and more concrete piece of evidence, but consistent with OPM's long-standing practice.

[00:29:02] Speaker 04:
And the reason for that is to make sure that they capture all of the pay that's in irregular pay

[00:29:08] Speaker 04:
situations that vary from pay period to pay period to make sure that they capture that.

[00:29:12] Speaker 04:
They do it with reference to the deductions, which are statutorily required to be taken.

[00:29:16] Speaker 04:
Moreover, it's important to note that the deductions were taken for some amount of COPA overtime pay.

[00:29:23] Speaker 04:
And the reason that's important is it shows that Customs and Border Protection didn't just forget to... Well, how do we know that?

[00:29:29] Speaker 05:
Well, you can... We know that from your arithmetic showing that his high three is bigger than just his

[00:29:35] Speaker 04:
That's correct.

[00:29:35] Speaker 05:
But he could have won prizes for good service and all those other things, because your level of bump-up isn't very great.

[00:29:43] Speaker 05:
Well, it's fairly great in the sense that I... How do you know, you just said, how do you know that he was getting credit for some overtime in the high three?

[00:29:51] Speaker 05:
Well, it's for the reasons that you state, Your Honor, and the difference was... But that's not proof, because other sums of money could have been included in the salary to get that number above base sell.

[00:30:02] Speaker 04:
Potentially.

[00:30:03] Speaker 04:
There's no indication of that in the record.

[00:30:05] Speaker 05:
Yeah, but there's no indication in the record that he got any extra money in overtime.

[00:30:13] Speaker 04:
Correct, Your Honor.

[00:30:13] Speaker 04:
The difference, I would only also add, is that the difference is a little larger than what's represented in our letter.

[00:30:19] Speaker 04:
I did that way to be conservative, but that's the minimum difference for even the final year at which, of course, you received the highest.

[00:30:26] Speaker 05:
Your letter wasn't accurate.

[00:30:29] Speaker 04:
No, it was not inaccurate.

[00:30:29] Speaker 05:
Why didn't you give us the real number?

[00:30:31] Speaker 04:
Well, that number is accurate for the last year.

[00:30:34] Speaker 04:
So it's the amount that the average pay was calculated at as compared to the highest rate he ever made.

[00:30:43] Speaker 04:
So it's a minimum of that.

[00:30:44] Speaker 04:
But he made, of course, lower rates in the previous years before the last year of the high three, which was higher.

[00:30:50] Speaker 02:
But if you invert those deduction calculations, you get a number that is reasonably close to the base pay.

[00:31:00] Speaker 02:
not reasonably close to the base pay plus 17.5.

[00:31:04] Speaker 02:
It's quite far toward that end of the spectrum.

[00:31:08] Speaker 04:
It's closer to the base pay than to the combination of the two yes runs.

[00:31:11] Speaker 05:
In this system of government you describe where OPM says we're irrevocably bound by whatever's in the IRR, even though it can lead to the problems that we have in this case, that process hasn't been looked at since August of 1996, correct?

[00:31:30] Speaker 05:
I'm not sure I follow where that... Well, aren't your OPM regs the last updated in August of 1996?

[00:31:35] Speaker 04:
Yes, Your Honor.

[00:31:37] Speaker 05:
However, that... Nobody in a position of responsibility has heard talk of the kind of thing we're hearing today, at least since August... Nobody's looked at this since 96.

[00:31:48] Speaker 05:
Well, the board has... Possibly realizing that maybe there ought to be changes.

[00:31:54] Speaker 04:
The board has looked at it consistently since that date.

[00:31:57] Speaker 04:
This court has looked at it on a number of... The creator of the system.

[00:32:01] Speaker 04:
OPM has presumably, I don't have independent knowledge of this, Your Honor, but presumably has looked at their regulations continuously as part of their duty under our system of government to continually take note of what their regulations are.

[00:32:14] Speaker 04:
I'm not aware of any efforts or public notices put out at proposed changes or anything of that nature.

[00:32:22] Speaker 04:
I'll leave them over to my time.

