Meek v. Office of Personnel Management

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
04-3233
WILLIAM O. MEEK,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: December 13, 2004
___________________________
Before BRYSON, Circuit Judge, PLAGER, Senior Circuit Judge, and PROST, Circuit
Judge.
PER CURIAM.
DECISION
Petitioner William Meek seeks review of an order of the Merit Systems Protection
Board, Docket No. PH-0831-03-0227-I-1, in which the Board upheld the decision of the
Office of Personnel Management ("OPM") denying Mr. Meek’s request that his
retirement annuity benefits under the Civil Service Retirement System ("CSRS") include
credit for his post-1956 military service. We affirm.
BACKGROUND
A civil service annuitant who retires after September 7, 1982, is entitled to credit
for active military service performed after 1956 under both the CSRS and the Social
Security System, but only if the annuitant deposits with the Civil Service Retirement
Fund an amount equal to seven percent of his or her total post-1956 military pay. 5
U.S.C. §§ 8332(j) & 8334(j); Collins v. Office of Pers. Mgmt., 45 F.3d 1569, 1570-71
(Fed. Cir. 1995). If the annuitant fails to make the requisite deposit, OPM must
recompute the annuitant's annuity payment when the annuitant first becomes eligible for
Social Security benefits to exclude credit for post-1956 military service. 5 U.S.C.
§ 8332(j)(1); Collins, 45 F.3d at 1571.
Mr. Meek served in the United States Marine Corps from 1959 to 1969. He
subsequently worked in the federal civilian service from 1971 to 1992, when he retired
at age 51. In the course of electing retirement from civilian service, Mr. Meek signed
OPM's Form 1515, entitled "Military Service Deposit Election." That form indicated that
Mr. Meek had served in the military after 1956 and was eligible for a civil service
annuity. It advised Mr. Meek that if he wished to be eligible at age 62 for a Social
Security benefit that included credit for his post-1956 military service, he needed to
make a deposit to the CSRS or else his civil service benefits would be reduced when he
reached age 62. The form also referred to an attached form entitled "Information for
Completing OPM Form 1515," which specifies that the amount of the deposit for post-
1956 military service is seven percent of military basic pay and that the consequence of
not making a deposit is a reduction in annuity at age 62. Mr. Meek signed a statement
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indicating that he had read the information regarding his right to make the deposit for
post-1956 military service, and that he had elected not to make the deposit.
On February 18, 2003, after Mr. Meek reached the age of 62 and became eligible
for Social Security benefits, OPM recalculated his civil service annuity because he had
not made a deposit prior to his retirement. The recalculation eliminated credit for his
post-1956 military service, thereby reducing his monthly retirement payment from $1637
to $1058.
Mr. Meek appealed OPM's decision to the Merit Systems Protection Board,
asserting that he had been unaware that he needed to make a deposit for his post-1956
military service. The Board found, however, that Mr. Meek had been properly informed
of the consequences of not making a deposit for his post-1956 service through forms he
read and signed at the time of his retirement. The Board therefore concluded that Mr.
Meek had made “a free and informed choice not to make the deposit," and that he was
not entitled to an unreduced annuity. After the full Board denied Mr. Meek’s petition for
review, he sought review by this court.
DISCUSSION
On appeal, Mr. Meek argues that he is entitled to an unreduced monthly annuity
payment of $1637. In order to obtain that level of annuity, however, he was required to
make a deposit equal to seven percent of his post-1956 military pay. The record shows
that he was placed on notice of the need to make the deposit and that he elected not to
do so.
Form 1515 sets forth the consequences of failing to make a deposit and cautions
retirees that the decision about making a deposit may affect their rights under the Civil
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Service Retirement Act. The form informed Mr. Meek that he "must either make a
deposit for the military service or have [his] annuity benefits reduced at age 62.” His
signature appears below the statement "I have read this information concerning my
rights to make a deposit for post-1956 military service . . . . I have decided not to make
. . . this deposit." Likewise, Form 2801 stated that “[i]f you performed military service on
or after January 1, 1957, you may pay a deposit of 7% of your military basic pay (plus
interest, if applicable) to cover that service . . . . If you do not make the deposit and you
are eligible for Social Security benefits at age 62, your annuity will be recomputed (at
age 62) to eliminate the credit for the post-1956 military service.” Form 2801 further
stated: "You CANNOT change your decision after you retire.”
Given that Form 1515 was "an unambiguous election form that notifies the signer
of the consequences of election," Collins, 45 F.3d at 1573, and that Form 2801 also
informed Mr. Meek of the consequence of electing not to pay the deposit, Mr. Meek is
"not relieved from the consequences of [his] written election absent a showing that
mental incompetence, duress or fraud is the reason for an election one later seeks to
void," id. Mr. Meek does not assert mental incompetence, duress or fraud as the
reason for having made the election not to pay the deposit. While he states that he was
"on medication for [his] last three years of work" prior to retiring, he does not contend
that taking medication rendered him incompetent to make the decision whether to pay
the deposit. Accordingly, the Board's determination that Mr. Meek was knowingly
elected not to make the deposit is supported by substantial evidence.
Mr. Meek also argues that he "should have been able to retire on disability
instead of being assigned light duty and put on medication for [his] last three years of
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work." Before the Board, Mr. Meek noted that he was denied disability retirement
benefits. To the extent Mr. Meek is seeking review of the denial of disability retirement
benefits, that issue is not within the scope of the present proceeding, which is confined
to review of OPM’s decision as to the computation of Mr. Meek’s civil service annuity.
Mr. Meek also contends that the Board failed to consider a letter from the Social
Security Administration stating that he qualified for Social Security benefits of $182 per
month. Mr. Meek argues that because he received credit for his post-1956 military
service towards his Social Security benefits without paying a deposit, he is likewise not
required to pay a deposit to receive credit for his post-1956 military service towards his
annuity benefits. That argument, however, is contrary to the law, which treats Social
Security benefits and civil service retirement benefits differently with respect to credit for
post-1956 military service. While "military years are [ ] automatically creditable for
social security benefit purposes," a civil service retirement annuitant with post-1956
military service must make a deposit prior to retirement in order to receive credit for that
service once he starts receiving Social Security benefits. Collins, 45 F.3d at 1570,
quoting S. Rep. No. 97-504, 97th Cong., 2d Sess. 231 (1982). We therefore reject Mr.
Meek's argument that he need not pay a deposit because he received military credit in
his Social Security benefits without making a deposit.
Because the Board’s decision was supported by substantial evidence and is not
challenged on any other legal ground, we affirm the Board’s decision upholding OPM’s
calculation of Mr. Meek's civil service retirement annuity.
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