Case: 22-2238 Document: 24 Page: 1 Filed: 04/05/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TINA M. SIMMONS,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2022-2238
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0842-16-0701-I-1.
______________________
Decided: April 5, 2023
______________________
TINA SIMMONS, Los Angeles, CA, pro se.
STEPHEN J. SMITH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN E. WHITE, JR.
______________________
Before DYK, MAYER, and REYNA, Circuit Judges.
PER CURIAM.
Case: 22-2238 Document: 24 Page: 2 Filed: 04/05/2023
2 SIMMONS v. OPM
Tina Simmons appeals a decision from the Merits Sys-
tems Protection Board affirming the Office of Personnel
Management’s denial of her request for credit under the
Federal Employees’ Retirement System. We affirm.
FEDERAL EMPLOYEES’ RETIREMENT SYSTEM
In 1986, Congress created the Federal Employees’ Re-
tirement System (“FERS”). See generally King v. Merit Sys.
Prot. Bd.,
105 F.3d 635, 636 (Fed. Cir. 1997); Off. of Pers.
Mgmt., FERS Information, https://www.opm.gov/retire-
ment-center/fers-information/eligibility/ (last visited Mar.
20, 2023).
Under the FERS system, retired federal employees
may receive a monthly annuity based on the amount of
“creditable service” they have accumulated. See
5 U.S.C.
§ 8411(b)(3). Under
5 U.S.C. § 8411(f)(2):
An employee . . . may not be allowed credit . . . for
[creditable] service . . . for which retirement deduc-
tions . . . have not been made, unless such employee
. . . deposits an amount equal to 1.3 percent of basic
pay for such service, with interest.
To receive benefits under the FERS, an employee must
pay into the system. See
id. If deductions were not with-
held from the employee’s salary for a period of service, to
have that period count towards the employee’s FERS an-
nuity, the employee must pay a “deposit,” as calculated in
Section 8411(f)(2). Id.; see also King,
105 F.3d at 637 (ex-
plaining that the Office of Personnel Management (“OPM”)
administers the FERS).
Appellant Simmons requested to be allowed to pay a
FERS deposit in installments. The OPM denied the re-
quest, explaining that it would only accept a single, lump-
sum payment. Simmons disputed the OPM’s decision and
informed the OPM that she would not pay a deposit. As a
result, Simmons’s monthly annuity is lower than what it
Case: 22-2238 Document: 24 Page: 3 Filed: 04/05/2023
SIMMONS v. OPM 3
would be had she paid the deposit per the OPM’s instruc-
tions.
BACKGROUND
Proceedings Before the OPM
Simmons began working for the Department of Justice
(“DOJ”) in 1982. SAppx14. 1 Before she retired, Simmons
received and signed a Standard Form (SF) 3107-1, Certi-
fied Summary of Federal Service. SAppx2. The form indi-
cated that Simmons was missing out on potential
retirement benefits for four periods of employment be-
tween June 21, 1982, and September 30, 1988.
Id. The
form explained that for these periods no retirement deduc-
tions from her salary were withheld and no deposits had
been made.
Id. Since she hadn’t made retirement contri-
butions for these periods, her monthly annuity was going
to be lower than it could have been had she made the re-
tirement contributions.
Id.
On May 31, 2014, Simmons retired on disability.
Id.
On June 16, 2014, Simmons submitted a SF-3108, Applica-
tion to Make Service Credit Payment to the OPM.
Id. In
this form, she expressed an intent to make the deposit for
the four periods of prior service.
Id.
On September 27, 2014, the OPM notified Simmons
that she had 30 days to make the required deposit of $1,189
and that an election not to do so would be irrevocable.
SAppx2–3. The notice also provided instructions for how
to make the deposit. SAppx15. OPM’s notice explained
that if Simmons made the deposit, her monthly retirement
annuity would increase from $1,131 to $1,270. SAppx3. Fi-
nally, OPM’s notice stated, “[i]nstallment payments are not
permitted.” SAppx15.
1 “SAppx” refers to the OPM’s supplemental appen-
dix.
Case: 22-2238 Document: 24 Page: 4 Filed: 04/05/2023
4 SIMMONS v. OPM
On October 29, 2014, Simmons responded that she
would make the deposit. SAppx3. Contrary to OPM’s Sep-
tember 27 instructions, Simmons sought to make the pay-
ment in installments.
Id. She stated this was necessary
due to “financial hardship.”
Id.
