[00:00:11] Speaker 04:
Okay, the next argued case is number 16-22-67, Prasad against the Office of Personnel Management.

[00:00:34] Speaker 04:
Mr. Steran.

[00:00:35] Speaker 03:
Thank you, Your Honor, and good morning.

[00:00:38] Speaker 03:
May it please the Court

[00:00:40] Speaker 03:
My name is John Steran.

[00:00:41] Speaker 03:
I'm here on behalf of the petitioner, Dr. Prasad.

[00:00:45] Speaker 03:
And this is an appeal from an adverse ruling of the Merit Systems Protection Board upholding a decision of the Office of Personnel Management denying Dr. Prasad benefits under the Civil Service Retirement System.

[00:01:00] Speaker 00:
What exactly is the harm that Dr. Prasad suffered from the mistaken coding under CSRS?

[00:01:08] Speaker 03:
There is a huge

[00:01:09] Speaker 03:
difference between a CSRS annuity and what the government is trying to give Dr. Prasad for retirement.

[00:01:18] Speaker 00:
Are there additional monthly payments or benefits?

[00:01:22] Speaker 03:
There are significance.

[00:01:23] Speaker 03:
One is an annuity with a monthly payment.

[00:01:26] Speaker 03:
The second, which is what they're trying to force on him, is essentially his accumulation of submitted funds to CSRS

[00:01:39] Speaker 03:
with an incremental increase over the 25 years that he was employed.

[00:01:43] Speaker 03:
So it's essentially an annuity.

[00:01:45] Speaker 00:
Where's that reflected in the record, the difference?

[00:01:49] Speaker 03:
Your Honor, I don't believe it is reflected in the record.

[00:01:56] Speaker 00:
Dr. Prasad didn't have deductions from 1989 until 2009 for the DC retirement program.

[00:02:06] Speaker 00:
alongside the CSRS deductions, correct?

[00:02:10] Speaker 03:
That's a correct statement.

[00:02:12] Speaker 03:
Between that time period, the only deductions were CSRS deductions.

[00:02:19] Speaker 03:
Your honors, I believe that the board made three substantial material errors that I believe require reversal of the board's denial.

[00:02:28] Speaker 03:
I think first, the board simply ignored the special coverage rules that an employee like Dr. Prasad,

[00:02:36] Speaker 03:
was entitled to.

[00:02:37] Speaker 03:
And those special coverage rules applied specifically to an employee that was employed by the federal government at St.

[00:02:44] Speaker 03:
Elizabeth Hospital before 1987, before the time the hospital transitioned from federal control to control by the District of Columbia.

[00:02:54] Speaker 00:
Was Dr. Persaud covered by FERS before the transition?

[00:02:58] Speaker 03:
I believe he was, and I believe that the board essentially concluded that he was.

[00:03:03] Speaker 00:
Well, how do you respond to the government's argument that

[00:03:06] Speaker 00:
He couldn't have been covered by FERS because his appointments were temporary with no retirement coverage prior to October 187.

[00:03:15] Speaker 03:
Yes, Your Honor.

[00:03:17] Speaker 03:
The appointment actually was for a term of an accepted appointment for a term of three years.

[00:03:23] Speaker 03:
The government's argument is that that accepted appointment is not covered by CSRS or someone in that position is not entitled CSRS.

[00:03:34] Speaker 03:
those same exceptions do not apply to someone who is covered by the federal, by FERS.

[00:03:41] Speaker 03:
And that's what we've argued.

[00:03:42] Speaker 03:
There is a very limited number of exclusions for employees that are covered by FERS.

[00:03:48] Speaker 03:
And we start out with a proposition that every employee is covered by some sort of retirement system unless excluded by law or regulation.

[00:03:57] Speaker 03:
And so to directly answer the question,

[00:04:00] Speaker 03:
They, again, are focusing on CSRS.

[00:04:03] Speaker 03:
And that, I believe, is what the board did below, which I believe was inappropriate.

[00:04:08] Speaker 02:
If we look at whether or not... Would a temporary appointment qualify under FERS?

[00:04:14] Speaker 03:
It does.

[00:04:15] Speaker 02:
It's not... His accepted appointment... I think the government disagrees with you on that point, I believe.

