NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

THEODORE W. MAKSE, 

Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

Respondent. 

__________________________ 

2010-3156 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in Case No. CH0831090779-I-1. 

____________________________ 

Decided: January 14, 2011 

____________________________ 

THEODORE W. MAKSE, of Mentor, Ohio, pro se. 

RICHARD P. SCHROEDER, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

him on the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and FRANKLIN E.

WHITE, JR., Assistant Director. Of Counsel on the brief 

was JESSICA S. JOHNSON, Office of General Counsel, Office 

of Personnel Management, of Washington, DC. 
MAKSE v. OPM 2

__________________________ 

Before LOURIE, BRYSON, and PROST, Circuit Judges. 

PER CURIAM. 

Theodore Makse appeals from the decision of the 

Merit Systems Protection Board (“the Board”) affirming 

the Office of Personnel Management’s (“OPM’s”) calculation of his retirement annuity. See Makse v. Office of 

Pers. Mgmt., No. CH-0831-09-0779-I-1 (M.S.P.B. Nov. 12, 

2009) (“Initial Decision”); Makse v. Office of Pers. Mgmt., 

No. CH-0831-09-0779-I-1, 113 M.S.P.R. 303 (M.S.P.B. 

Feb. 5, 2010) (“Final Order”). 

For the reasons discussed below, we affirm. 

BACKGROUND

Makse began his federal civil service in 1971 at the 

Veterans Affairs Medical Center (“VAMC”). In 1981, he 

sustained an on-the-job injury and began receiving benefits, pursuant to the Federal Employees’ Compensation 

Act (“FECA”), from the Office of Workers’ Compensation 

Programs (“OWCP”). Makse resigned from his position as 

a Utility Systems Repairer-Operator in 1985 and chose to 

receive a refund of the retirement contributions he had 

made up until that time. In 1996, he was rehired by the 

VAMC as a part-time Food Service Worker. 

Makse was working as a Security Clerk at the VAMC 

when he retired from federal civil service in January 

2008. At that time, he had the option of electing to receive Civil Service Retirement System (“CSRS”) annuity 

benefits or continuing to receive OWCP benefits for his 

prior injury. He chose to receive the OWCP benefits. As 

a result, his CSRS annuity was suspended. 

After his retirement, however, Makse requested and 

received a computation of his CSRS annuity from OPM, 
3 MAKSE v. OPM

which reflected the annuity he would receive were he to 

choose to decline the OWCP benefits and unsuspend the 

payment of his annuity. Being dissatisfied with OPM’s 

computation, he requested reconsideration of his CSRS 

benefits, specifically requesting that the annuity be 

recalculated based upon rates he would have received had 

he continued to work as a utility systems repaireroperator until his retirement. Thus, Makse requested 

that his CSRS benefits be calculated based on the 2006-08 

salary for a WG-11, Step-05, employee instead of the rates 

that were in effect at the time he held that position. The 

OPM issued a letter to Makse explaining the basis on 

which it calculated his annuity. In addition, the letter 

explained his options in repaying the retirement contributions he had withdrawn in 1985, upon leaving his position 

as a utility systems repairer-operator. OPM further 

informed him that he had been overpaid for an interim 

payment and demanded repayment. In sum, the OPM 

denied Makse’s request for reconsideration of its first 

calculation and demanded he repay OPM $712. He 

appealed to the Board. 

The Board assumed jurisdiction of the appeal pursuant to 5 U.S.C. §§ 7701(a) and 8347(d), on the ground that 

OPM’s calculation constituted an administrative action 

affecting Makse’s rights or interests. During the course of 

the proceedings before the administrative judge (“AJ”), 

issues relating to Makse’s repayment of the retirement 

funds, with interest, that he had taken as a distribution 

in 1985 were resolved. In addition, the parties agreed 

that for purposes of calculating the length of his service, 

Makse is entitled to full-time credit for all periods in 

which he received OWCP benefits for hours exceeding 

those he was able to work. Accordingly, those issues are 

not before us. 
MAKSE v. OPM 4

In determining the appropriate annuity to which 

Makse is entitled, the AJ explained that “[f]or purposes of 

computing a CSRS annuity under 5 U.S.C. § 8339(a), 

‘average pay’ is defined as ‘the largest annual rate resulting from averaging an employee’s rates of basic pay in 

effect over any [three] consecutive years of creditable 

service.’” Initial Decision at 4 (citing 5 U.S.C. § 8331(4)) 

(emphasis added). The AJ then held that the words “in 

effect” in the statute limited the pay rates to the applicable rates “at the time an employee was receiving pay at a 

particular grade.” Id. Thus, it was Makse’s pay at the 

time he earned it that formed the basis for the high-three 

calculation, not the pay rate in effect for a WG-11, Step05, employee in the three years preceding his retirement. 

