Theodore W. Makse v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
THEODORE W. MAKSE,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2010-3156
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. CH0831090779-I-1.
____________________________
Decided: January 14, 2011
____________________________
THEODORE W. M AKSE, of Mentor, Ohio, pro se.
RICHARD P. SCHROEDER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. D AVIDSON , Director, and FRANKLIN E.
WHITE , J R ., Assistant Director. Of Counsel on the brief
was JESSICA S. JOHNSON , Office of General Counsel, Office
of Personnel Management, of Washington, DC.

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MAKSE v. OPM 2
__________________________
Before LOURIE, BRYSON, and PROST, Circuit Judges.
PER C URIAM.
Theodore Makse appeals from the decision of the
Merit Systems Protection Board (“the Board”) affirming
the Office of Personnel Management’s (“OPM’s”) calcula-
tion of his retirement annuity. See Makse v. Office of
Pers. Mgmt., No. CH-0831-09-0779-I-1 (M.S.P.B. Nov. 12,
2009) (“Initial Decision”); Makse v. Office of Pers. Mgmt.,
No. CH-0831-09-0779-I-1, 113 M.S.P.R. 303 (M.S.P.B.
Feb. 5, 2010) (“Final Order”).
For the reasons discussed below, we affirm.
BACKGROUND
Makse began his federal civil service in 1971 at the
Veterans Affairs Medical Center (“VAMC”). In 1981, he
sustained an on-the-job injury and began receiving bene-
fits, pursuant to the Federal Employees’ Compensation
Act (“FECA”), from the Office of Workers’ Compensation
Programs (“OWCP”). Makse resigned from his position as
a Utility Systems Repairer-Operator in 1985 and chose to
receive a refund of the retirement contributions he had
made up until that time. In 1996, he was rehired by the
VAMC as a part-time Food Service Worker.
Makse was working as a Security Clerk at the VAMC
when he retired from federal civil service in January
2008. At that time, he had the option of electing to re-
ceive Civil Service Retirement System (“CSRS”) annuity
benefits or continuing to receive OWCP benefits for his
prior injury. He chose to receive the OWCP benefits. As
a result, his CSRS annuity was suspended.
After his retirement, however, Makse requested and
received a computation of his CSRS annuity from OPM,

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MAKSE v. OPM 3
which reflected the annuity he would receive were he to
choose to decline the OWCP benefits and unsuspend the
payment of his annuity. Being dissatisfied with OPM’s
computation, he requested reconsideration of his CSRS
benefits, specifically requesting that the annuity be
recalculated based upon rates he would have received had
he continued to work as a utility systems repairer-
operator until his retirement. Thus, Makse requested
that his CSRS benefits be calculated based on the 2006-08
salary for a WG-11, Step-05, employee instead of the rates
that were in effect at the time he held that position. The
OPM issued a letter to Makse explaining the basis on
which it calculated his annuity. In addition, the letter
explained his options in repaying the retirement contribu-
tions he had withdrawn in 1985, upon leaving his position
as a utility systems repairer-operator. OPM further
informed him that he had been overpaid for an interim
payment and demanded repayment. In sum, the OPM
denied Makse’s request for reconsideration of its first
calculation and demanded he repay OPM $712. He
appealed to the Board.
The Board assumed jurisdiction of the appeal pursu-
ant to 5 U.S.C. §§ 7701(a) and 8347(d), on the ground that
OPM’s calculation constituted an administrative action
affecting Makse’s rights or interests. During the course of
the proceedings before the administrative judge (“AJ”),
issues relating to Makse’s repayment of the retirement
funds, with interest, that he had taken as a distribution
in 1985 were resolved. In addition, the parties agreed
that for purposes of calculating the length of his service,
Makse is entitled to full-time credit for all periods in
which he received OWCP benefits for hours exceeding
those he was able to work. Accordingly, those issues are
not before us.