[00:04:20] Speaker 03:
In the brief, Your Honor, I believe the only talk about whether or not is covered by CSRS, not FERS.

[00:04:26] Speaker 03:
And I believe there's a distinction, a significant distinction between the exceptions that would apply to give someone benefits under CSRS versus the exceptions under FERS.

[00:04:40] Speaker 00:
Well, you note that the OPM handbook for St.

[00:04:47] Speaker 00:
Elizabeth's transition states an employee must have been subject to CSRS on September 30th, 1987.

[00:04:54] Speaker 03:
The handbook actually says, must be subject to CSRS 4 FERS as of the time of the transition.

[00:05:02] Speaker 03:
And that's the exact language of the handbook.

[00:05:05] Speaker 00:
It's not, you don't argue that he was covered, that he had five years of federal employment before October 187.

[00:05:14] Speaker 00:
Before the transition?

[00:05:16] Speaker 03:
Right.

[00:05:16] Speaker 03:
No, your honor.

[00:05:17] Speaker 03:
Dr. Persaud started his employment with the federal government in 1984.

[00:05:21] Speaker 03:
The transition occurred in 87.

[00:05:24] Speaker 00:
How do you argue that he would have been subject to CSRS on September 30, 1987?

[00:05:31] Speaker 03:
Because the way the special coverage rules read, if you are in a position that would have been covered by either CSRS or FERS, and Dr. Prasad's position would have been covered by FERS at the time of transition, he gets to continue that coverage after the transition.

[00:05:51] Speaker 03:
And the reason why it converts from FERS to CSRS after the transition is because employees that went from federal employment to employment by the District of Columbia could not keep FERS.

[00:06:04] Speaker 03:
It had to stay only as a federal employee.

[00:06:07] Speaker 03:
So it transitioned from FERS to CSRS.

[00:06:11] Speaker 03:
And that's exactly what the special coverage rules were intended to cover.

[00:06:15] Speaker 03:
He is in a unique situation, a very odd situation.

[00:06:18] Speaker 03:
I don't think it's quite frequent.

[00:06:20] Speaker 03:
that there would have been employees in that position.

[00:06:23] Speaker 03:
But he was one of those employees, and he was subject to that.

[00:06:26] Speaker 03:
And he should be allowed to get the benefit of that.

[00:06:33] Speaker 03:
There are two other issues that I believe are worth meriting in terms of the errors that the board committed.

[00:06:43] Speaker 03:
The first is the number of creditable service.

[00:06:46] Speaker 00:
I think the core of the government's argument

[00:06:49] Speaker 00:
is that because he had non-permanent appointments, he wasn't covered by FERS.

[00:06:57] Speaker 03:
In reading their briefs, I don't believe they talk about FERS at all in their briefs, in terms of coverage.

[00:07:03] Speaker 03:
I believe the only cases they only cite to are all CSRS cases.

[00:07:09] Speaker 00:
I'm looking at page 14 of the red brief.

[00:07:14] Speaker 00:
Dr. Persaud merely implies that he was eligible for federal retirement coverage

[00:07:19] Speaker 00:
To be fair, Dr. Persaud is correct that if he was covered by FERS prior to transition, he may have been able to retain CSRS benefits.

[00:07:33] Speaker 00:
Dr. Persaud's non-permanent appointments, however, did not entitle him to federal annuity.

[00:07:39] Speaker 00:
And he has offered no support for the proposition that temporary term appointments qualify as covered service.

[00:07:45] Speaker 00:
They did.

[00:07:46] Speaker 03:
OK, Your Honor, and I didn't quite read it that way.

[00:07:49] Speaker 03:
But to be fair, if that's the way they've read it, the CSRS and FERS handbook has an adequate description of what the exclusions are for FERS versus CSRS.

[00:08:01] Speaker 03:
And we have cited to our brief the position in the handbook that the exclusion for FERS as opposed to CSRS are much different, that they are not the same exclusions.

[00:08:14] Speaker 03:
And they are much more refined.

[00:08:16] Speaker 03:
In fact, there appears to be only one real significant exclusion.

[00:08:20] Speaker 03:
That's at section 10A1.3-5 of the handbook.

