Pait v. Office of Personnel Management ( 2011 )


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  •          NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    __________________________
    MICHAEL DUEWAN PAIT,
    Petitioner,
    v.
    OFFICE OF PERSONNEL MANAGEMENT,
    Respondent.
    __________________________
    2010-3159
    __________________________
    Appeal from the Merit Systems Protection Board in
    Case No. PH-0831-10-024I-I-1.
    ______________________________
    Decided: January 11, 2011
    ______________________________
    MICHAEL DUEWAN PAIT, of Edgewater, Maryland, pro
    se.
    JESSICA R. TOPLIN, Trial Attorney, Commercial Litiga-
    tion Branch, Civil Division, United States Department of
    Justice, of Washington, DC, for respondent. With him on
    the brief were TONY WEST, Assistant Attorney General,
    JEANNE E. DAVIDSON, Director, and HAROLD D. LESTER,
    JR., Assistant Director.
    __________________________
    PAIT   v. OPM                                            2
    Before NEWMAN, FRIEDMAN, and LOURIE, Circuit Judges.
    PER CURIAM.
    A pro se retired federal employee challenges the Office
    of Personnel Management (“OPM”)’s refusal to permit
    him to reduce his wife’s survivorship annuity because he
    had not requested that change within 30 days of the
    receipt of his first retirement annuity check, as an OPM
    regulation required. The Merit Systems Protection Board
    (“Board”) upheld OPM’s ruling. We affirm.
    I
    Upon his retirement from government employment in
    March 2009, the petitioner, Michael Duewan Pait, elected
    a partial survivor annuity for his wife. That action re-
    duced Pait’s retirement annuity. He received his first
    retirement annuity check in June, 2009.
    On October 15, 2009, Pait submitted a request to
    OPM that his wife’s survivor annuity be “eliminated, or
    reduced to the lowest percentage amount” in order to
    increase his monthly retirement annuity. Pait’s wife
    submitted to OPM a notarized statement that she was in
    “full concurrence” with Pait’s request.
    OPM denied the request. It stated that because Pait’s
    request to change or eliminate his survivor election was
    made more than 30 days after he had received his first
    retirement check, under the governing OPM regulation (5
    C.F.R. 831.622(a)) he could no longer change his election.
    In her initial decision, which became final when Pait
    did not seek Board review of it, the Board’s administra-
    tive judge affirmed OPM’s decision. The administrative
    judge stated that the applicable regulation permits an
    employee to change an election to provide a spousal
    survivor’s annuity by filing with OPM, not later than 30
    3                                                PAIT   v. OPM
    days after receiving his first annuity check, a new elec-
    tion; and that Pait’s attempt to change his annuity, filed
    more than four months after he received that check, was
    untimely.
    The administrative judge further held that the
    grounds upon which Pait sought to justify his late filing—
    that at the time of his retirement his employing agency
    erroneously had understated the amount by which his
    annuity would be reduced if he provided a survivor annu-
    ity, and that his mental condition at that time precluded
    him from changing his election within the timeframe—did
    not excuse his failure to satisfy the regulatory time limit
    for filing. The administrative judge, after stating that she
    was “sympathetic” to Pait’s “situation” and “difficulties,”
    ruled that “it is well settled that a survivor annuity
    election is irrevocable, even when it was based on a mis-
    take” and that Pait’s “depression and anxiety also do not
    provide a basis for waiver of the deadline.”
    II
    The governing statute provides that an employee’s re-
    tirement annuity is reduced to provide for a survivor’s
    annuity for the spouse
    unless the employee or Member [of Con-
    gress] and the spouse jointly waive the
    spouse’s right to a survivor annuity in a
    written election filed with the [OPM] at
    the time that the employee or Member re-
    tires. Each such election shall be made in
    accordance with such requirements as the
    [OPM] shall, by regulation, prescribe, and
    shall be irrevocable.
    
    5 U.S.C. § 8339
    (j)(1).
    PAIT   v. OPM                                             4
    An OPM regulation provides that, with specified ex-
    ceptions here inapplicable,
    an employee or Member may not revoke or
    change the election or name another sur-
    vivor later than 30 days after the date of
    the first regular monthly payment.
    
