Roman v. Opm , 549 F. App'x 1010 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH ROMAN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3095
______________________
Petition for review of the Merit Systems Protection
Board in No. CH0841120605-I-1.
______________________
Decided: December 13, 2013
______________________
JOSEPH ROMAN, Hudson, Ohio, pro se.
WILLIAM J. GRIMALDI, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
MARTIN F. HOCKEY, JR., Assistant Director.
______________________
2 ROMAN v. OPM
Before O’MALLEY, WALLACH, and TARANTO, Circuit
Judges.
PER CURIAM.
Petitioner Joseph Roman appeals a final decision of
the United States Merit Systems Protection Board that
upheld the Office of Personnel Management’s computa-
tion of his survivor benefits under the Federal Employees’
Retirement System (FERS). Mr. Roman challenges the
statutory interpretation on which OPM relied for its
computation, as well as the processes used by OPM and
the MSPB to adjudicate his case. For the reasons set out
below, we affirm.
BACKGROUND
Mr. Roman is the surviving spouse of Laurie C. Ro-
man, a former federal employee who died in 1995. We
described the history of Mrs. Roman’s government service
in an earlier case, Roman v. Central Intelligence Agency,
297 F.3d 1363, 1364 (Fed. Cir. 2002) (Roman I). Mrs.
Roman worked full time for the Central Intelligence
Agency for six years before entering a period of leave
without pay, during which she was diagnosed with non-
Hodgkin’s lymphoma. After her diagnosis, Mrs. Roman
returned to work on a part-time basis and continued in
that capacity for two years. She took disability retire-
ment on August 30, 1995, and died on September 9, 1995,
at age 31. She is survived by Mr. Roman and the couple’s
daughter.
Under the FERS, a widower such as Mr. Roman may
be entitled to a basic survivor annuity, pursuant to 5
U.S.C. § 8442(a) and (g), and a supplemental survivor
annuity, pursuant to section 8442(f). There is no dispute
about the calculation of Mr. Roman’s basic FERS survivor
annuity. Based on our decision in Roman I, the parties
ROMAN v. OPM 3
agree that Mr. Roman is entitled to a survivor annuity of
$681 per month in 1995 dollars. 1 Mr. Roman was also
entitled to Social Security father’s benefits until the
couple’s daughter reached age 16. See 42 U.S.C.
§ 402(g)(1); id. § 402(s)(1). Although Mr. Roman was not
entitled to a FERS supplemental survivor annuity while
he was receiving Social Security benefits, see 5 U.S.C.
§ 8442(f)(4)(C), the parties agree that Mr. Roman became
eligible for a supplemental annuity in August 2008, when
his daughter reached age 16 and his Social Security
father’s benefits ended. The parties disagree, however,
about how to compute Mr. Roman’s supplemental annui-
ty.
On June 10, 2008, as Mr. Roman’s daughter was ap-
proaching age 16, Mr. Roman asked OPM for a supple-
mental annuity pursuant to section 8442(f). OPM
responded in a letter dated June 26, 2009, calculating Mr.
Roman’s monthly supplemental annuity to be $14 per
month, payable effective August 1, 2008. Later, in a
decision dated August 28, 2009, OPM revised its calcula-
tion down to $9 per month. Mr. Roman requested recon-
sideration on September 10, 2009, arguing that his
supplemental annuity should be $617 per month. On
June 2, 2010, OPM issued a decision reversing the August
28, 2009, decision and stating that a new decision ad-
dressing Mr. Roman’s concerns would be forthcoming.
OPM issued the new decision on December 6, 2010, main-
taining its $9 calculation. On December 30, 2010, Mr.
Roman appealed that decision to the MSPB. Reasoning
that OPM had not yet issued a final decision, the admin-
istrative judge granted OPM sixty days to issue a recon-
1 The parties agree that both the basic and supple-
mental annuities are ultimately adjusted for cost-of-living
increases, pursuant to 5 U.S.C. § 8462. For consistency,
the annuity amounts discussed here are in 1995 dollars.
4 ROMAN v. OPM
sideration decision, which OPM provided on April 21,
2011.
Mr. Roman appealed OPM’s decision and made sever-
al unsuccessful attempts to compel discovery. On July 13,
2011, the administrative judge issued an initial decision
affirming OPM’s April 21, 2011, decision. Mr. Roman
petitioned for review by the full Board on August 8, 2011,
and on March 22, 2012, the Board vacated the adminis-
trative judge’s initial decision. Questioning whether Mr.