[00:08:25] Speaker 03:
It talks about temporary employees serving on their appointments other than provisional appointments of one year or less.

[00:08:32] Speaker 00:
Talk about 12A4.1-1E.

[00:08:53] Speaker 00:
I'm sorry, Your Honor, can you say that again?

[00:09:00] Speaker 00:
Sure.

[00:09:00] Speaker 00:
12A4.1-1E.

[00:09:07] Speaker 03:
12A4.1-1E is basically the crux of the special coverage rules that talks about, and that's

[00:09:20] Speaker 03:
precisely what I think we've relied upon that talks about the fact that if you are an employee like Dr. Prasad, who would have been covered by FERS before the transition... Would have been.

[00:09:32] Speaker 00:
Yes, Your Honor.

[00:09:34] Speaker 00:
Would have been, but doesn't say he was.

[00:09:41] Speaker 03:
We believe, I go back to the proposition that every employee is covered by retirement penance unless there is an explicit exclusion by law or regulation.

[00:09:49] Speaker 00:
And 5 USC 8333, which is the statutory service requirements.

[00:09:55] Speaker 03:
And it does not, my read of that is that it does not prohibit an employee who is serving as an accepted term for three years

[00:10:05] Speaker 03:
from being eligible for FERS.

[00:10:07] Speaker 03:
It does talk about the exclusions for CSRS.

[00:10:11] Speaker 03:
And I believe that's in part what the board's error was, and I believe that's in part what the respondent keeps harping upon, which is that they are looking at exclusions for CSRS as opposed to exclusions for FERS.

[00:10:30] Speaker 03:
And that's where I come back to that there is not an exclusion

[00:10:33] Speaker 03:
that will be applicable to Dr. Persaud.

[00:10:37] Speaker 00:
You know, you're not addressing what bothers me about the government's case, which is their erroneous continuing statements to Dr. Persaud in his pay slips.

[00:10:53] Speaker 00:
I don't know if that does you any good really, but it's sort of

[00:10:59] Speaker 00:
knots the stomach when one reads it.

[00:11:01] Speaker 03:
This whole matter has sort of knotted the stomach, Your Honor.

[00:11:06] Speaker 03:
We have had trouble since the beginning.

[00:11:08] Speaker 03:
We have a sort of a parallel proceeding going on in the District of Columbia addressing those type of statements that are in his pay stubs.

[00:11:21] Speaker 03:
But I don't believe that that was actually part of this proceeding.

[00:11:26] Speaker 03:
Okay, thank you.

[00:11:28] Speaker 04:
Let's hear from the other side, Mr. Stern.

[00:11:37] Speaker 01:
Mr. Rodriguez.

[00:11:38] Speaker 01:
Good morning.

[00:11:38] Speaker 01:
May it please the court.

[00:11:40] Speaker 01:
I want to start by addressing a question from the court.

[00:11:45] Speaker 01:
The question was directly, was Dr. Persaud covered by FERS?

[00:11:48] Speaker 01:
And the answer from Dr. Persaud's counsel was, quote, I believe he was.

[00:11:52] Speaker 01:
Now, as we make clear in our brief,

[00:11:55] Speaker 01:
Dr. Prasad has only ever implied that he was covered by FERS.

[00:11:59] Speaker 01:
He's never actually come out and said he's covered by FERS, or he's never taken this argument a step further and developed it and said these are the requirements for FERS and this is what you would have to do to meet it.

[00:12:09] Speaker 01:
Because if he did take that next step, it would be clear that he's not subject to FERS.

[00:12:13] Speaker 01:
Now, if we look at the handbook and if we look at the regulations, they make clear that to be eligible for FERS, not only do you have to have the five-year creditable service requirement,

[00:12:23] Speaker 01:
You also have to be in a position that's subject to social security withholding.

[00:12:29] Speaker 01:
And Dr. Persaud certainly was not.

[00:12:31] Speaker 02:
In fact, there was a- Can you give us some sites here to regulations and statutes?

[00:12:38] Speaker 02:
Sure.

[00:12:39] Speaker 02:
You were saying to me that you were, if Mr. Dr. Persaud were correct, that they accepted a three-year appointment, qualified for service, for first, then he'd be in business, right?

