Thomas v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VELMA RUTH THOMAS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2014-3143
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0841-13-0546-I-1.
______________________
Decided: January 13, 2015
______________________
VELMA RUTH THOMAS, of Stockbridge, Georgia, pro se.
JOSHUA A. MANDLEBAUM, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were JOYCE R. BRANDA, Acting Assistant
Attorney General, ROBERT E. KIRSCHMAN, JR., Director,
and KIRK T. MANHARDT, Assistant Director. Of counsel
was JESSICA S. JOHNSON, Attorney-Advisor, Office of
General Counsel, United States Office of Personnel Man-
agement, of Washington, DC.
2 THOMAS v. OPM
______________________
Before O’MALLEY, BRYSON, and HUGHES, Circuit Judges.
PER CURIAM.
Velma Ruth Thomas appeals from the decision of the
Merit Systems Protection Board (“Board”) affirming the
decision of the Office of Personnel Management (“OPM”)
that Thomas was entitled only to a supplemental annuity
under 5 U.S.C. § 8468(b)(1)(A) (2012). Because we agree
that Thomas should receive a supplemental annuity and
not a redetermination of annuity rights upon her retire-
ment, we affirm.
BACKGROUND
Thomas began working for the United States Postal
Service (“USPS”) on April 20, 1985. Thomas continued to
work for the USPS until May 15, 1998, when she left the
USPS and applied for disability retirement under the
Federal Employees Retirement System (“FERS”). Thom-
as was 59 years old at the time she left the USPS.
Thomas received FERS disability annuity payments
covering May 16, 1998 through December 18, 1999. In
the letter notifying Thomas of the approval of her bene-
fits, OPM informed Thomas that:
If your medical condition improves to the point
you, and your physician, feel your disabling condi-
tion is resolved, you may ask us to review current
medical evidence to determine if you have recov-
ered. If you are found recovered from your disa-
bling medical condition on your request, annuity
payments will cease the month following the one
in which the determination is effective.
Thomas then elected to receive disability benefits un-
der the Office of Workers’ Compensation Program
(“OWCP”) in lieu of the FERS disability retirement annui-
THOMAS v. OPM 3
ty benefits, beginning on December 19, 1999. OPM sus-
pended Thomas’s FERS annuity during the time she
received OWCP benefits. Even though Thomas received
OWCP benefits, OPM still considered Thomas to be a
disability retirement annuitant. Thus, in 2000, when
Thomas turned 62 years old, OPM recomputed Thomas’s
potential retirement benefits to an amount that repre-
sented an annuity she would have received if she had
continued working until the day before her 62nd birthday,
as required by 5 U.S.C. § 8452(b).
On November 12, 2005, Thomas, at age 67, returned
to work at the USPS. Thomas did not inform OPM that
she had returned to work and did not request that OPM
find she had recovered from her disability.
Thomas continued to work with the USPS until she
voluntarily retired on October 31, 2009, at age 71. At the
time of her retirement, Thomas applied for credit for the
time period during which she received OWCP benefits,
and sought a redetermination of her annuity. OPM
concluded that, because OPM never found that Thomas
was recovered from her disability or restored to earning
capacity after reemployment under 5 U.S.C. § 8455(a)(2),
and because she was not reemployed for five years, she
was not entitled to claim the time that she received
OWCP benefits towards her annuity. OPM thus restored
her prior annuity and added a supplemental annuity
earned during her reemployment period. In response to
Thomas’s request for reconsideration, OPM again con-
cluded that Thomas was not restored to earning capacity
or administratively recovered under § 8455(a)(2), and was
only eligible for a supplemental annuity for her
reemployment period.
Thomas appealed OPM’s reconsideration decision to
the Board on May 13, 2013, claiming that she was enti-
tled to an annuity covering the entire period from 1985–
2009, and was unaware that she had to inform OPM that
4 THOMAS v. OPM
she had returned to work in order to be eligible for rede-
termination of her annuity. In an initial decision, the
Administrative Judge affirmed OPM’s determination.
The Administrative Judge found that Thomas had been
informed in the letter notifying Thomas of her benefits
that she had to contact OPM upon her reemployment,
and, regardless, any issue regarding notification “does not
affect the outcome of this appeal.” Thomas v. Office of
Pers. Mgmt., No. AT-0841-13-0546-I-1, 2014 MSPB LEXIS
1861, at *5 n.4 (M.S.P.B. March 26, 2014). The Adminis-
trative Judge then concluded that Thomas was not eligi-
ble to have her annuity terminated by OPM at
reemployment pursuant to 5 U.S.C. § 8455 because that
provision only applies to persons that recover from their
disability or are restored to earning capacity before they
are 60 years of age. Id. at *5. Section 8455 further does
not apply to Thomas because, at the time of her
reemployment, Thomas was no longer a disability retire-
ment annuitant once OPM recalculated her annuity in
2000. Id. at *6. The Administrative Judge therefore
concluded that OPM correctly determined that Thomas
was not eligible to have her annuity redetermined upon
her retirement in 2009. Id. at *7.