Roman should be entitled to a supplemental annuity at
all, and also questioning OPM’s calculations of Mr. Ro-
man’s annuities, the Board directed OPM to issue a new
reconsideration decision explaining its findings “in plain
English . . . such that a lay person can follow the calcula-
tions step by step without cross-referencing materials.”
Roman v. Office of Pers. Mgmt., No. CH-0841-11-0257-I-1,
slip op. at 7 (M.S.P.B. Mar. 22, 2012) (non-precedential
order).
OPM issued its new final decision on June 20, 2012.
As the Board had directed, the decision explained each of
OPM’s calculations, including recitations of the relevant
statutes. Mr. Roman appealed. Mr. Roman’s challenge to
the June 20, 2012, decision was received on July 16, 2012,
docketed as a new appeal, and assigned to a new adminis-
trative judge. Mr. Roman proceeded to file new motions
to compel discovery, which the administrative judge
denied. Mr. Roman also filed a new brief on the merits.
On January 18, 2013, the administrative judge issued an
initial decision affirming OPM’s June 20, 2012, decision.
Roman v. Office of Pers. Mgmt., No. CH-0841-12-0605-I-1
(M.S.P.B. Jan. 18, 2013) (initial decision). That decision
became final thirty-five days later, pursuant to 5 C.F.R.
§ 1201.113. Mr. Roman now appeals to this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
ROMAN v. OPM 5
DISCUSSION
Our review of a final MSPB decision is governed by 5
U.S.C. § 7703(c), which provides that this court shall set
aside only those actions, findings, or conclusions that are
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” We review issues of statutory interpretation de
novo. Denney v. Office of Pers. Mgmt., 706 F.3d 1360,
1363 (Fed. Cir. 2013).
A
Mr. Roman’s appeal on the merits centers on the
proper interpretation of 5 U.S.C. § 8442(f), which sets out
the calculation of a survivor’s supplemental annuity.
Section 8442(f)(2) provides that a survivor’s supplemen-
tary annuity “shall be equal to the lesser of”
(A) the amount by which the survivor’s assumed
CSRS [Civil Service Retirement System] annuity
exceeds the annuity payable to such survivor un-
der subsection (a); or
(B) the amount determined under paragraph (3)
[an estimate of the survivor’s Social Security ben-
efits under certain assumed conditions].
The amount identified in section 8442(f)(2)(B) is not
disputed—the parties agree that it would be $782 per
month. The parties disagree, however, about the amount
of Mr. Roman’s assumed CSRS annuity identified in
section 8442(f)(2)(A).
A survivor’s assumed CSRS annuity is defined in sec-
tion 8442(f)(5):
For the purpose of this subsection, the term “as-
sumed CSRS annuity”, as used in the case of a
survivor, means the amount of the annuity to
6 ROMAN v. OPM
which such survivor would be entitled under sub-
chapter III of chapter 83 of this title based on the
service of the deceased annuitant, determined--
(A) as of the day after the date of the annuitant’s
death;
(B) as if the survivor had made appropriate appli-
cation therefor; and
(C) as if the service of the deceased annuitant
were creditable under such subchapter.
(Emphasis added.) The parties’ disagreement about the
amount of Mr. Roman’s assumed CSRS annuity comes
down to a dispute about the meaning of the term “ser-
vice.” In its June 20, 2012, decision, OPM noted that
“service” is defined by 5 U.S.C. § 8401(26) to mean “ser-
vice which is creditable under section 8411,” which OPM
concluded includes time Mrs. Roman actually worked,
plus a portion of the time she was on leave without pay—
a total of 9 years and 3 months. The administrative
judge’s decision now on appeal affirmed that conclusion.
Mr. Roman does not dispute that Mrs. Roman’s actual
service plus creditable time for leave without pay equals 9
years, 3 months, but contends that Mrs. Roman’s “service”
under section 8442(f)(5) must also include the period of
time between her death and the day she would have
turned 62, had she lived—sometimes called “imputed
service.” Thus, Mr. Roman argues that his wife’s total
“service” for purposes of section 8442(f)(5) is 39 years and
6 months.