[00:12:53] Speaker 01:
I don't think that's correct that he would be in business because, again, it would only be three years, not the five years.

[00:12:58] Speaker 02:
Well, let's assume he had five years.

[00:12:59] Speaker 01:
If he had the five years, right.

[00:13:01] Speaker 02:
And so the absence of the five years.

[00:13:04] Speaker 01:
The absence of the five years.

[00:13:05] Speaker 01:
But that's just one element of first coverage.

[00:13:08] Speaker 02:
And the second is not subject to social security.

[00:13:10] Speaker 01:
Exactly.

[00:13:10] Speaker 01:
And that can be found at 5 CFR section 842.103.

[00:13:13] Speaker 01:
It can also be found at the handbook.

[00:13:17] Speaker 01:
I mean, just to... Yeah, cite us to that.

[00:13:20] Speaker 01:
The handbook, I mean, we can go to chapter 10 of the OPM handbook, and this is something that Dr. Posad's counsel referred to in his reply brief.

[00:13:30] Speaker 01:
He talks about the limited exclusions to FERS coverage versus CSRS coverage.

[00:13:35] Speaker 01:
Well, there's an omission from the brief, Dr. Posad's reply brief, because the very first line, if we look at page 24 of chapter 10, I apologize.

[00:13:45] Speaker 01:
Where is it in there?

[00:13:47] Speaker 01:
Section 10A1.

[00:13:49] Speaker 01:
Appendix site.

[00:13:51] Speaker 01:
Is it in the appendix?

[00:13:53] Speaker 01:
The OPM handbook is not in the appendix.

[00:13:57] Speaker 01:
But I do have the regulation and I do have the actual page number for Chapter 10.

[00:14:01] Speaker 01:
It's page 24.

[00:14:04] Speaker 01:
Section 10A1.3-5.

[00:14:09] Speaker 01:
And again, this page was cited by Dr. Prasad in his reply brief.

[00:14:14] Speaker 01:
Now this page, what it does is it talks, it's a quick reference and it discusses the limited exclusions

[00:14:19] Speaker 01:
from FERS coverage, because obviously there are more exclusions for CSRS coverage than for FERS coverage.

[00:14:25] Speaker 01:
But in the very first sentence, it says that the employee has to be subject to OASDI taxes, otherwise known as Social Security taxes.

[00:14:35] Speaker 01:
So again, Your Honor, to address your question and your point, not only would he have to meet the five-year creditable service requirement, he would also have to be in a position subject to

[00:14:44] Speaker 01:
Social Security withholding.

[00:14:46] Speaker 02:
Was he subject to Social Security withholding?

[00:14:48] Speaker 01:
He was not.

[00:14:48] Speaker 01:
In fact, this is actually in the record.

[00:14:51] Speaker 01:
Your Honor, if we go to page 64 of the joint appendix.

[00:15:07] Speaker 01:
54?

[00:15:07] Speaker 01:
64, Your Honor.

[00:15:09] Speaker 01:
This is 64 and 65.

[00:15:13] Speaker 01:
So let's first look at 65.

[00:15:15] Speaker 01:
It's hard to see.

[00:15:18] Speaker 01:
I apologize.

[00:15:19] Speaker 01:
You can see that these are poor quality originals.

[00:15:22] Speaker 01:
But in the center of the page 65, we have a box right down toward the middle that says retirement, box 29.

[00:15:29] Speaker 01:
And there it says 11 FICA, otherwise known as Social Security.

[00:15:36] Speaker 01:
If we look at page 64, this is actually a correction.

[00:15:40] Speaker 01:
It's a personnel form that corrects

[00:15:43] Speaker 01:
page sixty-five record and changes his coverage from eleven fika to twelve not this also was referenced on page fifty nine was the occasion of that change the case of the change we understand it is it was a mistake another mistake by the dc government in this time around they'd improperly coded him at that time as being subject for social security holding when he was not uh... if we look at page fifty nine just listen at what's the date on those two documents

[00:16:13] Speaker 01:
So the date is 1988, but the effective date is 1987.

[00:16:22] Speaker 01:
So we can see it looks like this is February 1988.

[00:16:25] Speaker 01:
The personnel record from Appendix 65 is November 20, 1987.

