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Lying About Birthdate Leads to Losing FERS Annuity

by Susan McGuire Smith |

The Office of Personnel Management cancelled a FERS employee’s retirement and demanded repayment of annuity when it learned that the employee had falsified his birth date on his federal employment records. The appeals court has now sided with OPM and the employee is left without any retirement benefit.  (Salazar v. Office of Personnel Management, CAFC No. 2012-3011 (10/5/12 nonprecedential))

Here is how the court explains what happened.

Salazar was an engineer with the Department of Energy in South Carolina. Almost ten years ago OPM turned up in a background investigation that Salazar had given false information. Eventually DOE began removal proceedings against him for false statements. The parties settled: Salazar would stay employed until he was eligible to retire on August 25, 2005. As provided in the settlement, Salazar did in fact retire on that date, listing his date of birth as January 30, 1954. The retirement was approved and Salazar started receiving his benefits. (Opinion p. 2)

Several months later Salazar was indicted on four counts of making false statements on his employment and retirement applications. He was convicted by a jury of his peers for (1) falsely stating that he had been born in Nogales, Arizona when in fact he had been born in Mexico; and (2) falsely stating in his retirement application that he had been born on January 30, 1954 when in fact he had been born on that date in 1958, and therefore was not eligible for retirement when he applied. (p. 3)

Based on the conviction, OPM notified Salazar that retirement was void because he had not met the age requirement at the time of his departure from the government. OPM cancelled his annuity and demanded repayment of annuity benefits he had received totaling $20,540.88. (pp. 3-4)

In his first round of appeals Salazar failed to convince the Merit Systems Protection Board and the court that he had been forced to retire involuntarily. Undaunted, he filed a second appeal with the MSPB, this time arguing that he was entitled to have his annuity reinstated. Applying the doctrine of collateral estoppel, the Board found that the issue of Salazar’s age had been “fully and fairly litigated,” the criminal finding that he did not meet the age requirement for retirement was dispositive, and he as barred from relitigating that issue. (p. 4)

The appeals court has now agreed with that decision having found Salazar’s arguments not persuasive. Bottom line: Salazar will not get his retirement annuity reinstated.

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Susan McGuire Smith

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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