       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

               BRENDAN A. DANIEL,
                   Petitioner,

                           v.
     OFFICE OF PERSONNEL MANAGEMENT,
                 Respondent.
              __________________________

                      2011-3097
              __________________________

   Petition for review of the Merit Systems Protection
Board in Case No. DA0841090711-B-1.
             ____________________________

              Decided: December 13, 2011
             ____________________________

   BRENDAN A. DANIEL, Abita Springs, Louisiana, pro se.

    DELISA M. SANCHEZ, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, REGINALD BLADES, Assis-
tant Director.    Of counsel on the brief was WADE
DANIEL   v. OPM                                          2


PLUNKETT, Office of Personnel Management, Office of the
General Counsel, of Washington, DC.
              __________________________

   Before LOURIE, SCHALL, and PROST, Circuit Judges.
PER CURIAM.

    Brendan A. Daniel petitions for review of a final deci-
sion by the Merit Systems Protection Board (“Board”)
regarding the calculation of his disability retirement
annuity upon reinstatement. We affirm.

                      BACKGROUND

    In 1996, Daniel was granted disability retirement un-
der the Federal Employees’ Retirement System (“FERS”)
from his position as a maintenance worker. He received
uninterrupted disability annuity payments until the
Office of Personnel Management (“OPM”) terminated his
benefits in 2006 because his earned income had exceeded
the statutory limits on FERS disability annuitants.
Daniel v. Office Pers. Mgmt., 245 F. App’x 969 (Fed. Cir.
2007). In particular, Daniel’s wages rose in 2005 after he
worked substantial overtime hours as required by his
employer in the wake of Hurricane Katrina; his reported
income ultimately exceeded 80% of the then-current pay
rate for the maintenance position he occupied immedi-
ately before retiring. OPM therefore determined, as
mandated by 5 U.S.C. § 8455(a)(2), that Daniel’s earning
capacity had been restored and terminated his benefits as
of June 30, 2006. Daniel, 245 F. App’x at 971.

    Daniel’s income dropped below the 80% statutory
threshold in 2007, and he successfully petitioned OPM to
reinstate his FERS disability annuity, effective January
1, 2008. Daniel v. Office Pers. Mgmt., No. DA-0841-09-
3                                            DANIEL   v. OPM


0711-B-1 (M.S.P.B. May 5, 2010). OPM initially rein-
stated his annuity at $1,309 per month, which repre-
sented 60% of Daniel’s “high-three” average salary—the
highest average salary he received over any three-year
period of qualifying employment. In December 2008,
OPM notified Daniel that his monthly payments would be
reduced to 40% of his high-three average salary—
declining to $873 per month—from 2009 forward in
accordance with 5 U.S.C. § 8452(a)(1) and 5 C.F.R.
§ 844.404(d). These reinstated annuity payments did not
preserve the cost-of-living increases that Daniel had
accumulated between 1996 and 2006. Id.

     Daniel disputed OPM’s annuity calculation, seeking to
recapture the cost-of-living adjustments included in the
higher annuity rate he had been receiving in 2006. He
also sought to recoup payments lost while his benefits
were terminated. Id. On November 3, 2009, OPM af-
firmed its annuity calculations as consistent with the
governing statutes and regulations. On appeal to the
Board, Daniel renewed his earlier requests, submitted
evidence documenting his financial difficulties, and
argued that equity and fairness require restoring his pre-
termination FERS annuity rate. While expressing sym-
pathy for Daniel’s situation, the Administrative Judge
(“AJ”) held that OPM correctly calculated Daniel’s rein-
stated disability annuity under the applicable statutes
and regulations. Id. The Board denied Daniel’s petition
for review, and the AJ’s decision became the final decision
of the Board on January 10, 2011. Daniel v. Office Pers.
Mgmt., No. DA-0841-09-0711-B-1 (M.S.P.B. Jan. 10,
2011). Daniel timely appealed from the Board’s decision,
and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DANIEL   v. OPM                                              4


                        DISCUSSION

    We must affirm decisions of the Board unless they are
“(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).

    As recognized by OPM and the Board, reinstated
FERS annuities are calculated according to § 8452, which
in relevant part provides:

    [T]he annuity of an annuitant under this subchap-
    ter—
    (i) for the period beginning on the date on which
    such annuity commences, or is restored (as de-
    scribed in section 8455(b)(2) or (3)) and ending at
    the end of the twelfth month beginning on or after
    such date, shall be equal to 60 percent of the an-
    nuitant’s average pay; and
    (ii) after the end of the period referred to in clause
    (i), shall be equal to 40 percent of the annuitant’s
    average pay.

5 U.S.C. § 8452(a)(1)(A)(i)-(ii) (2006). Section 8401(3)
defines “average pay” as “the largest annual rate result-
ing from averaging an employee’s or Member’s rates of
basic pay in effect over any 3 consecutive years of service .
. . .” 5 U.S.C. § 8401(3) (2006). Bound by these statutes,
OPM keyed its reinstatement calculations to Daniel’s
high-three average salary: He received 60% for the first
year following reinstatement and 40% thereafter.

   Daniel’s appeal brief is difficult to decipher, but it
does not appear to dispute the reduction from 60 to 40%.
5                                             DANIEL   v. OPM


It again appears to suggest that he should have retained
the cost-of-living adjustments retroactive to his original
retirement in 1996. He cites various provisions relating
to the Civil Service Retirement System (“CSRS”), which
direct OPM to reinstate terminated CSRS disability
annuity payments at the same rate in effect before termi-
nation, see, e.g., 5 U.S.C. § 8337; 5 C.F.R. § 831.1211, and
emphasizes parallels between these and analogous provi-
sions governing FERS. But Daniel is not covered under
CSRS, so the cited authorities are not relevant to his
appeal. And in fact, as Daniel acknowledges, the statutes
governing CSRS and FERS “are different”; one aspect of
clear distinction lies in their treatment of reinstated
disability benefits. E.g., compare 5 U.S.C. § 8337(e)
(2006) (“his [CSRS] annuity shall be restored at the same
rate”) with 5 U.S.C. § 8455(b)(2) (2006) (“the [FERS]
annuity of such individual shall be restored at the appli-
cable rate under section 8452”) (emphases added). The
latter FERS provision governs here. The “applicable rate”
under § 8452 consists of the high-three average salary as
determined at the original time of retirement in 1996 and
does not specify subsequent cost-of-living adjustments.
OPM was obligated to follow § 8452, and it did.

    Daniel cites a host of other statutory, regulatory, leg-
islative, and judicial materials, but he has not identified,
nor do we find, any authority that would allow OPM to
reinstate his FERS disability annuity at the 2006 rate.
Though Daniel argues that the result appears unfair in
this case, OPM lacks the authority to disregard statutory
directives for calculating disability annuity payments.
See Office Pers. Mgmt. v. Richmond, 496 U.S. 414, 430
(1990). We are therefore bound to affirm the decision of
the Board.

                       AFFIRMED
DANIEL   v. OPM           6


                  COSTS

   No costs.
