Pait v. Office of Personnel Management , 406 F. App'x 484 ( 2011 )

NOTE: This disposition is nonprecedential.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.