Anthony Bowden, Sr. v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY BOWDEN, SR.,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2023-2377
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0831-23-0285-I-1.
______________________
Decided: July 24, 2024
______________________
ANTHONY B OWDEN, SR., Washington, DC, pro se.
L IRIDONA SINANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, L ISA L EFANTE D ONAHUE, P ATRICIA M. MCCAR-
THY .
______________________
Before REYNA, T ARANTO, and HUGHES , Circuit Judges.
Case: 23-2377 Document: 27 Page: 1 Filed: 07/24/2024

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BOWDEN v. OPM 2
P ER CURIAM .
Petitioner Anthony Bowden, Sr. appeals a decision by
the Merit Systems Protection Board, affirming a final deci-
sion of the Office of Personnel Management to reduce
Mr. Bowden’s annuity when he became eligible to receive
social security old-age benefits. Because the Board cor-
rectly determined that Mr. Bowden was not eligible for en-
rollment in the Civil Service Retirement System (CSRS),
but was instead properly enrolled in CSRS Offset and his
annuity offset was therefore appropriate, we affirm.
I
A
On January 1, 1987, the Federal Employees Retire-
ment System (FERS) Act went into effect, replacing the
CSRS. See FERS Act of 1986, Pub. L. No. 99-335, 100 Stat.
514. At that time, CSRS became a closed system, and most
new or existing federal employees who were not already
covered by CSRS were automatically covered by FERS.
However, a small class of federal employees—those who
had at least five years of creditable civilian service prior to
1987—were not automatically enrolled in FERS. Instead,
employees who had at least five years of creditable service,
with at least one of the last two years being CSRS-covered
service,1 could be eligible for CSRS annuity coverage. See 5
U.S.C. § 8333 (“Eligibility for annuity”); see also Herrera v.
United States, 849 F.2d 1416, 1417 (Fed. Cir. 1988) (“[A]n
1 “Although most service as an employee of the fed-
eral government is creditable service, service that is cred-
itable service is not necessarily covered service.” Herrera,
849 F.2d at 1417. For example, although term or temporary
appointments are creditable towards years of civil service,
they are specifically excluded from CSRS coverage, and
therefore creditable but not covered service. See 5 C.F.R.
§ 831.201 (“Exclusions from retirement coverage”).
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BOWDEN v. OPM 3
applicant for a civil service annuity must meet the so-called
‘one-out-of-two’ [year] requirement [of 5 U.S.C. § 8333(b)]
before being eligible for any annuity—one of the last two
years of the applicant’s federal service must have been cov-
ered service or the applicant does not meet the criteria for
an annuity.”). Conversely, federal employees who had at
least five years of creditable civil service, but not the re-
quired one-out-of-two years of covered service (e.g., those in
term or temporary appointments), were not eligible for
CSRS annuity coverage. Herrera, 849 F.2d at 1417. In-
stead, those employees only had the option of enrolling in
FERS or CSRS Offset.
Under CSRS Offset, a federal employee receives both a
CSRS annuity and old-age benefits from the Social Secu-
rity Administration (SSA). See 5 C.F.R. § 831.1001. Upon
reaching the age of eligibility for social security old-age
benefits, the Office of Personnel Management (OPM) is re-
quired to reduce or offset the annuitant’s CSRS annuity by
the amount equal to their eligible monthly SSA benefits. 5
U.S.C. § 8349(a)(1). The record reflects that Mr. Bowden
enrolled in CSRS Offset. See SAppx. 6, 47.2
B
Between June 1979 and July 1987, Mr. Bowden held
multiple non-consecutive term or temporary civil service
appointments. It is undisputed that these appointments
were not retirement covered appointments. See SAppx 2.
On July 15, 1987, Mr. Bowden received his first retire-
ment-covered career appointment. Id. At that time,
Mr. Bowden’s July 1987 Standard Form (SF)-50 listed his
retirement plan as “FERS.” SAppx. 47. Although initially
placed in FERS, Mr. Bowden requested to be placed in
2 Citations to “SAppx.” refer to the Supplemental
Appendix accompanying Respondent Office of Personnel
Management’s Informal Brief, ECF No. 14.
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BOWDEN v. OPM 4
CSRS Offset in November 2007.3 See SAppx. 6, 47. Follow-
ing the correction, Mr. Bowden’s SF-50s listed him as cov-
ered by CSRS Offset. SAppx. 33–44.
Mr. Bowden retired on August 31, 2015, prior to turn-
ing 62. In a letter dated December 26, 2015, OPM informed
Mr. Bowden that, as required by law and in accordance
with CSRS Offset, his monthly annuity would be reduced
when he reached the age of 62 and became eligible for social
security old-age benefits. On December 23, 2021, after
Mr. Bowden had turned 62, OPM sent another letter in-
forming him that beginning in 2022, his monthly annuity
would be reduced by $1,406.30—the calculated offset
amount reflecting the portion of monthly social security
benefits he was now eligible for.
Subsequently, Mr. Bowden requested a recalculation of
his annuity and the offset amount, which OPM later con-
firmed was correctly calculated.4 On November 25, 2022,
3 The record indicates that although Mr. Bowden re-
quested CSRS Offset coverage in November 2007, he was
erroneously placed in FERS through February 28, 2008.
