Linn v. Office of Personnel Management , 566 F. App'x 962 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CARTER EUGENE LINN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2014-3059
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0831-13-0193-I-1.
______________________
Decided: June 11, 2014
______________________
CARTER EUGENE LINN, of Bainbridge, Georgia, pro se.
ALEXANDER V. SVERDLOV, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Assistant Attor-
ney General, ROBERT KIRSCHMAN, Director, and DEBORAH
A. BYNUM, Assistant Director.
______________________
Before O’MALLEY, REYNA, and HUGHES, Circuit Judges.
2 LINN v. OPM
PER CURIAM.
Carter Eugene Linn appeals from a decision of the
Merit Systems Protection Board (“Board”) affirming the
Office of Personnel Management’s (“OPM”) calculation of
Mr. Linn’s retirement annuity. For the reasons set forth
below, we affirm.
BACKGROUND
Mr. Linn served in the United States Army from Oc-
tober 10, 1967 to October 9, 1977. After he left the Army,
Mr. Linn worked in Federal service as a civilian from May
12, 1980 through his retirement on June 2, 2000. Based
on these dates of service, Mr. Linn was eligible for retire-
ment benefits under the Civil Service Retirement System
(“CSRS”).
At the time of his retirement, OPM initially calculated
Mr. Linn’s annuity based on his total service, including
both civilian and military, at $4,411 per month. On his
retirement application, however, Mr. Linn indicated he
had not deposited with the Civil Service Retirement and
Disability Fund an amount equal to seven percent of his
total post-1956 military pay. When Mr. Linn reached 62
years of age, OPM recalculated his annuity in order to
exclude both base benefits and cost-of-living adjustments
resulting from his military service. As a result of the
recalculation, Mr. Linn’s annuity was reduced by 28.4
percent to $3,158.
Mr. Linn appealed OPM’s decision to recalculate his
annuity. According to Mr. Linn, the statute requires that
each year of eliminated military service should decrease
his total annuity by 2 percent. As a result, based on his
almost 10 years of military service, Mr. Linn argued that
his annuity should have been decreased by only 20 per-
cent.
The administrative law judge (“ALJ”) initially found
that the Board lacked jurisdiction over Mr. Linn’s appeal.
LINN v. OPM 3
The ALJ found that, in the absence of an OPM decision
addressing its recalculation methodology, the ALJ could
not review Mr. Linn’s arguments in the first instance.
The Board agreed with the ALJ and, for reasons of judi-
cial economy, remanded the case for OPM to issue a new
decision explaining its method of calculating Mr. Linn’s
monthly annuity.
On November 7, 2012, OPM issued a new decision ex-
plaining its methodology. OPM explained that it recalcu-
lated Mr. Linn’s annuity by first reducing his base benefit
by 20 percent and then reapplying all cost-of-living ad-
justments to this reduced figure. Doing so eliminated all
benefits associated with Mr. Linn’s military service and
resulted in an overall reduction of 28.4 percent to Mr.
Linn’s annuity.
Mr. Linn appealed the OPM decision and restated his
argument that his total annuity should have been reduced
by only 20 percent. Mr. Linn also argued, for the first
time, that OPM’s calculation violated the Administrative
Procedure Act (“APA”) because OPM never published
notice of the methodology for calculating annuity pay-
ments under 5 U.S.C. § 8332(j)(1), and never informed
him that those recalculations would strip the cost-of-
living adjustments that had accrued on the portion of his
annuity attributable to military service.
The ALJ disagreed with Mr. Linn and found that
OPM properly reduced the base annuity by 20 percent
pursuant to 5 U.S.C. § 8339(d)(1) and then applied cost-of-
living adjustments to this figure, resulting in a 28.4
percent total reduction. The ALJ found that this method-
ology was consistent with the statutory requirement that
the benefits “exclude” credit for military service because
this methodology eliminated not only base annuity bene-
fits from military service, but also any cost-of-living
adjustments associated with those benefits. As a result,
4 LINN v. OPM
the ALJ affirmed OPM’s calculation of Mr. Linn’s annui-
ty. The ALJ did not address Mr. Linn’s APA claim.
