Nelson P. Fordham, Petitioner, v. Office of Personnel Management, Respondent, 862 F.2d 322 (Fed. Cir. 1988)

DECISION

Nelson P. Fordham appeals a decision of the Merit Systems Protection Board (board) which held moot Fordham's claim for civil retirement credit for military service from October 27, 1942 through January 1, 1951. Fordham v. Office of Personnel Management, No. AT08318810211 (MSPB April 12, 1988). We vacate and remand.

OPINION

When this case was previously before us, we remanded for the board and OPM to reevaluate the evidence and determine Fordham's entitlement to credit for military service in connection with his pension benefits. OPM determined that Fordham was not entitled to such credit. However, the board dismissed his appeal as "moot" because Fordham's annuity payments have included credit for that service, albeit inadvertently. The payment was not the result of our mandate or a reasoned determination by OPM. The only OPM "decision" is that no credit is allowable. We disagree, therefore, that the payment through inadvertency renders Fordham's controversy with OPM "moot." OPM's delay in implementing its decision to withdraw benefits may be likened to a stay of execution pending appeal. Accordingly, we vacate the board's decision and remand for consideration of the merits of OPM's decision.

Costs

Costs are awarded to petitioner.

MAYER, Circuit Judge, dissenting.

I would affirm the Merit Systems Protection Board's conclusion that the case is moot.