Nancy Sullivan, As Personal Representative for John V. Sullivan v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NANCY SULLIVAN, AS PERSONAL
REPRESENTATIVE FOR JOHN V. SULLIVAN,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1096
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0831-21-0314-I-1.
______________________
Decided: October 28, 2024
______________________
NANCY SULLIVAN, Fairfax Station, VA, pro se.
CHRISTOPHER BERRIDGE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represented
by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY.
______________________
Before PROST, TARANTO, and STARK, Circuit Judges.
Case: 24-1096 Document: 26 Page: 1 Filed: 10/28/2024

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SULLIVAN v. OPM 2
PER CURIAM.
Petitioner Nancy Sullivan, as personal representative
for her late husband John Sullivan, appeals the Merit
Systems Protection Board’s (“Board”) final order affirming
the computation method applied by the Office of Personnel
Management (“OPM”) to calculate the survivor annuity to
which Ms. Sullivan is entitled. The Board found OPM
applied the correct computation method. We agree and
affirm.
I
John Sullivan was a federal employee for more than 40
years. During his employment, Congress enacted the
Federal Employees’ Retirement System Act of 1986
(“FERSA”), which replaced the Civil Service Retirement
System (“CSRS”) with the Federal Employee Retirement
System (“FERS”). Mr. Sullivan earned CSRS retirement
benefits during his first 28 years of service. Then, in 1998,
Mr. Sullivan voluntarily chose to switch to FERS, enabling
him to earn FERS retirement benefits from 1999 through
his retirement in 2012.
Upon retirement, Mr. Sullivan began drawing annuity
benefits as a FERS annuitant who had also accrued
benefits under CSRS. FERSA, as well as implementing
regulations adopted by OPM, contains specific provisions
(discussed in detail below) for calculating a “compound
annuity” for employees, such as Mr. Sullivan, whose federal
service was partially under CSRS and partially under
FERS. Mr. Sullivan also elected to receive lower basic
annuity payments than he would otherwise have been paid
in order to fund a larger survivor annuity benefit for his
spouse, Ms. Sullivan. FERS, and OPM regulations, also
address such reductions in retiree annuities and,
consequently, increases in survivor annuities.
In 2018, Mr. Sullivan came to believe the calculation
OPM used to project Ms. Sullivan’s survivor annuity
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SULLIVAN v. OPM 3
benefits was inaccurate. He contacted OPM with his
concerns. OPM responded that its survivor benefit
calculation was correct, explaining that the “calculation for
the survivor benefit [was] 50%” of Mr. Sullivan’s
“unreduced gross annuity.” App’x 7.1 Mr. Sullivan replied
that OPM failed to account for the fact that his unreduced
gross annuity amount consisted of both CSRS and FERS
components, and as a result the survivor annuity needed
to be calculated based on CSRS’ 55% multiplier and FERS’
50% multiplier. After further back and forth, OPM issued
a decision rejecting Mr. Sullivan’s challenge to its
calculation. Upon Mr. Sullivan’s request, OPM granted
reconsideration, once again denying Mr. Sullivan’s
position.
Mr. Sullivan then appealed to the Board. On July 14,
2022, while his appeal was pending, Mr. Sullivan passed
away. Thereafter, Ms. Sullivan began receiving a survivor
annuity and also carried on the litigation.
In the Board’s initial decision, an administrative judge
(“AJ”) found that OPM had miscalculated Ms. Sullivan’s
survivor annuity. The AJ began by noting that the parties
agreed that Mr. Sullivan’s retirement annuity payments
were properly calculated as the sum of 55% of the CSRS
component and 50% of the FERS component. The AJ
concluded that OPM was required to use this same
computation method to calculate Ms. Sullivan’s survivor
annuity. In the AJ’s view, then, OPM erred by determining
that the survivor benefit was only 50% of the amount of Mr.
Sullivan’s retirement annuity, as this improperly reduced
the CSRS component.
1 References to “App’x” refer to the Appendix
submitted by Ms. Sullivan. References to “S. App’x” refer
to the Sup-plemental Appendix submitted by OPM.