Mr. Linn petitioned the full Board for review of the
ALJ decision. The Board agreed with the ALJ that OPM’s
methodology was consistent with the plain language of
the statute. Although the ALJ did not address Mr. Linn’s
APA claim, the Board explained that Mr. Linn’s APA
claim had not been raised properly before the ALJ, and
therefore, the Board was not able to consider it. The
Board therefore affirmed the ALJ decision.
Mr. Linn timely appealed. We have jurisdiction under
28 U.S.C. §1295(a)(9).
DISCUSSION
Our review of a decision of the Board is circumscribed
by statute. We can set aside a Board decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2012). We can set aside a
Board decision that is “unsupported by substantial evi-
dence when it lacks such relevant evidence as a reasona-
ble mind might accept as adequate to support a
conclusion.” McLaughlin v. Office of Pers. Mgmt., 353
F.3d 1363, 1369 (Fed. Cir. 2004) (quoting Matsushita
Elec. Indus. Co. v. U.S., 750 F.2d 927, 933 (Fed. Cir.
1984)).
On appeal, Mr. Linn raises similar arguments to
those he made before the ALJ and the Board. In brief,
Mr. Linn argues that he should be able to keep a portion
of the cost-of-living adjustments initially applied to his
annuity based on his military service. We do not agree.
The statute, 5 U.S.C. § 8332(j), is clear that where a civil
service annuitant fails to make a deposit into the Civil
Service Retirement Fund, his benefits after he reaches the
LINN v. OPM 5
age of 62 must exclude any benefits associated with
military service. This necessarily means that, in addition
to base benefits associated with military service, any cost-
of-living adjustments made to the annuity based on
military service must also be excluded.
A civil service annuitant like Mr. Linn who retires af-
ter September 7, 1982, is entitled to credit for active duty
military service performed after 1956 under both the
CSRS and the Social Security System, but only if he
deposits with the Civil Service Retirement Fund an
amount equal to seven percent of his total post-1956
military pay. Collins v. Office of Pers. Mgmt., 45 F.3d
1569, 1570-71 (Fed. Cir. 1995) (citing 5 U.S.C. §§ 8332(j)
(2012), 8334(j) (2009)). If an annuitant fails to make this
deposit, OPM is obligated to recalculate the proper annui-
ty payment when the annuitant first becomes eligible for
Social Security benefits at age 62. Id.Where a deposit has not been made, the benefits of an
annuitant that has reached the age of 62 are recalculated
to eliminate any benefit accruing from the military ser-
vice. See id. at 1571. Section 8332(j)(1) provides, in
relevant part:
If the military service [is not otherwise excluded],
the Office of Personnel Management shall rede-
termine the aggregate period of service on which
the annuity is based, effective as of the first day of
the month in which he or she becomes 62 years of
age, so as to exclude that service.
5 U.S.C. § 8332(j)(1) (emphasis added).
Mr. Linn argues that OPM’s methodology is a retroac-
tive action that is taking away his vested property right
in the cost-of-living adjustments. We disagree. OPM
eliminated the entirety of the benefit that Mr. Linn
received in his annuity on account of his military service,
6 LINN v. OPM
including the cost-of-living adjustments. This gives full
meaning to the statute’s use of the term “exclude.”
Mr. Linn also argues that OPM’s calculation violates
the APA because OPM never published notice of the
methodology it used to recalculate annuity payments
under 5 U.S.C. § 8332(j)(1). As the Board noted in its
decision, Mr. Linn had the opportunity to raise this ar-
gument in his initial appeal to the ALJ prior to remand
and failed to do so. A litigant who fails to properly raise
an issue before an administrative agency ordinarily is
precluded from litigating that issue before us. Elmore v.
Dept. of Transp., 421 F.3d 1339, 1342 (Fed. Cir. 2005)
(citing Wallace v. Dep’t of the Air Force, 879 F.2d 829, 832
(Fed. Cir. 1989)). Accordingly, we decline to consider this
argument.
We have considered the parties’ remaining argu-
ments. Because they do not affect the outcome of our
decision, we do not address them.
CONCLUSION
For all of the foregoing reasons, the decision of the
Board is affirmed.
AFFIRMED
COSTS
No costs.