D'Antonio v. Office of Personnel Management , 132 F. App'x 834 ( 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
05-3022
JOSEPH V. D’ANTONIO,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________
DECIDED: April 8, 2005
___________________
Before MAYER, LOURIE, and RADER, Circuit Judges.
PER CURIAM.
Joseph D’Antonio seeks review of the final decision of the Merit Systems
Protection Board sustaining the reduction of his annuity payments by the Office of
Personnel Management (“OPM”). D’Antonio v. Office of Pers. Mgmt., No. SF-831M-04-
0461-I-1 (M.S.P.B. Sept. 7, 2004). We affirm.
DISCUSSION
Certain civil service annuitants like D’Antonio who have served in the military
may receive credit for their military service only if they have deposited into the Civil
Service Retirement Fund a sum equal to seven percent of their total military pay. See 5
U.S.C. §§ 8332(j), 8334(j) (2000). When D’Antonio applied for retirement, he elected
not to make a deposit. As a result, when he became eligible for Social Security
benefits, OPM recomputed his annuity to exclude credit for his military service.
D’Antonio objected to the recomputation, which OPM upheld on reconsideration.
Seeking to make a belated deposit, D’Antonio appealed to the Board, arguing that he
was never informed of the need to make a deposit, and that he had signed his
retirement application when he was taking pain medications that potentially impaired his
mental state.
In sustaining OPM’s recomputation, the Administrative Judge (“AJ”) held that
D’Antonio failed to show that his inability to make a timely deposit was due to an
administrative error entitling him to make one belatedly. The AJ found that D’Antonio’s
signed retirement application contained a reference to the importance of the deposit
while recording his express intention not to make one, and that the evidence failed to
establish that he was mentally incompetent at the time of signing. The AJ’s decision
became final when D’Antonio failed to file a petition for review by the full Board. See 5
C.F.R. § 1201.113 (2004). This appeal followed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
We will affirm the Board’s decision unless it was: (1) arbitrary, capricious, or an
abuse of discretion; (2) procedurally deficient; or (3) unsupported by substantial
evidence. 5 U.S.C. § 7703(c) (2000). We discern none of these grounds for reversal.
On appeal, D’Antonio does not argue that the Board applied the wrong law, or
that it lacked substantial evidence, but rather he seeks to introduce additional evidence
of his alleged lack of notice and mental state at the time of signing. We cannot consider
such evidence, as it was not presented to the Board. Oshiver v. Office of Pers. Mgmt.,
05-3022 2
896 F.2d 540, 542 (Fed. Cir. 1990). Because substantial evidence that was presented
supports the Board’s decision, we must affirm.
05-3022 3