OPM is correct that “service” is defined in section
8401(26) to mean “service which is creditable under
section 8411,” and in Roman I we determined that
“[s]ection 8411 defines creditable service to include both
actual service . . . and [leave without pay], . . . but does not
include imputed service.” 297 F.3d at 1367 (emphasis
added). Thus, our precedent as applied to the plain
ROMAN v. OPM 7
language of the statute forecloses Mr. Roman’s interpreta-
tion.
Even if our decision in Roman I were not dispositive,
we find Mr. Roman’s arguments regarding statutory
construction unpersuasive. Based on the fact that Mrs.
Roman’s service for purposes of calculating Mr. Roman’s
basic survivor annuity includes imputed service, Mr.
Roman argues that, for consistency, imputed service must
be included in the assumed CSRS calculation as well. He
also argues that the purpose of the supplemental annuity
is to replace the value of Social Security benefits when
such benefits are not payable, a purpose that would be
frustrated if he were to receive $9 per month as a re-
placement for a $782 per month Social Security benefit.
Mr. Roman’s argument regarding consistency ignores
the fact that for basic annuities for survivors of disability
annuitants, the statute specifically provides that “credita-
ble service shall . . . include the period of time between
date of death and the date of the sixty-second anniversary
of the birth of the annuitant,” in addition to the service
that would otherwise be creditable under section 8411. 5
U.S.C. § 8442(g)(2)(B)(ii)(II). That provision applies only
to basic survivor annuities “determined under subsection
(a).” 5 U.S.C. § 8442(g)(1). There is no similar reference
to supplemental survivor annuities determined under
subsection (f). Thus, the disparity Mr. Roman objects to is
written into the statute itself.
Mr. Roman’s argument regarding Congress’s intent is
also unavailing. First, the only authority Mr. Roman
cites for the proposition that supplemental survivor
annuities were intended to replace estimated Social
Security benefits is the MSPB’s March 22, 2012, non-
precedential order, which cites OPM’s CSRS and FERS
Handbook for Personnel and Payroll Offices, Section
51A1.1-1A. The cited chapter, however, concerns retiree
annuities, not survivor annuities. In any event, neither
8 ROMAN v. OPM
that material nor any other we have seen can override the
plain language of the statute.
Accordingly, we affirm the January 18, 2013 decision
upholding OPM’s interpretation of “service” for purposes
of section 8442(f) as excluding imputed service.
B
As to Mr. Roman’s due process complaints, we agree
with the administrative judge that Mr. Roman failed to
demonstrate any harmful procedural error.
Mr. Roman has not pointed us to any evidence indi-
cating that the denials of his motions to compel discovery
were arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. Instead, the record
reflects that Mr. Roman’s motions were denied because
the administrative judge found that OPM had adequately
responded to Mr. Roman’s requests and the additional
information sought was not relevant or reasonably calcu-
lated to lead to the discovery of admissible evidence. Mr.
Roman has also not shown how obtaining additional
discovery could have changed the outcome of his case, as
the controlling question of statutory interpretation is
decided by our decision in Roman I.
In addition, although Mr. Roman contends that harm-
ful error resulted from OPM’s failure to disclose regula-
tions supporting its analysis, OPM’s June 20, 2012
decision carefully set out the statutory basis for its calcu-
lations, and Mr. Roman has not pointed to any contrary
regulation or demonstrated that those calculations were
contrary to any law. In sum, the record reflects that Mr.
Roman had notice of OPM’s interpretation of “service” for
purposes of section 8442(f) and responded with extensive
briefing as to the merits of that interpretation.
Mr. Roman also argues that OPM erroneously with-
held $60 from his annuity payments without due process.
This was done to compensate for payments that were
ROMAN v. OPM 9
made based on OPM’s initial (and admittedly erroneous)
calculation of Mr. Roman’s supplemental annuity at $14
per month, which was later revised to $9 per month.
Because we affirm the administrative judge’s decision
upholding OPM’s revised calculation, and because Mr.
Roman made no claim for waiver of the overpayment
before the Board, we find no harmful error with respect to
OPM’s recovery of the $60 overpayment.
We have considered Mr. Roman’s additional argu-
ments regarding procedural error and find them unper-
suasive.
CONCLUSION
For the foregoing reasons, we affirm the decision of
the MSPB.
No costs.
AFFIRMED