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SULLIVAN v. OPM 4
OPM petitioned the Board to review the AJ’s initial
decision, and the Board reversed. It determined that
OPM’s calculation of the survivor annuity benefit was
correct. The Board focused its analysis on FERSA’s
requirements that, when an employee chooses to enter
FERS, the employee’s benefits – including survivor annuity
benefits – are thereafter governed by FERSA, and FERSA
unambiguously requires that survivor annuity benefits in
situations like Mr. Sullivan’s are calculated as (at most)
50% of retiree annuity benefits, regardless of how that
retiree annuity was itself calculated. Therefore, the Board
concluded, “we are left with the statement in § 302(a) of
FERSA . . . that FERS statutes relating to survivor benefits
shall apply to . . . individuals” such as Mr. Sullivan having
a combined CSRS-FERS annuity. App’x 5. Thus, the Board
concluded that OPM correctly calculated Ms. Sullivan’s
survivor annuity benefit as being 50% of Mr. Sullivan’s
retirement annuity.
Ms. Sullivan timely appealed to us under 5 U.S.C.
§ 7703(c)(1). We have jurisdiction to review the Board’s
final order under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C.
§ 1295(a)(9).
II
We must affirm the Board’s decision unless it is “found
to be (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). The burden of establishing reversible
error is on the appellant. See Harris v. Dep’t of Veterans
Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
III
A
It is undisputed that Mr. Sullivan elected to switch
from CSRS to FERS after accruing 28 years of credit under
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SULLIVAN v. OPM 5
CSRS. Likewise, it is undisputed that Mr. Sullivan’s basic
annuity benefits were properly calculated using the
compound computing method set out in 5 C.F.R.
§ 846.304(a)(1): 55% for the CSRA component (i.e., 1970
through 1998) plus 50% for the FERS component (i.e., 1998
through 2012). Finally, it is further undisputed that during
Mr. Sullivan’s lifetime he elected a voluntary 10%
reduction in his retirement annuity to ensure that, should
he predecease his wife, Ms. Sullivan would be paid the
maximum survivor annuity. App’x 2 (citing 5 U.S.C.
§ 8419(a)(1)).
The sole issue in dispute is the proper calculation of
that surviving spouse annuity. Ms. Sullivan contends – as
did Mr. Sullivan, and as the AJ agreed – that the surviving
spouse annuity must be calculated in the same manner
that Mr. Sullivan’s retirement annuity was calculated: 55%
for his CSRS credit years plus 50% for his FERS credit
years. OPM urges us to instead adopt the Board’s final
decision, which agreed with OPM that only the FERS
formula applies, meaning that Ms. Sullivan is entitled to
50% of Mr. Sullivan’s retirement annuity. We agree with
OPM.
Mr. Sullivan’s election to move from the CSRS
retirement system to the FERS retirement system made
him subject to FERS benefit calculation methods. See
App’x 4 (citing FERSA § 302 “Effect Of An Election Under
Section 301 To Become Subject To The Federal Employees’
Retirement System,” Pub. L. No. 99-335, 100 Stat. 514, 599
(1986)).2 In pertinent part, FERSA § 302 provides “[a]ll
2 The statutory provision on which the Board relied,
FERSA § 302, is not codified. Neither Mr. Sullivan, Ms.
Sullivan, OPM, nor the Board has ever suggested any
doubt that § 302 applies to this case. Thus, we limit our
review to the issue raised by the parties, which is solely
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SULLIVAN v. OPM 6
provisions” of FERSA “(including those relating to . . .
survivor benefits, and any reductions to provide for
survivor benefits) shall apply with respect to any
individual who becomes subject to such chapter pursuant
to an election under section 301,” unless FERSA explicitly
says otherwise. FERSA § 302.
