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\deflang1033\pard\plain\f3\fs17 
\par No. 94-1881
\par 
\par In The Supreme Court of The United States
\par 
\par OCTOBER TERM, 1995
\par 
\par BENNIE COLLINS, PETITIONER
\par 
\par v.
\par 
\par OFFICE OF PERSONNEL MANAGEMENT
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE FEDERAL CIRCUIT
\par 
\par BRIEF FOR THE RESPONDENT IN OPPOSITION
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par FRANK W. HUNGER
\par Assistant Attorney General
\par 
\par DAVID M. COHEN
\par MARC RICHMAN
\par RICHARD E. RICE
\par Attorneys
\par 
\par Department of Justice
\par Washington, D.C. 20530
\par (202)514-2217
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par      QUESTION PRESENTED
\par 
\par Whether the Office of Personnel Management erred
\par in declining to permit petitioner to rescind a written
\par election made at the time of his retirement, when the
\par election was not the product of government error or
\par misinformation.
\par 
\par (I)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par TABLE OF CONTENTS
\par 
\par Page
\par 
\par Opinions below  . . . . 1 
\par Jurisdiction  . . . . 1
\par Statement  . . . . 2
\par Argument  . . . . 4
\par Conclusion  . . . . 8
\par 
\par      TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par Davis v. OPM,  918 F.2d 944(Fed. Cir. 1990)  . . . . 7 
\par Holtermann v. OPM, 57 M. S. P.R. 380(1993)  . . . . 5, 7
\par Nordstrom v. United States, 342 F.2d 55(Ct. Cl.
\par 1965)  . . . . 7
\par Speker v. OPM, 45 M.S.P.R. 380 (1990), aff 'd, 928
\par F.2d 410 (Fed. Cir. 1991)  . . . . 7 
\par Templeton v.  OPM, 951 F.2d 338 (Fed. Cir. 1991) . . . . 6-7
\par  
\par Statutes and regulations:
\par 
\par 5 U.S.C. 8332(j)  . . . . 3, 4 
\par 5 U.S.C. 8334(j)  . . . . 5
\par 5 C. F. R.:
\par Section  831.2104(b)  . . . . 5 
\par Section 831.2105(b)  . . . . 5
\par Section 831.2107(b)(1)  . . . . 5
\par  
\par Miscellaneous:
\par 
\par S. Rep. No. 504, 97th Cong., 2d Cong., 2d Sess.
\par (1982)  . . . . 4, 5 
\par 
\par (III)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par In the Supreme Court of the United States
\par 
\par       OCTOBER TERM, 1995
\par 
\par         No. 94-1881
\par 
\par     BENNIE COLLINS, PETITIONER
\par 
\par          v.
\par 
\par    OFFICE OF PERSONNEL MANAGEMENT
\par 
\par    ON PETITION FOR A WRIT OF CERTIORARI
\par   TO THE UNITED STATES COURT OF APPEALS
\par       FOR THE FEDERAL CIRCUIT
\par 
\par 
\par BRIEF FOR THE RESPONDENT IN OPPOSITION
\par 
\par       OPINIONS BELOW
\par 
\par The opinion of the court of appeals (Pet. App. 1-17)
\par is reported at 45 F.3d 1569. The final order of the
\par Merit Systems Protection Board (Pet. App. 18-19) is
\par unreported, but the decision is noted at 63 M.S.P.R.
\par 69 (Table). The opinion of the Administrative Judge
\par (Pet. App. 20-29) is unreported.
\par 
\par        JURISDICTION
\par 
\par The judgment of the court of appeals was entered on
\par January 24, 1995. The petition for a writ of certiorari
\par was filed on April 24, 1995. The jurisdiction of this
\par Court is invoked under 28 U.S.C. 1254(1).
\par 
\par (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2
\par 
\par       STATEMENT
\par 
\par 1. Petitioner retired from the military in 1968
\par after 20 years of active service; he retired from his
\par subsequent civilian position with the government in
\par 1988, at age 57. Pet. App. 4. At the time of his civ-
\par il service retirement, petitioner executed a stan-
\par dard form (OPM Form 1515), entitled "MILITARY
\par SERVICE DEPOSIT ELECTION." Ibid. This form
\par stated:
\par 
\par Our records indicate that you * * * had
\par military service after 1956 and are eligible for a
\par civil service annuity. If you are eligible for a
\par Social Security benefit which includes credit for
\par this military service (or will be eligible at age 62)
\par you must either make a deposit for the military
\par service to the Civil Service Retirement System
\par or your civil service benefits will be reduced at
\par age 62 unless you are eligible for a guaranteed
\par minimum annuity.
\par 
\par Id. at 4-5 (emphasis added).
