Smith v. Office of Personnel Management , 593 F. App'x 985 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILMA C. SMITH,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2014-3167
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-13-0545-I-1.
______________________
Decided: December 4, 2014
______________________
WILMA C. SMITH, of Olongapo City, Philippines, pro se.
ANTHONY F. SCHIAVETTI, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief was JOYCE R. BRANDA, Acting Assistant
Attorney General, ROBERT E. KIRSCHMAN, Director, and
REGINALD T. BLADES, JR., Assistant Director.
______________________
Before DYK, REYNA, and HUGHES, Circuit Judges.
2 SMITH v. OPM
PER CURIAM.
Wilma Smith appeals the Merit Systems Protection
Board’s final order affirming the Office of Personnel
Management’s denial of her request for survivor annuities
or benefits based on the service of her deceased spouse,
Troy Smith. In order to qualify for survivor annuities or
benefits, Ms. Smith would have to establish, among other
things, that her husband was employed in a federal
civilian service position covered by the Civil Service
Retirement System (CSRS) or the Federal Employees
Retirement System (FERS). Because we find no evidence
that Mr. Smith was ever employed in a covered civil
service position, we affirm.
BACKGROUND
Beginning on July 8, 2011, Ms. Smith sent a series of
emails to the Office of Personnel Management requesting
survivor benefits. Ms. Smith alleged eligibility for benefits
based on Mr. Smith’s service in the Merchant Marine
from 1982 until his death on August 4, 1997. On Novem-
ber 9, 2011, after finding no record of any federal civilian
service by Mr. Smith, the Office of Personnel Manage-
ment denied Ms. Smith’s request. On June 13, 2013, Ms.
Smith filed an appeal with the Board. The administrative
judge found that Ms. Smith had failed to submit evidence
showing that Mr. Smith ever served in a position covered
by the CSRS or the FERS, or that Mr. Smith had ever
contributed to a civil service retirement fund.
On November 6, 2013, Ms. Smith petitioned the full
Board to review the administrative judge’s decision. Ms.
Smith argued that her eligibility for benefits was estab-
lished by the fact that Mr. Smith served in the Merchant
Marine during the Gulf War, contributed to the Seafarers
Fund, and had Federal Insurance Contributions Act
(FICA) and federal tax payments withheld from his pay.
The Board found Mr. Smith’s FICA and federal tax deduc-
tions irrelevant, and found that the Seafarers Fund is a
SMITH v. OPM 3
private pension plan unrelated to the CSRS or the FERS.
The Board affirmed the administrative judge’s decision on
July 2, 2014. This appeal followed. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board’s deci-
sion unless it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c).
I
Retirement from federal civilian service is governed
by the CSRS or the FERS. See 5 U.S.C. §§ 8331–8351,
8401–8480. Federal employees covered by the CSRS as of
June 30, 1987, could elect to transfer to the FERS. Killip
v. Office of Pers. Mgmt., 991 F.2d 1564, 1565 (Fed. Cir.
1993). Because Ms. Smith alleges that her husband was
in civilian service from 1982 until his death on August 4,
1997, we address Ms. Smith’s eligibility for annuities or
benefits under both the CSRS and the FERS.
Eligibility for survivor annuities or benefits under the
CSRS and the FERS requires, at minimum, the deceased
spouse to have been at some time employed in a service
position covered by the CSRS or the FERS. 1 Generally,
1 For detailed CSRS eligibility requirements, see 5
U.S.C. §§ 8341(b)(1)–(2), 8333(a)–(b), 8341(d), 8342(d); see
also Rosete v. Office of Pers. Mgmt., 48 F.3d 514, 516 (Fed.
Cir. 1995); Davis v. Office of Pers. Mgmt., 938 F.2d 1283,
1284 (Fed. Cir. 1991). For FERS requirements, see 5
U.S.C. §§ 8422(a)(1), 8410, 8442(c)(1), 8442(b)(1); see also
5 C.F.R. §§ 843.306–308, 843.311(a), 843.309(a), 843.310.
4 SMITH v. OPM
service in the Merchant Marine is not covered by the
CSRS or the FERS. 2 While some mariners in the Mer-
chant Marine appointed by the United States during
wartime may have received retirement credit under the
CSRS prior to March 24, 1943, see id., Congress excluded
appointed Merchant Marine service from such coverage
on March 24, 1943. See Pub. L. No. 78-17, 57 Stat. 45
(codified at 50 U.S.C. app. § 1291) (“[B]ecause of the
temporary wartime character of their employ-
ment . . . [mariners] shall not be considered as officers or
employees of the United States for the purposes of . . . the
Civil Service Retirement Act . . . .”). The FERS covers,
with some exceptions, service covered by the CSRS. Bain
v. Office of Pers. Mgmt., 978 F.2d 1227, 1229 (Fed. Cir.
