Lying About Birthdate Leads to Losing FERS Annuity

By on November 21, 2012 in Court Cases, News, Retirement

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  (Salazar v. Office of Personnel Management, CAFC No. 2012-3011 (10/5/12 nonprecedential))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.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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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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  1. JW says:

    Maybe I’m missing something here, but forfeiture of his retirement annuity in totality seems like a disproportionate penalty considering the crime. I’ll admit I don’t know the facts of the case though.

  2. HR Manager (Retired) says:

    Interesting that some many assume that because he was born in Mexico that he is an illegal alien.  Maybe he is and maybe he isn’t but to make that jump based on this article is, at best, without logic.  I guess by their logic Mitt is also illegal since he was born in Mexico.  As for the comment that he “stole” a job – you have to be kidding.  The man was employed as an engineer - both the fed’l and pvt sectors are screaming for applicants in this career field so I seriously doubt that he kept anyone from getting a job.  The fact that he lied about his birth place had no bearing on the OPM decision to resend his retirement.  The OPM decision was based on the fact that, based on his correct age, he did not meet the age retirement eligibility requirments – nothing more nothing less.  

    • grannybunny says:

      Mitt wasn’t born in Mexico.  However, he claims that his Father was, which seems highly unlikely, since his Father also ran for the Presidency, one requirement of which is that one be born in the U.S. (or — like McCain — in a U.S. enclave, such as one of our military bases abroad).

      • HR Manager (Retired) says:

        You are correct – he was born in Detroit.  My error.  However, while the president must be a natural born citizen of the US,  an individual may also be an American citizen by birth if he or she was born to U.S. parents outside of the United States. Thus this is why Mitt’s father was eligible to run for the presidency.   

        • grannybunny says:

          It’s not enough to simply be a citizen by birth.  One must have been born in the USA in order to serve as POTUS, hence, the recent “Birthers,” attacking the President’s eligibility for the office.

          • HR Manager (Retired) says:

            Now you are wrong – check out the requirements and you will find that an individual may also be an American citizen by birth if he or she was born to U.S. parents outside of the United States.

          • grannybunny says:

            You are absolutely correct that one can be a citizen under those circumstances.  However, one must be physically born within the U.S. — or one of its enclaves — to run for President.  Had McCain not been born on a military base, he would have been ineligible to run.

          • The Master says:

            Grannybunny, you are incorrect. The requirement says natural born citizen, not born inside the USA. And as a former Hospital Corpsman in the Navy, I can tell you that children born to US citizens overseas are considered natural born citizens. And that includes those born in local civilian hospitals. You are either a natural born citizen or a naturalized citizen.

          • Pruitt2008 says:

             James70094 states what I understand to be the law, as well.  At least as applied (so far) in the US.  Which is why George Romney, Mitt Romney, John McCain and Barack Obama are all eligible to be president.  (Well, were, in George’s case.  While the Constitution does not specify “living,” that seems implied, if only by the amendment of succession.)  

          • grannybunny says:

            If you are claiming that McCain would have been eligible to run for President had he been born outside of the Naval base in Panama — say, in a Panamanian hospital — you are simply incorrect.

          • P Curley says:

            Since the Canal Zone was an official U.S.  possession he would be considered natural born if he was born in a hospital off base. Same as Puerto Rico,  U.S Virgin Islands, American Samoa, or Wake Island. If the base were in a foreign country, I’m not sure if the fact that the father is a U.S military man would suffice. But a U.S possession, it d0es suffice.

          • grannybunny says:

            The Canal Zone residents were not granted U. S. citizenship rights until 1937, well after McCain’s birth.

