101 F3d 716 King v. O Jackson

101 F.3d 716

James B. KING, Director, Office of Personnel Management, Petitioner,
Merilyn O. JACKSON, Respondent,
Merit Systems Protection Board, Respondent.

Misc. No. 486.

United States Court of Appeals, Federal Circuit.

Nov. 14, 1996.

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before MAYER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PLAGER, Circuit Judge.


PLAGER, Circuit Judge.


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The Director of the Office of Personnel Management (OPM) petitions for review of the Merit Systems Protection Board's decision in Jackson v. Office of Personnel Management. The Board and Merilyn O. Jackson do not oppose.


Briefly, OPM seeks review of three issues raised by the Board's decision. First, OPM questions its authority to return to employees funds that were mistakenly withheld as Civil Service Retirement System (CSRS) contributions when such funds should have been payable to the Social Security Administration. Second, OPM seeks review of the issue of whether the administrative offset provisions of 31 U.S.C. § 3716 apply to the reallocation of retirement deductions toward the payment of Social Security taxes. Third, OPM argues that the Board erred when it failed to recognize that employee Social Security deductions, once withheld, are a special fund held in trust for the United States, even before remittal to the Internal Revenue Service. See 26 U.S.C. §§ 3101, 3102, 7501. These issues are presently before the court in King v. Lary, appeal no. 96-3012.


Pursuant to 5 U.S.C. § 7703(d), OPM may seek review of a Board decision when OPM determines, in its discretion, that the Board erred in interpreting a civil service law, rule or regulation, and that the Board's decision will have a substantial impact on the administration of the civil service. This court must independently determine whether an exercise of our jurisdiction is warranted. Devine v. Sutermeister, 724 F.2d 1558, 1562 (Fed.Cir.1983).


As we did in Lary, we determine that review of the Board's final order is appropriate. However, because the case now pending before the court involves the same issues, we stay the briefing in this case pending the court's decision in Lary.





(1) OPM's petition for review is granted.


(2) This case is stayed pending the court's decision in King v. Lary, appeal no. 96-3012. OPM is directed to notify this court within 45 days of the court's decision in Lary.