Bennie Collins v. Office of Personnel Management

45 F.3d 1569, 1995 U.S. App. LEXIS 1822, 1995 WL 27832

• Court: Court of Appeals for the Federal Circuit
• Decided: January 24, 1995
• Docket: 94-3481
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by Circuit Judge PAULINE NEWMAN.

CLEVENGER, Circuit Judge.

Bennie Collins petitions for review of the March 11,1994, initial decision of the Administrative Judge affirming the reconsideration decision of the Office of Personnel Management (OPM) denying Collins’ request to make an untimely deposit in order to receive credit under the Civil Service Retirement System (CSRS) for his active post-1956 military service. On June 9, 1994, the Merit Systems Protection Board (Board) denied Collins’ petition for review for failure to meet the Board’s criteria for review. Collins v. Office of Personnel Management, 63 MSPR 69 (1994). The initial decision thus became the final appealable decision of the Board. We affirm.

I

A civil service annuitant such as Collins who retires after September 7, 1982, is entitled to credit for active duty 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 the person’s total post-1956 military pay. 5 U.S.C. §§ 8332®, 8334® (1988 & Supp. V 1993). If an annuitant fails to make the requisite deposit, OPM is obligated to recompute the person’s annuity payment when the person first becomes eligible for Social Security benefits. The recomputation excludes credit for the post-1956 military service for which no deposit had been made to earn entitlement to credit. 5 U.S.C. § 8332®(1).

OPM has promulgated regulations which provide that an eligible employee must file an application for deposit with, and make payment to, the appropriate office in the employing agency. 5 C.F.R. §§ 831.2104-831.2107 (1988). A former employee may also file an application for deposit, but must make the required deposit to OPM “prior to final adjudication of the application for retirement of survivor benefits.” 5 C.F.R. §§ 831.2104(b), 831.2107(b)(1) (1988). An applicant is required to make the deposit before the date of retirement or before the date OPM takes final action on the retirement application. Holtermann v. Office of Personnel Management, 57 M.S.P.R. 380, 384-85 (1993).

Because eligibility for Social Security benefits occurs at age 62,

“Catch-62” is the term used to describe a situation where an individual with military service retiring under the civil service retirement system uses the years of postr-1956 military service for the civilian pension. These military years are also automatically creditable for social security benefit purposes. In order to prevent coverage under both systems for the same period of service, the civil service retirement annuity, by law, is recomputed at age 62 (when social security eligibility begins) to eliminate the period of military service from the civil service annuity. The additional social security benefit gained for these years of military service often does not match the reduction in the civil service annuity.

S.Rep. No. 97-504, 97th Cong., 2d Sess. 231 (1982), reprinted in 1982 U.S.C.C.A.N. 1641, 1809-10. In order to enjoy coverage under both systems for the same period of service, an annuitant is required to make the specified deposit. Notwithstanding the somewhat catchy label used to describe the results of a statutory entitlement, the fact remains that a statute and unchallenged regulations specify with no room for doubt that a civil service annuitant cannot enjoy the full benefit of the post-1956 military service without timely paying a price.

II

Collins retired from the military after 20 years of service. Thereafter, Collins was a civilian employee of the government until he retired from his food service foreman’s job at the Veterans Administration Medical Center in Lexington, Kentucky on December 31, 1988, at the age of 57. In the course of perfecting his civilian retirement, Collins on October 31, 1988 signed OPM Form 1515, a document entitled “MILITARY SERVICE DEPOSIT ELECTION.” The form states in its first textual paragraph:

Our records indicate that you (or the deceased employee named above) had military service after 1956 and are eligible for a civil service annuity. If you are eligible for a Social Security benefit which includes credit for this military service (or will be eligible at age 62) you must either make a deposit for the military service to the Civil Service Retirement System or your civil service benefits will be reduced at age 62 unless you are eligible for a guaranteed minimum annuity.

The form continues to state:

Instructions to employee (or survivor): Your decision about making this deposit may affect your rights under the Civil Service Retirement System:

1. Please read the attached “Information for employee or survivor” carefully to be sure you understand the .consequences of not making the deposit for military service.

The attached information states that persons who qualify for Social Security old age or survivor benefits

have the option of either: (1) making the deposit and thereby avoiding a reduction in annuity at age 62 (or 60 for survivors), when the military service is credited for Social Security purposes, or (2) not making the deposit and having the annuity adjusted at age 62 (or 60 for survivors).

The information specifies that the amount of the deposit for posh-1956 military service is seven percent of military basic pay. OPM Form 1515 and its attached information do not include annuitant specific calculations, such as the number of dollars equalling seven percent of the military pay or the number of dollars by which the annuitant’s civil service benefits will be reduced at the time of eligibility for Social Security benefits if the annuitant fails timely to make the required deposit. The form and its information, however, give unmistakable notice that a person’s annuity will be reduced at age 62 if no deposit has previously been made to earn entitlement to the benefit of post-1956 military service.

At the bottom of Form 1515, just above his signature, Collins executed his election:

EMPLOYEE (OR SURVIVOR) ELECTION

I have read this information concerning my rights to make deposit for posH956 military service. (Mark “x” in the appropriate box below to indicate your election.)

Collins put his “x” in the box preceding “I have decided not to make (or complete) this deposit.”