Makse petitioned for review by the full Board. 

The Board denied Makse’s petition, concluding that 

there was no new, previously unavailable evidence and 

that the AJ made no error of law that affected the outcome. The AJ’s initial decision thereupon became the 

final decision of the Board. 

Makse timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION

The scope of our review in an appeal from a Board decision is limited. We can set aside the Board’s decision 

only if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule, or regulation 

having been followed; or (3) unsupported by substantial 

evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. 

Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). 

The Board had jurisdiction of this matter because 

OPM’s ruling affected Makse’s rights and interests. 5 
5 MAKSE v. OPM

U.S.C. § 8347(d)(1). In particular, although his CSRS 

benefits were suspended, the rate that was calculated was 

the rate applicable to him if he chose to accept it; it is the 

rate that will be applied if he elects not to receive OWCP 

distributions in the future or if those distributions are 

halted for any reason. His right in the annuity apparently continues, even though he currently elects not to 

receive that benefit in order to receive another, greater, 

benefit to which he is entitled. 

Makse argues that OPM misapplied the high-three 

rule, which dictates that retirement benefits are derived 

from averaging a retiree’s salary in three consecutive 

years of creditable service—those years in which the 

retiree earned his highest salary. Specifically, Makse 

argues that OPM’s calculations are in conflict with FECA, 

which states that an employee should not be prejudiced 

based on an injury received on the job. Makse also argues 

that OPM’s calculations are in conflict with the OWCP. 

Makse requests that we reverse the Board’s decision and 

implement a rule or guidelines allowing cost of living 

increases to be included in retirement calculations, to 

ensure that injured workers do not suffer a loss in retirement benefits. 

The government responds that Makse has not demonstrated that the rules, regulations, or statutory provisions 

used for calculating FECA benefits apply to the calculation of potential CSRS benefits. The government notes 

that FECA benefits are governed by chapter 81, title 5, of 

the United States Code, whereas CSRS benefits are 

governed by chapter 83 of that title. The government 

further explains that while the statute and its implementing regulation do suggest that federal employees injured 

on the job should not incur a loss of benefits they would 

have received if not for the injury, that language is limited to situations in which employees take temporary 
MAKSE v. OPM 6

leave as a result of their injuries and then return to work. 

Lastly, the government notes that cost of living adjustments are factored into OWCP benefits, such as those 

Makse has chosen to receive. 

We affirm the Board’s decision interpreting and applying 5 U.S.C. § 8331(4) in determining Makse’s annuity 

payments pursuant to 5 U.S.C. § 8339(a). Section 8331(4) 

defines “average pay,” which is used to calculate an 

annuity payment, as “the largest annual rate resulting 

from averaging an employee's . . . rates of basic pay in 

effect over any 3 consecutive years of creditable service . . 

. .” 5 U.S.C. § 8331(4). The Board correctly concluded 

that the words “in effect” mean that average pay is determined by averaging three years of salary rates as they 

existed in the years the employee held a position. The “in 

effect” language does not encompass calculation of average pay over years in which an employee has not served 

in a particular position. 

The statute also does not reference FECA, and there 

is no reason to read in a section of FECA to interpret the 

clear language of § 8331. Nor does § 8151 of FECA and 

its implementing regulation provide a different answer. 

That section provides in relevant part that “[i]n the event 

the individual resumes employment with the Federal 

Government, the entire time during which the employee 

was receiving compensation under this chapter shall be 

credited to the employee for the purposes of within-grade 

step increases, retention purposes, and other rights and 

benefits based upon length of service.” 5 U.S.C. § 8151(a). 

However, as we held in True v. Office of Personnel Management, 926 F.2d 1151, 1155 (Fed. Cir. 1991), the plain 

language and legislative history of that provision indicate 

that it does not apply to annuity computation under the 

civil service retirement provisions. We therefore decline 
7 MAKSE v. OPM

to read language from FECA into the sections governing 

calculation of CSRS benefits. 

CONCLUSION

The Board affirmed OPM’s calculation of retirement 

benefits based on a correct interpretation and application 

of the law. Accordingly, we affirm the Board’s decision in 

favor of the government. 

AFFIRMED 

COSTS

No costs.