SAppx. 2–3. This error was properly corrected pursuant to
the Federal Erroneous Retirement Coverage Corrections
Act and is not at issue in this appeal. See Pub. L. No. 106-
265 tit. 2, 114 Stat. 770 (2000) (codified at 5 U.S.C. § 8331
note). Instead, the issue on appeal is whether Mr. Bowden
should have initially been placed in CSRS without the off-
set. 4 The record shows that on July 11, 2022, OPM sent
two letters to Mr. Bowden regarding this recalculation re-
quest. The first letter erroneously stated that
Mr. Bowden’s annuity would be recalculated to not include
the offset, SAppx. 29, while the second letter correctly
stated that the offset was required by law and confirmed
OPM’s earlier calculation, SAppx. 30. OPM also sent a
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BOWDEN v. OPM 5
Mr. Bowden wrote to OPM, requesting reconsideration of
its recalculation decision. In his request for reconsidera-
tion, Mr. Bowden stated that he believed he “should not be
on CSRS offset . . . [he] should be on CSRS” without the off-
set. SAppx. 32. OPM issued a final decision on January 20,
2023, affirming its initial recalculation decision after again
finding Mr. Bowden’s annuity and offset correctly calcu-
lated. OPM’s final decision also explained that all of
Mr. Bowden’s service prior to July 15, 1987, consisted of
term or temporary appointments that were not retirement
covered, and that CSRS was already “a closed system when
[he] became [retirement] covered” on July 15, 1987.
SAppx. 23. “Consequently, [Mr. Bowden] became subject to
CSRS-Offset.” Id.
On February 15, 2023, Mr. Bowden filed an appeal with
the Merit Systems Protection Board, challenging OPM’s fi-
nal decision. Once more, Mr. Bowden argued that he
should have been placed in CSRS, not CSRS Offset.
Mr. Bowden also asserted that he was not properly notified
of his CSRS Offset enrollment, and that he did not under-
stand the ramifications of such enrollment. On June 1,
2023, the MSPB issued an initial decision affirming OPM’s
final reconsideration decision. See SAppx. 1–18. The ad-
ministrative judge found that “[Mr. Bowden] was not eligi-
ble for CSRS” at the time of his enrollment, “and therefore
he was not entitled to elect it.” SAppx. 7. The administra-
tive judge also found that “the agency notified
[Mr. Bowden] of the retirement system in which he was
letter on October 31, 2022, again confirming that the offset
calculation was correct. SAppx. 31. It is unclear why the
initial incorrect letter was sent, but in its final recalcula-
tion decision, OPM acknowledged the error and affirmed
that the offset was nevertheless required by law, noting
that the “error does not serve to create rights for which
[Mr. Bowden is] not entitled.” SAppx. 24.
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BOWDEN v. OPM 6
placed . . . dating back to February 28, 2008.” SAppx. 7.
The MSPB’s initial decision became final on July 6, 2023,
after Mr. Bowden did not file a petition for review with the
Board.
Mr. Bowden timely appeals the Board’s final decision.
We have jurisdiction under 5 U.S.C. § 7703(b)(1) and 28
U.S.C. § 1295(a)(9).
II
Our review of MSPB decisions is limited by statute. We
must affirm the Board’s decision unless it is “found to be
(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); Whitmore v. Dep’t of Lab., 680 F.3d
1353, 1366 (Fed. Cir. 2012). “Under this standard, we will
reverse the MSPB’s decision if it is not supported by such
relevant evidence as a reasonable mind might accept as ad-
equate to support a conclusion.” Haebe v. Dep’t of Just., 288
F.3d 1288, 1298 (Fed. Cir. 2002) (citation and internal quo-
tation marks omitted).
III
On appeal, Mr. Bowden challenges the Board’s finding
that he was properly enrolled in CSRS Offset. Pet. Br. 19.
Mr. Bowden again argues that he should have been en-
rolled in CSRS without the offset. We disagree. As a matter
of law, Mr. Bowden could not have been enrolled in CSRS
without the offset.
The record shows that prior to 1987, Mr. Bowden held
only term or temporary appointments that were excluded
from CSRS coverage. SAppx. 6. When Mr. Bowden received
his first retirement-covered career appointment on July 15,
1987, CSRS was already a closed system. Id. Therefore, at
a minimum, Mr. Bowden could not have enrolled in CSRS
without offset unless he had at least five years of creditable
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BOWDEN v. OPM 7
service with at least one of the last two years being retire-
ment covered service. See 5 U.S.C. § 8333 (“Eligibility for
annuity”); see also Herrera, 849 F.2d at 1417. But
Mr. Bowden did not have the one-out-of-two years of re-
quired covered service, because none of the service prior to
his 1987 appointment was retirement covered service.
Thus, as a matter of law, Mr. Bowden was not entitled to
CSRS without offset and could not have elected it when he
finally became eligible for retirement coverage in July
1987. Instead, Mr. Bowden was only eligible for FERS or
CSRS Offset.
Because Mr. Bowden was correctly enrolled in CSRS
Offset—as he personally requested in November 2007,
SAppx. 47—OPM was required by law to reduce his annu-
ity when he turned 62 and became eligible for social secu-
rity benefits, see 5 U.S.C. § 8349. Mr. Bowden’s SF-50s
plainly listed which retirement plan he was enrolled in,
e.g., SAppx. 33–47, and multiple letters from OPM explic-
itly notified Mr. Bowden that his annuity would be reduced
when he became eligible for social security benefits, e.g.,
SAppx. 28, 30–31. Substantial evidence supports the
Board’s finding that Mr. Bowden received proper notice
that he was enrolled in CSRS Offset as well as details re-
garding when and how much his annuity would be offset.
Therefore, we affirm the Board’s decision.
IV
We have considered Mr. Bowden’s remaining argu-
ments and find them unpersuasive. Because Mr. Bowden
was not eligible for CSRS without the offset, and because
substantial evidence supports the Board’s findings that he
received proper notice, we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
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