In particular, FERSA § 302(a)(4) expressly
contemplates the situation we confront: (i) a combined
CSRS-FERS annuity, calculated for the retiree at 55% of
the CSRS component and 50% of the FERS component; (b)
a voluntary reduction by the retiree in the CSRS annuity
in order to fund the maximum survivor annuity; and (c) the
retiree passing away, giving rise to the necessity to
determine the survivor annuity. In such a circumstance,
the plain language of the statute requires that the “accrued
benefits [under FERSA] shall be computed in accordance
with applicable provisions of [the CSRS] (but without
regard to [5 U.S.C. § 8339] (j) or (k) . . . )”, where
subsections (j) and (k) apply to retiree-annuitant elections
to reduce CSRS annuities to fund survivor annuities under
CSRS. FERSA § 302(a)(4) (emphasis added); see also
FERSA § 302(a)(1)(B)(i). While subsections (j) and (k)
would, under CSRS, otherwise have required the CSRS
component of the survivor annuity to be calculated at 55%
of the retirement annuity, FERSA § 302(a)(4) excludes
these provisions from applying to a retiree who elects into
FERS. The result is that a provision of FERS, specifically
5 U.S.C. § 8442(a), governs, and § 8442(a) provides that the
survivor annuity is “equal to 50 percent of the annuity
computed under section 8415 [providing for the
computation of basic annuities under FERS] with respect
to the annuitant.” 5 U.S.C. § 8442(a)(1); see also App’x 5.
about the proper legal interpretation of FERSA § 302 (and
related statutes and regulations).
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SULLIVAN v. OPM 7
B
Ms. Sullivan raises numerous objections to the Board’s
analysis. We conclude that they lack merit.
First, the issue presented is not, as Ms. Sullivan
suggests, whether Congress intended to “create annuities
that were not compound in nature.” Petitioner’s Br. at 16.
Congress expressly contemplated that long-time federal
employees like Mr. Sullivan could have retirement
annuities consisting of both a CSRS component and a
FERS component, and set out the formulas (e.g., 55% CSRS
plus 50% FERS) to calculate the amount of such a
compound annuity. 5 C.F.R. § 846.304(a)(1); 5 U.S.C.
§ 8461(g). This case involves only a dispute as to the
amount of the survivor annuity determined from such a
compound retiree annuity, and, as explained above, we
agree with OPM’s calculation of that amount.
Second, Ms. Sullivan’s repeated reference to 5 C.F.R.
§ 846.304(a)(2) does not yield a different result. This
regulation provides: “The computation method described in
paragraph (a)(1) of this section” – i.e., “[t]he basic annuity
of an employee who elected FERS coverage is an amount
equal to the sum of the accrued benefits under CSRS . . .
and the accrued benefits under FERS,” which together “is
deemed to be the individual’s annuity under FERS” – “is
used in computing basic annuities” and is also used in
computing “survivor annuities.” 5 C.F.R. §§ 846.302(a)(1)
& (a)(3) (emphasis added). We agree with the government
that the phrase “is used in,” which relates to the
“computation method,” refers to “the combined CSRS and
FERS annuity sum that will eventually be used to calculate
the total survivor annuity benefit.” Respondent’s Br. at 18-
19. It does not, as Ms. Sullivan contends, compel OPM to
make the foregoing calculation of the retiree annuity and
then again make the same calculation to determine the
proportion of the retiree’s annuity that is payable to the
retiree’s surviving spouse. That latter calculation, like all
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SULLIVAN v. OPM 8
calculations after an employee opts into FERS, is governed
by FERS itself. See 5 C.F.R. § 846.305(a) (“Except as
provided by this part, CSRS provisions are not applicable
with respect to an individual who elects FERS coverage.”).
In sum, then, we agree with the government that “as
Section 302(a) instructs, being subject to the FERSA means
being subject to all of its provisions, unless there is an
articulated exception that applies.” Respondent’s Br. at 13.
While “FERSA provides an exception relevant to Mr.
Sullivan’s retirement benefits in section 302(a)(3)(A)(i),
where the FERSA specifically allows for the combined
computation of a[] [retirement] annuity for someone who
has elected FERS coverage and also has CSRS service,”
“the figure established from this calculation is the annuity
upon which other provisions of the FERSA applies,
including the FERS survivor annuity benefits rate.”
Respondent’s Br. at 13-14 (internal emphasis omitted;
citing 5 U.S.C. §§ 8415, 8419(a)(1), 8442(a)(1)). FERSA,
which undisputedly governs, requires computing Ms.
Sullivan’s survivor annuity at 50% of Mr. Sullivan’s
retirement annuity. As this is the calculation OPM made
and the Board affirmed, we affirm.
IV
We have considered Ms. Sullivan’s remaining
arguments and do not find them persuasive. Accordingly,
for the reasons set out above, we affirm the Board.
AFFIRMED
COSTS
No costs.
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