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McMaster v. Office of Personnel Management

Decided: February 12, 1993.

PATRICIA M. MCMASTER, PETITIONER,
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.



Appeal from the Merit Systems Protection Board. Docket No. CH08469110082.

Before Rich, Mayer, and Lourie, Circuit Judges.

Per Curiam

DECISION

Patricia M. McMaster (McMaster) seeks review of the May 1, 1991 final decision of the Merit Systems Protection Board (MSPB or Board), Docket No. CH08469110082, affirming a reconsideration decision of the Office of Personnel Management (OPM) denying her untimely request to transfer from the Civil Service Retirement System (CSRS) to the Federal Employees Retirement System (FERS). We affirm.

Discussion

The Federal Employees Retirement System Act, enacted June 6, 1986, provided a six-month open season from July 1, 1987 through December 31, 1987 for individuals subject to CSRS coverage to transfer to FERS coverage. OPM later authorized a second six-month open season, lasting until June 30, 1988, to allow for belated elections under certain circumstances. An employing agency could accept a belated election under 5 C.F.R. § 204(a) if: (1) the FERS transfer handbook was unavailable during the transfer period; or (2) the individual was unable to elect the FERS for causes beyond his or her control.

On October 8, 1987, McMaster elected in writing not to transfer her coverage to FERS. She made this decision after reviewing the information in the FERS Transfer Handbook issued by OPM and an October 2, 1987 Personnel Information Bulletin*fn1 issued by the Department of Veterans Affairs (DVA), her employer. According to McMaster, "being a cautious person, not wanting to lose any of my retirement benefits as close to the end of my career, I opted to stay with CSRS."

However, on December 5, 1989, seventeen months after the close of the "belated election" period, McMaster submitted an election of FERS coverage. DVA submitted her request to OPM subsequent to which McMaster's request was denied. The Board affirmed OPM's decision in light of McMaster's failure to establish that she qualified under the limited circumstances under which a belated election may be allowed pursuant to 5 C.F.R. § 846.204(a). Among other things, the Board concluded that McMaster was provided with the FERS Transfer Handbook and that, although the uncertainty of the congressional action regarding the PPO exemption made the decision whether to elect FERS coverage more difficult, the situation did not amount to circumstances beyond McMaster's control.

This Court's scope of review of an MSPB decision is limited by statute. 5 U.S.C. § 7703(c). The MSPB decision must be affirmed unless it is arbitrary, capricious, not in accordance with law, obtained without procedures required by rule, law, or regulations, or unsupported by substantial evidence. See, Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). Finding none of these grounds present here, we affirm.

Disposition

We ...


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