Lepore v. Opm

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN B. LEPORE,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2018-1474
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0831-17-0683-I-1.
______________________
Decided: January 9, 2019
______________________
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 represent-
ed by REGINALD THOMAS BLADES, JR., ROBERT EDWARD
KIRSCHMAN, JR., JOSEPH H. HUNT.
______________________
Before MOORE, REYNA, and WALLACH, Circuit Judges.
2 LEPORE v. OFFICE OF PERS. MGMT.
PER CURIAM.
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.
BACKGROUND 2
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));
1 An administrative judge (“AJ”) issued an initial
decision on November 2, 2017, see J.A. 1–12, which be-
came final when Mr. Lepore did not file a petition for
review, see J.A. 5; see also 5 C.F.R. § 1201.113 (2018)
(providing “[t]he initial decision of the [AJ] will become
the [MSPB]’s final decision [thirty-five] days after issu-
ance” unless, inter alia, “any party files a petition for
review”). Therefore, we refer to the Initial Decision as the
MSPB’s Final Decision.
2 Unless otherwise noted, we refer to the relevant
and undisputed facts of the case as put forth by the MSPB
in Lepore III. See 2017 MSPB LEXIS 4665, at *1–3. See
generally Pet’r’s Br.; Resp’t’s Br.
LEPORE v. OFFICE OF PERS. MGMT. 3
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 Inves-
tigator. See Lepore III, 2017 MSPB LEXIS 4665, at *1;
J.A. 31. Thereafter, Mr. Lepore received a federal retire-
ment annuity. See, e.g., J.A. 40−41 (providing OPM’s
calculation of “[p]aid and [d]ue” annuity for Mr. Lepore). 4
3 CSRS was replaced by the Federal Employees’ Re-
tirement System (“FERS”) Act of 1986. See Pub. L. No.
99-335, 100 Stat. 514 (codified at 5 U.S.C. §§ 8343a, 8349,
8350–8351, 8401–8479). “FERS was designed to improve
upon CSRS, with the disability section in particular
having minimal differences to CSRS.” Springer v. Adkins,
525 F.3d 1363, 1367 (Fed. Cir. 2008) (citing S. Rep. No.
99–166, at 21 (1985), as reprinted in 1986 U.S.C.C.A.N.
1405, 1426) (“To minimize differences from the CSRS, the
majority of standards and procedures applicable to the
[FERS] are identical to those of the CSRS.”).
4 A former federal employee’s retirement annuity is
based upon the employee’s length of service and average
salary, where a federal employee’s average salary refers
to the three highest paying years used to calculate the
average pay. 5 U.S.C. § 8339 (outlining computation of
annuity); see id. § 8331(4) (defining “average pay” as “the
largest annual rate resulting from averaging an employ-
ee’s . . . rates of basic pay in effect over any [three] consecu-
tive years of creditable service” (emphasis added)). “The
three highest paying years” used to calculate average pay
is also referred to as the “high-3.” Killeen v. Office of Pers.
Mgmt., 382 F.3d 1316, 1318 (Fed. Cir. 2004) (internal
quotation marks omitted).
4 LEPORE v. OFFICE OF PERS. MGMT.
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 jurisdic-
tion. 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 afford-
ed 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 disabil-
ity annuity is calculated when employees have performed
service in positions that are usually tied to higher retire-
ment 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 recon-
sideration of OPM’s October 2016 recalculation, arguing
he was entitled to (1) interest on the one-time retroactive
payment and (2) payment for administratively uncontrol-
lable 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
LEPORE v. OFFICE OF PERS. MGMT. 5
agency’s determination of [Mr. Lepore]’s high-3 salary.”
Id. at *9. On remand, OPM issued a June 2017 reconsid-
eration decision affirming its October 2016 decision. J.A.
