Schaeffer v. Office of Personnel Management , 431 F. App'x 903 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MALVIN L. SCHAEFER,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3057
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA0831100261-I-1.
__________________________
Decided: June 13, 2011
__________________________
MALVIN L. SCHAEFER, of Canton, Texas, pro se.
J. HUNTER BENNETT, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director.
__________________________
SCHAEFER v. OPM 2
Before RADER, Chief Judge, LINN and PROST, Circuit
Judges.
PER CURIAM.
Petitioner Malvin L. Schaefer petitions for review of a
final decision of the Merit Systems Protection Board
(“Board”) affirming the Office of Personnel Management’s
(“OPM”) final decision to reduce Mr. Schaefer’s Civil
Service Retirement System (“CSRS”) annuity. We affirm.
BACKGROUND
Mr. Schaefer served in the United States Army from
June 5, 1968, to December 23, 1971, and thereafter
worked in the Federal civilian service until his retirement
in September 1997. In a letter sent in January 2010,
OPM notified him that his CSRS annuity monthly pay-
ment would be reduced because he was eligible for Social
Security benefits and failed to make the required seven
percent deposit that was necessary to receive benefits for
his post-1956 military service under both the CSRS and
the Social Security system.
OPM issued a final decision determining that Mr.
Schaefer’s CSRS benefits were properly recomputed to
eliminate credit for his military service, and he appealed
to the Board seeking to make the necessary deposit. In
an initial decision, an administrative judge affirmed
OPM’s decision. Schaefer v. Office of Pers. Mgmt., No.
DA0831100261-I-1 (M.S.P.B. May 6, 2010). The Board
denied Mr. Schaefer’s petition for review. Thus, the
initial decision became the final decision of the Board.
Schaefer v. Office of Pers. Mgmt., No. DA0831100261-I-1
(M.S.P.B. Nov. 19, 2010). Mr. Schaefer appeals. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
3 SCHAEFER v. OPM
DISCUSSION
“Our review of Board decisions is limited. We may
only reverse a Board decision if we find the decision to be
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without procedures
required by law; or unsupported by substantial evidence.”
Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir.
2010) (citing 5 U.S.C. § 7703(c)).
Federal employees retiring after September 7, 1982,
such as Mr. Schaefer, are not entitled to receive benefits
for post-1956 military service under both the CSRS and
Social Security system unless they deposit an amount
equal to seven percent of their total post-1956 military
pay with CSRS. See Collins v. Office of Pers. Mgmt., 45
F.3d 1569, 1570-71 (Fed. Cir. 1995) (citing 5 U.S.C.
§§ 8332(j), 8334(j)). If an employee fails to make the
deposit, then OPM must recompute their benefits when
they become eligible for Social Security at age sixty-two.
In general, employees who retire on or after October
1, 1983, must make the required deposit before OPM
takes action on their retirement application. See McGrail
v. Office of Pers. Mgmt., 78 M.S.P.R. 47, 51 (1998) (citing
5 C.F.R. § 831.2104(a)). However, OPM may extend the
deadline if it determines that “an administrative error
has occurred such that an employee has not been given
proper notice or opportunity to make the deposit before
separation.” McGrail, 78 M.S.P.R. at 51; see also 5 C.F.R.
§ 831.2107(a)(1).
It is undisputed that Mr. Schaefer failed to make the
seven percent deposit before his retirement. He seeks to
make that deposit now to avoid a reduction in his retire-
ment benefits.
SCHAEFER v. OPM 4
The Board sought to determine whether Mr. Schaefer
was entitled to make an after-retirement deposit for his
military service. It found that he had signed Form 2801,
which showed that he had served in the military for more
than three years, but had not made any deposit to his
agency for his military service prior to applying for re-
tirement. That form also instructed Mr. Schaefer that
failure to make a deposit while employed by the agency
would result in a reduction of his annuity at age sixty-two
upon eligibility for Social Security benefits. The Board
also determined that OPM failed to produce a copy of
Form 1515, which is completed when an employee retires
and records whether the employee made a deposit for
post-1956 military service. For purposes of its decision,
the missing document was treated as if Mr. Schaefer had
never received the form. The Board found, however, that
failure to receive Form 1515 did not constitute “adminis-
trative error” sufficient to allow Mr. Schaefer to make his
deposit well after retirement. King v. Office of Pers.
Mgmt., 97 M.S.P.R. 307, 322 (2004), aff’d by Grant v.
Office of Pers. Mgmt., 126 Fed. Appx. 945 (Fed. Cir. 2005)
(unpublished). It concluded that he had not shown by
preponderant evidence that the agency had committed
administrative error by misrepresenting the deposit
requirement or providing a misleading answer because he
had “not asserted, and the record fail[ed] to reflect, that
he asked any questions or was given any incorrect or
misleading information.” Supplemental App. 18. Thus,
the Board found he was not entitled to make a deposit.
Mr. Schaefer petitioned the full Board for reconsid-
eration of the initial decision. He made new arguments,
presented for the first time, alleging that he asked ques-
tions regarding his retirement deposit, but that confusion
existed as to whether he could make the deposit in in-
stallments. The Board held, however, that his arguments
5 SCHAEFER v. OPM
were a statement of his recollection—which was available
during his initial appeal—and failed to meet the “new and
material evidence” requirements of 5 C.F.R. § 1201.115.
CONCLUSION
The Board’s findings are supported by substantial
evidence. Its conclusion is in accordance with applicable
laws and regulations. Mr. Schaefer did not make the
seven percent deposit before retirement from the Federal
civilian service as required by 5 U.S.C. §§ 8332(j) and
8334(j), and he has not established administrative error
entitling him to a deadline extension under 5 C.F.R.
§ 831.2107(a)(1). We have considered Mr. Schaefer’s
other arguments, which are not persuasive. Because the
Board's decision is in accordance with law and supported
by substantial evidence, we affirm.
COSTS
Each party shall bear its own costs.
AFFIRMED