Lepore v. Office of Pers. Mgmt.

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Docket Number2018-1474
Decision Date09 January 2019

NOTE: This disposition is nonprecedential.

Petition for review of the Merit Systems Protection Board in No. DC-0831-17-0683-I-1.

NORMAN JACKMAN, Jackman & Roth, LLP, Lincoln, NH, for petitioner.

REBECCA SARAH KRUSER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by REGINALD THOMAS BLADES, JR., ROBERT EDWARD KIRSCHMAN, JR., JOSEPH H. HUNT.

Before MOORE, REYNA, and WALLACH, Circuit Judges.


Petitioner John Lepore seeks review of a final decision of the Merit Systems Protection Board ("MSPB"), which affirmed the Office of Personnel Management ("OPM")'s denial of his claim that it miscalculated his retirement annuity. See Lepore v. Office of Pers. Mgmt. (Lepore III), No. DC-0831-17-0683-I-1, 2017 MSPB LEXIS 4665, at *1 (Nov. 2, 2017).1 We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We affirm.


Mr. Lepore was employed with the U.S. Department of the Treasury and the U.S. Department of Justice for more than twenty years, J.A. 28, 39, over seven of which were in "[l]aw [e]nforcement [s]ervice," J.A. 39; Lepore III, 2017 MSPB LEXIS 4665, at *1. Effective on or about April 16, 1983, Mr. Lepore retired under the disability provisions under the Civil Service Retirement System ("CSRS") as authorized by the Civil Service Retirement Act of 1920, which is administered by OPM. See id.; see also Pub. L. No. 66-215, 41 Stat. 614 (codified as amended at 5 U.S.C. §§ 1308, 2102, 2107, 3323, 8331-8348 (2012));5 U.S.C. § 8336(c)(1) (providing "entitle[ment] to annuity" for a federal "employee who is separated from the service after becoming [fifty] years of age and completing [twenty] years of service as a law enforcement officer"); see J.A. 42-48, 52-58 (Individual Retirement Records).3 Upon his disability retirement, his title was that of Criminal Investigator. See Lepore III, 2017 MSPB LEXIS 4665, at *1; J.A. 31. Thereafter, Mr. Lepore received a federal retirement annuity. See, e.g., J.A. 40-41 (providing OPM's calculation of "[p]aid and [d]ue" annuity for Mr. Lepore).4

In April 2016, Mr. Lepore appealed OPM's denial of his request to recalculate his retirement salary in favor of an enhanced annuity. See Lepore v. Office of Pers. Mgmt. (Lepore I), No. DC-0831-16-0484-I-1, 2016 MSPB LEXIS 2659, at *1 (May 3, 2016). Shortly thereafter, OPM stated it "was rescinding its final decision at issue," and the MSPB promptly dismissed Lepore I for lack of jurisdiction. Id. Then, in August 2016, upon OPM's affirmance of its initial recalculation denial decision, Mr. Lepore again appealed to the MSPB for recalculation of the disability gross annuity, arguing that he should be afforded an enhanced disability annuity based upon his service as a law enforcement officer. See Lepore v. Office of Pers. Mgmt. (Lepore II), No. 0831-16-0801-I-1, 2017 MSPB LEXIS 931, at *1-2 (Feb. 28, 2017).

In October 2016, OPM notified Mr. Lepore that he was "entitled to enhanced disability retirement benefits," id. at *2; see J.A. 38-39 (letter from OPM), "in view of a series of court cases that have changed the way a disability annuity is calculated when employees have performed service in positions that are usually tied to higher retirement deduction rates and to higher annuity accrual rates," J.A. 38. Accordingly, OPM calculated a new, increased annuity gross rate and authorized issuance of a one-time retroactive adjustment payment of $99,054.03 "for the amounts [Mr. Lepore] should have been receiving since [his] earned annuity commenced as of September 2, 1982." J.A. 38. Mr. Lepore unsuccessfully sought reconsideration of OPM's October 2016 recalculation, arguing he was entitled to (1) interest on the one-time retroactive payment and (2) payment for administratively uncontrollable overtime ("AUO") in the recalculation of his "high-3" average salary. See Lepore II, 2017 MSPB LEXIS 931, at *2.