In due course, the Social Security Administration notified OPM that Collins was eligible for Social Security benefits based on his post-1956 military service. Because Collins had not made the required deposit to retain credit for his military service, OPM recomputed Collins’ annuity. When notified of the reduction in his annuity, Collins sought reconsideration by OPM requesting permission to make the required deposit in order to reverse OPM’s recomputation of his annuity. OPM denied Collins’ request:

We note you make no specific claim of administrative error under 5 CFR 831.2104(a) and 5 CFR 831.2107(a)(1) with respect to the time limit for making a deposit. .Although you suggest that you were not aware of the need to make a 7 percent deposit for your post-1956 active duty service prior to retirement in order to have it credited in computing your annuity, neither statute [5 USC 8332(j) and 8384(j)(1) ], nor regulations [5 CFR Part 831, Subpart U], require pre-separation counseling as to deposit election rights or deadlines. Holtermann v. OPM, 57 M.S.P.R. 380 (1993).

Because we have no record of any timely inquiry from you regarding this matter, we find that you did not exercise due diligence in pursuing the deposit option when it was still available. Therefore, you are not eligible to make a deposit at this time....

Collins timely appealed to the Board from OPM’s November 16, 1993 reconsideration decision.

III

The Board noted that during the telephonic hearing Collins testified that he was unaware when he retired of the need to make the deposit before he retired or before OPM finally adjudicated his application for retirement. Collins did not claim that he had been misinformed by any agency personnel, and candidly admitted that “he himself was to blame for his failure to make a timely deposit.” In response to Collins’ statement that he was unaware, the Board found

his testimony lacking in credibility because it is inconsistent with his conduct in signing OPM Form 1515, Military Service Deposit Election, opting not to make a deposit. This form, as signed by [Collins], acknowledges receipt by him of written information regarding the consequences of failing to make a timely deposit. Nonetheless, [Collins] freely elected not to make a deposit.

Finding no ground on which to excuse Collins from the consequences of his free election, the Board affirmed OPM’s reconsideration decision.

IV

Collins argues on appeal that he made a mistake in signing a form “that I didn’t understand the consequences of’ in terms of the amount of dollars that were at stake. According to Collins, OPM has reduced his annuity from $1390 to $845 per month, and his Social Security benefit of $268 per month does not cover the $545 monthly reduction in his annuity. Collins states that he is “willing to pay the 7% of my post 1956 military [pay] plus interest to make up for the mistake of signing form 1515.”

The government, in response, points us to the statutes and regulations that create Catch 62 and specify that deposits made to ensure full credit for post-1956 military service must be made before retirement or before OPM completes the processing of one’s retirement application. No statute or regulation provides for later tender of deposits, even with interest. The government contends that Collins has failed to establish any ground for relief from the regulatory time requirement for making a deposit. Finally, the government reminds us that the Board found incredible Collins’ argument that he did not understand the ramifications of the form he freely signed.

V

Although Collins characterizes the Catch 62 law and regulations as unfair to one who has served his country on the battlefield and in peace, he does not otherwise suggest that the law and regulations are invalid or unenforceable. Nor does Collins contend that he satisfies any of the grounds upon which the Board has found authority to relieve an applicant from the burdens of a regulatory restriction. In Speker v. Office of Personnel Management, 45 M.S.P.R. 380 (1990), aff'd, 928 F.2d 410 (Fed.Cir.1991) (Table), the Board enumerated three grounds for waiver of a regulatory deadline requirement: if (1) the regulation itself specifies circumstances for waiver, (2) affirmative misconduct by the agency warrants equitable estoppel of the regulatory provision, or (3) an agency fails to provide notice of election rights and corresponding deadlines, if such notice is required by statute or regulation. Id at 395.

With regard to the instant case, the pertinent regulations do not provide any opportunity for waiver of the deposit-making deadline dates. Collins makes no claim that agency misconduct caused his “mistaken” election, and the pertinent statutes and regulations do not require that notice be given to the annuitant. See Davis v. Office of Personnel Management, 918 F.2d 944, 946-47 (Fed.Cir.1990).

Collins in essence asks this court to add a fourth ground for relief from failure to meet statutory and regulatory requirements, namely, unilateral mistake in signing an unambiguous election form that notifies the signer of the consequences of election. The Board has previously rejected unilateral mistake as a ground for voiding freely made elections concerning survivor annuities. See Carlton v. Office of Personnel Management, 52 M.S.P.R. 225, 229 (1992) (mistaken election of full survivor annuity not voidable when agency acted properly).

We can think of no reason why the same view should not prevail in the setting of elections to deposit or not to deposit sums necessary to implement Catch 62. Indeed, that view is in harmony with and promotes the settled proposition that one is not relieved from the consequences of a written election absent a showing that mental incompetence, duress or fraud is the reason for an election one later seeks to void. Coleman v. Prudential Bache Sec., 802 F.2d 1350, 1352 (11th Cir.1986); Comprehensive Accounting Corp. v. Rudell, 760 F.2d 138, 140 (7th Cir.1985); Donovan v. Mercer, 747 F.2d 304, 308 n. 4 (5th Cir.1984); Fraass Surgical Mfg. Co. v. United States, 571 F.2d 34, 37-38, 215 Ct.Cl. 820 (1978); Richardson Camera Co. v. United States, 467 F.2d 491, 496, 199 Ct.Cl. 657 (1972); Schoeffel v. United States, 193 Ct.Cl. 923, 934-35, 1971 WL 3833 (1971); 1 Samuel Williston, A Treatise on the Law of Contracts, § 90A (3d ed. 1957); Restatement (Second) of Contracts § 23, comments b, e (1981).

Finally, we address briefly Collins’ suggestion that his election should be voided because he was not specifically informed about the dollar consequences of his election at the time it was made. Collins does not contend that he requested and was denied any specific information before making his election. Furthermore, his contention fails for want of any statutory or regulatory support for the proposition that the government, in the Catch 62 setting, is required to provide the annuitant with any information concerning the election. That OPM wishes to supply information concerning the election is beneficial, but not required.

The Board’s decision is

AFFIRMED.

No costs.