“Whether the deference standard regarding federal agencies interpretation of their own regulations must continue in the light of the admission by the Office of Personnel Management (OPM) that if its method of calculating Petitioner’s average pay by use of its own devised ‘deduction method’ not authorized by any statute ever passed by any Congress in the entire history of the United States, results in a figure that differs from actual average pay received by Petitioner then OPM’s figure would be wrong. The United States Court of Appeals decision in the earlier phase of this case, Grover v. OPM, 828 Fed. 3d 1383 (2016), a precedential decision, so held, and sent the case back to MSPB for calculation of damages. But when the case was heard by the Administrative Judge (AJ) OPM not only submitted the discredited CFR, being 5 C.F.R. 575.209(d) which differs from the statutes it purported to interpret, being 5 U.S.C. 8331(4) and (5), but it added 19 C.F.R 24.16(b)(14) which also differed from the statutes it purported to interpret, being 5 U.S.C. 8331 (3) and 5 U.S.C. 5545(c)(2). For the reasons cited herein, must deference be given any longer to any regulation ever adopted by OPM unless OPM proves that the regulation is supported by the statute it pretends to interpret properly.”