The Board’s initial decision became final on April 30,
2014. Thomas appealed to this Court on August 8, 2014,
and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
We must affirm a Board’s decision unless we find the
decision to be: “(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). Thomas has
the burden to prove, by a preponderance of the evidence,
that she is entitled to the claimed retirement benefits.
THOMAS v. OPM 5
True v. Office of Pers. Mgmt., 926 F.2d 1151, 1153 (Fed.
Cir. 1991).
Thomas claims that the Board erred by failing to rec-
ognize the entirety of her service with the USPS, includ-
ing the years when she received FERS or OWCP benefits.
She also argues that the Board erred by not considering
that the USPS found her to be employed for over twenty-
four years, not merely the seventeen years recognized by
OPM. In response, the government argues that the Board
made no factual errors—Thomas’s reliance on a twenty-
four year employment period requires recognition of 1998
to 2005 as a period of employment, which is a legal, not
factual, determination. The government further argues
that the Board correctly concluded that Thomas was not
eligible for redetermination of her first annuity under
either 5 U.S.C. § 8468(b) or 5 U.S.C. § 8455(a).
We agree with the Board’s conclusion that Thomas is
only entitled to a supplemental annuity for her
reemployment period. Under 5 U.S.C. § 8468(b)(1)(A):
If an annuitant . . . serves on a full-time basis for
at least 1 year . . . the annuitant’s annuity on
termination of reemployment shall be increased
by an annuity computed under section 8415 (a)
through (i) as may apply based on the period of
reemployment and the basis pay, before deduc-
tion, averaged during reemployment.
Employees like Thomas, who are reemployed for at least
one year, are therefore eligible for a supplemental annuity
based on “the period of reemployment.” Id. Certain
reemployed employees, however, may seek an alternative
benefit under § 8468(b)(2)(A):
If an annuitant . . . serves on a full-time basis for
at least 5 years, or on a part-time basis for periods
equivalent to at least 5 years of full-time service,
the annuitant may elect, instead of the benefit
6 THOMAS v. OPM
provided by paragraph (1), to have such annui-
tant’s rights redetermined under this chapter.
Under this provision, federal employees who have been
reemployed for at least five years may seek a redetermi-
nation of their annuity rights in lieu of receiving a sup-
plemental annuity covering their period of reemployment.
Id.; see also True, 926 F.2d at 1153–54 (applying similar
provision under the Civil Service Retirement Act).
Federal employees may also seek to terminate their
prior annuity rights through use of 5 U.S.C. § 8455(a).
Under this provision, payment of an annuity terminates
for “an annuitant receiving a disability retirement annui-
ty” if the annuitant either “recovers from the disability
before becoming 60 years of age,” id. § 8455(a)(1), or
“before becoming 60 years of age, is restored to an earning
capacity fairly comparable to the current rate of pay of the
position occupied at the time of retirement,” id.
§ 8455(a)(2).
Thomas is not eligible to seek a different annuity
treatment under either of these statutory provisions.
Thomas would not qualify for a redetermination under
§ 8468(b)(2)(A) because she only served at the USPS for
three years and eleven months during her reemployment,
short of the five years required by statute.
Furthermore, Thomas would not qualify to have her
annuity status terminated under § 8455(a) because she
returned to work at the age of 67. Section 8455(a) re-
quires that the employee be recovered or restored to a
fairly comparable earning capacity “before becoming 60
years of age.” If we assume that Thomas recovered or was
restored to a fairly comparable earning capacity at the
time she returned to work, she would not meet the statu-
tory age requirement.
Thomas also would not qualify under § 8455(a) be-
cause she was not a “disability retirement” annuitant at
THOMAS v. OPM 7
the time of her reemployment. Under 5 U.S.C.
§ 8452(b)(1), OPM must redetermine annuities of disabil-
ity retirement annuitants once they reach 62 years of age.
Upon that redetermination, the annuitant receives a basic
annuity under 5 U.S.C. § 8415 rather than a disability
retirement annuity. Once OPM redetermined Thomas’s
annuity in 2000, she was no longer a disability retirement
annuitant, and could no longer qualify for termination of
the annuity under § 8455(a). 1
Accordingly, we hold that the Board correctly deter-
mined that Thomas was not eligible for termination or a
redetermination of her annuity, and that she was only
eligible for a supplemental annuity covering her period of
reemployment from 2005 to 2009, in addition to her prior
annuity. We therefore affirm the Board’s decision up-
holding OPM’s calculation of Thomas’s annuity.
AFFIRMED
1 The fact that Thomas received OWCP benefits in
lieu of FERS annuity payments does not change Thomas’s
annuitant status. Hall v. Office of Pers. Mgmt., 31 F.3d
1176, at *2 (Fed. Cir. 1994) (unpublished opinion) (citing
Strickler v. Office of Pers. Mgmt., 51 M.S.P.R. 354, 358–59
(1991)).