23−26. OPM determined that Mr. Lepore’s “high-
3 . . . average salary was computed correctly, and accu-
rately, and in accordance with applicable laws and regula-
tions.” 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 cred-
it . . . in the amount of [25% 6] for each of his years of law
enforcement service for AUO overtime.” J.A. 20 (empha-
sis added); see J.A. 28 (stating, in Mr. Lepore’s affidavit,
5 While the June 2017 Reconsideration Decision ini-
tially incorrectly stated that the time period used to
compute Mr. Lepore’s average salary was “February 1,
2010, through January 13, 2010,” J.A. 23, this mistake
was immediately corrected by amendment such that the
“correct period is September 2, 1979 through September
1, 1982,” J.A. 30; see J.A. 26 (employing the correct
1979−82 time period in OPM’s Average Salary Computa-
tion table).
6 Mr. Lepore originally identified “2.5%” in his
MSPB appeal. J.A. 20. However, based upon the record
below and the briefings on appeal, the parties do not
dispute that Mr. Lepore actually intended to request 25%.
See, e.g., Pet’r’s Br. 9; Resp’t’s Br. 6–7.
6 LEPORE v. OFFICE OF PERS. MGMT.
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 percent-
age 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). Specif-
ically, 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 Individ-
ual 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 re-
ferred to any law, rule, or regulation that demonstrates
OPM was incorrect in utilizing its method of calculating
his annuity.” Id. at *6.
DISCUSSION
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 substan-
tial 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). Find-
ings 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 evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.” Shapiro v. Soc. Sec. Admin., 800
LEPORE v. OFFICE OF PERS. MGMT. 7
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 fed-
eral employee’s monthly retirement annuity is calculated
using “average pay,” which is defined as “the largest
annual rate resulting from averaging an employ-
ee’s . . . rates of basic pay in effect over any [three] con-
secutive 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 spe-
cial 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).
8 LEPORE v. OFFICE OF PERS. MGMT.
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 recalculat-
ed 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 calcu-
lated 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 includ-
ed in the annuity calculation.” Id. at 8 (formatting modi-
fied). 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), see generally Pet’r’s Br.; Resp’t’s
Br., and as such, was entitled to receive AUO as a type of
premium pay when warranted, see 5 U.S.C. §§ 5545(c)(2),
8331(3)(D); 5 C.F.R. § 550.141 (providing authorization of
premium pay on an annual basis). On relevant pages of
Mr. Lepore’s retirement records during the period of his
high-3 average salary years, there are numerous nota-
tions in the “remarks” column of the tables expressly
stating that Mr. Lepore obtained percentage adjustments
of “10%,” “20%,” or “25%” of premium payment included.
See, e.g., J.A. 54 (including an action, on January 10,
1982, with the notation “20% PRM PY INCL”), 55 (award-
ing, on October 4, 1981, a “MERIT INCREASE” and
noting “25% PRM PY INCL”). These are the same range
of percentages that an employee can receive as AUO. See
5 U.S.C. § 5545(c)(2) (stating that AUO “premium pay” is
“an appropriate percentage, not less than [ten] percent nor
LEPORE v. OFFICE OF PERS. MGMT. 9
more than [twenty-five] percent, of the rate of basic pay for
the position” (emphasis added)). Therefore, substantial
evidence supports the MSPB’s decision to affirm OPM’s
June 2017 Reconsideration Decision that found its calcu-
lations already included AUO as part of Mr. Lepore’s
basic pay.
Mr. Lepore’s counterarguments lack merit. First, Mr.
Lepore contends that these rates are somehow incorrect
or that he did not actually receive premium pay as part of
his basic pay. See Pet’r’s Br. 9 (referencing J.A. 62–66,
which provide rates of pay in a document that he offered
as supporting evidence and is titled the “Rates of Pay
Under the General Schedule” for the years 1978 to 1982).