[00:16:31] Speaker 01:
So my best guess on this is three months after they made this mistake, they corrected it.

[00:16:36] Speaker 01:
And if we look at page 59, this is a letter to Dr. Prasad from August 2009.

[00:16:45] Speaker 01:
If we look at counting down from the top, one, two, three, four paragraphs in, we have a sentence that begins for the middle of the page.

[00:16:55] Speaker 01:
Initially, he was erroneously covered by FICA.

[00:16:58] Speaker 01:
However, a correction to the record on February 17th, 1988 changed his coverage from FICA to none.

[00:17:06] Speaker 01:
So again, if we take Dr. Passad's argument, even one step further.

[00:17:10] Speaker 02:
59, you're saying?

[00:17:11] Speaker 01:
59, your honor.

[00:17:12] Speaker 02:
I see that, yes.

[00:17:13] Speaker 01:
Initially.

[00:17:14] Speaker 02:
I see it.

[00:17:15] Speaker 01:
So again, if we take these statements, these arguments, one step further than just a blanket statement, yes, I was covered, we look, and no, he doesn't meet either requirement, the five-year service requirement or the withholding for social security requirement.

[00:17:29] Speaker 01:
So any way you look at this, any way you slice it, whether you look at CSRS benefits or FERS benefits,

[00:17:35] Speaker 01:
Dr. Persaud was just ineligible.

[00:17:38] Speaker 01:
And while it's unfortunate what happened to him, that a DC government employee made a mistake 28 years ago and improperly coded him, that mistake cannot override the statutory requirements for eligibility to either federal annuity.

[00:17:52] Speaker 01:
And so that's our bottom line.

[00:17:54] Speaker 01:
And we think at the end of the day, even though there's a lot of talk about exclusions, he's just not eligible.

[00:17:59] Speaker 01:
And he wasn't eligible.

[00:18:00] Speaker 01:
And that's clear from the record.

[00:18:03] Speaker 00:
Somewhere.

[00:18:06] Speaker 00:
I know you can't assert a stoppile against the government.

[00:18:09] Speaker 00:
I mean, that's a general principle.

[00:18:11] Speaker 00:
But somewhere it seems to me he has something to say about how he planned his life for 28 years and was then faced with being told, nope, sorry, we made a mistake.

[00:18:29] Speaker 00:
You use the word unfortunate in your brief.

[00:18:31] Speaker 00:
Well, I'd certainly agree with that.

[00:18:34] Speaker 00:
but of course your argument is the law is the law.

[00:18:37] Speaker 01:
There's my argument and one of the reasons, Your Honor, why I included the Yancey case from the District of Columbia was just... Yeah, why did you include it?

[00:18:45] Speaker 01:
I included that because, for one thing, one, because it had really great language that I could use in my brief about how the D.C.

[00:18:51] Speaker 01:
government cannot find the federal government to... But the plaintiff there was hired by St.

[00:18:55] Speaker 01:
Elizabeth after very... Well, here's the... With regard to the special coverage rules,

[00:19:03] Speaker 01:
Unfortunately for Dr. Persaud, because he was just a medical resident in 1987, he didn't have any retirement coverage.

[00:19:09] Speaker 01:
When he started working in 1989, it was as if he had never worked for St.

[00:19:13] Speaker 01:
Elizabeth's prior to this, because he doesn't get any benefit from special coverage rules.

[00:19:18] Speaker 01:
I included Yancy because it was a psychologist like Dr. Persaud who came on board to St.

[00:19:24] Speaker 01:
Elizabeth's in 1989 and was promised, it appears at the time, and then subsequently for 20 years,

[00:19:32] Speaker 01:
through pay stubs, that she would receive CSR's benefits, and she did not.

[00:19:36] Speaker 01:
And so that's why I included that.

[00:19:38] Speaker 01:
I think, unfortunately, this was a problem that was bigger than just Dr. Prasad's situation.

[00:19:44] Speaker 01:
But if we look at the record, and I'm not sure, again, how these problems, what happened.

[00:19:50] Speaker 01:
But if we look, we have in appendix 54, this is a bulletin.

[00:19:57] Speaker 01:
And this is from Theodore Thornton Sr., who is the director of personnel

[00:20:02] Speaker 01:
for the government of District of Columbia from October 1st, 1987.