The OPM responded on November 8, 2014 with a notice
identical to the September 27 notice, except that it stated
that the total deposit amount due was $1,729. 2 Id.; see also
SAppx15. The notice repeated that Simmons could not pay
the deposit in installments. SAppx15. Simmons did not
pay the deposit, and on December 22, 2014, the OPM in-
formed Simmons that her retirement annuity would not in-
crease. SAppx3.
On September 18, 2015, and February 24, 2016, Sim-
mons submitted reconsideration requests to the OPM.
Id.
The OPM reopened the case on June 18, 2016.
Id. The
OPM again indicated that a deposit of $1,729 would in-
crease Simmons’s monthly retirement annuity from $1,131
to $1,270.
Id.
On June 30, 2016, the OPM informed Simmons that
she had a final 45-day period to pay the full deposit.
Id.
On July 14, 2016, Simmons spoke with an OPM repre-
sentative over the telephone and told the representative
that she would not make the deposit.
Id. She requested
that the OPM waive the deposit requirement.
Id.
On July 21, 2016, the OPM issued its final decision,
prior to the expiration of the 45-day period, stating that
Simmons’s annuity had been finalized without the service
credit for the four periods because Simmons had not paid
the required deposit and interest. SAppx3–4.
2 The record does not indicate why the OPM in-
creased the total deposit amount, and Simmons does not
challenge the increase as improper.
Case: 22-2238 Document: 24 Page: 5 Filed: 04/05/2023
SIMMONS v. OPM 5
Merit Systems Protection Board Decisions
Simmons timely appealed the OPM’s decision to the
Merit Systems Protection Board (“MSPB”). The MSPB af-
firmed the OPM’s determination in an initial decision
reached by an administrative judge (“AJ”), which was then
affirmed by a three-member panel in the MSPB’s final or-
der.
The AJ found that Simmons “failed to meet her burden
of proving she is entitled to service credit under FERS for
her service prior to October 1, 1988 as it is undisputed that
[Simmons] failed to make the requisite deposit after being
given multiple opportunities to do so.” SAppx18. He ex-
plained “that OPM has no discretion to waive the require-
ments for deposit for nondeduction service nor is there any
statutory or regulatory provision for paying for such de-
posit in installments.”
Id.
The AJ also rejected Simmons’s argument that “the
agency engaged in harmful procedural error.” SAppx19;
see
5 C.F.R. § 1201.4(r) (“Error by the agency in the appli-
cation of its procedures that is likely to have caused the
agency to reach a conclusion different from the one it would
have reached in the absence or cure of the error. The bur-
den is upon the appellant to show that the error was harm-
ful, i.e., that it caused substantial harm or prejudice to his
or her rights.”). The AJ explained that Simmons “failed to
identify any regulation that the agency purportedly vio-
lated.”
Id. Moreover, the initial decision discussed that
Simmons was given multiple notices, beginning in 2012,
that she was required to pay the deposit.
Id.
The AJ further rejected Simmons’s argument that the
OPM deprived her of “minimum due process.” SAppx20.
The AJ found no due process violation because “the [OPM]
put [Simmons] on notice of the consequences of her failing
to make a deposit for her non-deduction service” and Sim-
mons “made a knowing decision not to pay the deposit.”
Id.
The AJ went on to explain that Simmons was notified of
Case: 22-2238 Document: 24 Page: 6 Filed: 04/05/2023
6 SIMMONS v. OPM
the OPM’s initial decision, given the opportunity to request
reconsideration, and provided a final decision. SAppx20–
21.
Simmons then petitioned for review of the MSPB’s ini-
tial decision. SAppx1. In a final order, the three-member
panel affirmed the AJ’s decision. SAppx2. The panel re-
jected Simmons’s argument that the OPM should have al-
lowed her to make her deposit in installments due to
financial hardship because Simmons did “not identif[y] any
statute or regulation that would have required OPM to of-
fer her the opportunity to pay the deposit in installments.” 3
SAppx6.
In sum, the MSPB affirmed the OPM’s denial of Sim-
mons’s request to pay the FERS deposits. Simmons ap-
peals the MSPB’s determination to us. We have
jurisdiction under
28 U.S.C. § 1295(a)(9).
3 The panel agreed with the AJ’s initial decision con-
cerning other issues. The panel rejected several arguments
concerning the adequacy of the record. SAppx5, 7–8. It
also decided that the OPM did not violate Simmons’s due
process rights because Simmons “received notice setting
forth the procedures to follow in making a deposit several
times.” SAppx6. The panel further rejected Simmons’s ar-
gument that the OPM “failed to honor the 45-day response
period set forth in its June 30, 2016 letter” because Sim-
mons forfeited this argument by not raising it before the
AJ and because Simmons told the OPM before that re-
sponse period expired that she would not pay the deposit.
