Abadia v. Office of Personnel Management , 217 F. App'x 954 ( 2007 )

Error: Bad annotation destination
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3297
ALFONSO ABADIA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Alfonso Abadia, of Colon, Republic of Panama, pro se.
Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Donald E. Kinner, Assistant Director.
Appealed from: United States Merit Systems Protection Board
Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3297
ALFONSO ABADIA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: February 7, 2007
__________________________
Before MAYER, SCHALL, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Alfonso Abadia petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that affirmed the decision of the Office of Personnel
Management (“OPM”) that he is ineligible to redeposit into the Civil Service Retirement
System (“CSRS”) retirement funds which he received in a lump-sum payment in 1978,
and that consequently he is ineligible for a retirement annuity under the CSRS. Abadia
v. Office of Pers. Mgmt., DC-0831-03-0453-M-1 (M.S.P.B. May 18, 2006). We affirm.
DISCUSSION
I.
Mr. Abadia sought a retirement annuity under CSRS based on his employment
with the Panama Canal Company. He was employed by the Panama Canal Company
from 1969 to 1978. Mr. Abadia requested and received a lump-sum refund of his
retirement contributions in October 1978 when he left the company. He later was
employed by the company on April 9, 1979, but resigned the next day. From June 29,
1981, to November 19, 1999, Mr. Abadia was employed by the Department of the Army
in Panama. During his employment by the Department of the Army, Mr. Abadia’s
employment was governed by the Panama Canal Employment System rather than
CSRS or the Federal Employees Retirement System.
Eventually, Mr. Abadia sought a retirement annuity under CSRS based on his
employment with the Panama Canal Company from April 1969 through September
1978. After OPM denied the application, because it found him ineligible to redeposit the
retirement funds he had withdrawn in 1978, Mr. Abadia appealed to the Board. In an
initial decision, the Administrative Judge (“AJ”) to whom the appeal was assigned held
that Mr. Abadia had no right to redeposit the refund of his retirement contributions
received in 1978 because the refund voided his annuity rights, and those rights were
never reinstated because he was not thereafter reemployed by the federal government
in a position subject to the federal retirement system. Abadia v. Office of Pers. Mgmt.,
DC-0831-03-0453-M-1 (M.S.P.B. Jan. 9, 2006) (“Initial Decision”). The Initial Decision,
became the final decision of the Board on May 18, 2006, when the Board denied Mr.
Abadia’s petition for review for failure to meet the criteria for review set forth at 5 C.F.R.
2006-3297 2
§ 1201.115(d). This appeal followed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
II.
Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless it is found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &
Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
We see no error in the Board’s decision in this case. The retirement statute
provides that:
[T]he receipt of the payment of the lump-sum credit by the employee or
Member voids all annuity rights under this subchapter based on the
service on which the lump-sum credit is based, until the employee or
Member is reemployed in the service subject to this subchapter.
5 U.S.C. § 8342(a). The statute further provides that:
Each employee or Member who has received a refund of retirement
deductions under this or any other retirement system established for
employees of the Government covering service for which he may be
allowed credit under this subchapter may deposit the amount received,
with interest. Credit may not be allowed for the service covered by the
refund until the deposit is made.
5 U.S.C. § 8342(d)(1). The AJ affirmed OPM’s determination that Mr. Abadia was
ineligible to redeposit retirement funds into the CSRS after finding that he had received
a refund of his retirement contributions in 1978 and that he had not been reemployed by
the federal government in a position subject to the federal retirement system. Initial
Decision at 2.
2006-3297 3
On appeal, Mr. Abadia does not dispute that he requested and received a refund
of his retirement contributions in October 1978. Neither does he dispute the finding that
he was never reemployed in a position subject to the federal retirement system.
According to Mr. Abadia, it was due to his employing agency’s error that he was not
hired subject to the federal retirement system in 1979. He argues that the Panama
Canal Company mistakenly hired him under a temporary appointment on April 9, 1979,
from which he resigned the next day. He also argues that the Department of the Army
made an error and mistakenly hired him as a new hire, whose employment was covered
by the Panama Canal Employment System rather than CSRS.
However, the relevant facts have been established and are not disputed. Mr.
Abadia received a refund of his retirement contributions in 1978 through a lump-sum
payment. This voided his annuity rights until he was reemployed by the federal
government in a position subject to the federal retirement system and redeposited the
funds he previously had withdrawn. See 5 U.S.C. § 8342(a), (d)(1). Mr. Abadia was
never reemployed by the federal government in a position subject to the federal
retirement system.1 The AJ correctly determined that Mr. Abadia’s claim of
1
Mr. Abadia appears to argue that Bell v. Office of Personnel
Management,169 F.3d 1383 (Fed. Cir. 1999), requires a different result. In Bell, we
reversed a decision of the Board that non-citizens of the United States who were initially
employed by the Panama Canal Company, in temporary positions, not covered by the
CSRS, before October 1, 1979, were not entitled to CSRS coverage upon their
conversion to permanent positions with the Panama Canal Commission after October 1,
1979. The Panama Canal Act, 22 U.S.C. § 3649 (Supp. 1998), applied the CSRS to
Panama Canal Commission employees, except, inter alia, any individual whose initial
appointment by the Commission occurred after October 1, 1979. The Board interpreted
the individuals whose initial appointment by the Commission occurred before October 1,
1979 to include only non-citizen workers that were employed by the Commission and
who were covered by the CSRS prior to October 1, 1979. Bell, 169 F.3d at 1385. We
2006-3297 4
administrative error cannot serve as the basis for payment of an annuity when, as is the
case here, the appellant does not meet the statutory requirements for that benefit. See
Killip v. Office of Pers. Mgmt., 991 F.2d 1564, 1569 (Fed. Cir. 1993) (“Any and all
authority pursuant to which an agency may act ultimately must be grounded in an
express grant from Congress.”)
For the foregoing reasons, the final decision of the Board affirming the
decision of OPM that Mr. Abadia is ineligible to redeposit retirement funds into the
CSRS and consequently that he is ineligible for a retirement annuity under the CSRS is
affirmed.
(Cont’d. . . .)
held that Panamanian citizens in temporary positions were “initially appointed” by the
Commission prior to enactment of the Panama Canal Treaty, as required for statutory
eligibility for CSRS coverage. Id. at 1386. We remanded for the Board to decide
whether the petitioners in Bell were entitled to benefits under the CSRS. Id. Our
decision in Bell does not change the determination that Mr. Abadia was not reemployed
by the federal government in a position subject to the federal retirement system.
2006-3297 5