[00:00:43] Speaker 03:
Okay, the next argued case is number 17-2308, Saxionis against the Merit Systems Protection Board.

[00:00:51] Speaker 03:
Mr. Jackman.

[00:00:52] Speaker 04:
Thank you, Your Honor.

[00:01:02] Speaker 04:
May it please the Court, my name is Norman Jackman and I represent Mr. Saxionis.

[00:01:11] Speaker 04:
His background

[00:01:12] Speaker 04:
started when he volunteered to go to Vietnam before his 19th birthday.

[00:01:19] Speaker 04:
He went, he knew what it was all about.

[00:01:21] Speaker 04:
He re-enlisted and served nearly four years in Vietnam.

[00:01:28] Speaker 04:
Came back, eventually was suffering from what he claimed, correctly so, as it later turned out, that his unit had been exposed to Agent Orange and he needed an operation.

[00:01:41] Speaker 04:
The VA denied him.

[00:01:44] Speaker 04:
Eventually, he lost his kidney, and the doctors certified that he was subjected to Agent Orange, and that's what ruined his kidney.

[00:01:53] Speaker 02:
Mr. Jackman, this came to us on his inability to make a deposit.

[00:02:01] Speaker 02:
For the military service.

[00:02:03] Speaker 02:
I'll address that right now.

[00:02:04] Speaker 02:
It looks as though that has been taken care of now, and so why isn't this case moot?

[00:02:09] Speaker 04:
It would be.

[00:02:10] Speaker 04:
A payment hasn't been made yet.

[00:02:12] Speaker 04:
And I was about to suggest that perhaps the best thing to do would be to remand this case to the MSPB because I think that they were wrong in dismissing it because there was no final decision since we had to file three different cases to try to force the issue.

[00:02:31] Speaker 04:
And it may well have succeeded now.

[00:02:37] Speaker 04:
But it seems to me that perhaps the best thing to do would be to send it back to MSPB until there is a finality of payment.

[00:02:44] Speaker 04:
They're in the middle.

[00:02:45] Speaker 04:
The client was told to pay $2,511 and they would then pay him $12,000 something, which finally puts an end to that part of the litigation.

[00:02:57] Speaker 01:
Can I just make sure I understand?

[00:02:58] Speaker 01:
I think what you're saying is until there's final payment, you want to keep the case alive.

[00:03:04] Speaker 01:
That's right.

[00:03:08] Speaker 01:
Okay.

[00:03:10] Speaker 01:
Is there anything else?

[00:03:12] Speaker 04:
Well, part of the recalculation, we will be arguing either in this case or another one that their recalculation of his annuity was against the decision of this circuit in the Grover case, which said that the OPM's calculation by virtue of using contributions to the retirement plan, if it differed from what

[00:03:37] Speaker 04:
The statute says would be wrong and that was admitted before this court almost two years ago.

[00:03:44] Speaker 04:
Our anxiety to keep it going until there's a finality is stemmed by the fact that Grover, who won his case in July of 2016, still hasn't gotten paid due to various maneuverings.

[00:03:58] Speaker 04:
So I would suggest that the case go back to MSPB and if it's settled and the judge there decides that it's over, it'll be over.

[00:04:06] Speaker 04:
At least if we have to file another one, we'll file another one.

[00:04:09] Speaker 04:
But we'll do it after properly notifying OPM and going to MSPB, not coming here to this court until we have a proper record.

[00:04:21] Speaker 03:
Have you presented to the MSPB or whoever does these calculations a definition of the errors that still exist?

[00:04:33] Speaker 04:
Yes, Judge.

[00:04:34] Speaker 04:
Appendix page 37.

[00:04:37] Speaker 04:
which is a single page shows an earnings record that we submitted to MSPB showing his complete earnings from 1965 to 1998 and I think that's possibly why we wound up with the military end of it being settled because when one's in the military there's one thing certain they're not holding down two jobs so whatever his earnings were have to be what's shown on the

[00:05:06] Speaker 04:
on these papers.

[00:05:07] Speaker 03:
That was submitted before the current settlement.

[00:05:13] Speaker 04:
That's right.

[00:05:13] Speaker 04:
I was just looking at the decision below.

[00:05:16] Speaker 03:
What's not clear to me is just exactly what we're talking about after the settlement.

[00:05:24] Speaker 04:
Oh, it wasn't a settlement.

[00:05:26] Speaker 04:
The other side agreed to pay the amount.

[00:05:29] Speaker 04:
The client was happy to get it.

