Hulvey v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
WILLIAM W. HULVEY,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3065
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. PH0831100249-I-1.
____________________________
Decided: June 13, 2011
____________________________
WILLIAM W. HULVEY, Morgantown, West Virginia, pro
se.
MELISSA M. DEVINE, Trial Attorney, Civil Division,
United States Department of Justice, of Washington, DC,
for respondent. With her on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and DEBORAH A. BYNUM, Assistant Director.
__________________________
HULVEY v. OPM 2
Before RADER, Chief Judge, and LOURIE and BRYSON,
Circuit Judges.
PER CURIAM.
William W. Hulvey appeals from the decision of the
Merit Systems Protection Board (the “Board”) affirming
that Hulvey’s Civil Service Retirement System (“CSRS”)
annuity had been correctly computed by the Office of
Personnel Management (“OPM”). Because OPM did not
miscalculate Hulvey’s annuity, and because OPM’s
method of calculation is a reasonable interpretation of
§ 8332, we affirm.
BACKGROUND
The facts of this case are undisputed. Petitioner Wil-
liam Hulvey is a CSRS annuitant who retired effective
May 5, 2005. Hulvey had two pertinent periods of federal
employment: military service from October 22, 1970,
through February 26, 1971; and civilian service from
April 14, 1974, through September 6, 2006. 1 Hulvey also
had 1,567 hours of accumulated unused sick leave.
OPM computed Hulvey’s total service to be 33 years, 5
months, and 29 days (i.e., 4 months and 5 days of military
service; 32 years, 4 months, and 23 days of civilian ser-
vice; and 9 months and 1 day of unused sick leave pursu-
ant to OPM’s chart for converting hours of unused sick
leave to months and days, J.A. 78). The 29 days were
eliminated as an impermissible fraction of a month under
5 U.S.C § 8332(a). Thus, according to OPM, Hulvey’s
1 As the Board noted, Hulvey indicated that after
prevailing on an Equal Employment Opportunity com-
plaint of discrimination he was awarded a retroactive
promotion, salary increase, and extension of his retire-
ment date to September 6, 2006. J.A. 12.
3 HULVEY v. OPM
total creditable service was 33 years and 5 months.
Hulvey petitioned for recalculation, J.A. 23, and OPM
affirmed its determination of 33 years and 5 months of
creditable service, J.A. 19.
Hulvey appealed to the MSPB, asserting that his total
creditable service was miscalculated. J.A. 31. With
regard to his military service, Hulvey asserted that he
served a total of 3 months and 36 days (i.e., 10 days in
October 1970; 3 full months from November 1970 to
January 1971; and 26 days in February 1971). After
applying OPM’s rule that each month contains 30 days
(discussed below), Hulvey asserted that his creditable
military service totaled 4 months and 6 days. Adding this
military service to the beginning date of his civilian
service (April 14, 1974), Hulvey asserted that his begin-
ning “service computation date” should be December 8,
1973. (In contrast, OPM’s service computation date,
based on one fewer day of creditable military service, was
December 9, 1973.) Using this allegedly correct service
computation date, Hulvey then calculated his total credit-
able service to be 33 years, 6 months, and 1 day (i.e., 24
days in December 1973; 32 years and 8 full months from
January 1974 through August 2006; and 6 days in Sep-
tember 2006; plus 9 months and 1 day of unused sick
leave).
In an initial decision dated May 12, 2010, the Board
affirmed OPM’s calculation, determining that the calcula-
tion was correct and that, pursuant to Begley v. Office of
Personnel Management, 60 F.3d 804 (Fed. Cir. 1995),
OPM’s calculation method was a reasonable interpreta-
tion of 5 U.S.C. § 8332(a). J.A. 11–15. Hulvey filed a
petition for review at the Board, and in a final order dated
November 19, 2010, the Board denied the petition. J.A.
HULVEY v. OPM 4
6–9. Hulvey timely appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
In an appeal from a decision of the MSPB, we must
affirm the decision unless it is found to be: “(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) (2006); see also Koyen v. Office of Pers. Mgmt.,
973 F.2d 919, 922 (Fed. Cir. 1992).
When reviewing an agency’s construction of a statute
that it administers, we look first to the language of the
statute and ask “whether Congress has directly spoken to
the precise question at issue.” Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).
If the statute is silent or ambiguous as to the specific
issue, we ask “whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843. In
cases involving implicit legislative delegation to the
agency, “a court may not substitute its own construction
of a statutory provision for a reasonable interpretation
made by the administrator of an agency.” Id. at 844.
On appeal, Hulvey asserts that OPM’s method of
computing total federal service credit pursuant to 5
U.S.C. § 8332 is “inequitable and randomly discrimina-
tory,” because, by considering each month to have 30
days, it can in some circumstances credit a federal em-
ployee with fewer than all of the days the employee
actually worked. Hulvey thus asserts that OPM’s service
calculation method is “inherently unreasonably” and
impermissible under Chevron.
5 HULVEY v. OPM
Hulvey contends in particular that OPM’s method
misapplied 5 U.S.C. § 8332(a), disregarded § 8332(b), and
failed to follow the method of calculation set forth in the
Civil Service Retirement System and Federal Employees
Retirement System Handbook for Personnel and Payroll
Offices (“CSRS and FERS Handbook”). According to
Hulvey, these errors resulted in a miscalculation of his
creditable service, as detailed above. Specifically, Hulvey
asserts that he served in the military for 4 months and 6
days, not 4 months and 5 days as calculated by OPM. He
further contends that he was denied an additional day of
service when OPM merged his military and civilian
services to determine his total creditable federal service.