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MAKSE v. OPM 4
In determining the appropriate annuity to which
Makse is entitled, the AJ explained that “[f]or purposes of
computing a CSRS annuity under 5 U.S.C. § 8339(a),
‘average pay’ is defined as ‘the largest annual rate result-
ing from averaging an employee’s rates of basic pay in
effect over any [three] consecutive years of creditable
service.’” Initial Decision at 4 (citing 5 U.S.C. § 8331(4))
(emphasis added). The AJ then held that the words “in
effect” in the statute limited the pay rates to the applica-
ble rates “at the time an employee was receiving pay at a
particular grade.” Id. Thus, it was Makse’s pay at the
time he earned it that formed the basis for the high-three
calculation, not the pay rate in effect for a WG-11, Step-
05, employee in the three years preceding his retirement.
Makse petitioned for review by the full Board.
The Board denied Makse’s petition, concluding that
there was no new, previously unavailable evidence and
that the AJ made no error of law that affected the out-
come. The AJ’s initial decision thereupon became the
final decision of the Board.
Makse timely appealed to this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can set aside the Board’s decision
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, 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).
The Board had jurisdiction of this matter because
OPM’s ruling affected Makse’s rights and interests. 5

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MAKSE v. OPM 5
U.S.C. § 8347(d)(1). In particular, although his CSRS
benefits were suspended, the rate that was calculated was
the rate applicable to him if he chose to accept it; it is the
rate that will be applied if he elects not to receive OWCP
distributions in the future or if those distributions are
halted for any reason. His right in the annuity appar-
ently continues, even though he currently elects not to
receive that benefit in order to receive another, greater,
benefit to which he is entitled.
Makse argues that OPM misapplied the high-three
rule, which dictates that retirement benefits are derived
from averaging a retiree’s salary in three consecutive
years of creditable service—those years in which the
retiree earned his highest salary. Specifically, Makse
argues that OPM’s calculations are in conflict with FECA,
which states that an employee should not be prejudiced
based on an injury received on the job. Makse also argues
that OPM’s calculations are in conflict with the OWCP.
Makse requests that we reverse the Board’s decision and
implement a rule or guidelines allowing cost of living
increases to be included in retirement calculations, to
ensure that injured workers do not suffer a loss in retire-
ment benefits.
The government responds that Makse has not demon-
strated that the rules, regulations, or statutory provisions
used for calculating FECA benefits apply to the calcula-
tion of potential CSRS benefits. The government notes
that FECA benefits are governed by chapter 81, title 5, of
the United States Code, whereas CSRS benefits are
governed by chapter 83 of that title. The government
further explains that while the statute and its implement-
ing regulation do suggest that federal employees injured
on the job should not incur a loss of benefits they would
have received if not for the injury, that language is lim-
ited to situations in which employees take temporary

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MAKSE v. OPM 6
leave as a result of their injuries and then return to work.
Lastly, the government notes that cost of living adjust-
ments are factored into OWCP benefits, such as those
Makse has chosen to receive.
We affirm the Board’s decision interpreting and ap-
plying 5 U.S.C. § 8331(4) in determining Makse’s annuity
payments pursuant to 5 U.S.C. § 8339(a). Section 8331(4)
defines “average pay,” which is used to calculate an
annuity payment, as “the largest annual rate resulting
from averaging an employee's . . . rates of basic pay in
effect over any 3 consecutive years of creditable service . .
. .” 5 U.S.C. § 8331(4). The Board correctly concluded
that the words “in effect” mean that average pay is de-
termined by averaging three years of salary rates as they
existed in the years the employee held a position. The “in
effect” language does not encompass calculation of aver-
age pay over years in which an employee has not served
in a particular position.
The statute also does not reference FECA, and there
is no reason to read in a section of FECA to interpret the
clear language of § 8331. Nor does § 8151 of FECA and
its implementing regulation provide a different answer.
That section provides in relevant part that “[i]n the event
the individual resumes employment with the Federal
Government, the entire time during which the employee
was receiving compensation under this chapter shall be
credited to the employee for the purposes of within-grade
step increases, retention purposes, and other rights and
benefits based upon length of service.” 5 U.S.C. § 8151(a).
However, as we held in True v. Office of Personnel Man-
agement, 926 F.2d 1151, 1155 (Fed. Cir. 1991), the plain
language and legislative history of that provision indicate
that it does not apply to annuity computation under the
civil service retirement provisions. We therefore decline

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MAKSE v. OPM 7
to read language from FECA into the sections governing
calculation of CSRS benefits.
CONCLUSION
The Board affirmed OPM’s calculation of retirement
benefits based on a correct interpretation and application
of the law. Accordingly, we affirm the Board’s decision in
favor of the government.
AFFIRMED
COSTS
No costs.

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