Clyde B. Washburn v. Office of Personnel Management

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3147
CLYDE B. WASHBURN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
____________________________
DECIDED: November 17, 2006
____________________________
Before LOURIE, SCHALL, and DYK, Circuit Judges.
Opinion for the court filed by Circuit Judge LOURIE. Dissenting opinion filed by Circuit
Judge DYK.
LOURIE, Circuit Judge.
DECISION
Clyde B. Washburn (“Washburn”) appeals from the final decision of the Merit
Systems Protection Board (“the Board”) affirming the decision of the Office of Personnel
Management (“OPM”) that denied his request for military service credit under the Civil
Service Retirement System (“CSRS”). Washburn v. Office of Pers. Mgmt., DC-0831-05-
0557-I-1 (M.S.P.B. Jan. 19, 2006). Because we see no error in the Board’s

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determination that Washburn failed to establish that he was entitled to the requested
benefit, we affirm.
BACKGROUND
Washburn retired from the Department of the Army on May 3, 2003 with a
military service time credit of one year and twenty-two days. Washburn did not make a
deposit payment for an annuity attributable to that one year and twenty-two day active-
duty service time prior to retiring, and his CSRS annuity payment was reduced at age
sixty-two when he became eligible for Social Security because his military service credit
was no longer included in the calculation of his benefit.
Upon learning of the benefit reduction, Washburn filed an appeal to the OPM on
April 14, 2005, stating that he was not aware of his entitlement to receive credit for
military service time prior to retiring, and seeking to pay the required deposit. On May
23, 2005, the OPM determined that Washburn was adequately notified of the need to
pay the deposit prior to retiring, that he failed to make the deposit during the required
time period, and that the reduction of Washburn’s annuity upon reaching age sixty-two
and becoming eligible for Social Security was therefore required.
Washburn timely appealed the decision of the OPM to the Board. On September
30, 2005, the Administrative Judge (“AJ”) affirmed the decision of the OPM. The AJ
determined that the documentary evidence consistently supported a finding that
Washburn had clear notice that he had to make a deposit for his military service in order
to avoid losing credit for that service at age sixty-two when he was eligible for Social
Security, and that he failed to do so. The AJ also determined that in light of that
unrebutted evidence, Washburn’s uncorroborated and unsworn statement that he was
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unaware of the need to make the deposit was insufficient to carry his burden of proving
eligibility for benefits by a preponderance of the evidence.
On January 19, 2006, the initial decision became the final decision of the Board.
See 5 C.F.R. § 1201.113. Washburn timely appealed to this court, and we have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision of the Board is limited. We
must affirm the Board’s decision unless it was “(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); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d
1307, 1311 (Fed. Cir. 2003). Washburn has the burden of proving entitlement to
retirement benefits by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2); see
also Licausi v. Office of Pers. Mgmt., 350 F.3d 1359, 1364 (Fed. Cir. 2003).
On appeal, Washburn argues that he was not informed that he would be eligible
for the post-1956 military service credit only if he paid the deposit prior to his retirement.
The government responds that the Board’s decision is supported by substantial
evidence.
We agree with the government that the Board correctly decided that Washburn
was not entitled to the retirement benefit at issue. Under the Omnibus Budget
Reconciliation Act of 1982, Pub. L. No 97-253, §§ 306-07, 96 Stat. 763, 795-96 (1982),
civil service retirees who retired after September 8, 1982 and performed active duty
military service after December 31, 1956 may receive credit for that military service
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under both CSRS and Social Security. In order to receive credit from CSRS for that
military service upon reaching age sixty-two and becoming eligible for Social Security,
the retiree must pay a deposit of seven percent of his or her estimated earnings or basic
pay for the credited service time prior to retirement. If the deposit is not made prior to
retirement, the retiree’s payment is recomputed upon reaching age sixty-two and
verification of Social Security eligibility without credit for the post-1956 military service.
Washburn bears the burden of proving by a preponderance of the evidence that
he is entitled to the claimed retirement benefit. 5 C.F.R. § 1201.56(a)(2). Based on
evidence including Washburn’s SF 2801 retirement application form and OPM Form
1515, the Board found Washburn had adequate notice of the consequences of failing to
pay the deposit to secure credit for his military service before retiring from his employing
agency. Washburn’s SF 2801 form indicates that he was aware that he had post-1956
military service and that he had not paid a deposit to his employing agency for that
service. Although the AJ advised Washburn of the need to address the record
documents submitted by the OPM, he did not challenge them before the AJ, nor did he
challenge the record in his appeal to this court. In addition, the SF 2801-1 form that is a
required attachment to the SF 2801 retirement application details the amount of post-
1956 military service time credited to Washburn at the time of his retirement. Although
the signature block of the SF 2801-1 form was stamped “unavailable to sign,” and
although the information on the form was certified by the Army on May 20, 2003, after
Washburn’s retirement, Washburn, again, did not challenge the relevance or accuracy
of the SF 2801-1 document before the AJ or in his appeal here.
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In light of this unchallenged documentary evidence, substantial evidence
supports the Board’s decision that Washburn failed to prove he is entitled to the
retirement benefits at issue by a preponderance of the evidence. We have considered
Washburn’s additional “Memorandum of [Appeal]” received on September 11, 2006, but
find no new challenge to the documentary evidence. We therefore affirm the Board’s
decision.
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NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3147
CLYDE B. WASHBURN,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
DYK, Circuit Judge, dissenting.
The petitioner is a retired federal employee who, prior to his retirement, failed to
pay the deposit required to receive retirement credit for his active-duty military service
pursuant to 5 U.S.C. § 8334(c) (2000). The petitioner contends that he is entitled to
make a late payment and receive credit. The Merit Systems Protection Board (“MSPB”)
assumed, and the parties appear to agree, that petitioner was entitled to notice (prior to
his retirement) as to the dates of any creditable military service. The Office of
Personnel Management (“OPM”) does not dispute that the failure to provide such notice
before the effective date of the retirement would entitle petitioner to pay the deposit late
and to receive any appropriate credit.
OPM contends, and the Board agreed, that Washburn received notice of his
creditable military service from contemporaneous documents. The only document
relied on by the Board, OPM, and the majority that noted the fact that Washburn had
creditable military service was Form 2801-1. However, on its face Form 2801-1 was

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dated May 20, 2003, over two weeks after Washburn’s retirement date (May 3, 2003)
and almost two months after he submitted his retirement application (March 25, 2003).
The Board opinion did not address this discrepancy, stating in a conclusory fashion that
“[t]he appellant’s retirement application also included an OPM SF 2801-1 form,” nor
does the majority address the discrepancy in the dates. On appeal we requested that
OPM address this discrepancy. In response, OPM merely pointed to a checklist
supposedly included in the retirement application that noted that the Form 2801-1 was
attached. The clear post-retirement date of Form 2801-1 makes this checklist of
dubious value, and the date on the checklist itself is illegible. In my opinion, the Board’s
conclusion that Washburn had notice of his creditable military service was not
supported by substantial evidence. I would vacate the Board’s decision and remand for
further proceedings.
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