We disagree. The generalized rates of pay that Mr. Le-
pore would prefer we rely upon, as found in the “Rates of
Pay Under the General Schedule” for the years 1978 to
1982, do not contradict or inform our understanding of the
evidence of the Government-certified premium pay rates
that were awarded specifically to Mr. Lepore, as discussed
above. See J.A. 62−66; cf. Grover, 828 F.3d at 1384 (find-
ing that OPM relied upon “internally contradictory”
Individual Retirement Records, and therefore remanding
to the MSPB for further evidentiary gathering and deter-
mination of overtime pay). Rather, the MSPB properly
considered all evidence of record related to Mr. Lepore’s
annuity recalculation, including when it specifically
compared the salary rates in the Government-certified
Individual Retirements Records with the General Sched-
ule pay rates provided by Mr. Lepore, and found the
former to be the only correct and “accurate” evidence of
Mr. Lepore’s pay rate. Lepore III, 2017 MSPB LEXIS
4665, at *6; see id. (“[T]he [Individual Retirement Rec-
ords] salary includes premium pay or AUO in the basic
rate of pay.”). We have previously approved such reliance
upon internally consistent individual retirement record-
sas proper. See Thomas v. Office of Pers. Mgmt., 350 F.
App’x 448, 450 (Fed. Cir. 2009) (affirming the MSPB’s
10 LEPORE v. OFFICE OF PERS. MGMT.
decision that OPM could rely only on certified individual
retirement records, rather than petitioner’s evidence of
tax forms, emails, and pay stubs).
Second, Mr. Lepore argues OPM’s decision is contrary
to our opinion in Springer. Pet’r’s Br. 10; see 525 F.3d at
1367. However, Springer is inapposite. Springer involved
the resolution of whether the plain language of “FERS
[§] 8415 concerning firefighters’ annuities . . . in view of
the legislative intent disallow[ed] incorporation of the age
and years of service requirements of [§] 8412(d)” when
calculating an enhanced annuity retirement. Id. at 1367.
Here, Mr. Lepore did not raise, and does not raise on
appeal, a similar statutory argument; instead, he chal-
lenges the factual finding regarding the calculation of his
high-3 average salary. See J.A. 20 (asserting that OPM
had “miscalculated [Mr. Lepore’s] retirement annuity”
because “[h]e was not given credit . . . in the amount of
[25%] for each of his years of law enforcement service for
AUO overtime”). Moreover, OPM found that Mr. Lepore
met all necessary requirements under the relevant CSRS
statutory scheme and related case precedent, and award-
ed enhanced annuity in his favor in the sum of
$99,054.03. See J.A. 38. We find OPM’s recalculated
annuity in favor of Mr. Lepore does not violate our prece-
dent in Springer.
Third, Mr. Lepore also raises three additional argu-
ments on appeal. See Pet’r’s Br. 11 (arguing that correc-
tion of the “starting date of [his] retirement should be
accepted as April 16, 1983,” and that he is entitled to
“pre-judgment interest on the [back] payment made to
[him] after a wait of 34 years”), 13 (arguing that “[Mr.
Lepore] should be reimbursed for his attorney’s fees”).
Regarding Mr. Lepore’s starting date, this argument was
never raised before the MSPB in the proceedings below,
see generally J.A. 16−22 (Mr. Lepore’s appeal form), and is
therefore waived, see Bosley v. Merit Sys. Prot. Bd., 162
F.3d 665, 668 (Fed. Cir. 1998) (“A party in an MSPB
LEPORE v. OFFICE OF PERS. MGMT. 11
proceeding must raise an issue before the administrative
judge if the issue is to be preserved for review in this
court.”). Regarding Mr. Lepore’s pre-judgment interest
claim, we have held that “where the payment of interest
by the government is not authorized, it is barred.”
Maurer v. Office of Pers. Mgmt., 236 F.3d 1352, 1356 (Fed.
Cir. 2001). Mr. Lepore cites no law, statute, or case
authority that would allow prejudgment interest in his
case. Mr. Lepore also cites no authority to support his
claim for attorney fees, which he makes for the first time
in the conclusion section of his opening brief. We deem
this claim waived. See Pet’r’s Br. 11, 13. The MSPB
properly upheld OPM’s retirement annuity recalculation.
CONCLUSION
We have considered Mr. Lepore’s remaining argu-
ments and conclude that they are without merit. For the
reasons stated above, the Final Decision of the Merit
Systems Protection Board is
AFFIRMED