Bennie Collins v. Office of Personnel Management

PAULINE NEWMAN, Circuit Judge,

dissenting.

Mr. Collins petitions the court to right a wrong, wherein he has been deprived of a significant portion of his military service-based pension. Unlike many of the cases that reach us, this is not a matter of government largesse, or qualification for “entitlement”. Mr. Collins’ military pension was earned and vested at the time he retired from the military service. By inadequate information at the time of his retirement from the civilian service, and OPM’s refusal to authorize discretionary relief, he has been severely prejudiced.

Informed Consent

Based on the information given him at the time he retired at age 57 from civilian service, Mr. Collins made an election. The Form 1515 did not tell him the consequences of his election. He was told those consequences four years later, when OPM sent him a calculation stating that $545 of his military-based pension of $1,390 would be replaced with Social Security payments of $268. With this information in hand the error of that earlier election was manifest, and Mr. Collins sought to correct it. Mr. Collins’ request for correction was denied by OPM on the basis that OPM did not make an “administrative error” in leading Mr. Collins to sign Form 1515; that he willingly signed the Form and thus must bear the consequences, although he was not told what would be the consequences.

Correction is not barred by statute or regulation, and Mr. Collins seeks no more than the pension that he has earned. He asked to make a belated deposit, but he is also willing to accept far less than his statutory entitlement, and to waive his entire civilian pension and right to Social Security. OPM has denied all relief.

Form 1515 is entitled MILITARY SERVICE DEPOSIT ELECTION, and is for use “only for employees who retire with title to an immediate annuity”, and who “are eligible for a civil service annuity”. Mr. Collins had twenty years of military service and thirteen years of civilian service. By signing the form Mr. Collins declined to make a deposit of 7% of his military pay, the form stating that the consequence was that his civil service benefits “will be reduced at age 62 unless you are eligible for a guaranteed minimum annuity.” An “Information” form that was obtained by this court states ‘Tour decision about completing the deposit may affect your rights under the Civil Service Retirement System.”

OPM does not dispute that Mr. Collins was not told the financial consequences of his action, but states that “neither the employing agency nor OPM was obligated by statute or regulation to notify Mr. Collins of the consequences of failure to pay the deposit at the time of retirement.” However, statute and regulation do not endorse uninformed consent. Mr. Collins states in his brief, without contradiction by the government, that:

The employing agency led me to believe that it would be to my best interest to retire at the time I retired even after I had signed the form 1515 and other papers giving up my rights to the military retired pay that I had been receiving up until my retirement in 1988.

When OPM told Mr. Collins, four years later, of the consequences of his action, OPM reduced his retirement “to less than it would have been with my regular 20 year retirement from the Army, which I had prior to taking the civil service retirement.” The MSPB, while upholding the OPM decision, stated that “OPM [is not] bar[red] from allowing an individual to make a deposit for military service beyond the regulatory deadline,” the administrative judge citing Office of Personnel Management v. Richmond, 496 *1575U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990).

Mr. Collins states that had he been told that he would suffer a sizable reduction in his pension he would not have applied for credit for his civilian service. The facts and figures affecting Mr. Collins were available to OPM at the touch of a button. When he was required to make a significant choice on retirement, he was entitled to the information necessary to make an informed choice. In Richmond the Court held that the government could not be bound by its agents’ inadequacies; but Richmond did not hold that the government can rely on its agents’ inadequacies to avoid meeting governmental obligations.

I stress that there was no communication of the financial consequences, although that information was in OPM’s possession. The first time Mr. Collins was told of the financial consequences was when OPM sent him a computation as his 62nd birthday approached: the information that he should have been given four years earlier. It is fundamental that omission of critical information possessed by only one party will defeat any binding arrangement. On the issue of informed consent Mr. Collins said it best: “If any [one] believes that I would sign a form allowing OPM to make me pay the Government for having served an extra 13 years and was aware of the above consequences, please allow me to change my plea to insanity.”

Authorization for Belated Deposit

No statute or regulation bars providing remedy to Mr. Collins. There is no government interest served by depriving him of his military pension, earned in Korea and Vietnam. This pension was vested, he had title to it, and it was being paid until the events here transpired. Mr. Collins states that he has been told that OPM has the right to-waive the regulatory period for making the deposit of 7% of his military pay, and OPM agrees that waiver is within its authority. However, OPM holds that since there was no “affirmative misconduct by the agency, administrative error, or failure to provide notice”, waiver is not available to Mr. Collins. Focusing on the aspect of “notice”, OPM states that unless statute or regulation required OPM to tell Mr. Collins the financial consequences of his retirement election, there was no obligation to do so. I share Mr. Collins’ distress with this inhumane and unnecessary, as well as incorrect, bureaucratic action.1 Whether a federal employee with twenty years of military and thirteen years of civilian service receives fair and considerate treatment upon retirement is a matter of concern to the nation, both for the quality and well-being of the federal, service, and preservation of the nation’s principles of dignity and justice.

. Mr. Collins alternatively asks that he be permitted to delay the start of Social Security until age 65, “like everyone else”, thus preserving his military pension for three more years. The government does not respond, and apparently did not respond to Mr. Collins.