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Montelongo v. Office of Personnel Management

United States Court of Appeals, Federal Circuit

October 2, 2019


          Petition for review of the Merit Systems Protection Board in No. DE-0842-18-0087-I-1.

          Allen Arthur Shoikhetbrod, Tully Rinckey PLLC, Albany, NY, argued for petitioner.

          Zachary John Sullivan, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Reginald Thomas Blades, Jr., Joseph H. Hunt, Robert Edward Kirschman, Jr., Nathanael Yale.

          Before Taranto, Clevenger, and Hughes, Circuit Judges.

          Taranto, Circuit Judge.

         Michael Montelongo applied for a civil service retirement annuity for which applicants must meet a threshold requirement of having at least five years of "civilian service." 5 U.S.C. § 8410. It is undisputed that Mr. Monte-longo could not meet that requirement unless his time as a cadet student at the United States Military Academy at West Point counted as such service. The Office of Personnel Management (OPM) ruled that the cadet time did not qualify and therefore denied him the annuity. The Merit Systems Protection Board rejected Mr. Montelongo's challenge to OPM's ruling. We affirm.


         Mr. Montelongo was a student cadet at West Point from July 1973 to June or July 1977-roughly four years. He then served in the United States Army from June 8, 1977, until December 31, 1996, when he retired. Later, from June 21, 2001, to March 28, 2005-about three and three-quarters years-Mr. Montelongo served as a civilian presidential appointee in the Department of the Air Force. While he was serving in that civilian position, an Air Force human resources officer advised Mr. Montelongo that his time as a cadet at West Point could be "bought back" and credited toward an eventual civil service annuity under the Federal Employees Retirement System (FERS), 5 U.S.C. §§ 8401-8479. Mr. Montelongo made the small payment to "buy back" his four years as a cadet at West Point.

         On August 15, 2017, Mr. Montelongo applied to OPM for a FERS annuity. OPM concluded that only his time as a presidential appointee (just under four years) counted as a creditable civilian service. In reaching that conclusion, OPM necessarily deemed Mr. Montelongo's active military service as well as his cadet time as not creditable civilian service. With less than four years of creditable civilian service, OPM ruled, Mr. Montelongo did not satisfy the threshold requirement for a FERS annuity, i.e., five years of creditable civilian service.

         Mr. Montelongo appealed to the Board. He did not argue for counting his post-Academy career in the military; the only issue was whether his cadet time should be counted in meeting § 8410's five-year threshold. It was, as it still is, undisputed that Mr. Montelongo's cadet time was "military service" that was creditable service under 5 U.S.C. § 8411(c)(1). But the administrative judge assigned to the matter concluded that being "creditable service" under § 8411 does not make the cadet time into the "civilian service" for which § 8410 sets a five-year minimum for annuity qualification. On that basis, the administrative judge agreed with OPM's denial of the annuity application. The denial became the final Board decision when the time for full Board review passed and Mr. Montelongo had not sought such review.

         Mr. Montelongo timely appealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).


         We must affirm the Board's decision unless 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); see also De Santis v. Merit Systems Protection Bd., 826 F.3d 1369, 1372-73 (Fed. Cir. 2016). We review the Board's legal determinations, "such as statutory interpretation, de novo." Stephenson v. Office of Pers. Mgmt., 705 F.3d 1323, 1326 (Fed. Cir. 2013).

         To be eligible for a FERS annuity, an employee "must complete at least 5 years of civilian service creditable under section 8411 . . . ." 5 U.S.C. § 8410. Under the plain language of that provision, for service to count in meeting the five-year minimum, it must be both "civilian service" and "creditable under section 8411." It is not enough for the applicant's service to satisfy the second half of this dual requirement, i.e., that it be creditable under § 8411-which means that it is "service" used for certain FERS purposes such as calculating the amount of an annuity to which the applicant is otherwise entitled. See id., § 8401(26) (defining "service" as "service which is creditable under section 8411"); id., ยง 8415(a) ("the annuity of an employee retiring under this subchapter is 1 percent of that individual's average pay multiplied by such individual's ...

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