Richardson v. Opm

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SUZANNE BESSENT RICHARDSON,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2015-3130
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0841-15-0189-I-1.
______________________
Decided: December 15, 2015
______________________
SUZANNE BESSENT RICHARDSON, Friendship, TN, pro
se.
MICHAEL DUANE AUSTIN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
BRIAN A. MIZOGUCHI.
______________________
2 RICHARDSON v. OPM
Before PROST, Chief Judge, CLEVENGER, and MOORE,
Circuit Judges.
PER CURIAM.
Suzanne Bessent Richardson was a Federal Employ-
ees Retirement System (“FERS”) disability annuitant.
When she turned 62, her disability annuity ceased and
she began receiving a FERS retirement annuity. Ms.
Richardson challenged the computation of her retirement
annuity, asserting to the Office of Personnel Management
(“OPM”) that two periods of her service were not included
in her annuity computation. OPM rejected Ms. Richard-
son’s challenge, initially and on reconsideration, and Ms.
Richardson appealed to the Merit Systems Protection
Board (“Board”). The Board sustained OPM’s rejection of
Ms. Richardson’s challenge, Richardson v. Office of Per-
sonnel Management, Docket No. AT-0841-15-0189-1-I
(March 20, 2015), and Ms. Richardson timely petitioned
this court for review of the Board’s final decision. For the
reasons stated below, we affirm.
BACKGROUND
A. Proceedings in front of the OPM.
Ms. Richardson asserted to OPM that her annuity
computation should include service with the Department
of Labor from January 24, 1983 1 to March 10, 1984 (“DOL
service”), and include further service with the Veterans
Administration from August 21, 2000 to March 10, 2001
1 There appears to be some confusion in the record
as to the precise starting date of Ms. Richardson’s De-
partment of Labor service. However, because Ms. Rich-
ardson took a refund of the retirement contributions for
that time, the precise starting date is of no import. We
therefore use the date relied on by OPM and the Board in
the proceedings below.
RICHARDSON v. OPM 3
(“VA service”). OPM explained in its July 25, 2014 final
decision that, with regard to the first asserted period of
service, Ms. Richardson had taken a refund of the retire-
ment contributions for that time. When offered the oppor-
tunity to repay the necessary deposit, Mrs. Richardson
declined. In electing not to repay the deposit, Ms. Rich-
ardson voided all annuity rights to that period of service.
With regard to the second period of service, OPM ex-
plained that she served in that specific time under a
temporary appointment pursuant to which no retirement
deductions were taken from her salary, and the law does
not permit after-the-fact deposits to be made for service
performed on or after January 1, 1989. Thus, as with the
previous period of service, Ms. Richardson could point to
no deposits that would entitle her to credit for that time
in her annuity computation. Consequently, because the
law did not permit OPM to treat either of the two speci-
fied periods of service as qualifying for inclusion in com-
putation of a retirement annuity, OPM rejected Ms.
Richardson’s request for recomputation of her retirement
annuity.
B. Proceedings in front of the Board.
Before the Board, Ms. Richardson repeated her argu-
ment that she should be entitled to recomputation of her
retirement annuity based on the two periods of service
described above. Repeating the correct legal analysis
stated by OPM, the Administrative Judge (“AJ”) ex-
plained that without deposits having been made for the
periods of service in question, Ms. Richardson is not
entitled to consideration of those periods in the calcula-
tion of her retirement annuity.
The AJ also referred to two matters that Ms. Richard-
son had not presented to OPM in her request for recalcu-
lation of her retirement annuity. First, Ms. Richardson
argued to the AJ that she is entitled to recalculation
based on creditable service for other periods of time.
4 RICHARDSON v. OPM
Because OPM only addressed the two specific time peri-
ods described above, and not the other times to which Ms.
Richardson made reference to the AJ, and because the
AJ’s prehearing summary referred to those two periods as
the only ones reviewable in Ms. Richardson’s appeal, the
AJ declined consideration of the additional periods of
service. The AJ did, however, expressly state that with
regard to any such additional periods, Ms. Richardson is
entitled to return to OPM and raise those dates with it.
And, if OPM refuses to credit any such additional periods
of service, the AJ noted that Ms. Richardson may file a
separate appeal to the Board challenging OPM’s refusal.
Second, the AJ noted that Ms. Richardson challenged
OPM’s calculation of her “high 3” salary level, for purpos-
es of her retirement annuity. The AJ noted that Ms.
Richardson had not raised that issue at the prehearing
conference, nor in her reconsideration request to OPM.
Consequently, the AJ declined to consider Ms. Richard-
son’s contention that her “high 3” salary level was incor-
rectly computed. But, as with the issue of additional
periods of service, the AJ expressly noted that Ms. Rich-
ardson is free to raise the issue of her “high 3” salary level
upon return to OPM, and to appeal to the Board from any
adverse decision by OPM on the issue.
Because no deposits were made to cover the two spe-
cific periods of time before OPM and the Board, the AJ
ruled Ms. Richardson ineligible as a matter of law to
inclusion of those periods in her annuity retirement
calculation. The decision of the AJ became the final
decision of the Board, and Ms. Richardson timely sought
review in this court.
DISCUSSION
Our review authority over a final decision of the
Board is limited by statute. We may only upset such a
final decision if we conclude that it is arbitrary, capri-
cious, an abuse of discretion or otherwise not in accord-
RICHARDSON v. OPM 5
ance with law, or depending upon factual findings unsup-
ported by substantial evidence. 5 U.S.C. 7703(c); Frey v.
Dep’t of Labor, 359 F.3d 1355, 1359 (Fed. Cir. 2004).
Before this court, Ms. Richardson refers to a letter to
a local congressman stating that she had no record of
withdrawing deposits relating to her DOL service and not
paying them back. But she does not challenge the record
evidence which shows that she applied for the refunds
and OPM offered her the opportunity of redeposit. Sub-
stantial evidence supports the Board’s finding that she
withdrew and did not redeposit the sums associated with
the DOL service. Further, Ms. Richardson does not chal-
lenge the law as applied by OPM and the Board with
regard to her VA service: there is no entitlement to
recomputation regarding time for which no deposits exist.
Ms. Richardson argues that the Board should have
considered both the additional time of service that she
claims was overlooked in computing her creditable years
of service, and her claim to recomputation of her “high 3”
salary level. As the Board noted, these matters were not
properly before the Board for consideration. But, as also
noted, Ms. Richardson is entitled to return to OPM to
seek both addition of other creditable time and revision of
her high 3 salary level. We express no view on the merits
of her contentions on those two issues. Whether the
official records support her assertions is a matter for
consideration first by OPM, and then by the Board should
Ms. Richardson be dissatisfied with OPM’s reconsidera-
tion decision on those two issues.
Because the final decision of the Board is based on
substantial evidence and the correct application of the law
to the facts, we affirm the final decision.
AFFIRMED
COSTS
No Costs.