NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARTA STEKELMAN, HERMAN EDELMAN,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-2121
______________________
Appeal from the United States Court of Federal
Claims in No. 1:18-cv-00189-CFL, Judge Charles F.
Lettow.
______________________
Decided: November 13, 2018
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MARTA STEKELMAN, HERMAN EDELMAN, Neptune, NJ,
pro se.
KRISTIN MCGRORY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represent-
ed by CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN, JR.,
JOSEPH H. HUNT.
______________________
2 STEKELMAN v. UNITED STATES
Before NEWMAN, WALLACH, and STOLL, Circuit Judges.
PER CURIAM.
Appellants Dr. Marta Stekelman and her husband,
Herman Edelman (together, “Appellants”), appeal an
opinion and order of the U.S. Court of Federal Claims
that dismissed their claim for miscalculated retirement
annuity for lack of jurisdiction. See Stekelman v. United
States, 138 Fed. Cl. 303, 306 (2018). We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3) (2012). We affirm.
BACKGROUND
The U.S. Department of Defense employed Dr.
Stekelman as a medical doctor for about thirty-two years.
Stekelman, 138 Fed. Cl. at 304. 1 Upon her retirement
from service in 2010, Dr. Stekelman applied for retire-
ment annuity benefits offered under the Federal Employ-
ees’ Retirement System (“FERS”) Act of 1986, as
administered by the Office of Personnel Management
(“OPM”). See id.; see also Pub. L. No. 99-335, 100 Stat.
514 (codified at 5 U.S.C. §§ 8401–8479 (2012)). OPM
determined that Dr. Stekelman was entitled to a monthly
gross annuity. Stekelman, 138 Fed. Cl. at 304; see 5
U.S.C. § 8339(a) (setting forth the computation of a feder-
al employee’s retirement annuity).
After receiving the annuity notice, Dr. Stekelman re-
quested reconsideration by OPM of the originally calcu-
lated gross annuity, and argued that OPM failed to
consider her entitlement to “[physician] comparability
allowance” as additional income when calculating her
monthly gross annuity. Appellee’s App. 19 (Request for
1 For convenience, we refer to the undisputed facts
of the case as put forth by the Court of Federal Claims.
Stekelman, 138 Fed. Cl. at 303–04. See generally Appel-
lants’ Br.; Appellee’s Br.
STEKELMAN v. UNITED STATES 3
Reconsideration); see 5 U.S.C. § 5948 (setting forth the
physicians comparability allowance). OPM denied the
Request for Reconsideration, affirming its initial decision
that the “annuity is correctly computed.” Appellee’s
App. 20.
Dr. Stekelman appealed this denial to the Merit Sys-
tems Protection Board (“MSPB”). See Stekelman v. Office
of Pers. Mgmt., 2017 WL 4367459 (M.S.P.B. Sept. 29,
2017) (Appellee’s App. 25–33). The MSPB reversed
OPM’s denial and ordered OPM to “recalculate [Dr.
Stekelman]’s annuity by including the [physician compa-
rability allowance] in her high-[3].” 2 Appellee’s App. 29;
see id. (“OPM should first recalculate [Dr. Stekelman]’s
annuity and determine the amount . . . owed for the
increase in her high-[3], retroactive to her retirement
date. OPM may then subtract from this amount the total
of the deductions [Dr. Stekelman]’s employing agency
failed to take, plus any interest that applies.” (footnote
omitted)). The MSPB also notified Dr. Stekelman of her
right to file “a petition for enforcement” with the MSPB
should she “disagree[] with OPM’s new calculations, made
in accordance with the [MSPB]’s final decision.” Id.
Accordingly, in January 2018, OPM calculated a new
monthly gross annuity rate, and to account for the differ-
ence in the annuity it had previously paid Dr. Stekelman,
issued to her a one-time annuity lump-sum payment.
Appellee’s App. 23 (January 2018 OPM Letter to Dr.
