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Law v. Office of Personnel Management

November 16, 1999

DIANE M. LAW, PETITIONER,
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.



Before Mayer, Chief Judge, Archer, Senior Circuit Judge, and Lourie, Circuit Judge.

The opinion of the court was delivered by: Per Curiam.

DECISION

Diane M. Law (Law) appeals the decision of the Merit Systems Protection Board (Board) affirming the action of the Office of Personnel Management (OPM) dismissing, as untimely, her application for disability retirement under the Civil Service Retirement System (CSRS). *fn1 Because we conclude that Law is not eligible to file an application for retirement under the CSRS based on her employment with the Navy, we affirm.

BACKGROUND

Law was employed by the Department of Health and Human Services (HHS) from November 1982 until January 1983, and by the United States Postal Service (USPS) from January 1983 to May 1986 and from August 1986 to November 1990. Law was subsequently hired by the Department of the Navy (Navy), Puget Sound Naval Shipyard, on a temporary appointment on March 20, 1994. The temporary appointment was converted to a term appointment on February 5, 1995. Law was separated from her position with the Navy on March 29, 1997.

Law applied for a disability retirement annuity under the CSRS on January 16, 1998. The OPM denied the application. First, OPM found Law was not eligible to apply for disability retirement based on her Navy employment because she was not covered under either the CSRS or the Federal Employees Retirement System (FERS) during that employment. Second, OPM found that although Law was covered by the CSRS during her employment with the USPS, her application for disability retirement was not received within one year of her separation from the USPS, as required under 5 U.S.C. § 8337(b) (1994).

Law appealed OPM's decision to the Board. In the Initial Decision, the AJ considered Law's employment with the Navy and determined that Law was not eligible to apply for disability retirement under either the CSRS or FERS based on her separation from the Navy on March 29, 1997. In so doing, the AJ relied on an earlier Board decision, Law v. Office of Personnel Management, No. SE-0831-97-0458-I-1 (October 30, 1997) (Law I). *fn2 In Law I, the Board denied Law's application to redeposit funds to the CSRS based on its determination that while Law was employed by the Navy, she had served under appointments excluded from coverage by the CSRS. The Board also noted that she had not elected to be covered by FERS during that employment.

The AJ then considered whether Law's application was timely as to her separation from the USPS in 1990. The AJ found that the application was not received within one year of that separation, and that because Law did not claim that she was mentally incompetent at the time of her separation or for the year thereafter, and the record is devoid of any such evidence, she was not eligible for a waiver of the filing period. Accordingly, the AJ affirmed OPM's dismissal of Law's application as untimely. The full Board denied Law's petition for review, and this appeal followed.

DISCUSSION

We may only set aside a decision of the Board when it is "(a) 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) (1994).

Law essentially contends that when her temporary appointment with the Navy was converted to a term appointment she should have been reinstated in the CSRS. Law argues that her application for disability under the CSRS is therefore timely based on her employment with the Navy. Law also argues that the AJ failed to consider OPM's regulations concerning temporary employees, and that the AJ improperly denied discovery regarding her retirement benefits.

The Board determined that Law was excluded by law from coverage under the CSRS during her employment with the Navy and that she did not elect coverage under FERS. See Law I, slip op. at 3-4; Law II, slip op. at 3. We conclude that Law is not eligible to apply for disability retirement under the CSRS based on her separation from the Navy on March 29, 1997 because she was not covered by the CSRS during that employment.

The Board also held that Law's application for disability retirement, if based on her service with the USPS, is untimely. The Board's analysis and holding is correct. However, we note that Law had previously withdrawn her CSRS contributions when she was separated from the USPS and was not eligible to redeposit her contributions while employed by the Navy. See Law I, slip op. at 2-3. Accordingly, the issue of the timeliness of her application for disability retirement under the CSRS based on her USPS employment may be moot.

Law also argues that the AJ erred in not considering OPM's regulations regarding temporary employees. Law cites an excerpt from the Federal Register explaining revisions to 5 C.F.R. Parts 213 and 316, and alleges that OPM improperly denied her benefits under these regulations. The regulations to which Law cites were amended to impose stricter service limits for temporary employees to ensure that employees who serve extended periods were not denied benefits because of their temporary status. See 59 Fed. Reg. 46895 (1994). However, these revised regulations do not apply to employees who were converted to term appointments. See id. at 46896. Law is just such an employee. Law served under a temporary ...


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