Milan Macura v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MILAN MACURA,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2025-1442
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0841-23-0430-I-1.
______________________
Decided: August 8, 2025
______________________
MILAN MACURA, Columbia, KY, pro se.
WILLIAM KANELLIS, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by ELIZABETH
MARIE HOSFORD, PATRICIA M. MCCARTHY, YAAKOV ROTH.
______________________
Before PROST, REYNA, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
Case: 25-1442 Document: 19 Page: 1 Filed: 08/08/2025

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MACURA v. OPM 2
Milan Macura appeals pro se a final order of the Merit
Systems Protection Board denying his request for an annu-
ity under the Federal Employees Retirement System. We
affirm.
BACKGROUND
Under 5 U.S.C. § 8413, entitled “Deferred retirement,”
a federal employee “who is separated from the service . . . ,
after completing 5 years of service is entitled to an annuity
beginning at the age of 62 years.” 5 U.S.C. § 8413(a). Gen-
erally, a federal employee “must complete at least 5 years
of civilian service creditable under 5 U.S.C. § 8411 in order
to be eligible for an annuity under this subchapter.” Id.
§ 8410. Creditable years of civilian service are defined un-
der § 8411, which provides, in part:
Credit under this chapter shall be allowed for
leaves of absence without pay granted an employee
while performing military service, or while receiv-
ing benefits under subchapter I of chapter 81. An
employee or former employee who returns to
duty after a period of separation is deemed, for
the purpose of this subsection, to have been on
leave of absence without pay for that part of the
period in which that individual was receiving
benefits under subchapter I of chapter 81. Credit
may not be allowed for so much of other leaves of
absence without pay as exceeds 6 months in the ag-
gregate in a calendar year.
Id. § 8411(d) (emphases added).
Milan Macura was an employee of the Department of
Justice (“DOJ”) Bureau of Prisons from January 12, 2003
until December 1, 2005. SAppx68.1 The Office of
1 “SAppx” refers to the appendix accompanying the
government’s informal response brief.
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MACURA v. OPM 3
Personnel Management (“OPM”) initially documented
Mr. Macura’s separation from federal service on Decem-
ber 1, 2005 as a removal. SAppx77–80. Mr. Macura ap-
pealed the removal to the Merit Systems Protection Board
(“Board”), and he and the DOJ eventually reached a settle-
ment in which Mr. Macura withdrew his appeal and volun-
tarily resigned, effective December 1, 2005. See SAppx13,
SAppx137, SAppx126. There is no record evidence that
Mr. Macura has been employed by the federal government
since December 1, 2005. See SAppx13, SAppx46.
Subchapter I of 5 U.S.C. Chapter 81 entitles federal
employees to a variety of benefits under Office of Workers’
Compensation Programs (“OWCP”). During his employ-
ment, Mr. Macura received two work-place injuries.
SAppx71–75; see SAppx46. The Department of Labor’s Of-
fice of Workers’ Compensation awarded him OWCP bene-
fits for both periods of injury: September 23, 2005 through
October 14, 2005, and October 18, 2004 through May 10,
2015. SAppx71–75; see SAppx46.
On October 31, 2022, OPM received Mr. Macura’s Ap-
plication for Deferred or Postponed Retirement (“applica-
tion”). SAppx60–65. Mr. Macura requested a deferred
annuity under the Federal Employees Retirement System
(“FERS”), to begin accruing on January 1, 2023. Id.
On April 18, 2023, OPM sent Mr. Macura an initial de-
cision denying his application. SAppx59. OPM stated that
Mr. Macura was “not entitled to an annuity” because he did
“not meet the minimum requirement of at least 5 years
of creditable service.” Id. (emphasis in original). On
April 23, 2023, Mr. Macura requested reconsideration.
SAppx54–55. He argued that his almost eleven years on
OWCP benefits “should count as creditable services,” such
that, when combined with his over two years of employ-
ment, he exceeded the five-year requirement. SAppx54.
He also argued that his superiors at the DOJ “threatened”
him into resigning after receiving one of his work-place
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MACURA v. OPM 4
injuries, and, when he challenged his resignation before
the Board, “the judge dismissed [DOJ’s] baseless claim,
and told [him] that [he] ha[d] no choice but to resign, based
on Medical reasons, or [else] face firing in the future.” Id.
On August 1, 2023, OPM issued a final decision affirm-
ing its initial decision. SAppx51–53. OPM re-
viewed 5 U.S.C. §§ 8410, 8413(a), and 8411(d) and
explained that Mr. Macura “never returned to Federal ser-
vice after [his] December 1, 2005, final separation from ser-
vice.” SAppx51–52. OPM decided that the period when he
received OWCP benefits “after this date is not creditable
toward eligibility requirements for a FERS annuity.”