[00:05:31] Speaker 04:
Nothing's been signed by me on the behalf of the client, and as far as I

[00:05:35] Speaker 04:
No, nothing has been signed by him.

[00:05:38] Speaker 04:
But we have correspondence from the agency.

[00:05:40] Speaker 04:
I assume they're going to live up to that.

[00:05:43] Speaker 04:
So I have no reason to believe it won't be settled, but I would like to see the jurisdiction retained.

[00:05:48] Speaker 04:
We can file with MSPB an acknowledgement of payment when it's made, but it's not made yet.

[00:05:55] Speaker 04:
So it's not really over.

[00:05:57] Speaker 04:
It's in the wings there, but not done.

[00:06:03] Speaker 03:
Okay.

[00:06:04] Speaker 04:
I don't see any harm done to send it back, but that's for you to decide, not me.

[00:06:12] Speaker 03:
All right.

[00:06:13] Speaker 03:
Well, then let's hear from the court.

[00:06:16] Speaker 03:
Okay.

[00:06:16] Speaker 03:
See what their view is of where this stands.

[00:06:25] Speaker 00:
May it please the court?

[00:06:25] Speaker 00:
Yes, Ms.

[00:06:26] Speaker 03:
Litterer.

[00:06:26] Speaker 00:
This appeal should be dismissed because it is now moot.

[00:06:30] Speaker 00:
Um, as petitioner acknowledges, OPM has now allowed him to make the military service deposit, which was the issue in the appeal.

[00:06:37] Speaker 00:
Um, and his annuity has been adjusted accordingly.

[00:06:39] Speaker 00:
And so, um, that annuity adjustment represents a decision of OPM, which if he has a disagreement with it, he's free to appeal that to the board.

[00:06:49] Speaker 00:
Um, there's no provision for the board to maintain jurisdiction over this case now, um, in the, the status that is currently in.

[00:06:58] Speaker 00:
So, um, he didn't establish jurisdiction before the board.

[00:07:02] Speaker 00:
Um, now there has been a new decision.

[00:07:04] Speaker 00:
Um, and if he wishes to challenge that, he should appeal, file a new appeal of that decision with the board.

[00:07:11] Speaker 00:
Um, and so as far as we're concerned, that's the only issue in the case and that has now been resolved.

[00:07:18] Speaker 00:
So this case should be moot.

[00:07:20] Speaker 00:
Um, petitioners received all the relief that he could have received if the case had been adjudicated and he had prevailed.

[00:07:27] Speaker 00:
So if the court has any questions, I'm happy to address those.

[00:07:33] Speaker 02:
Please worry that the government's not, OPM's not going to pay.

[00:07:39] Speaker 00:
Right.

[00:07:40] Speaker 02:
It hasn't happened yet.

[00:07:43] Speaker 00:
Right.

[00:07:44] Speaker 00:
So that was not a subject of the appeal that's currently before this court, because that was an appeal of the case, that OPM's failure to make a decision.

[00:07:57] Speaker 00:
As I said, he's free to file a new appeal of the OPM's decision that issued earlier in April.

[00:08:04] Speaker 02:
And you're saying we have no basis to remand because one remands for further adjudication, but you're saying the adjudication is over.

[00:08:16] Speaker 02:
Just ministerial acts need to be carried out, but the legal, in fact, determinations are over.

[00:08:26] Speaker 00:
Right.

[00:08:27] Speaker 00:
The issue in this case was OPM's refusal to allow him to make the military deposit.

[00:08:31] Speaker 00:
And it has now done so as he acknowledges.

[00:08:33] Speaker 00:
So that's the only issue that was before this court and that was before the board.

[00:08:38] Speaker 03:
So what's holding up the payment?

[00:08:41] Speaker 00:
I don't have any information about the payment.

[00:08:44] Speaker 00:
That's something that OPM would have to address.

[00:08:46] Speaker 00:
Again, if Petitioner wishes to appeal that situation to the board, he's free to do so and it will be adjudicated.

[00:08:55] Speaker 00:
Because this hadn't happened yet at the time that the board issued its decision, the board didn't have an opportunity to address the situation, obviously.

[00:09:02] Speaker 00:
So there's no way for the board to maintain jurisdiction to enforce this new decision that has been issued by OPM unless he brings a new appeal of that decision.

[00:09:13] Speaker 00:
So at this time, a remand wouldn't accomplish anything because the board would not have jurisdiction over it.

[00:09:23] Speaker 02:
And there aren't further findings that would need to be made to justify remand.

[00:09:30] Speaker 00:
Right.

[00:09:31] Speaker 00:
The only issue in this case was the military service deposit.