          • Pruitt2008 says:

             It is not true that US military bases constitute US soil, whether they are a recognized enclave or not.  The question has never been resolved by any court, that I know of, and I know that the military overseas are trained that local laws might still apply on base.   I think the point about Canal Zone residents not being granted U.S. citizenship rights until 1937 (and then by an act of Congress) is kind of key.  If the Zone was the US, the Constitution would have conferred citizenship, and no act of Congress was necessary or meaningful.   More importantly, as has been said a number of times, here, the Panama navy base being “US soil” is quite probably not required for “natural born citizenship.”  The GOP did not believe it was when George Romney was a frontrunner in 1967 and 1968.  His being born in Mexico, not on an enclave, was quite well known.  It is also not really clear whether being born of 2 US citizens is necessary for eligibility to be President.  And if so, does a child of adultery count, if the genetic father, or the legal father, is not a citizen, and if so, how is that determined? Having 2 US parents might not have been enough when the Constitution was written, though that is far from clear.  Having 2 citizen parents and being born here was definitely enough.  But where are the lines? Being born in the US might be enough.  Or it might not.   There was some concern in the 1840s about a President whose father may or may not have been an American, but the evidence of his father’s citizenship was never clear. The French writer whose phrasing is believed to have given us “natural born citizen,” and whose 1758 book, The Law of Nations, was reportedly literally in the pockets or bags that they brought with them of at least 10 delegates to the Constitutional Convention, wrote it this way (as translated in the 1700s): “The natives, or natural born citizens, are those born in the country of parents who are citizen.”   This language was quoted in 1857 by Supreme Court Justice Daniel in his concurring opinion in the Dred Scott case, 60 US, 476, and by Chief Justice Fuller in a dissenting opinion in 1898,169 U.S., 708, in a case in which being born here was deemed insufficient for citizenship, by some.   The Chief Justice agreed with that minority group, though the Court did not.  This dissent, and the case itself, were based largely on concerns about what we now call “anchor babies.” Without question, at least 2 Justices in 1898 would have held that birth here was not enough, and they quoted from the French originator of the phrase “natural born citizen” in support of that position. And as Alexander Porter Morse, the lawyer who represented Louisiana in Plessy v. Fergusan, the famous “separate but equal” case wrote: “If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, ‘no person, except a native-born citizen.’”  From this premise, Mr. Morse concludes, that “the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens, owing allegiance to the United States at the time of his birth.”  (He seems to have assumed parents would always have the same citizenship, since he did not address this question.) There are a large number of writings and decisions about citizenship on the other side of the question – including decisions explicitly saying that being born of American(s) abroad is enough for both citizenship and natural born citizenship.  This is likely to be the prevailing view, and it was the view of the GOP in 1967.   And on the question of “anchor babies,” a Supreme Court decision quoted at length from an Attorney General letter which stated that a person born here “is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States.”  (His father had renounced US citizenship and the INS tried to deport him.  INS lost.)  307 U. S. 330.  This was the only discussion about the current president’s eligibility that was remotely legitimate, and there is not much room for debate that being born here makes one a citizen, under the 14th Amendment.   There are a large number of writings and decisions about citizenship concluding that, other than some very limited exceptions for diplomat’s children, foreign heads of state’s children, and the children of invading military forces, being born here is enough. If “natural born citizen” means more than “citizen at birth,” the basis for that conclusion is going to be contested, since pretty much every other specific angle has been rejected by a major political party, by nominating somebody who did not meet the other possible meanings of the phrase.  Taken at its heart, being a “natural born citizen” will almost certainly be interpreted to mean being a citizen at birth.  Which includes George Romney, John McCain, Barak Obama and Marco Rubio.  But all the Birthers went their own way on the specifics, some quite psychotically, and if people want to insist that an American parent is required, we may have another round of Birtherism in our immediate future.  Depending on when the Rubio parents became citizens. 
            It is not true that US military bases constitute US soil, whether they are a recognized enclave or not.  The question has never been resolved by any court, that I know of, and I know that the military overseas are trained that local laws might still apply on base. 
             
            I think the point about Canal Zone residents not being granted U.S. citizenship rights until 1937 (and then by an act of Congress) is kind of key.  If the Zone was the US, the Constitution would have conferred citizenship, and no act of Congress was necessary or meaningful. 
             
            More importantly, as has been said a number of times, here, the Panama navy base being “US soil” is quite probably not required for “natural born citizenship.”  The GOP did not believe it was when George Romney was a frontrunner in 1967 and 1968.  His being born in Mexico, not on an enclave, was quite well known.
             