[00:20:05] Speaker 01:
If you look at the bottom of page 54 and the top of page 55, the D.C.

[00:20:14] Speaker 01:
government was very clear about who at St.

[00:20:18] Speaker 01:
Elizabeth's could qualify for federal retirement coverage.

[00:20:21] Speaker 01:
And I'll read from the top of 55 beginning with, quote, a federal employee who has no prior employment with the district in a CSRS covered position.

[00:20:31] Speaker 01:
is not eligible to retain or obtain CSRS coverage.

[00:20:35] Speaker 01:
Those employees would be covered by the district retirement benefit program.

[00:20:39] Speaker 01:
So again, even though there was a mistake in 1989, it was always clear what the federal government intended.

[00:20:45] Speaker 01:
I also believe it was clear what the DC government intended.

[00:20:47] Speaker 01:
And unfortunately, there was a mistake that was made.

[00:20:50] Speaker 01:
But at the end of the day, it appears that Dr. Persaud was eligible for the DC Defy Contribution Plan.

[00:20:57] Speaker 01:
And the contributions that he

[00:20:58] Speaker 01:
were deducted from his pay, were given back to him, and they were applied to Social Security.

[00:21:03] Speaker 01:
So at the end of the day, I think this is a really simple issue of just not being... You say it's applied to Social Security.

[00:21:08] Speaker 02:
How does that work?

[00:21:10] Speaker 01:
Well, I don't know how that works.

[00:21:13] Speaker 01:
I believe, Your Honor, that CSRS beneficiaries, those who are eligible for CSRS benefits per statute, do not have any Social Security deductions taken from their pay.

[00:21:24] Speaker 01:
And so once it was determined that Dr. Prasad was not eligible for CSRS benefits, they realized that, oops, he should have been paying into Social Security.

[00:21:34] Speaker 01:
He was not.

[00:21:35] Speaker 01:
So his refund of $67,000, the vast majority went to Social Security, and then the remainder was refunded to him.

[00:21:45] Speaker 01:
If there are no further questions, I'll forego the use of the rest of my time.

[00:21:48] Speaker 04:
Thank you, Mr. Rodriguez.

[00:21:54] Speaker 03:
Just very briefly, Your Honors, and just to pick up from the last point, it's sort of a contention or an understanding that what's happened is Dr. Prasad is left with no retirement benefits.

[00:22:07] Speaker 03:
Everything that he had originally contributed gets sent back to Social Security.

[00:22:11] Speaker 03:
So he has no separate, other than Social Security, he apparently has no separate retirement benefits.

[00:22:17] Speaker 03:
You know, I understand the response... Does he not get something from the District of Columbia?

[00:22:24] Speaker 03:
There is no annuity.

[00:22:25] Speaker 03:
There is nothing similar to or comparable to the CSRS annuity.

[00:22:30] Speaker 00:
That wasn't my question.

[00:22:32] Speaker 00:
Does he not get some... I'll repeat it verbatim.

[00:22:36] Speaker 00:
Does he not get something from the District of Columbia?

[00:22:39] Speaker 03:
I'm going to answer this way.

[00:22:41] Speaker 03:
Other than what he has contributed, no.

[00:22:45] Speaker 02:
What does that mean?

[00:22:47] Speaker 02:
Isn't there a retirement program in the D.C.

[00:22:49] Speaker 02:
government?

[00:22:51] Speaker 03:
The D.C.

[00:22:52] Speaker 03:
government does have a retirement program, but that's not the way he is.

[00:22:55] Speaker 02:
And at the time of the conversion of Sadies from federal to the D.C., the understanding was, well, if you had a federal retirement plan before, you can carry that on, but if you don't, you're going to have to be on D.C.'

[00:23:09] Speaker 02:
's retirement plan.

[00:23:10] Speaker 03:
Correct.

[00:23:10] Speaker 03:
And he qualified for that, correct?

[00:23:13] Speaker 03:
Well, that's what the respondent says, that he qualifies for that.

[00:23:15] Speaker 03:
But his deductions throughout that entire time period

[00:23:19] Speaker 03:
were sent to CSRS and not to the DC.

