McIntosh v. Office of Personnel Management , 263 F. App'x 885 ( 2008 )

Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3307
E.L. MCINTOSH,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
E.L. McIntosh, of San Antonio, Texas, pro se.
Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Harold D. Lester, Jr., Assistant
Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3307
E.L. MCINTOSH,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in DA0831070032-I-1.
__________________________
DECIDED: February 7, 2008
__________________________
Before MAYER, DYK and MOORE, Circuit Judges.
PER CURIAM.
E.L. McIntosh seeks review of the decision of the Merit Systems Protection
Board affirming the decision of the Office of Personnel Management (“OPM”) denying
his request to submit his military pay deposit into the Civil Service Retirement System
(“CSRS”) fund after the regulatory deadline of his retirement. McIntosh v. Office of
Pers. Mgmt., MSPB No. DA0831070032-I-1 (June 20, 2007). We affirm.
We affirm a decision of the board unless it is “(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). McIntosh bears the burden of demonstrating
by a preponderance of the evidence that administrative error prevented his timely
military deposit, so that he should be afforded the opportunity to make late payment and
thereby avoid a reduction in his annuity. See 5 C.F.R. § 1201.56(a)(2). An
administrative error includes a situation in which an employee directly inquires about the
amount of the military deposit or the consequences of failing to make the deposit, and
the government’s response misrepresents the monetary consequences of the deposit
requirement, “or is so indirect, inaccurate, or incomplete as to confuse or mislead the
employee as to the amount of the deposit or the effect of any failure to make the deposit
on the annuity recalculation.” McCrary v. Office of Pers. Mgmt., 459 F.3d 1344, 1349
(Fed. Cir. 2006). The law does not require the government to specifically inform a non-
inquiring annuitant about the monetary consequences of his election. Collins v. Office
of Pers. Mgmt., 45 F.3d 1569, 1573-74 (Fed. Cir. 1995).
McIntosh acknowledges that he attended a retirement counseling session on
February 9, 1999, prior to his retirement. During that session, he received Standard
Form 3107, “Application for Immediate Retirement”, which included instruction on the
CSRS military service rules, and the need to pay the 7 percent deposit before
retirement. In response to whether he paid the deposit to his agency for post-1956
military service, he checked the “No” box. McIntosh argues that he should have been
given more detailed information at his retirement counseling session, but does not
profess to have requested additional information or to have asked questions about the
military pay deposit. Because he posed no queries, the government could not have
committed administrative error by way of a misleading or confusing response. Further,
on Standard Form 3107-1, “Certified Summary of Federal Service”, he signed and dated
2007-3307 2
a certification stating: “I have been counseled about the effects of not paying a deposit
for my post-1956 military service.”
The board reviewed McIntosh’s evidence and deemed it insufficient to show that
the government committed administrative error causing or contributing to his failure to
make the deposit on time. There is substantial evidence to support this determination.
5 U.S.C. § 7703(c)(3).
2007-3307 3