Error: Bad annotation destination
                      NOTE: This disposition is nonprecedential.


     United States Court of Appeals for the Federal Circuit

                                       2006-3297


                                  ALFONSO ABADIA,

                                                      Petitioner,

                                           v.


                      OFFICE OF PERSONNEL MANAGEMENT,

                                                      Respondent.




      Alfonso Abadia, of Colon, Republic of Panama, pro se.

       Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Donald E. Kinner, Assistant Director.

Appealed from: United States Merit Systems Protection Board
                       Note: This disposition is nonprecedential.

   United States Court of Appeals for the Federal Circuit


                                      2006-3297

                                 ALFONSO ABADIA,

                                                             Petitioner,


                                           v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                             Respondent.


                           __________________________

                           DECIDED: February 7, 2007
                           __________________________



Before MAYER, SCHALL, and BRYSON, Circuit Judges.

PER CURIAM.


                                      DECISION

      Alfonso Abadia petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that affirmed the decision of the Office of Personnel

Management (“OPM”) that he is ineligible to redeposit into the Civil Service Retirement

System (“CSRS”) retirement funds which he received in a lump-sum payment in 1978,

and that consequently he is ineligible for a retirement annuity under the CSRS. Abadia

v. Office of Pers. Mgmt., DC-0831-03-0453-M-1 (M.S.P.B. May 18, 2006). We affirm.
                                           DISCUSSION

                                                  I.

       Mr. Abadia sought a retirement annuity under CSRS based on his employment

with the Panama Canal Company. He was employed by the Panama Canal Company

from 1969 to 1978.      Mr. Abadia requested and received a lump-sum refund of his

retirement contributions in October 1978 when he left the company.             He later was

employed by the company on April 9, 1979, but resigned the next day. From June 29,

1981, to November 19, 1999, Mr. Abadia was employed by the Department of the Army

in Panama.     During his employment by the Department of the Army, Mr. Abadia’s

employment was governed by the Panama Canal Employment System rather than

CSRS or the Federal Employees Retirement System.

       Eventually, Mr. Abadia sought a retirement annuity under CSRS based on his

employment with the Panama Canal Company from April 1969 through September

1978. After OPM denied the application, because it found him ineligible to redeposit the

retirement funds he had withdrawn in 1978, Mr. Abadia appealed to the Board. In an

initial decision, the Administrative Judge (“AJ”) to whom the appeal was assigned held

that Mr. Abadia had no right to redeposit the refund of his retirement contributions

received in 1978 because the refund voided his annuity rights, and those rights were

never reinstated because he was not thereafter reemployed by the federal government

in a position subject to the federal retirement system. Abadia v. Office of Pers. Mgmt.,

DC-0831-03-0453-M-1 (M.S.P.B. Jan. 9, 2006) (“Initial Decision”). The Initial Decision,

became the final decision of the Board on May 18, 2006, when the Board denied Mr.

Abadia’s petition for review for failure to meet the criteria for review set forth at 5 C.F.R.




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§ 1201.115(d).   This appeal followed.    We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                               II.

      Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless it is found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

      We see no error in the Board’s decision in this case. The retirement statute

provides that:

      [T]he receipt of the payment of the lump-sum credit by the employee or
      Member voids all annuity rights under this subchapter based on the
      service on which the lump-sum credit is based, until the employee or
      Member is reemployed in the service subject to this subchapter.

5 U.S.C. § 8342(a). The statute further provides that:

      Each employee or Member who has received a refund of retirement
      deductions under this or any other retirement system established for
      employees of the Government covering service for which he may be
      allowed credit under this subchapter may deposit the amount received,
      with interest. Credit may not be allowed for the service covered by the
      refund until the deposit is made.

5 U.S.C. § 8342(d)(1). The AJ affirmed OPM’s determination that Mr. Abadia was

ineligible to redeposit retirement funds into the CSRS after finding that he had received

a refund of his retirement contributions in 1978 and that he had not been reemployed by

the federal government in a position subject to the federal retirement system.     Initial

Decision at 2.




2006-3297                                  3
      On appeal, Mr. Abadia does not dispute that he requested and received a refund

of his retirement contributions in October 1978. Neither does he dispute the finding that

he was never reemployed in a position subject to the federal retirement system.

According to Mr. Abadia, it was due to his employing agency’s error that he was not

hired subject to the federal retirement system in 1979. He argues that the Panama

Canal Company mistakenly hired him under a temporary appointment on April 9, 1979,

from which he resigned the next day. He also argues that the Department of the Army

made an error and mistakenly hired him as a new hire, whose employment was covered

by the Panama Canal Employment System rather than CSRS.

      However, the relevant facts have been established and are not disputed. Mr.

Abadia received a refund of his retirement contributions in 1978 through a lump-sum

payment.    This voided his annuity rights until he was reemployed by the federal

government in a position subject to the federal retirement system and redeposited the

funds he previously had withdrawn. See 5 U.S.C. § 8342(a), (d)(1). Mr. Abadia was

never reemployed by the federal government in a position subject to the federal

retirement system.1     The AJ correctly determined that Mr. Abadia’s claim of



      1
              Mr. Abadia appears to argue that Bell v. Office of Personnel
Management,169 F.3d 1383 (Fed. Cir. 1999), requires a different result. In Bell, we
reversed a decision of the Board that non-citizens of the United States who were initially
employed by the Panama Canal Company, in temporary positions, not covered by the
CSRS, before October 1, 1979, were not entitled to CSRS coverage upon their
conversion to permanent positions with the Panama Canal Commission after October 1,
1979. The Panama Canal Act, 22 U.S.C. § 3649 (Supp. 1998), applied the CSRS to
Panama Canal Commission employees, except, inter alia, any individual whose initial
appointment by the Commission occurred after October 1, 1979. The Board interpreted
the individuals whose initial appointment by the Commission occurred before October 1,
1979 to include only non-citizen workers that were employed by the Commission and
who were covered by the CSRS prior to October 1, 1979. Bell, 169 F.3d at 1385. We



2006-3297                                   4
administrative error cannot serve as the basis for payment of an annuity when, as is the

case here, the appellant does not meet the statutory requirements for that benefit. See

Killip v. Office of Pers. Mgmt., 991 F.2d 1564, 1569 (Fed. Cir. 1993) (“Any and all

authority pursuant to which an agency may act ultimately must be grounded in an

express grant from Congress.”)

            For the foregoing reasons, the final decision of the Board affirming the

decision of OPM that Mr. Abadia is ineligible to redeposit retirement funds into the

CSRS and consequently that he is ineligible for a retirement annuity under the CSRS is

affirmed.




(Cont’d. . . .)

held that Panamanian citizens in temporary positions were “initially appointed” by the
Commission prior to enactment of the Panama Canal Treaty, as required for statutory
eligibility for CSRS coverage. Id. at 1386. We remanded for the Board to decide
whether the petitioners in Bell were entitled to benefits under the CSRS. Id. Our
decision in Bell does not change the determination that Mr. Abadia was not reemployed
by the federal government in a position subject to the federal retirement system.



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