The result was to put him in the same financial position as if his removal had never occurred. If he had never been removed, however, he would not have received any of the discontinued service annuities he was paid during his temporary separation. See Day v. OPM, 873 F.2d 291, 293 (Fed. Cir. 1989) (stating that "a retirement annuity cannot start until separation from service" and "separation from service [is] nullified by accepting retroactive reinstatement"); Riggs v. OPM, 709 F.2d 1486, 1488 (Fed. Cir. 1983) (stating that "by express provision of 5 U.S.C. § 8345(b)," an "annuity cannot start until [the employee] separates from his civil service position"). Although the annuity payments Grabis received were proper when made, his retention of those payments after his retroactive reinstatement made him ineligible to receive them was improper.
Thus, the deduction of retirement payments received due to an unjustified separation from service is authorized and directed by law and petitioner's contention of an error of law is without merit. Riggs v. Office of Personnel Management, 709 F.2d 1486, 1488 (Fed. Cir. 1983). What he seeks here by receiving full back pay and retention of the annuity payments is a windfall benefit.
Until today, we followed those Supreme Court cases. In Riggs v. Office of Personnel Management, 709 F.2d 1486, 1488 (Fed. Cir. 1983), for example, we relied on Hansen and held that OPM's erroneous ruling, and Riggs' consequent failure to meet a statutory precondition to entitlement, did not estop the government from enforcing the precondition and denying Riggs benefits. The cases the court believes support its departure from precedent do not.
The Court of Claims rejected this recommendation and awarded appellant a full annuity from the date of his initial retirement. Id. at 1182; cf. Riggs v. Office of Personnel Management, 709 F.2d 1486, 1488-1489 (Fed. Cir. 1983). But the important point is that the Court of Claims did not consider the government's (and the trial judge's) position (on damages) to be indefensible. Indeed, the court noted "that a facially respectable argument . . . [could] be made" for treating appellant as a constructive reemployed annuitant, Ellis II, supra, 657 F.2d at 1180, and proceeded to decide the issue as a novel one of statutory construction.
Filing an application within certain time frames with the Office of Personnel Management and separation from "the service" or cessation of "pay" and meeting "age requirements" are prerequisites for "an annuity of an employee". 5 U.S.C.A. § 8345(b) and (i)(1); 5 C.F.R. § 831.501(a b); 5 C.F.R. § 831.701(a); Riggs v. Office of Personnel Management, 709 F.2d 1486 (C.A., Fed. Cir. 1983); Sonnabend v. United States, 175 F. Supp. 150, 146 Ct.Cl. 622 (1959). Substantial compliance with a statute and regulations requiring an application by an employee who meets age and service requirements can, in some instances, suffice.