Appealed from: Merit Systems Protection Board
Before DAVIS, Circuit Judge, MILLER, Senior Circuit Judge, and NEWMAN, Circuit Judge.
Petitioner Maurice Lichtman appeals from the decision of the Merit Systems Protection Board (MSPB or Board), MSPB Docket No. SF08318310838, sustaining the determination of the Office of Personnel Management (OPM) that petitioner is barred under 5 U.S.C. § 8337(f) from receiving retroactive retirement annuity benefits for a period during which he received compensation benefits under the Federal Employees Compensation Act (FECA). We reverse with directions, and remand.
Lichtman was employed by the U.S. Postal Service (and its predecessor) for a period of thirty-one years and five months. He sustained an on-the-job injury and on February 4, 1972 commenced receiving compensation benefits under the FECA -- administered by the Office of Workman's Compensation Program (OWCP). In June 1972, Lichtman applied for a civil service retirement (CSR) annuity based on age and years of service. Although the annuity was granted, Lichtman was advised that he could not receive periodic annuity payments and periodic FECA benefits at the same time because such a concurrent receipt was prohibited by 5 U.S.C. § 8337(f).*fn1
In September 1972 Lichtman applied to OWCP for a lump-sum settlement of his FECA benefits under 5 U.S.C. § 8135. Lichtman believed that, after receiving a lump-sum FECA payment, he would then be entitled to receive periodic annuity benefits. OWCP denied his request to 5 U.S.C. § 8135(a)(3)*fn2 on the basis that a lump-sum commutation was not in Lichtman's best interest. This conclusion was based upon OWCP's mistake of law that 5 U.S.C. § 8116(a) prohibits receipt of FECA benefits and civil service retirement annuity benefits by the same person at any time.*fn3
OWCP maintained this position for a period of about eight years. Lichtman finally obtained an appealable ruling on the matter in 1980, and was then granted a hearing on April 27, 1981. He argued that the prohibition against dual benefits found in 5 U.S.C. §§ 8116 and 8337(f) applied only to a concurrent receipt of periodic benefits from both sources or when the basis for the retirement and FECA benefits was the same disability. In reply to an OWCP request for clarification on the application of these statutory provisions, OPM affirmed Lichtman's entitlement to the retirement annuity if he was awarded a lump-sum computation of periodic FECA benefits.*fn4 Based on this information, the evidence at the hearing, and a finding that it was in Lichtman's best interest to receive a lump-sum FECA payment, OWCP reversed its prior decisions and ordered a lump-sum settlement of Lichtman's FECA benefits.*fn5
Because OWCP's prior determinations were erroneous, Lichtman requested that OPM grant him annuity benefits retroactive to his first request for a lump-sum compensation settlement in September 1972. OPM denied this request. In response to a subsequent request for reconsideration, OPM affirmed its initial decision. Lichtman appealed to the MSPB.
Although admitting that Lichtman presented a sympathetic case, the presiding official affirmed OPM's decision. The presiding official found that Lichtman had not received ten years of retirement benefits to which he would have been entitled had the lump-sum settlement occurred, as it should have, in 1972. She repeatedly characterized as "erroneous" the refusal of OWCP to grant a lump-sum settlement in 1972, and also repeatedly said that Lichtman should have been given such a lump-sum settlement in that year. However, finding the controlling issue to be one of statutory entitlement, the presiding official held that
although 5 U.S.C. § 8116(a) does not prevent double payments here because the applications were not based upon the same disability, 5 U.S.C. § 8337 does prohibit payment of retirement benefits at the same time periodic FECA benefits are paid . . . The fact remains that appellant did collect monthly FECA payments for ten years. Consequently, during each of those years he was not statutorily entitled to receive annuity payments.
A petition for full Board review was denied.
On appeal to us, Lichtman contends that the commutation of his FECA benefits should be considered to be effective as of the date of his initial request for commutation, September 1972, rather than the actual date of commutation, January 1982, because of OWCP's mistake of law and unconscionable delays in processing his application. Lichtman urges that OPM has the authority, as well as the responsibility, to correct this injustice which resulted in his statutory ineligibility for the ten-year period.
OPM asserts that its decision is entitled to judicial deference and should be sustained. The agency maintains that it correctly concluded (for the period 1972-1982) that 5 U.S.C. § 8337(f) barred Lichtman's concurrent receipt of periodic retirement benefits and FECA benefits. Further, OPM urges that it has no authority to waive this statutory restriction or ...