[00:32:35] Speaker 00:
I'd like the court to focus for just a minute on the deduction issue.

[00:32:40] Speaker 00:
Because if for some reason this case were set back to the MSPB, the question of the deduction issue in order to determine the amount of pay really needs to be decided before that, I think.

[00:32:56] Speaker 00:
Because without the deduction issue being decided, we could be right back here with the same question about whether 17-5 should be included

[00:33:06] Speaker 00:
I feel that if I were trying to decide this myself, I'd read the statute.

[00:33:13] Speaker 00:
I don't think I need to repeat it.

[00:33:14] Speaker 00:
It's on page two of my brief.

[00:33:16] Speaker 00:
You determine retirement annuity based on the average pay in effect at the time so that the grade and pay level of our client, if it was on a list,

[00:33:30] Speaker 00:
could easily be compared with the public information as to what the pay for each grade and pay level is.

[00:33:37] Speaker 00:
The rest is strictly mathematics, but the important question is the statute doesn't say anything about calculating the annuity based on deductions.

[00:33:47] Speaker 05:
Just for purposes of argument, again, assume you lose that argument and that we write an opinion in which we say the methodology of making this computation by using deductions in reverse mathematics is okay.

[00:34:01] Speaker 05:
What's your view about what we should do with the case having made that conclusion?

[00:34:08] Speaker 05:
The record as it stands doesn't include the pay slips.

[00:34:13] Speaker 05:
The record as it stands, unless we find something in one of the previous appeals or a different number of the pay stubs, the record does not answer the question that the presiding judge put immediately, which is to say, where's the proof of receipt of overtime

[00:34:31] Speaker 05:
up to the 17th court.

[00:34:33] Speaker 05:
What should we do?

[00:34:34] Speaker 05:
Do you think you're entitled to a remand?

[00:34:36] Speaker 05:
Do you think you're entitled to us vacating the decision and sending it back to give you an opportunity to bring that evidence forward?

[00:34:45] Speaker 00:
I think if the decision of this court is that the calculation by way of using deductions is proper under the statute, I'm not sure there's a lot to be gained by a remand.

[00:35:01] Speaker 00:
We're talking about one and a half percent of certain numbers.

[00:35:06] Speaker 00:
And if the calculation itself is allowed, I don't think there's enough, I'm sorry, if the deductions are allowed as well.

[00:35:14] Speaker 02:
But I guess it seems to me that there isn't a kind of a single unitary question.

[00:35:21] Speaker 02:
May OPM use a deduction inversion method?

[00:35:25] Speaker 02:
Really?

[00:35:25] Speaker 02:
It could be yes, it may.

[00:35:28] Speaker 02:
unless there's evidence that the starting point for the deduction number is incorrect.

[00:35:34] Speaker 00:
Okay.

[00:35:35] Speaker 02:
And it seems to me your entire case depends on the assertion that, in fact, the starting point for the deduction inversion calculation is incorrect.

[00:35:47] Speaker 02:
Look at the right-hand column of all of those IRRs.

[00:35:52] Speaker 02:
And then the question is, do you have in the record, in the earlier docket number,

[00:35:57] Speaker 02:
um... record payroll information that shows the right hand column is the correct one in which case uh... there's nothing in their regulations that say you must use any deduction inversion calculation that starts with an incorrect deduction number uh... and there's also the possibility that because the board and a j weren't really focused on the question how much money did you actually get

[00:36:27] Speaker 02:
Maybe the board would find it within its discretion to give you an opportunity to supplement the record.

[00:36:34] Speaker 02:
But you could argue about that.

[00:36:37] Speaker 00:
I would do that.

[00:36:38] Speaker 00:
I could handle that if that's what you would decide.

[00:36:46] Speaker 05:
Thank you.

[00:36:48] Speaker 05:
I understand why we wanted you to come down for oral argument.

[00:36:51] Speaker 00:
I sure do, Judge.

[00:36:52] Speaker 00:
Thank you.

[00:36:54] Speaker 05:
Thanks to both of you.