[00:23:22] Speaker 03:
I understand that, but can he buy into the DC retirement plan?

[00:23:27] Speaker 03:
Well, that's part of our underlying case pending before the District of Columbia is how he should be treated if he does not get CSRS benefits.

[00:23:36] Speaker 03:
I'm not quite sure.

[00:23:37] Speaker 02:
I think what Judge Rock was asking is whether or not the door was closed to the doctor for a retirement plan.

[00:23:44] Speaker 02:
And I'm hearing you saying

[00:23:45] Speaker 02:
Perhaps not internally.

[00:23:47] Speaker 03:
And I'm not entirely sure what the ultimate outcome would be, depending on what happens here and what happens before the D.C.

[00:23:54] Speaker 03:
Superior Court, Your Honors.

[00:23:57] Speaker 03:
Just one fine point about the FICA issues.

[00:24:01] Speaker 03:
As a factual matter in the record, Dr. Prasad was subject to FICA before he transitioned from

[00:24:09] Speaker 03:
as an employee of St.

[00:24:12] Speaker 03:
Elizabeth before it transitioned from federal control to the District of Columbia control.

[00:24:18] Speaker 03:
And that's that Appendix 22, 23, and 24.

[00:24:21] Speaker 03:
I understand the respondent likes to characterize those as mistakes, but that's in fact what the evidence has in the record.

[00:24:29] Speaker 00:
Corrected mistakes.

[00:24:33] Speaker 03:
I'm not sure how that is corrected.

[00:24:34] Speaker 03:
The way the respondent likes to see it corrected

[00:24:37] Speaker 03:
is that he was given back those FICA contributions as a result of these proceedings.

[00:24:43] Speaker 03:
That is part of the true-up.

[00:24:46] Speaker 03:
That's part of the true-up that the government tried to give him his CSRS deductions plus the FICA contributions all back in a lump sum and say, here, let's go ahead and give it all to Social Security.

[00:25:00] Speaker 03:
So my response to your question, Your Honor, is that, no, I don't believe it is

[00:25:05] Speaker 03:
a retroactive correction.

[00:25:07] Speaker 03:
I believe that the evidence shows in the record that he was subject to FICA.

[00:25:12] Speaker 03:
Those are exhibits at appendix 22, 23, and 24 that was, in fact, retroactive to March of 1987.

[00:25:18] Speaker 03:
Your Honor, if there are no other questions, I'll leave you with that.

[00:25:26] Speaker 02:
What about the five-year requirement that your adversary says your client didn't meet?

[00:25:31] Speaker 03:
Every year is creditable.

[00:25:34] Speaker 03:
And he's got, I believe, 25 years of creditable service.

[00:25:39] Speaker 03:
I believe it's an incorrect statement to say that he had to have five years before the transition.

[00:25:45] Speaker 03:
There's no question, as a factual matter, he did not have five years.

[00:25:48] Speaker 03:
He started in 84.

[00:25:50] Speaker 03:
The transition was in 87.

[00:25:51] Speaker 03:
But I believe it's an incorrect statement of law to say that he had to have the five years of creditable service before the transition.

[00:25:59] Speaker 03:
I believe that's a requirement at the end.

[00:26:01] Speaker 02:
The government's argument was that he had to do that in order to get himself qualified as of the date of transition so that he could say, I'm in a federal program.

[00:26:11] Speaker 03:
And I believe that's the argument today.

[00:26:13] Speaker 03:
I don't think that's the argument in the brief.

[00:26:15] Speaker 03:
I believe they agreed with us that the board miscalculated the creditable service in the opinion.

[00:26:22] Speaker 03:
And I believe it's an incorrect statement to say that he actually had to have all the five years before the transition.

[00:26:28] Speaker 03:
I do believe he had to have the five years before he retired, and he did.

[00:26:33] Speaker 02:
But for purposes of qualifying for first of service, he didn't have the five years before the transition.

[00:26:41] Speaker 02:
That's a correct factual statement, Your Honor.

[00:26:44] Speaker 04:
Thank you.

[00:26:46] Speaker 04:
Any more questions?

[00:26:48] Speaker 04:
Thank you.

[00:26:48] Speaker 04:
Thank you both for cases submitted to submission.