1992).
Certain service in the Merchant Marine may be con-
sidered in computing annuities or benefits under the
CSRS or the FERS, but such service does not by itself
establish CSRS or FERS eligibility. Wartime service in
the Merchant Marine may be approved as active duty
military service for purposes of laws administered by the
Veterans’ Administration. See G.I. Bill Improvement Act
of 1977, Pub. L. No. 95-202, 91 Stat. 1449 (1977) (codified
at 38 U.S.C. § 106 note); 32 C.F.R. § 47.1(b); OPM Hand-
book § 20A2.2-13(A)(2); see also Schumacher v. Aldridge,
665 F. Supp. 41, 43, 56 (D.D.C. 1987). Both the CSRS and
the FERS consider certain military service for purposes of
computing annuities or benefits, see 5 U.S.C.
§ 8411(c)(1)(A)–(B); Roman v. CIA, 297 F.3d 1363, 1369
2 See U.S. Dep’t Pers. Mgmt, Civil Service Retire-
ment System (CSRS) and Federal Employees Retirement
System (FERS) Handbook for Personnel and Payroll
Offices § 20A2.2-13(A)(1) (1998) (hereinafter OPM Hand-
book), available at https://www.opm.gov/retirement-
services/publications-forms/csrsfers-handbook/c020.pdf.
SMITH v. OPM 5
(Fed. Cir. 2002), even though service in the Merchant
Marine is not covered by the CSRS or the FERS. 3 Service
in the Merchant Marine, however, even if approved as
military service, does not establish eligibility under the
CSRS or the FERS because military service is not civilian
service covered by the CSRS or the FERS. See Brown v.
Office of Pers. Mgmt., 872 F.2d 401, 402 (Fed. Cir. 1989);
Bain, 978 F.2d at 1229.
Coverage by the CSRS or the FERS is generally indi-
cated by evidence from the employment record. See
Whalen v. Office of Pers. Mgmt., 959 F.2d 924, 928; Rosete,
48 F.3d at 516. Traditional indicia of covered civil service
include a government service (GS) grade rating, evidence
of civil service retirement contributions, or evidence of
formal appointment to federal civilian service. See
Whalen, 959 F.2d 924, 928 (Fed. Cir. 1992); Rosete, 48
F.3d at 516.
II
Ms. Smith makes three arguments on appeal. First,
Ms. Smith argues that the Board failed to take into ac-
count the fact that Mr. Smith had FICA dues and federal
taxes deducted from his income. Second, Ms. Smith ar-
gues that the Board overlooked certain provisions of the
CSRS and the FERS allowing for a surviving spouse to
retroactively contribute to a retirement account for past
periods of creditable service. See, e.g., 5 U.S.C. §§ 8334(c)–
(d), 8334(h)–(i), 8422(i)(1), 8422(i)(3). Third, Ms. Smith
argues that the Board failed to consider that her husband
3 See Herrera v. United States, 849 F.2d 1416, 1417
(Fed. Cir. 1988); see also §§ 8333(a), 8341(d), 8333 (distin-
guishing “civilian service” from “creditable civilian ser-
vice”); §§ 8442(b)(1)(B), 8410 (distinguishing “service”
from “civilian service creditable under the [FERS]”).
6 SMITH v. OPM
died before having an opportunity to elect a retirement
plan.
Ms. Smith’s arguments and the evidence in the record
fail to establish that her husband was ever employed in a
service position covered by the CSRS or the FERS. Mr.
Smith’s alleged service in the Merchant Marine, including
his alleged service during the Gulf War, does not qualify
as civilian service covered by the CSRS or the FERS,
regardless of whether such service could have been con-
sidered in computing a survivor annuity or benefit under
the CSRS or the FERS. See Brown, 872 F.2d at 402; Bain,
978 F.2d at 1229.
In addition, traditional indicia of covered service are
absent from the record. There is no evidence that Mr.
Smith had a GS grade rating, that he was appointed to
federal civilian service, that he ever made a civil service
retirement contribution, or that he designated Ms. Smith
as a beneficiary in the Office of Personnel Management.
See Whalen, 959 F.2d 924; Rosete, 48 F.3d at 516; 5 C.F.R.
§ 831.2005(a). Ms. Smith introduced a check stub indicat-
ing that Mr. Smith had made contributions to the Seafar-
ers Fund. But the Board found that the Seafarers Fund is
a private pension plan unrelated to the CSRS or the
FERS, and we have no reason to believe otherwise. Thus,
Ms. Smith has not demonstrated entitlement to survivor
annuities or benefits.
CONCLUSION
For these reasons, the final order of the Merit Sys-
tems Protection Board is affirmed.
AFFIRMED