Lindsley v. Office of Personnel Management , 126 F. App'x 959 ( 2005 )

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
04-3464
WILLIAM R. LINDSLEY,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: March 11, 2005
__________________________
Before MAYER, Circuit Judge, PLAGER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.
PER CURIAM.
William R. Lindsley petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) affirming the reconsideration decision of the Office of
Personnel Management (OPM) finding that his active duty military service was not
creditable toward a Civil Service Retirement System (“CSRS”) annuity. Because the
Board’s decision is supported by substantial evidence and is not arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law, we affirm.
Mr. Lindsley held a Federal civilian position in the Mississippi National Guard
(MNG) from March 1, 1972 until August 17, 1986, when he was separated from that
position. He was on Active Guard Reserve (“AGR”) duty in the MNG from August 18,
1986, until September 24, 1996, immediately after which he returned to civilian
employment in the MNG.
In February 2002, Mr. Lindsley filed an application to make a deposit to obtain
CSRS credit for his AGR service. After the MNG informed him that his AGR service
was not creditable, Mr. Lindsley requested reconsideration by OPM of his application.
OPM affirmed the denial of service credit, after which Mr. Lindsley appealed to the
Board. The administrative judge assigned to the case issued an initial decision
reversing OPM’s decision. Lindsley v. Office of Pers. Mgmt., No. AT-0831-02-0767-I-1
(M.S.P.B. Nov. 27, 2002). The full Board granted OPM’s petition for review, reversed
the initial decision, and affirmed OPM’s reconsideration decision as modified by the
Board’s opinion. Lindsley v. Office of Pers. Mgmt., 96 M.S.P.R. 259 (2004).
As correctly stated by the Board, Mr. Lindsley’s AGR service is creditable for
CSRS annuity purposes only if he had valid reemployment rights under the Uniformed
Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301-33(“USERRA”). See Moravec v. Office of Pers. Mgmt., 393 F.3d 1263, 1266-67 (Fed. Cir.
2004); Dowling v. Office of Pers. Mgmt., 393 F.3d 1260, 1262 (Fed. Cir. 2004). The
Board applied the proper test for determining whether Mr. Lindsley had USERRA
reemployment rights, i.e., whether or not he intended to abandon his civilian career for
one in the military. See Moravec, 393 F.3d at 1268 (citing Woodman v. Office of Pers.
Mgmt., 258 F.3d 1372, 1378 (Fed. Cir. 2001)). The Board found that Mr. Lindsley
intended to pursue a military career based on the following facts: he was separated
from his civilian position instead of seeking a leave of absence; shortly after his
separation in 1986 he applied for and received a lump-sum refund of the retirement
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contributions he had made during his first period of civilian employment; and he
remained on active duty for a substantial period of time after consenting to an indefinite
extension of his AGR duty. Thus the Board considered relevant and appropriate
factors, and the totality of the Board’s findings, which are supported by the record,
constitutes substantial evidence supporting the Board’s conclusion that Mr. Lindsley
intended to abandon his civilian career. See Moravec, 393 F.3d at 1268; Dowling, 393
F.3d at 1263; 5 U.S.C. §7703(c). Furthermore, Mr. Lindsley has not shown that the
Board’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. See 5 U.S.C. § 7703(c). We therefore must affirm the Board’s
determination that Mr. Lindsley did not have reemployment rights and therefore cannot
receive credit for his AGR service.
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