Stekelman). However, Dr. Stekelman immediately sent a
2 A former federal employee’s monthly gross annui-
ty is based upon the employee’s length of service and
high-3 average salary, see Stekelman, 138 Fed. Cl. at 304,
where a federal employee’s “[h]igh-3 average salary refers
to the employee’s highest average actual salary during
any three years of consecutive service,” Appellee’s App. 32
n.2.
4 STEKELMAN v. UNITED STATES
letter to OPM arguing, inter alia, that OPM’s calculations
regarding the lump-sum payment were in error and that
she was entitled to “interest” on the monthly annuity
amounts as well as “reasonable attorney fees” for her
husband, who represented her as counsel. Id. at 24.
There is no indication in the record that OPM responded
to Dr. Stekelman’s letter. See generally id.; Appellant’s
App.
In February 2018, Appellants filed a complaint with
the Court of Federal Claims, arguing that Dr. Stekelman
was entitled to a “larger [one-time annuity] back-payment
than that granted by OPM, . . . interest on the monthly
gross annuity amounts,” and attorney fees and costs.
Stekelman, 138 Fed. Cl. at 305. The Court of Federal
Claims dismissed the Complaint, determining that it
“lacks jurisdiction over [Appellants’] retirement annuity
claim,” as well as any related request to award attorney
fees, because “[their] dispute is centered on an issue
subject to MSPB review.” Id. at 306.
DISCUSSION
Appellants argue that OPM “would not or could not
correct” its improper retirement annuity determination,
and that the Court of Federal Claims “should have under-
stood that only the [j]udicial [s]ystem [f]or which this
[c]ourt was instituted could correct the mathematical
error.” Appellants’ Br. 1. We disagree.
I. Standard of Review and Legal Standard
We review a dismissal by the Court of Federal Claims
for lack of jurisdiction de novo. See Todd Constr., L.P. v.
United States, 656 F.3d 1306, 1310 (Fed. Cir. 2011).
When ruling on a motion to dismiss for lack of jurisdic-
tion, the Court of Federal Claims “must accept as true all
undisputed facts asserted in the plaintiff’s complaint and
draw all reasonable inferences in favor of the plaintiff.”
Trusted Integration, Inc., v. United States, 659 F.3d 1159,
STEKELMAN v. UNITED STATES 5
1163 (Fed. Cir. 2011) (citation omitted). “[W]hen a federal
court concludes that it lacks subject-matter jurisdiction,
the court must dismiss the complaint in its entirety.”
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). The
“leniency” afforded pro se litigants “with respect to mere
formalities” does not extend to circumstances involving
“jurisdictional requirement[s],” Kelley v. Sec’y, U.S. Dep’t
of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987), and in any
case, where a party is seeking attorney’s fees, it would ill
behoove that party to claim unfamiliarity with governing
rules.
By statute, the authority to decide a FERS application
in the first instance and adjudicate all claims arising
under that retirement system rests with OPM. See 5
U.S.C. § 8461(c) (“[OPM] shall adjudicate all claims under
the provisions of this chapter administered by [OPM].”);
see also Anthony v. Office of Pers. Mgmt., 58 F.3d 620, 626
(Fed. Cir. 1995) (“Congress enacted the FERS scheme,
including OPM administration of that scheme under
§ 8461 . . . .”). OPM’s regulations set forth the process by
which a party can seek reconsideration or an appeal
following OPM’s initial decision. See 5 C.F.R. §§ 841.305–
306, 841.308. The MSPB has jurisdiction over “an admin-
istrative action or order affecting the rights or interests of
an individual . . . under [the FERS as] administered by
[OPM].” 5 U.S.C. § 8461(e)(1); see Miller v. Office of Pers.
Mgmt., 449 F.3d 1374, 1377 (Fed. Cir. 2006) (stating that
the MPSB has statutory jurisdiction over OPM’s admin-
istration of FERS); see also 5 C.F.R. § 841.308 (“[A]n
individual whose rights or interests under FERS are
affected by a final decision of OPM may request MSPB to
review the decision . . . .”).
