Schwab v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3061
CAROL M. SCHWAB,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Carol M. Schwab, of Washington, DC, pro se.
Meredyth D. Cohen, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Assistant Attorney General, Steven J Gillingham,
Assistant Director. Of counsel on the brief was Paul St. Hillaire, Office of General
Counsel, Office of Personnel Management, of Washington, DC.,
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3061
CAROL M. SCHWAB,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: May 14, 2007
__________________________
Before MAYER, SCHALL and PROST, Circuit Judges.
PER CURIAM.
Carol M. Schwab appeals the Merit System Protection Board’s final decision,
which denied reconsideration of the initial decision affirming the Office of Personnel
Management’s decision that her election of coverage under the Federal Employees
Retirement System was valid and irrevocable. Schwab v. Office of Pers. Mgmt., DC-
0846-06-0340-I-1 (MSPB Oct. 3, 2006). We affirm.
We must affirm the board’s decision unless it was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; obtained without required
procedures; or not supported by substantial evidence. 5 U.S.C. § 7703(c) (2000). An
election for coverage under FERS is irrevocable. Pub. L. No. 99-335, § 301(c), 100
Stat. 514, 600 (1986) (5 U.S.C. § 8331 note). Even if there were an exception for
mental illness, as Schwab contends, the board’s finding that she failed to establish
sufficient incapacity at the time of her election is supported by substantial evidence. In
addition, the board properly considered the evidence in reaching its decision, and the
record indicates that Schwab made her election during the allowable time period.
Finally, under the facts of this case, we perceive no reversible error in the exclusion of
the proffered expert testimony, particularly when the proffered expert was allowed to
testify as a non-expert and was allowed to present a broad scope of testimony.
2007-3061 2