\par The election form also explicitly cautioned peti-
\par tioner to read. an attached information sheet "care-
\par fully to be sure you understand the consequences
\par of not making the [required] deposit for military
\par service."  Pet. App. 5. The attachment informed
\par petitioner that he "ha[d] the option of either (1)
\par making the deposit and thereby avoiding a reduction
\par in [civil service retirement] annuity at age 62 * * *,
\par when the military service is credited for Social
\par Security purposes, or  (2) not making the deposit and
\par having the annuity adjusted at 62." Ibid.
\par Petitioner signed the election form, indicating that
\par he had read the "information concerning [his] rights
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3
\par 
\par to make deposit for post-1956 military service" and
\par that he had "decided not to make (or complete) this
\par deposit." Pet. App. 6. Petitioner thus chose, at the
\par time of his retirement, not to make the deposit and to
\par have his civil service retirement annuity reduced at
\par age 62 when his military service would be credited for
\par social security purposes. Id. at 7-8.
\par 2. In 1993, after petitioner became 62, OPM re-
\par computed his civil service retirement annuity as
\par required by law, see 5  U.S.C. 8332(j), and his annuity
\par was reduced from $1390 to $845 per month. The social
\par security benefit of $268 per month he began receiv-
\par ing at age 62 is smaller than this reduction in his
\par annuity. Pet. App. 8. Petitioner requested permis-
\par sion to make the required deposit in order to retain
\par credit toward his civil service retirement annuity for
\par his post-1956 active military service. OPM denied
\par this request because there was no evidence that
\par government error was responsible for petitioner's
\par failure to submit the deposit at the time of his
\par retirement.  Id. at 30-34.
\par 3. The Merit Systems Protection Board (MSPB)
\par affirmed. Pet.  App. 20-29. The Administrative Judge
\par (AJ) found that neither the statute nor its imple-
\par menting regulations "requires either pre-separation
\par counseling concerning or notice of the potential
\par impact. of the statutory and regulatory provisions."
\par Id. at 26-27. Moreover, although petitioner testified
\par that he never understood the ramifications of his
\par 1988 election, the AJ rejected petitioner's testimony
\par as "lacking in credibility" and found that, "before
\par electing not to make a deposit, [petitioner] was
\par clearly on notice of the consequences of such an
\par action." Id. at 26. The Board denied petitioner's
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par petition for review, making the decision of the AJ
\par final. Id. at 18-19.
\par 4. The court of appeals affirmed. Pet. App. 1-11.
\par The court found no basis for reopening the matter,
\par reasoning that "unilateral mistake in signing an
\par unambiguous election form that notifies the signer
\par of the consequences of election" is not a ground
\par for voiding a freely made election. Id. at 10. The
\par majority believed that this "view is in harmony with
\par and promotes the settled proposition that one is not
\par relieved from the consequences of a written election
\par absent a showing that mental incompetence, duress or
\par fraud is the reason for an election one later seeks
\par to void." Id. at 1O-11. Judge Newman dissented on the
\par ground that petitioner lacked the information neces-
\par sary to exercise informed consent. Id. at 12-17.
\par 
\par        ARGUMENT
\par 
\par Petitioner's ease centers on his failure to take
\par advantage of a statutorily authorized procedure to
\par avoid what Congress has called "Catch-62." See S.
\par Rep. No. 504, 97th Cong., 2d Sess. 231 (1982). Prior to
\par 1982, a federal employee's civil service retirement
\par annuity was reduced when the employee reached age
\par 62 if the employee had served in the military after
\par 1956 and if those post-1956 years of military service
\par had been used in calculating the employee's total
\par government service for purposes of his or her
\par retirement annuity. Ibid.; see 5 U.S.C. 8332(j). The
\par rationale for this reduction was that post-1956 mili-
\par tary years are automatically creditable for purposes
\par of Social Security. Without the reduction, employees
\par reaching age 62 (when social security eligibility be-
\par gins) would receive credit in two retirement systems
\par for the same years of service. On the other hand,
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 5
\par 
\par "[t]he additional social security benefit gained for
\par these years of military service often [did] not match
\par the reduction in the civil service annuity." S. Rep.
\par No. 504, supra, at 231.
\par In dealing with this problem, Congress chose not to
\par eliminate the age 62 retirement-annuity reduction in
\par its entirety. Instead, in 1982 Congress enacted a
\par statutory procedure that employees could use to avoid
\par the reduction if they so chose.  Under the new
\par system, an employee can receive credit for post-1956
\par active military service under both the civil ser-
\par vice and social security systems (and thus avoid a
\par reduction of the civil service annuity at age 62) by
\par depositing a sum equal to 7% of the employee's total
\par post-1956 military pay to the Civil Service Retire-
\par ment and Disability Fund. See 5 U.S.C. 8334(j).