SAppx52. OPM concluded that Mr. Macura did “not meet
the requirement of at least five years creditable civilian
service” and was accordingly “not eligible for a FERS de-
ferred annuity.” Id.
On August 7, 2023, Mr. Macura appealed to the Board.
SAppx56–58. He argued that § 8411(d) is “discriminatory”
because it treats as “more valuable” the “OWCP time”
of (A) “[m]ilitary personnel,” while “exclud[ing]” law en-
forcement; and (B) “the employees that return back to
work,” while disregarding “the ones who cannot return due
to injury, or the ones who were mistreated, and not given
the opportunity for reasonable accommodations.”
SAppx57.
On February 5, 2024, the administrative judge (“AJ”)
issued a Close of Record order. SAppx107–12. The AJ re-
viewed §§ 8410, 8413(a), and 8411(d) and explained that
“there is no statutory or regulatory authority that would
allow for a waiver of the 5-year minimum service require-
ment.” SAppx109–11. On February 6, 2024, Mr. Macura
responded to this order. SAppx113–32. He argued that
OPM’s denial of his retirement benefits was discrimina-
tory, in violation of 5 U.S.C. § 2302(b)(1)(A), and an “arbi-
trary action” barred under 5 U.S.C. § 2301(b)(8)(A).
SAppx117–18. He referred to “[b]ullying, intimidations
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MACURA v. OPM 5
and lies” from the DOJ and the Board surrounding his res-
ignation case, and he included exhibits with related docu-
mentation. SAppx117, SAppx119–32.
On March 5, 2024, the AJ issued an initial decision af-
firming OPM’s final decision. SAppx9–25. The AJ decided
that Mr. Macura “is not entitled to a FERS annuity.”
SAppx13. The AJ explained that he was an employee for a
period of almost three years, and his nearly eleven years
receiving OWCP benefits were not creditable because he
“never returned to federal service.” Id. The AJ also decided
that, even if Mr. Macura’s allegations of intimidation by
the DOJ and the Board had merit, his agreement during
settlement to withdraw his appeal of his removal and vol-
untarily resign was “an act of finality that generally pre-
vents the appellant from pursuing such claims anew.” Id.
The AJ further decided that Mr. Macura’s allegations
about his removal did not “provide a means of adding addi-
tional creditable service” under the retirement statutes.
SAppx14.
Lastly, the AJ rejected Mr. Macura’s assertion of dis-
crimination. SAppx14–16. The AJ explained that
Mr. Macura’s allegations of discrimination were “based on
a misreading of” § 8411(d), because the “plain language of
the statute extends only to ‘employees’ who are on leave
without pay,” and, for most of the time Mr. Macura was re-
ceiving OWCP benefits, he was “no longer an ‘employee’ in
a leave without pay status.” SAppx15. The AJ further ex-
plained that, “if anything, [§ 8411(d)] provides OWCP ben-
eficiaries an advantage over military service members”
because it allows creditability for “former employees” who
“return[] to duty after a period of separation.” Id. (quot-
ing 5 U.S.C. § 8411(d)) (alteration in original) (emphasis
added). In other words, by contrast, a person who “per-
form[s] military service” must be allowed creditability only
if the person remained an “employee” who was on a “leave[]
of absence without pay.” 5 U.S.C. § 8411(d) (emphasis
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MACURA v. OPM 6
added).2 Thus, the AJ concluded that Mr. Macura “ha[d]
not shown that he has 5 years of creditable service” and
thus was “not entitled to a retirement annuity under
FERS.” SAppx16.
On March 6, 2024, Mr. Macura petitioned for review of
the AJ’s initial decision. SAppx136–41. Mr. Macura ar-
gued that the AJ failed to consider the circumstances sur-
rounding his removal and resignation, in which his
superiors at the DOJ “threatened” him and “lied,” after
which the Board “forced” him to resign. SAppx136–37. On
February 3, 2025, the Board issued its final order.
SAppx1–8. The Board denied the petition for review and
affirmed the AJ’s initial decision, which became the
Board’s final decision. SAppx2.
Mr. Macura petitions for review in this court. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
We “must affirm the Board’s decision unless it
is: ‘(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.’”
2 Even if “the statute did treat OWCP beneficiaries
less favorably than military service personnel,” the AJ
noted that Mr. Macura “would likely need to argue that”
§ 8411(d) violated the equal protection component of the
due process guarantee under the Fifth Amendment of the
U.S. Constitution. SAppx15. Still, the AJ explained that
“distinctions that reward veterans for military service gen-
erally do not offend equal protection principles.”