II. The Court of Federal Claims Lacked Subject Matter
Jurisdiction over Appellants’ Complaint
Appellants’ claims lie within the jurisdiction of the
MSPB, rather than the Court of Federal Claims. Appel-
6 STEKELMAN v. UNITED STATES
lants appealed OPM’s alleged miscalculation of Dr.
Stekelman’s annuity back-payment to the Court of Feder-
al Claims, and not the MSPB. See Stekelman, 138 Fed.
Cl. at 304. We find no authority from Congress or other-
wise granting the Court of Federal Claims jurisdiction for
“adjudicating disputes over retirement annuities and
benefits” when the underlying dispute rests on personnel
action subject to MSPB review. See El v. United States,
730 F. App’x 928, 929 (Fed. Cir. 2018) (holding the Court
of Federal Claims lacks subject matter jurisdiction over
appellant’s claim that OPM incorrectly calculated his
annuity); Miller, 449 F.3d at 1377 (holding the MSPB
lacked jurisdiction over appellant’s challenge to retroac-
tive annuity payments because appellant was challenging
OPM’s administration of the Federal Employees’ Group
Life Insurance Act, and not of FERS, and therefore statu-
tory “jurisdiction to review the overpayment determina-
tion lay in the district court or the Court of Federal
Claims, but not in the [MSPB]”). Appellants’ requested
relief is for an issue subject to MSPB review because they
seek correction of the most recent calculation by OPM of
Dr. Stekelman’s gross retirement annuity. See Appel-
lants’ Br. 1 (requesting that we reverse the Court of
Federal Claims and instruct that it “correct [OPM’s]
mathematical error”); Appellee’s App. 23 (providing
OPM’s re-computation in 2018 of Dr. Stekelman’s “high-3”
average salary and outlining the impact of such recalcula-
tion upon her annuity rate). We conclude that Appellants’
dispute is properly characterized as one founded on
administration of annuity under FERS, and therefore the
Court of Federal Claims was correct in holding that
jurisdiction to review any potential miscalculation by
OPM lies with the MSPB, and not the Court of Federal
Claims. See 5 U.S.C. § 8461(e)(1); Miller, 449 F.3d at
1377.
Appellants are not without remedy. Our decision to-
day does not preclude Appellants from petitioning the
STEKELMAN v. UNITED STATES 7
MSPB for enforcement of the MSPB’s determination.
Pursuant to 5 U.S.C. § 1204(a)(2), the MSPB has the
authority to “order any Federal agency or employee to
comply with any order or decision issued by the [MSPB]
under [its jurisdiction] and enforce compliance with any
such order.” Here, the MSPB’s determination included a
notice of its enforcement authority. See, e.g., Appellee’s
App. 29 (“If, after the agency has informed you that it has
fully complied with this decision, you believe that there
has not been full compliance, you may ask the [MSPB] to
enforce its decision by filing a petition for enforcement
with this office, describing specifically the reasons why
you believe there is noncompliance.”). 3
CONCLUSION
We have considered Appellants’ remaining arguments
and conclude that they are without merit. For the rea-
sons stated above, the Court of Federal Claims’ Opinion
and Order is
AFFIRMED
COSTS
No costs.
3 Although the thirty-day deadline for the Appel-
lants to file a petition for enforcement with the MSPB has
elapsed, see Appellee’s App. 30; 5 C.F.R. § 1201.182(a)
(setting forth that a petition for enforcement, such as
seeking enforcement of the MSPB’s original decision
remanding to OPM to recalculate annuity, must be filed
within thirty days of the MSPB’s decision), the MSPB
issued a notice indicating that, if the Appellants’ “petition
is filed late, [they] should include a statement and evi-
dence showing good cause for the delay and a request for
an extension of time for filing [the petition for enforce-
ment],” Appellee’s App. 30.