            It is also not really clear whether being born of 2 US citizens is necessary for eligibility to be President.  And if so, does a child of adultery count, if the genetic father, or the legal father, is not a citizen, and if so, how is that determined?
             
            Having 2 US parents might not have been enough when the Constitution was written, though that is far from clear.  Having 2 citizen parents and being born here was definitely enough.  But where are the lines?
             
            Being born in the US might be enough.  Or it might not.  
             
            There was some concern in the 1840s about a President whose father may or may not have been an American, but the evidence of his father’s citizenship was never clear. 
            The French writer whose phrasing is believed to have given us “natural born citizen,” and whose 1758 book, The Law of Nations, was reportedly literally in the pockets or bags that they brought with them of at least 10 delegates to the Constitutional Convention, wrote it this way (as translated in the 1700s):
             
            “The natives, or natural born citizens, are those born in the country of parents who are citizen.” 
             
            This language was quoted in 1857 by Supreme Court Justice Daniel in his concurring opinion in the Dred Scott case, 60 US, 476, and by Chief Justice Fuller in a dissenting opinion in 1898,169 U.S., 708, in a case in which being born here was deemed insufficient for citizenship, by some.   The Chief Justice agreed with that minority group, though the Court did not.  This dissent, and the case itself, were based largely on concerns about what we now call “anchor babies.”
             
            Without question, at least 2 Justices in 1898 would have held that birth here was not enough, and they quoted from the French originator of the phrase “natural born citizen” in support of that position.
             
            And as Alexander Porter Morse, the lawyer who represented Louisiana in Plessy v. Fergusan, the famous “separate but equal” case wrote:
             
            “If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, ‘no person, except a native-born citizen.’”
             
            From this premise, Mr. Morse concludes, that “the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens, owing allegiance to the United States at the time of his birth.”  (He seems to have assumed parents would always have the same citizenship, since he did not address this question.)
             
            There are a large number of writings and decisions about citizenship on the other side of the question – including decisions explicitly saying that being born of American(s) abroad is enough for both citizenship and natural born citizenship.  This is likely to be the prevailing view, and it was the view of the GOP in 1967. 
             
            And on the question of “anchor babies,” a Supreme Court decision quoted at length from an Attorney General letter which stated that a person born here “is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States.”  (His father had renounced US citizenship and the INS tried to deport him.  INS lost.)  307 U. S. 330.  This was the only discussion about the current president’s eligibility that was remotely legitimate, and there is not much room for debate that being born here makes one a citizen, under the 14th Amendment. 
             
            There are a large number of writings and decisions about citizenship concluding that, other than some very limited exceptions for diplomat’s children, foreign heads of state’s children, and the children of invading military forces, being born here is enough.
             
            If “natural born citizen” means more than “citizen at birth,” the basis for that conclusion is going to be contested, since pretty much every other specific angle has been rejected by a major political party, by nominating somebody who did not meet the other possible meanings of the phrase.  Taken at its heart, being a “natural born citizen” will almost certainly be interpreted to mean being a citizen at birth.  Which includes George Romney, John McCain, Barak Obama and Marco Rubio.  But all the Birthers went their own way on the specifics, some quite psychotically, and if people want to insist that an American parent is required, we may have another round of Birtherism in our immediate future.  Depending on when the Rubio parents became citizens. 

             

  3. Pruitt2008 says:

    Wow.  Talk about crazy talk.  And I mean the comments, not the article. 
     
    “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)”
     
    So what is up with “Surprised they didn’t let him off completely since he was born in Mexico.”  And “Isn’t that a criminal offense for which punishment other than lossing what he is not entitled too, LIKE JAIL!!”  And “Agreed. The point is that not one thing has been or will be done about it.”  They prosecuted and convicted him of the crime.  What else do you want?  Do you think the employing agency decides what sentence a judge gives in a criminal conviction?  And if it matters, according to the former employee, he was sentenced to one year and one day of prison.   
     