In February 2017, the AJ remanded the matter to OPM because the AJ was "unable to ascertain from the record whether AUO should have been included in the agency's determination of [Mr. Lepore]'s high-3 salary." Id. at *9. On remand, OPM issued a June 2017 reconsideration decision affirming its October 2016 decision. J.A. 23-26. OPM determined that Mr. Lepore's "high-3 . . . average salary was computed correctly, and accurately, and in accordance with applicable laws and regulations." J.A. 24; see J.A. 24 (finding that "during [Mr. Lepore's] high-3 average salary period[, his] pay rate included varying premium pay in amounts equal to 10%, 20%, or 25%," and concluding that therefore the "premium pay was properly included as basic pay in the calculation of [Mr. Lepore's] high-3 salary"), 26 (including, by OPM, an "Average Salary Computation" as "Prepared for: [Mr.] Lepore" for the relevant years of 1979-82).5

In July 2017, Mr. Lepore appealed OPM's June 2017 Reconsideration Decision to the MSPB. J.A. 16-22. Specifically, he asserted that OPM had "miscalculated" his retirement annuity because "[h]e was not given credit . . . in the amount of [25%6] for each of his years of law enforcement service for AUO overtime." J.A. 20 (emphasis added); see J.A. 28 (stating, in Mr. Lepore's affidavit,that "during all of my '[high]-3' years I worked what is called [AUO], more than [nine] hours per week"). Mr. Lepore further argued that nothing on the record "show[s] the addition of AUO to the base pay," J.A. 60, and that "[b]ecause the AUO always exceeded 25%, that percentage is what must be added to [his] 'rate of basic pay,'" J.A. 61 (emphasis added).

In November 2017, the MSPB affirmed OPM's June 2017 Reconsideration Decision, Lepore III, 2017 MSPB LEXIS 4665, at *1, determining that OPM's recalculation of Mr. Lepore's federal annuity was "accurate," id. at *6, in light of OPM's previously provided "Average Salary Computation worksheet," id. at *5 (citing J.A. 26). Specifically, the MSPB found that the Individual Retirement Records "certified by the Department of Justice" prove that the "rate of basic pay" listed on Mr. Lepore's Individual Retirement Records "includes premium pay or AUO." Id. at *5-6; see J.A. 42-48, 51-58 (Individual Retirement Records). The MSPB concluded that Mr. Lepore did not meet his burden, because, inter alia, he "ha[d] not referred to any law, rule, or regulation that demonstrates OPM was incorrect in utilizing its method of calculating his annuity." Id. at *6.


I. Standard of Review and Legal Standard

We will uphold a decision of the MSPB unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "unsupported by substantial evidence." 5 U.S.C. § 7703(c)(1), (3); see Grover v. Office of Pers. Mgmt., 828 F.3d 1378, 1382 (Fed. Cir. 2016) (applying § 7703(c) to review an MSPB decision). Findings of fact are reviewed for substantial evidence. See Crawford v. Dep't of the Army, 718 F.3d 1361, 1365 (Fed. Cir. 2013). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Shapiro v. Soc. Sec. Admin., 800 F.3d 1332, 1336 (Fed. Cir. 2015) (internal quotation marks and citation omitted). "The petitioner bears the burden of establishing error in the [MSPB]'s decision." Harris v. Dep't of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).

In accordance with statutory authority, a former federal employee's monthly retirement annuity is calculated using "average pay," which is defined as "the largest annual rate resulting from averaging an employee's . . . rates of basic pay in effect over any [three] consecutive years of creditable service," commonly referred to as the high-3 average salary years. 5 U.S.C. § 8331(4) (internal quotation marks omitted); see Killeen, 382 F.3d at 1318. "[B]asic pay" is defined by § 8331(3), which states that basic pay may include, inter alia, certain types of premium pay provided for under 5 U.S.C. § 5545(c). 5 U.S.C. § 8331(3) (internal quotation marks omitted).

Law enforcement officers are eligible to receive a special form of overtime compensation, defined as a type of premium pay under § 5545(c)(2), referred to as AUO. See 5 U.S.C. § 5545(c)(2) (describing AUO and providing that an employee "in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular, unscheduled overtime duty[,] . . . shall receive premium pay for this duty"). This AUO premium pay is "an appropriate percentage, not less than [ten] percent nor more than [twenty-five] percent, of the rate of basic pay for the position, as determined by taking into consideration the frequency and duration of irregular, unscheduled overtime duty required in the position." Id. (emphasis added).

II. The MSPB Correctly Affirmed OPM's Recalculation of

Mr. Lepore's Federal Retirement Annuity Because OPM's

June 2017 Recalculation Decision Took into Account the

Premium Pay for AUO

The MSPB determined that OPM properly recalculated Mr. Lepore's rate of basic pay to include AUO using the Department of Justice's certified salary rates. Lepore III, 2017 MSPB LEXIS 4665, at *5-6 (citing J.A. 23). Mr. Lepore's main contention is that OPM improperly calculated his high-3 average salary by not including AUO as part of his basic pay. See Pet'r's Br. 8-10. Mr. Lepore asserts that there was "no evidence that AUO was included in the annuity calculation." Id. at 8 (formatting modified). We disagree with Mr. Lepore.

Substantial evidence supports the MSPB's decision that OPM properly recalculated Mr. Lepore's retirement salary and annuities to include AUO. See Lepore III, 2017 MSPB LEXIS 4665, at *5-6; see also J.A. 26 (OPM's Average Salary Computation worksheet). The parties agree that Mr. Lepore was a "law enforcement officer" as defined in § 8331 (20), ...

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