SAppx15–16 (citing, inter alia, Hooper v. Bernalillo Cnty.
Assessor, 472 U.S. 612, 620 (1985)). Regardless, the AJ
decided that the Board cannot declare a statute unconsti-
tutional and thus did not address this issue. SAppx16.
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MACURA v. OPM 7
Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326, 1330
(Fed. Cir. 2005) (quoting 5 U.S.C. § 7703(c)). “An abuse of
discretion occurs where the decision is based on an errone-
ous interpretation of the law, on factual findings that are
not supported by substantial evidence, or represents an un-
reasonable judgment in weighing relevant factors.” Gose v.
U.S. Postal Serv., 451 F.3d 831, 836 (Fed. Cir. 2006) (cita-
tion and quotations omitted) (cleaned up). “Substantial ev-
idence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Higgins
v. Dep’t of Veterans Affs., 955 F.3d 1347, 1353
(Fed. Cir. 2020) (citation and quotations omitted). “The pe-
titioner bears the burden of establishing error in the
Board’s decision.” Harris v. Dep’t of Veterans Affs.,
142 F.3d 1463, 1467 (Fed. Cir. 1998).
DISCUSSION
Mr. Macura argues that the Board erred in affirming
OPM’s denial of his request for a deferred annuity under
the FERS. Petitioner Inf. Br. 2. According to Mr. Macura,
he is entitled to this annuity because his nearly eleven
years receiving OWCP benefits should be creditable, since
he was forced to resign from federal employment and
§ 8411(d) is discriminatory. Id.3 Mr. Macura asserts that
the Board failed to consider “overwhelming evidence” in his
favor. Petitioner Inf. Br. 3. We conclude that Mr. Macura
fails to establish that the Board relied on an erroneous in-
terpretation of law or on fact findings not supported by sub-
stantial evidence. See Gose, 451 F.3d at 836.
3 Mr. Macura provides no substantive discussion of
his arguments in his opening brief, instead citing his re-
sponse to the Close of Record order and his petition for re-
view, in which he made the above two arguments.
Petitioner Inf. Br. 2; see SAppx113–32, SAppx136–41.
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MACURA v. OPM 8
First, the Board properly decided that § 8411(d) does
not provide a carveout that applies to the circumstances of
Mr. Macura’s separation from federal employment. See
SAppx13–14. The Board addressed the requirement under
§ 8411(d) that OPM may only allow creditability for leaves
of absence for a “former employee” if the former employee
“returns to duty after a period of separation” during which
this person “was receiving benefits under subchapter I of
chapter 81[.]” 5 U.S.C. § 8411(d) (emphasis added); see
SAppx13. The Board then properly determined that the
statute does not provide any exception to or waiver of the
requirement in circumstances in which the petitioner al-
leged that the separation from federal employment was co-
erced. See SAppx13–14. We see no language in § 8411(d)
that provides for any such exception or waiver. Thus, the
Board did not rely on an erroneous interpretation of the
statute in rejecting Mr. Macura’s argument that the cir-
cumstances of his separation should exempt him from the
creditability requirements under § 8411(d).
Second, the Board properly decided that Mr. Macura’s
allegations of discrimination were inapposite. See
SAppx15. The Board correctly determined that § 8411(d)
does not favor military service personnel over OWCP ben-
eficiaries under subchapter I of 5 U.S.C. Chapter 81. See
id. We agree with the Board that the statute actually pro-
vides such beneficiaries “a leg up, not a disadvantage.” Id.
Under § 8411(d), OPM is only required to provide credita-
bility for military service personnel who remain employees
on leaves of absence without pay. 5 U.S.C. § 8411(d). By
contrast, the provision allows creditability for non-military
OWCP beneficiaries even for periods when they are former
employees, so long as they “return[] to duty.” Id. Thus, the
Board did not rely on an erroneous interpretation of the
statute in rejecting Mr. Macura’s argument that § 8411(d)
is discriminatory.
Based on the conclusion that Mr. Macura’s years re-
ceiving OWCP benefits are not creditable under § 8411(d),
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MACURA v. OPM 9
the Board decided that Mr. Macura failed to show that he
had five years of creditable service, as required for eligibil-
ity under § 8413(a), and thus failed to show that he was
entitled to a deferred retirement annuity under § 8410. See
SAppx16. Mr. Macura does not challenge the validity of
these statutory provisions or the Board’s application of
them. Thus, we conclude that the Board did not abuse its
discretion in affirming OPM’s denial of Mr. Macura’s re-
quest for a deferred annuity under the FERS.
CONCLUSION
We have considered Mr. Macura’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Board’s final order.
AFFIRMED
COSTS
No costs.
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