\par The Office of Personnel Management (OPM) has
\par promulgated regulations implementing this statutory
\par procedure. Under those regulations, an annuity ap-
\par plicant must make the required deposit "prior to
\par final adjudication of the application for retirement or
\par survivor benefits." 5 C.F.R. 831.2107(b)(l); see also 5
\par C.F.R. 831.2104(b), 831.2105(b); Holtermann v. OPM,
\par 57 M.S.P.R. 380, 384-385 (1993). This adjudication
\par ordinarily occurs at the time of retirement. If the
\par deposit is not made at that time, the amount of the
\par civil service retirement annuity will be reduced when
\par the employee reaches age 62 unless the deposit re-
\par quirement is subsequently waived.
\par 1. Petitioner retired at age 57, did not make the
\par required deposit, and was surprised to learn, five
\par years after retirement, that his failure to make the
\par deposit had a negative effect on his total retirement
\par income. Petitioner argues (Pet. 9-15) that he did not
\par make an informed decision not to make the 7% deposit
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 6
\par 
\par at retirement because the OPM Form "says nothing
\par about the real effects of the election made thereon"
\par (Pet. 10).
\par It is true that OPM Form 1515 and its attached
\par information "do not include annuitant specific cal-
\par culations, such as * * * the number of dollars by
\par which the annuitant's civil service benefits will be
\par reduced at the time of eligibility for Social Security
\par benefits if the annuitant fails timely to make the
\par required deposit," Pet. App. 5, even though such
\par information is available at the time of an employee's
\par separation. The form and its attachment do, however,
\par "give unmistakable notice that a person's annuity will
\par be reduced at age 62 if no deposit has previously been
\par made to earn entitlement to the benefit of post-1956
\par military service." Id. at 5-6. The election form thus
\par warned petitioner to read the attached information
\par "carefully to be sure you understand the conse-
\par quences of not making the deposit for military
\par service," id. at 5, and the attached information
\par informed petitioner that his civil service retirement
\par annuity would be reduced when he reached age 62,
\par unless he deposited 79% of his post-1956 military pay at
\par retirement. Although petitioner was not given in-
\par formation about the amount of the reduction, he was
\par put on notice that a decision not to make a deposit
\par might have negative financial consequences.
\par We are not aware of any statute or regulation
\par requiring  OPM (or the employing agency) to provide
\par annuitants with more specific information than was
\par given to petitioner. Pet. App. 11. In similar contexts,
\par courts have found that they do not have the authority
\par to add notice requirements to statutes when Con-
\par gress has declined to impose such requirements. See,
\par e.g., Templeton v. OPM, 951 F.2d 338, 340 (Fed. Cir.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 7
\par 
\par 1991); Davis v. OPM, 918 F.2d 944, 946-947 (Fed. Cir.
\par 1990); Nordstrom V. United States, 342 F.2d 55, 59 (Ct.
\par Cl. 1965).
\par 2. Petitioner also argues (Pet. 14-16) that OPM
\par erred in not permitting him to pay the 7'% deposit
\par (with interest) five years after his retirement. OPM
\par does not, however, have the general discretion to
\par waive a regulatory requirement,
\par The MSPB has determined that only three cir-
\par cumstances authorize OPM to waive a requirement
\par established by regulation: (1) the regulation itself
\par permits waiver; (2) the agency engaged in affirma-
\par tive misconduct; or (3) the agency failed to provide
\par notice of rights, if such notice is required by statute
\par or regulation. See Speker v. OPM, 45 M.S.P.R. 380,
\par 385 (1990), aff'd, 928 F.2d 410 (Fed. Cir. 1991) (Table).
\par The court of appeals held that "the pertinent regula-
\par tions do not provide any opportunity for waiver of the
\par deposit-making deadline dates. [Petitioner] makes no
\par claim that agency misconduct caused his `mistaken'
\par election, and the pertinent statutes and regulations
\par do not require that notice be given to the annuitant."
\par Pet. App. 9-10; accord Holtermann v. OPM, 57
\par M.S.P.R. at 384-385. OPM informs us that it does not
\par grant waivers when none of those three circum-
\par stances is present. The MSPB thus properly sus-
\par tained OPM's refusal to grant the requested waiver
\par in this case.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 8
\par 
\par        CONCLUSION
\par 
\par The petition for a writ of certiorari should be
\par denied.
\par Respectfully submitted.
\par 
\par          DREW S. DAYS, III
\par            Solicitor General
\par 
\par          FRANK W. HUNGER
\par            Assistant Attorney General
\par 
\par          DAVID M. COHEN
\par          MARC RICHMAN
\par          RICHARD E. RICE
\par            Attorneys
\par 
\par OCTOBER 1985
\par 
\par 
\par }