Meek v. Office of Personnel Management , 120 F. App'x 797 ( 2004 )


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  •                   NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
    is not citable as precedent. It is a public record.
    United States Court of Appeals for the Federal Circuit
    04-3233
    WILLIAM O. MEEK,
    Petitioner,
    v.
    OFFICE OF PERSONNEL MANAGEMENT,
    Respondent.
    ___________________________
    DECIDED: December 13, 2004
    ___________________________
    Before BRYSON, Circuit Judge, PLAGER, Senior Circuit Judge, and PROST, Circuit
    Judge.
    PER CURIAM.
    DECISION
    Petitioner William Meek seeks review of an order of the Merit Systems Protection
    Board, Docket No. PH-0831-03-0227-I-1, in which the Board upheld the decision of the
    Office of Personnel Management ("OPM") denying Mr. Meek’s request that his
    retirement annuity benefits under the Civil Service Retirement System ("CSRS") include
    credit for his post-1956 military service. We affirm.
    BACKGROUND
    A civil service annuitant who retires after September 7, 1982, is entitled to credit
    for active military service performed after 1956 under both the CSRS and the Social
    Security System, but only if the annuitant deposits with the Civil Service Retirement
    Fund an amount equal to seven percent of his or her total post-1956 military pay. 
    5 U.S.C. §§ 8332
    (j) & 8334(j); Collins v. Office of Pers. Mgmt., 
    45 F.3d 1569
    , 1570-71
    (Fed. Cir. 1995).    If the annuitant fails to make the requisite deposit, OPM must
    recompute the annuitant's annuity payment when the annuitant first becomes eligible for
    Social Security benefits to exclude credit for post-1956 military service.       
    5 U.S.C. § 8332
    (j)(1); Collins, 
    45 F.3d at 1571
    .
    Mr. Meek served in the United States Marine Corps from 1959 to 1969. He
    subsequently worked in the federal civilian service from 1971 to 1992, when he retired
    at age 51. In the course of electing retirement from civilian service, Mr. Meek signed
    OPM's Form 1515, entitled "Military Service Deposit Election." That form indicated that
    Mr. Meek had served in the military after 1956 and was eligible for a civil service
    annuity. It advised Mr. Meek that if he wished to be eligible at age 62 for a Social
    Security benefit that included credit for his post-1956 military service, he needed to
    make a deposit to the CSRS or else his civil service benefits would be reduced when he
    reached age 62. The form also referred to an attached form entitled "Information for
    Completing OPM Form 1515," which specifies that the amount of the deposit for post-
    1956 military service is seven percent of military basic pay and that the consequence of
    not making a deposit is a reduction in annuity at age 62. Mr. Meek signed a statement
    04-3233                                     2
    indicating that he had read the information regarding his right to make the deposit for
    post-1956 military service, and that he had elected not to make the deposit.
    On February 18, 2003, after Mr. Meek reached the age of 62 and became eligible
    for Social Security benefits, OPM recalculated his civil service annuity because he had
    not made a deposit prior to his retirement. The recalculation eliminated credit for his
    post-1956 military service, thereby reducing his monthly retirement payment from $1637
    to $1058.
    Mr. Meek appealed OPM's decision to the Merit Systems Protection Board,
    asserting that he had been unaware that he needed to make a deposit for his post-1956
    military service. The Board found, however, that Mr. Meek had been properly informed
    of the consequences of not making a deposit for his post-1956 service through forms he
    read and signed at the time of his retirement. The Board therefore concluded that Mr.
    Meek had made “a free and informed choice not to make the deposit," and that he was
    not entitled to an unreduced annuity. After the full Board denied Mr. Meek’s petition for
    review, he sought review by this court.
    DISCUSSION
    On appeal, Mr. Meek argues that he is entitled to an unreduced monthly annuity
    payment of $1637. In order to obtain that level of annuity, however, he was required to
    make a deposit equal to seven percent of his post-1956 military pay. The record shows
    that he was placed on notice of the need to make the deposit and that he elected not to
    do so.
    Form 1515 sets forth the consequences of failing to make a deposit and cautions
    retirees that the decision about making a deposit may affect their rights under the Civil
    04-3233                                     3
    Service Retirement Act. The form informed Mr. Meek that he "must either make a
    deposit for the military service or have [his] annuity benefits reduced at age 62.” His
    signature appears below the statement "I have read this information concerning my
    rights to make a deposit for post-1956 military service . . . . I have decided not to make
    . . . this deposit." Likewise, Form 2801 stated that “[i]f you performed military service on
    or after January 1, 1957, you may pay a deposit of 7% of your military basic pay (plus
    interest, if applicable) to cover that service . . . . If you do not make the deposit and you
    are eligible for Social Security benefits at age 62, your annuity will be recomputed (at
    age 62) to eliminate the credit for the post-1956 military service.” Form 2801 further
    stated: "You CANNOT change your decision after you retire.”
    Given that Form 1515 was "an unambiguous election form that notifies the signer
    of the consequences of election," Collins, 
    45 F.3d at 1573
    , and that Form 2801 also
    informed Mr. Meek of the consequence of electing not to pay the deposit, Mr. Meek is
    "not relieved from the consequences of [his] written election absent a showing that
    mental incompetence, duress or fraud is the reason for an election one later seeks to
    void," 
    id.
       Mr. Meek does not assert mental incompetence, duress or fraud as the
    reason for having made the election not to pay the deposit. While he states that he was
    "on medication for [his] last three years of work" prior to retiring, he does not contend
    that taking medication rendered him incompetent to make the decision whether to pay
    the deposit.    Accordingly, the Board's determination that Mr. Meek was knowingly
    elected not to make the deposit is supported by substantial evidence.
    Mr. Meek also argues that he "should have been able to retire on disability
    instead of being assigned light duty and put on medication for [his] last three years of
    04-3233                                      4
    work."    Before the Board, Mr. Meek noted that he was denied disability retirement
    benefits. To the extent Mr. Meek is seeking review of the denial of disability retirement
    benefits, that issue is not within the scope of the present proceeding, which is confined
    to review of OPM’s decision as to the computation of Mr. Meek’s civil service annuity.
    Mr. Meek also contends that the Board failed to consider a letter from the Social
    Security Administration stating that he qualified for Social Security benefits of $182 per
    month. Mr. Meek argues that because he received credit for his post-1956 military
    service towards his Social Security benefits without paying a deposit, he is likewise not
    required to pay a deposit to receive credit for his post-1956 military service towards his
    annuity benefits. That argument, however, is contrary to the law, which treats Social
    Security benefits and civil service retirement benefits differently with respect to credit for
    post-1956 military service.    While "military years are [ ] automatically creditable for
    social security benefit purposes," a civil service retirement annuitant with post-1956
    military service must make a deposit prior to retirement in order to receive credit for that
    service once he starts receiving Social Security benefits. Collins, 
    45 F.3d at 1570
    ,
    quoting S. Rep. No. 97-504, 97th Cong., 2d Sess. 231 (1982). We therefore reject Mr.
    Meek's argument that he need not pay a deposit because he received military credit in
    his Social Security benefits without making a deposit.
    Because the Board’s decision was supported by substantial evidence and is not
    challenged on any other legal ground, we affirm the Board’s decision upholding OPM’s
    calculation of Mr. Meek's civil service retirement annuity.
    04-3233                                       5
    

Document Info

Docket Number: 2004-3233

Citation Numbers: 120 F. App'x 797

Judges: Bryson, Per Curiam, Plager, Prost

Filed Date: 12/13/2004

Precedential Status: Non-Precedential

Modified Date: 11/5/2024