NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROSALIE M. CIESLINSKI,

Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent

______________________ 

2015-3030

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-0843-14-0515-I-1.

______________________ 

Decided: April 9, 2015

______________________ 

ROSALIE M. CIESLINSKI, Balanga City, Bataan, Philippines, pro se.

JEFFREY LOWRY, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JOYCE R.

BRANDA, ROBERT E. KIRSCHMAN, JR., FRANKLIN E. WHITE,

JR. 

______________________ 

Before WALLACH, TARANTO, and CHEN, Circuit Judges.
2 CIESLINSKI v. OPM

PER CURIAM.

Rosalie Cieslinski appeals the decision of the Merit 

Systems Protection Board (“Board”) affirming the decision 

of the Office of Personnel Management (“OPM”) denying 

Ms. Cieslinski’s application for survivor benefits. For the 

reasons set forth below, this court affirms.1 

BACKGROUND

Raymond Cieslinski worked as a federal civilian employee from February 1996 to January 2000, at which 

time he resigned from his position. During his employment, he made contributions into the Federal Employee 

Retirement System (“FERS”). Mr. Cieslinski did not 

make a military service deposit into his FERS account, 

although he would have been eligible to do so based upon 

his prior military service. Mr. Cieslinski requested a 

refund of his FERS contributions on October 4, 2000, 

which he later received. In receiving the refund, he 

acknowledged that he was forfeiting his annuity rights.

Mr. Cieslinski married Rosalie Cieslinski on June 18, 

2005. He passed away on September 7, 2012. Thereafter, 

Ms. Cieslinski requested annuity benefit payments based 

on the federal civilian service of Mr. Cieslinski, and 

completed an application for the Civil Service Retirement 

System (“CSRS”), “but did not specify . . . that CSRS was 

the applicable system.” Resp’t’s App. 7. 

OPM denied Ms. Cieslinski’s request on January 16, 

2013, explaining Mr. Cieslinski had received a full refund 

of his retirement refunds on November 20, 2000. On 

March 25, 2014, OPM notified Ms. Cieslinski that she 

1 Ms. Cieslinski filed a motion for leave to file an 

electronic reply brief and “later mail the original.” Ms. 

Cieslinski never mailed the original, and, in any event, 

the motion is now moot. 

 
CIESLINSKI v. OPM 3

should contact its Pennsylvania office in order to inquire 

about deposits and benefits. OPM’s notice “did not convey 

Board appeal rights, or otherwise state that it was the 

final decision of OPM.” Resp’t’s App. 8. However, on May 

20, 2014, OPM “informed the Board that it did not intend 

to issue any further decisions on this matter.” Id. Ms. 

Cieslinski appealed the decision to the Board. On August 

14, 2014, the Board affirmed the agency’s decision. 

Ms. Cieslinski appeals, and this court has jurisdiction 

pursuant to 28 U.S.C § 1295(a)(9) (2012). 

DISCUSSION

I. Standard of Review

This court’s “scope of . . . review of [B]oard decisions is 

limited to whether they are (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.” Forest v. Merit Sys. Prot. Bd., 

47 F.3d 409, 410 (Fed. Cir. 1995) (citing 5 U.S.C. § 7703(c) 

(1988)). The issue of Board jurisdiction is a question of 

law this court reviews de novo. Johnston v. Merit Sys. 

Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). This court is 

bound by the Administrative Judge’s jurisdictional factual 

findings “unless those findings are not supported by 

substantial evidence.” Bolton v. Merit Sys. Prot. Bd., 154 

F.3d 1313, 1316 (Fed. Cir. 1998). 

II. The Board Correctly Held Ms. Cieslinski Is Not Entitled to FERS Annuity Payments 

By statute, a federal employee “must complete at least 

5 years of civilian service,” to include military service if 

the employee has made the required deposit (and not 

taken a refund of that deposit), in order to be qualified to 

receive a FERS annuity payment. 5 U.S.C. §§ 8410, 

8411(c)(3) (2012). Furthermore, a federal employee who, 

after separating from service, requests and receives a 
4 CIESLINSKI v. OPM

lump-sum payment of his FERS contributions nullifies

“all annuity rights” under FERS. 5 U.S.C. 

§ 8424(a). Here, it is not disputed that Mr. Cieslinski did 

not have five years of civilian service, and made no payments under 5 U.S.C. § 8334(j) in order to obtain credit 

for his military service, thus the Board correctly held that 

he did not qualify for annuity payments. 

In any event, even if Mr. Cieslinski qualified under 5 

U.S.C. § 8410, he requested and received a refund of his 

FERS contributions, which nullifies any annuity rights he 

had. See Resp’t’s App. 33. 

Despite this undisputed evidence, Ms. Cieslinski argues “the [Board] has not consider[ed] the widow’s [] right 

to survivor’s benefits under 5 U.S.C. § 8341.” Pet’r’s Br. 2. 

Section 8341 is not applicable as it refers only to the 

CSRS system. See 5 U.S.C. § 8341. Mr. Cieslinski commenced his federal service in 1996, and his benefits were 

governed not by CSRS, but its replacement system,

FERS. See 5 U.S.C. § 8402(b)(2) (discussing the difference

between FERS and CSRS). 

Relatedly, Ms. Cieslinski also refers to 5 U.S.C. 

§ 8422(i)(1)–(i)(3) in order to argue that she is entitled to 

make FERS deposits. Pet’r’s Br. 1. Those provisions 

became law in October 2009 and might not apply to this 

case based on their effective date: under OPM’s Benefits 

Administration Letter No. 11-103 (Feb. 25, 2011), the 

provisions “only affect annuities that are based on separations on or after October 28, 2009”; Mr. Cieslinski separated from federal employment well before that date. In 

any event, § 8422(i) permits the survivor only of “an 

employee” to make deposits. The term “employee” refers 

to current employees, not former employees. 5 U.S.C. 

§ 8401(2) (defining “annuitant” as “former employee,” 

thus distinguishing “employee”). This result for survivors 

accords with congressional understanding that former 

employees themselves may deposit refunded contributions 
CIESLINSKI v. OPM 5

only “upon reemployment with the Federal Government.” H.R. Rep. No. 111-288, at 865 (2009). Mr. Cieslinski was not an employee at the time of his death. 

Second, Ms. Cieslinski argues the Board’s Final Order 

contains “misinformation” and “[i]ncorrect [r]etirement 

[a]dvice” provided by OPM about the redeposit of refunded retirement contributions, and the Board should thus 

have considered “equitable estoppel” as grounds for 

relief. Pet’r’s Br. 1; Pet’r’s Supp. Br. 1–2. Ms. Cieslinski 

raises this issue on appeal for the first time, and this 

court therefore will not consider it. See Michalic v. U.S. 

Postal Serv., 25 F. App’x 974, 977 (Fed. Cir. 2001) (citing 

Kachanis v. Dep’t of Treasury, 212 F.3d 1289, 1293 (Fed. 

Cir. 2000) (“Appellants from a Board decision may not 

raise arguments for the first time on appeal to this 

court.”)). In any event, even if OPM did offer erroneous 

advice, because Mr. Cieslinski was not entitled to benefits 

as a matter of law, the Board could not have held the 

government was estopped from denying her request. See 

Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 414–15 

(1990) (“[J]udicial use of the equitable doctrine of estoppel 

cannot grant respondent a money remedy that Congress 

has not authorized.”). 

CONCLUSION

Because the Board correctly found Ms. Cieslinski was 

not able to prove she qualified for FERS annuity payments, the decision of the Board is 

AFFIRMED

COSTS

No costs.