Thus, Hulvey maintains, he is entitled to a total of 33
years, 6 months, and 1 day of creditable service. Hulvey
requests that we reverse the Board’s decision, order the
Board to recalculate his federal creditable service, and
order payment of prior annuity underpayments with
interest.
The government responds by arguing that the Board
correctly affirmed OPM’s calculation of Hulvey’s credit-
able service periods. The government asserts that the
Board properly followed Begley, which held that OPM’s
method of calculation is a reasonable interpretation of its
statutory authority to compute creditable service. More-
over, the government contends that OPM’s calculation
complies with § 8332(b) and the CSRS and FERS Hand-
book.
We agree with the government that the Board prop-
erly applied our holding in Begley to affirm OPM’s calcu-
lation of Hulvey’s creditable service. The statute
governing creditable service is 5 U.S.C. § 8332. In rele-
vant part, it provides:
HULVEY v. OPM 6
(a) The total service of an employee or Mem-
ber is the full years and twelfth parts thereof, ex-
cluding from the aggregate the fractional part of a
month, if any.
(b) The service of an employee shall be cred-
ited from the date of original employment to the
date of separation on which title to annuity is
based in the civilian service of the Government.
...
Because § 8332(a) does not define the term “twelfth
parts,” OPM was obligated to devise its own formula to
give effect to this statutory language. Begley, 60 F.3d at805–06. Under its formula, OPM considers a year to have
360 days and each month to have 30 days, and OPM gives
30 days’ credit for each full calendar month that an em-
ployee works regardless of the actual number of days
contained in the particular month’s work. Id. at 806
(citing CSRS and FERS Handbook § 50A2.1-3(B)); see also
J.A. 72–78.
In Begley, we upheld OPM’s system of calculating ser-
vice credit as a reasonable interpretation of the references
in § 8332(a) to “twelfth parts” and “months.” Begley, 60
F.3d at 806. Hulvey seeks to distinguish Begley from the
facts of this case by arguing that the calculation in Begley
involved a “fractional year,” whereas Hulvey’s calculation
involves a “fractional month.” We reject this alleged
distinction. Both Begley and this case involve the calcula-
tion of creditable service under 5 U.S.C § 8332 using
OPM’s method. We held there, as we do here, that OPM’s
method is a reasonable interpretation of § 8332(a). The
Board correctly determined that it was bound by Begley
7 HULVEY v. OPM
with regard to the reasonableness of OPM’s computation
method. 2
Our holding is also consistent with the language of
§ 8332(b) and the CSRS and FERS Handbook. Hulvey
contends that OPM’s computation method violates the
statutory requirement that “[t]he service of an employee
shall be credited from the date of original employment to
the date of separation.” 5 U.S.C. § 8332(b). Although
Begley explicitly addressed only § 8332(a), its holding
equally applies to the language of § 8332(b). OPM’s
calculation expressly accounted for Hulvey’s dates of
original employment and his dates of separation, both for
his military and civilian periods of service. J.A. 20. Thus,
OPM’s method, which necessarily accounts for dates of
original employment and separation, is a reasonable
interpretation of both subsections (a) and (b) of 5 U.S.C.
§ 8332. See Begley, 60 F.3d at 806. Further, because the
CSRS and FERS Handbook merely sets forth the rules
and procedures for applying OPM’s calculation method,
we reject Hulvey’s argument that OPM’s method is con-
trary to the Handbook.
Hulvey nevertheless contends that OPM’s method as
applied to him is unfair. Be that as it may, we recognized
in Begley that in rare instances OPM’s method may credit
an employee with fewer days than he or she actually
worked. Begley, 60 F.3d at 806. To the extent that Hul-
2 We note, moreover, that in his own allegedly cor-
rect creditable service calculation Hulvey relies in part on
OPM’s practice of converting 30 days into a full month of
service. Pet’r’s Informal Br. at Question 3. Hulvey’s
approach of selectively adopting only the parts of the
OPM method that he likes “cannot be squared with any
coherent construction of section 8332(a).” Begley, 60 F.3d
at 806.
HULVEY v. OPM 8
vey’s case presents one such instance, our holding in
Begley specifically accounted for this possibility.
Finally, Hulvey alleges that OPM’s calculation
method discriminates against Hulvey and all federal
employees in general, and that OPM thereby engages in
personnel practices prohibited by 5 U.S.C. § 2302(b)(10)
and 2302(b)(11). We reject these allegations. Sec-
tion 2302(b)(10) prohibits discrimination on the basis of
conduct that does not adversely affect the performance of
the employee or the performance of others. Section
2302(b)(11) prohibits personnel actions that violate a
veterans’ preference requirement. Aside from alleging
unfairness in OPM’s method of calculating creditable
service—a method we have upheld as a reasonable inter-
pretation of a statutory provision—Hulvey does not allege
any conduct or action that violates 5 U.S.C. § 2302(b)(10)
or 2302(b)(11).
CONCLUSION
We have considered all of Hulvey’s arguments and
find them unpersuasive. Accordingly, we affirm the
determination of the Board.
AFFIRMED
COSTS
No costs.