[00:09:36] Speaker 00:
And as far as I know, that's the only thing that petitioner is now challenging.

[00:09:43] Speaker 03:
Was the board in a position to assure that at least that which has been resolved is paid?

[00:09:53] Speaker 00:
The board doesn't have any mechanism for doing that in the absence of an appeal.

[00:09:58] Speaker 00:
So he would have to file a new appeal of that decision with the board or of his claims that OPM has not paid him or whatever his claims may be.

[00:10:07] Speaker 01:
To make sure I understand, I think your point is that the only thing they asked for was a military service deposit.

[00:10:13] Speaker 01:
And then whatever consequence there would be of that military service deposit, that's something that's outside the scope of this case.

[00:10:21] Speaker 01:
Is that what you're saying?

[00:10:22] Speaker 00:
Yes.

[00:10:23] Speaker 00:
Um, he would have to file an appeal of that.

[00:10:25] Speaker 00:
So, um, yeah, that's, that's where we stand right now.

[00:10:31] Speaker 00:
Um, and I would note that the, I believe this letter from OPM only issued a few weeks ago.

[00:10:36] Speaker 00:
So, um, at this time, it would not seem unusual that he has not yet received the payment, but if he continues to not receive it and has, or if he has a complaint with the calculations or anything like that, he's free to file an appeal with the board of that decision.

[00:10:52] Speaker 00:
OPM has not indicated that it's going to file a reconsideration decision of that, so he could present that to the board and argue that this is the new final decision of OPM and the board would evaluate that and OPM's response to it and render a new decision on the new appeal.

[00:11:11] Speaker 03:
Any more questions?

[00:11:13] Speaker 03:
Any more questions?

[00:11:14] Speaker 03:
Thank you.

[00:11:17] Speaker 04:
Just one point, Your Honor.

[00:11:20] Speaker 04:
The initial case was dismissed by the MSPB judge for lack of jurisdiction because there was no final MSPB decision.

[00:11:30] Speaker 04:
I mean, final OPM decision.

[00:11:33] Speaker 04:
But it's our position that even the case law, in a case named Okello, K-E-L-L-O in the judge's decision, indicates that when you've waited years, and in this case we started seeking this

[00:11:50] Speaker 04:
outcome more than four years ago, nearly five years ago, that the failure of OPM to make any payment blaming DFAS on not giving them information itself was a refusal to pay.

[00:12:09] Speaker 04:
For example, it has occurred to me that one could look up what somebody in the military in the four years of 1972, 3, 4, and 5

[00:12:21] Speaker 04:
was paid.

[00:12:22] Speaker 04:
To say that we have to get this from DFAS, I think I should have really paid attention to that much earlier and tried to figure out where to get the information.

[00:12:34] Speaker 04:
When I called DFAS, I got to run around.

[00:12:37] Speaker 04:
I said to the client, you better call him.

[00:12:40] Speaker 04:
He got no answer at all.

[00:12:41] Speaker 04:
They said, we can't talk to you.

[00:12:43] Speaker 02:
That's behind us now.

[00:12:45] Speaker 04:
Yes, but there was a jurisdictional judge.

[00:12:47] Speaker 04:
The judge said there was no final decision of OPM on which MSPB could assert jurisdiction.

[00:12:54] Speaker 03:
So what do you need and what are you asking for?

[00:12:59] Speaker 04:
Well, I guess I need to have a decision that a four-year delay was enough to constitute denial of the claim and therefore they had jurisdiction.

[00:13:09] Speaker 03:
They had agreed with that.

[00:13:10] Speaker 03:
They said, all right, we were wrong.

[00:13:13] Speaker 03:
Now what happens?

[00:13:14] Speaker 04:
Just let him remand for jurisdiction until the payment is made.

[00:13:19] Speaker 04:
That's all.

[00:13:19] Speaker 04:
Why should we have to file yet another lawsuit?

[00:13:23] Speaker 04:
That's all I'm looking for.

[00:13:24] Speaker 04:
OK.

[00:13:27] Speaker 03:
Anything else?

[00:13:30] Speaker 03:
Anything else to ask?

[00:13:31] Speaker 03:
All right.

[00:13:32] Speaker 03:
Thank you.

[00:13:32] Speaker 03:
Thank you both.

[00:13:34] Speaker 03:
The case is taken under submission.

[00:13:43] Speaker 02:
All right.

[00:13:45] Speaker 02:
The Honorable Court is adjourned until Monday morning at 10 o'clock a.m.

[00:13:52] Speaker 02:
Oh, it's Friday.