SAppx6–7.
Case: 22-2238 Document: 24 Page: 7 Filed: 04/05/2023
SIMMONS v. OPM 7
STANDARD OF REVIEW
We review MSPB decisions for whether they are “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.”
5
U.S.C. § 7703(c). The MSPB’s legal determinations are re-
viewed de novo. Becker v. Off. of Pers. Mgmt.,
853 F.3d
1311, 1313 (Fed. Cir. 2017).
DISCUSSION
On appeal, Simmons largely repeats the arguments the
MSPB rejected. We affirm the MSPB because Simmons
has identified no legal error, and substantial evidence sup-
ports the MSPB’s findings.
First, Simmons argues that she should have been al-
lowed to pay her deposit in installments. Op. Br. at 4–7.
She asserts that “making a lump sum payment would have
presented a financial hardship.” Id. at 7. She also explains
that the OPM failed to follow guidance articulated in a doc-
ument entitled “Information About Service Credit Pay-
ments,” which she believes supports her request to pay in
installments. Id. at 4–5.
While we are sympathetic to Simmons’s circumstances,
she has identified no statute or regulation requiring the
OPM to accept deposit payments in installments, even
where the employee is suffering “financial hardship.” 4 See
4 Likewise, to the extent that Simmons is still re-
questing that the OPM should have waived the deposit re-
quirement, she has provided no authority indicating that
this would be permissible. See Reply Br. at 2;
5 U.S.C.
§ 8411(f)(2); Schoemakers v. Off. of Pers. Mgmt.,
180 F.3d
1377, 1382 (Fed. Cir. 1999) (“Neither courts nor adminis-
trative agencies . . . have the authority to waive
Case: 22-2238 Document: 24 Page: 8 Filed: 04/05/2023
8 SIMMONS v. OPM
id. Regarding the guidance document, Simmons has not
explained how it supports her position or how it would be
binding. Adams v. U.S.,
59 F.4th 1349, 1350 (Fed. Cir.
2023) (discussing a non-binding OPM memorandum (en
banc)).
Second, Simmons argues that the OPM failed to “com-
ply with its own regulations” and did not follow “its proce-
dures.” Form 11 at p.2. Simmons argues that the OPM
wrongly “[f]inalized her [annuity] before the 45 day re-
sponse period set forth in its June 30, 2016 letter giving her
a final opportunity to make a deposit.” Op. Br. at 4.
Simmons has not identified any regulatory or proce-
dural violation. She also did not dispute before the MSPB
that after the OPM gave her 45 days to pay the deposit, she
told the OPM that she would not pay. 5 SAppx7. The OPM
did not err by relying on Simmons’s waiver.
Third, Simmons argues that the OPM delayed in
“denying her request to pay the deposit.” Op. Br. at 4. We
requirements . . . that Congress has imposed as a condition
to the payment of federal money.”).
5 On appeal, Simmons states, “I don’t recall stating
that I would not be making the deposit.” Op. Br. at 5. She
does not dispute, however, the MPSB’s explanation that
Simmons did not raise this argument before the MSPB.
See SAppx7 (“The appellant has not disputed OPM’s ac-
count of the July 14, 2016 telephone call or argued that she
would have made the full deposit had she been afforded the
full 45 days in which to respond.”). We decline to consider
this argument—which would require making factual find-
ings as to the substance of her call with the OPM—for the
first time on appeal. Cal. Ridge Wind Energy LLC v. U.S.,
959 F.3d 1345, 1351 (Fed. Cir. 2020) (“We may deem an
argument forfeited when a party raises it for the first time
on appeal.” (collecting cases)).
Case: 22-2238 Document: 24 Page: 9 Filed: 04/05/2023
SIMMONS v. OPM 9
disagree because she has not shown any delay by the OPM.
The record shows that the OPM diligently provided Sim-
mons multiple notices over several years explaining that
she had to pay the deposit. Also, Simmons did not dispute
before the MPSP that she refused to pay the deposit.
CONCLUSION
The MSPB’s decision is supported by substantial evi-
dence and not legally erroneous. We have considered Sim-
mons’s remaining arguments, including those concerning
due process and the MSPB’s evidentiary determinations,
and find them unpersuasive. We affirm.
AFFIRMED
COSTS
No costs.