    And labeling the former employee an “illegal imigrant” is just ignorant garbage.  Being born in Mexico does not make one an illegal immigrant, ineligible for military service, ineligible for government employment, or even ineligible to run for President.  Ask George Romney’s family or the Republicans that considered him for President in 1968.  Or John McCain, who was born in Panama. 

    • grannybunny says:

      Actually, being born in Mexico does make one ineligible to run for President, unless one is — like McCain — born in a government enclave, such as a U.S. military base.

      • Pruitt2008 says:

         grannybunny makes 3 statements, 1 of fact and 2 of law.  Best I can tell, she is wrong on 2 out of 3. 

        Sen. McCain may or may not have been born in a “government enclave,” on land we leased from Panama, but it was still Panama.  We did not annex it.  We negotiated the right to use it.  He was the son of (2) citizens, making him both a citizen and eligible to be President.  In any event, t is absolutely clear that we have military bases that are not exclusive American government enclaves.  Short of annexation of the real estate, they are not the United States. 

        The precise meaning of “natural born citizen” has not really been worked out.  The French writer who was almost certainly the origin of the phrase wrote in the 1760s.  He did state that the status required both parents to be citizens and that the person be born in the US, but that (French language, though translated by others) writing does not control the interpretation of the US Constitution. 

        And given that in 2008, the two major parties put up candidates born in Panama and of one but not two citizens, I find it very hard to believe the Supreme Court will ever hold either condition to be required. Or that being born on an overseas military installation will matter. 

        An interesting document to see, though, is Mr. Rubio’s parents’ citizenship papers.  Especially given his having been caught lying about when – and why – they came to Florida in the 1950s.  When did they become citizens, and was it before Marco was born? 

        Will the Birthers care?  (Did they care about McCain?)

        • grannybunny says:

          A U. S. government enclave — regardless of where located — is considered to be “on American soil.”  You are absolutely wrong in your assertion that citizenship is all that is required to run for President.  One must also have been born on American soil.  It doesn’t really matter when — or if — Rubio’s parents became U. S. citizens, since he was born in the United States.

          • Pruitt2008 says:

            I addressed the American soil issue in my too-long and somehow missing paragraph breaks that were in there when I hit “post,” response above.  (I promise I had about 8 more paragraph breaks, all in the first reallllllly long paragraph-looking thing.)

            Even enclaves are not American soil – and if they were, the Canal Zone births would have been citizens under the Constitution, making the 1937 law superfluous, as well as FDR’s 1941 Executive Order.    While the deal with Panama allowed the US to administer the Zone, and to be the only law applicable to part of it, that does not make that America, any more than Iraq became America when we were in charge there.  Or Germany.  Or Japan.  Or any other place we took over for a time or on a semi-permanent basis.  Without annexation, that is.  (Hopefully, Guantanamo Bay sees 0 births of future candidates.)  People accepted by major parties as natural born citizens who were not born in the US include McCain and George Romney. 

            I also addressed the Rubio parentage question.  It is clear that, at least to some, natural born citizen meant, at least in 1758, 1789, 1857, 1898 and in 1905, having 2 citizen parents. 

            Not that either native-born or citizen-parents is, or was ever, clearly required, or even a majority view.  And, as I said above, I think the more likely final outcome is much more simple – citizen at birth.  For example, the 1857 and 1898 writings were non-majority views of the Supreme Court in cases in which the Court declared the individuals in question to be citizens. 

            But there is a better argument about Rubio not being eligible than there was about Obama, assuming that the facts reveal that both of Rubio’s parents became citizens after Marco was born, a fact he has ducked, as far as I can tell.  Not that his misstatements about when and why they left Cuba would not leave room to argue anyway. 

  4. Mark says:

    Wasn`t there a President that was guilty of the same thing?  Why wasn`t anything done about that?

  5. Nighthawk_skye says:

    Another reason an illegal should be deported …  He stole a job reguardless his lingth of service. .. bad is the security background check was severly lacking effort…  a TS BI for a DOE job should have found descrepancies… there must be more info not reported…  

    • Pruitt2008 says:

      Can we deport people for publicly making racist and unjustified assumptions about Americans? 

      I have trouble believing readers of this site do not know that most domestic government employment requires proof of citizenship.

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