    5 C.F.R. § 831.622
    (a).
    Thus, under the statute and regulation, a retired em-
    ployee’s initial election to provide the spouse with a
    retirement annuity may be changed only if the employee
    and spouse jointly file with OPM, within 30 days of the
    receipt of the employee’s first retirement check, a request
    to change the annuity. If such request has not been filed
    within 30 days, the retired employee’s original selection of
    the spousal retirement annuity is, under the statute,
    “irrevocable.” Pait’s selection of a survivor’s annuity for
    his wife, therefore, became irrevocable when he failed to
    seek to change it within 30 days after receiving his first
    retirement annuity check in June, 2009.
    Pait contends, however, that this court’s decision in
    James v. Office of Personnel Management, 
    372 F.3d 1365
    (2004), controls this case and requires reversal of the
    Board’s decision. According to Pait, James involved the
    “identical circumstances” as the present case, but reached
    the opposite result.
    We could summarily dispose of this argument by rul-
    ing that, because Pait apparently did not raise the James
    argument before the Board, he cannot raise it on appeal
    for the first time and we “will not consider the issue.”
    Bosley v. Merit Sys. Prot. Bd., 
    162 F.3d 665
    , 668 (Fed. Cir.
    1998). In the particular circumstances of this case, how-
    ever, in which Pait proceeded pro se before both the Board
    and this court and the James point appears to be his
    5                                                 PAIT   v. OPM
    major contention on appeal, we deem it appropriate to
    explain to Pait why his argument fails.
    James involved a different, although related, statute,
    which made unreviewable a retired employee’s election of
    a survivorship annuity for a spouse whom the employee
    married after retirement. James, who was unmarried
    when he retired, remarried 16 years later and elected a
    survivorship annuity for his wife. Although he intended
    to give her the minimum survivor annuity, to make her
    eligible for health insurance, he erroneously selected the
    maximum annuity. When James discovered his error, he
    requested OPM to authorize a new election of a $1
    monthly annuity for his wife. OPM declined to do so, and
    the Board affirmed.        They relied on 
    5 U.S.C. § 8339
    (k)(2)(A), “which states that the post-retirement
    election of a survivor annuity is ‘irrevocabl[e]’ after it is
    received by OPM.” James, 
    372 F.3d at 1367
    .
    This court affirmed. It pointed out that “[t]he statute
    allowing a retiree to make a post-retirement election of a
    survivor annuity for a new spouse . . . states that a retiree
    may ‘irrevocably elect’ such an annuity ‘in a signed writ-
    ing received in the Office [of Personnel Management],’” 
    id. at 1368
    , and that “[t]he regulation that applies to post-
    retirement elections provides that those elections become
    irrevocable when they are received by OPM.” 
    Id.
     at 1369
    (citing 
    5 C.F.R. § 831.631
    (b)(4)(i)). 
    Id. at 1369
    . Although
    James relied upon the same 30-day regulation involved in
    this case, this court rejected that argument, because
    “[t]hat regulation, however, appears to apply only to
    elections made at the time of retirement.” 
    Id.
    The holding in James was that because the statute
    there made a retired employee’s election of his new wife’s
    annuity “irrevocable” after OPM received it, the Board
    properly rejected James’ attempt to change his spousal
    PAIT   v. OPM                                             6
    survivor’s annuity. Indeed, this is an even stronger case
    than James for reaching the same result, since here there
    is not only the statutory irrevocability provision but also
    the failure to file within the 30-day regulatory require-
    ment.
    Pait relies upon this court’s reference in James to the
    Board’s footnote statement there in its order denying
    review of the administrative judge’s decision, “that Mr.
    James would be entitled to have his full retirement bene-
    fits restored without any reduction for a survivor annuity
    if Mr. James’s wife filed an irrevocable waiver declining to
    accept all or part of the survivor annuity,” 
    id.
     at 1367 – a
    ruling “the government ha[d] not contested.” 
    Id.
     at 1368
    n.1. There are significant differences between this case
    and James, however, that counsel against applying that
    statement here. A major difference is that here there was
    not only the irrevocability provision but also the 30-day
    limit for changing a survivor’s annuity, which did not
    apply in James.
    In James the retired employee intended to provide his
    wife with only the minimum annuity, but by checking the
    wrong box on the form he mistakenly gave her the maxi-
    mum one, thereby reducing his own monthly annuity from
    $4,159 to $3,019. 
    Id. at 1367
    . In the present case, how-
    ever, Pait selected the spousal annuity he initially in-
    tended, and subsequently changed his mind to provide a
    lesser annuity because the amount being withheld from
    his annuity was greater than his employer had estimated.
    In James, the retired employee intended to select a survi-
    vor annuity which would result in no reduction in his
    monthly annuity of approximately $4,159, but mistakenly
    selected a survivor annuity resulting in a reduction of his
    monthly annuity of approximately $1,140. 
    Id. at 1367
    . In
    the present case, Pait contends that he intended to select
    a survivor annuity which would reduce his monthly
    7                                              PAIT   v. OPM
    annuity of more than $4,000 by $27, but selected one
    which reduced it by $68. Finally, James upheld the
    denial of the retired employee’s own attempt to reduce his
    wife’s survivor annuity and merely noted that the Board
    had suggested that she file with OPM a waiver of her
    annuity claim. The present case similarly involves an
    attempt by the retired employee himself to cancel or
    reduce the annuity he initially provided for his wife, and
    does not refer to an independent attempt she might
    herself make to achieve the same result.
    CONCLUSION
    The decision of the Board is
    AFFIRMED.
    

Document Info

Docket Number: 2010-3159

Judges: Newman, Friedman, Lourie

Filed Date: 1/11/2011

Precedential Status: Non-Precedential

Modified Date: 3/2/2024