Jonathan Steele v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JONATHAN STEELE,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1154
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-844E-21-0362-I-1.
______________________
Decided: May 7, 2024
______________________
J ONATHAN STEELE, Hermitage, PA, pro se.
ANNE D ELMARE , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, P ATRICIA M. MCCARTHY , CORINNE ANNE N IOSI.
______________________
Before L OURIE, P ROST , and STARK, Circuit Judges.
P ER CURIAM .
Case: 24-1154 Document: 24 Page: 1 Filed: 05/07/2024

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STEELE v. OPM 2
Jonathan Steele appeals from a final decision of the
Merit Systems Protection Board (“Board”) denying his re-
quest for disability retirement benefits under the Federal
Employees’ Retirement System (“FERS”). For the reasons
below, we affirm the Board’s decision.
BACKGROUND
Mr. Steele served in the U.S. Air Force in 1999 for 27
days and in 2005 for 107 days. Mr. Steele also alleges that
he served an additional 8.5 years in the military between
1999 and 2022. Appellant’s Informal Br. 7. He also worked
for the Veterans Health Administration from February 18,
2020, until February 9, 2021 (11 months and 22 days).
Mr. Steele applied for disability retirement benefits un-
der FERS. The Office of Personnel Management (“OPM”)
denied Mr. Steele’s application because he had worked less
than the 18 months in civilian service required to receive
this benefit. Mr. Steele sought reconsideration, and OPM
sustained its findings. Mr. Steele then appealed to the
Board, where an Administrative Judge issued an initial de-
cision affirming OPM’s reconsideration decision. Mr.
Steele then filed a petition for review of the Administrative
Judge’s initial decision. The Board issued a final order
denying the petition for review.
Mr. Steele timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
D ISCUSSION
We must affirm the Board’s decision unless it was
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). “The petitioner bears the burden of es-
tablishing error in the Board’s decision.” Harris v. Dep’t of
Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998).
Case: 24-1154 Document: 24 Page: 2 Filed: 05/07/2024

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STEELE v. OPM 3
Mr. Steele argues that he is eligible for disability re-
tirement benefits based on his combined number of years
in civilian and military service.
FERS establishes that “[a]n employee who completes
at least 18 months of civilian service creditable under [5
U.S.C. §] 8411 and has become disabled” is eligible for dis-
ability retirement. 5 U.S.C. § 8451(a)(1)(A); see also 5
C.F.R. § 844.103(a)(1) (“The individual must have com-
pleted at least 18 months of civilian service that is credita-
ble under FERS, as defined in § 842.304 of this chapter.”).
The plain language of FERS requires 18 months of civilian
service under § 8411 to establish eligibility for disability
retirement. 5 U.S.C. § 8451(a)(1)(A); 5 C.F.R.
§ 844.103(a)(1). Mr. Steele does not dispute that he worked
less than 18 months in civilian service. Appellant’s Infor-
mal Br. 7, 8. Therefore, Mr. Steele is not eligible for FERS
disability retirement benefits.1
Mr. Steele argues that his military service should
count toward the 18-month-civilian-service requirement.
We disagree. Section 8411, which mentions both civilian
and military service, is used for FERS purposes in addition
to § 8451 eligibility. For example, “total service” under
§ 8411 (potentially both military and civilian) may be used
in the calculation of an annuity. See 5 U.S.C. § 8415(a).
Section 8411’s reference to both types of service, however,
does not change the fact that § 8451 requires 18 months of
civilian service. See Montelongo v. OPM, 939 F.3d 1351,
1354 (Fed. Cir. 2019) (“[M]ilitary service may count in cal-
culating the amount of an annuity if eligibility is estab-
lished, [but] eligibility may not be met by combining
1 Mr. Steele alleges that he was forced to quit his job
at the VA, which prevented him from completing 18
months of civilian service. He has not advanced any argu-
ment why this allegation would change the calculation of
the period of civilian service here.
Case: 24-1154 Document: 24 Page: 3 Filed: 05/07/2024

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STEELE v. OPM 4
civilian and military service.”) (distinguishing civilian ser-
vice from military service in an analogous FERS provision,
5 U.S.C. § 8410).2 Military service therefore cannot count
toward the required 18 months of civilian service.
Mr. Steele also appears to raise a discrimination claim
related to his denial of benefits. He did not raise this claim
before the Board, and thus it is forfeited on appeal. Oshiver
v. OPM, 896 F.2d 540, 542 (Fed. Cir. 1990). Moreover, we
do not have jurisdiction to address a claim for discrimina-
tion under 5 U.S.C. § 7703(b)(2). Williams v. Dep’t of Army,
715 F.2d 1485, 1487 (Fed. Cir. 1982) (en banc). We there-
fore do not address the merits of this argument.
CONCLUSION
We have considered Mr. Steele’s remaining arguments
and find them unpersuasive. Because Mr. Steele does not
meet the 18-month civilian service eligibility requirement
for disability retirement benefits under FERS, we affirm.
AFFIRMED
COSTS
No costs.
2 Mr. Steele also argues that he is attempting to pay
a deposit to receive credit for his military service. E.g., 5
U.S.C. § 8411(c)(1)(B) (allowing “credit for . . . each period
of military service performed after December 31, 1956, . . .
if a deposit . . . is made” in accordance with another provi-
sion (emphasis added)); see also 5 C.F.R. §§ 842.306(a)(2)
(implementing the requirements of § 8411(c)(1)(B)),
842.307 (setting out the requirements for a deposit). Even
if Mr. Steele pays this deposit to receive credit, military
credit may not be used to establish disability retirement
eligibility under the plain language of 5 U.S.C.
§ 8451(a)(1)(A).
Case: 24-1154 Document: 24 Page: 4 Filed: 05/07/2024

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