Petition for review of the Merit Systems Protection Board in
Arthur Shoikhetbrod, Tully Rinckey PLLC, Albany, NY, argued
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.
Taranto, Clevenger, and Hughes, Circuit Judges.
Taranto, Circuit Judge.
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.
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.
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.
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.
Montelongo timely appealed to this court. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
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.
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., § 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 ...