NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

JOEL R. MUELLER,

Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent

______________________ 

2014-3213

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-831E-13-0269-I-1.

______________________ 

Decided: April 13, 2015

______________________ 

JOEL R. MUELLER, Erie, CO, pro se. 

CHRISTOPHER L. HARLOW, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.,

REGINALD T. BLADES, JR. 

______________________ 

Before PROST, Chief Judge, SCHALL and WALLACH, Circuit 

Judges.
2 MUELLER v. OPM

PER CURIAM. 

Joel R. Mueller appeals from the decision of the Merit 

Systems Protection Board (“Board”) dismissing his appeal 

as withdrawn. Because Mr. Mueller voluntarily withdrew 

his appeal after being informed of the consequences, we 

affirm.

Mr. Mueller petitioned the Board to review the commencement date of his retirement annuity. That date 

affected the determination of his length of service and the 

amount of annuity payments he receives. Mr. Mueller 

argues that the commencement date should have been 

based on September 25, 2002, his separation date. The 

Office of Personnel Management (“OPM”) instead used 

July 4, 2001, the last day Mr. Mueller was in pay status. 

Both dates are permissible for the commencement of a 

civil service retirement annuity. Unless the retiree requests otherwise, the OPM uses the “pay cease date” 

because it will be to the retiree’s advantage under most 

circumstances. 

OPM explained the options available to Mr. Mueller 

in a letter dated June 21, 2013 while his appeal was 

pending before an administrative judge at the Board’s 

Denver field office. OPM allowed Mr. Mueller to change 

his annuity commencement to the later date, which would 

result in a $38 dollar increase in monthly payments. But 

Mr. Mueller would then be required to repay the annuity 

payments he received between July 4, 2001 and September 25, 2002. Having no means to repay the annuity 

payments between 2001 and 2002, Mr. Mueller voluntarily withdrew his appeal pending before the Board. The 

administrative judge informed Mr. Mueller that his 

withdrawal of appeal was an act of finality and, absent 

unusual circumstances, he may not refile. The administrative judge dismissed Mr. Mueller’s appeal with prejudice on July 29, 2013. 
MUELLER v. OPM 3

Mr. Mueller then petitioned the Board for review of 

the dismissal of his appeal as withdrawn. The Board 

found that the administrative judge fully explained the 

finality of Mr. Mueller’s withdrawal and that Mr. Mueller 

presented no basis for reversing the decision by the administrative judge. The Board thus affirmed the dismissal of Mr. Mueller’s appeal as withdrawn. 

On appeal to this court, Mr. Mueller acknowledges 

that he had voluntarily withdrawn his appeal. ECF No. 

19. But Mr. Mueller repeats his belief that his former 

agency, the Postal Service, made a mistake by using the 

wrong date to calculate the annuity payments. Mr. 

Mueller also discusses the financial hardships that are 

preventing him from repaying the benefits he received 

prior to the annuity commencement date that he is seeking.

We are sympathetic to Mr. Mueller’s hardships. The 

hardships may be considered by the OPM, in the exercise 

of its discretion, to waive a repayment obligation. Prasch 

v. Office of Pers. Mgmt., 499 F. App’x 968, 970 (Feb. 11, 

2013). But the request for waiver must be first presented 

to the OPM along with the necessary supporting evidence, 

which Mr. Mueller did not do. See id. The Board thus did 

not have the chance to address any waiver request. The 

record before the Board limits what we can review. 5 

U.S.C. § 7703(c). We are therefore powerless to address 

any difficulties with a potential repayment of benefits 

received previously. 

We can only review the Board’s affirmance of the dismissal of Mr. Mueller’s appeal as withdrawn. We may set 

aside the Board’s decision if it is “(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). 
4 MUELLER v. OPM

None of these apply to this case. We thus affirm the 

Board’s decision.

AFFIRMED

COSTS

Each party shall bear their own.