Lawrence S. Jezouit v. Office of Personnel Management

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3445
LAWRENCE S. JEZOUIT,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: February 17, 2005
__________________________
Before LOURIE, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit Judge.
PER CURIAM.
Lawrence S. Jezouit filed an appeal with the Merit Systems Protection Board
(“Board”) challenging the Office of Personnel Management’s (“OPM’s”) computation of
his retirement annuity. After an administrative judge (AJ) sustained OPM’s
reconsideration decision,1 the full Board reopened the appeal and affirmed the AJ’s
initial decision with modifications.2 Jezouit petitions for review of that final decision,
which we affirm.
1 Jezouit v. Office of Pers. Mgmt., Docket No. BN-0831-02-0194-I-1
(M.S.P.B. Jan. 16, 2003).
2 Jezouit v. Office of Pers. Mgmt., 97 M.S.P.R. 48 (2004).

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DISCUSSION
The governing statute for determining creditable service for retirement annuity
purposes provides that “the total service of an employee . . . is the full years and twelfth
parts thereof, excluding from the aggregate the fractional part of a month, if any.” 5
U.S.C. § 8332(a) (2000). To implement the statute, which does not define “full year” or
“twelfth part,” OPM has devised a methodology that adjusts the number of days in a
month when calculating the length of service on which the retiree’s annuity will be
based. See CSRS and FERS Handbook for Personnel and Payroll Offices §§ 50A2.1-2
& 50A2.1-3 (Apr. 1998) (“Handbook”). Section 50A2.1-3.B of the Handbook states that
“[f]or retirement computation purposes, all months have 30 days” and “a year consists of
360 days (12 x 30 days).” It is apparent from the examples provided in the Handbook
that OPM’s use of a 30-day month and 360-day year is simply a mechanism to account
for partial months and years when determining lengths of service periods and when
combining multiple periods of service.
The facts of this case are not in dispute. Using the methodology in Chapter 50 of
the Handbook, OPM computed the amount of creditable service to be used as the basis
for Jezouit’s retirement annuity. By aggregating three periods of service—Jezouit’s
military service, his continuous period of civilian service, and a period representing his
unused sick leave—OPM computed Jezouit’s total creditable service as 40 years and 8
months. Jezouit claims he is entitled instead to an annuity based on 41 years and 3
months of creditable service. He obtains this result by adding up the number of days of
service plus the days of unused sick leave and dividing by 360, a process he argues is
required by the Handbook’s statement that a year consists of 360 days.

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To the extent Jezouit challenges OPM’s methodology as an incorrect
interpretation of the statute, we are not persuaded. This court has previously upheld
OPM’s methodology as a reasonable interpretation of § 8332(a). See Begley v. Office
of Pers. Mgmt., 60 F.3d 804, 806 (Fed. Cir. 1995). As Jezouit points out, Begley
addresses the methodology set forth in an earlier OPM publication, but the relevant
provision—use of the 30-day month and 360-day year—is the same as in the current
Handbook. Begley is controlling precedent on that issue.
In what appears to be his main argument, Jezouit alleges that OPM does not
properly apply its own methodology. Jezouit essentially argues that the application of
OPM’s process is internally inconsistent because, while the Handbook states that a year
consists of 360 days, application of the procedure in the Handbook results in one year’s
service credit for every 365 or 366 days of service. The fallacy in Jezouit’s argument is
that the 360-day year on which he relies operates only in conjunction with the 30-day
month adopted by OPM. Jezouit cannot selectively use the 360-day year without the
corresponding assumption that each month has thirty days. See id. For purposes of
determining length of service, a full calendar year is considered to have only 360 days,
but that is not equivalent to Jezouit’s assertion that every 360-day period constitutes a
year.
Jezouit additionally contends that the Board erred when it stated the 360-day
year does not apply to him because he had more than a year of continuous service. In
a sense he is correct, but this argument does not help his cause. The 30-day month
and 360-day year apply when determining lengths of service periods and when
combining multiple periods of service, but their effect is seen only when partial years are

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at issue. In Jezouit’s case, OPM used its 30-day month/360-day year rule when it
determined the length of his civilian service, which included thirty-four complete years
plus a partial year, and when it combined his service periods to compute total creditable
service. Therefore, although the 360-day year does apply to Jezouit, it does not apply
in the way he claims, i.e., to give him one year of retirement credit for every 360 days of
service.
Jezouit further argues that he should receive one year of credit for every 360
days of accumulated sick leave. As explained in Chapter 50 of the Handbook, OPM
converts hours of unused sick leave to years, months, and days, and treats the result as
any other period of service that is combined with other periods to obtain total creditable
service. Therefore, for the reasons already discussed, there is no merit to Jezouit’s
assertion that OPM did not give him proper credit for his unused sick leave.
We also reject Jezouit’s contention that OPM erred by not using a 360-day year
when computing his high-3 average pay. As the Board noted, it appears that Jezouit’s
proposed method would result in a lower average pay than that calculated by OPM. In
any event, there is no mention of a 360-day year in either the relevant statute, 5 U.S.C.
§ 8331(4) (2000), or the relevant section of the Handbook, § 50A2.1-4.
Finally, Jezouit complains that the AJ failed to notify him beforehand that a status
conference would also serve as the hearing in his case, and therefore he was denied
discovery and an evidentiary hearing. Ordinarily, a petitioner is entitled to a hearing on
the merits of his case before the Board. 5 U.S.C. § 7701(a)(1) (2000). The Board
found that any abuse of discretion by the AJ in not giving Jezouit advance notice of the
hearing was not prejudicial because the AJ decided only legal issues and therefore the

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AJ was not required to hold an evidentiary hearing. Under the circumstances presented
by this case, we find no reason to disagree with the Board. The case involves no
factual dispute that discovery or an evidentiary hearing would resolve, and Jezouit has
not explained how the AJ’s alleged failure to allow discovery and order an evidentiary
hearing has prejudiced him.
For the reasons discussed, we affirm the Board’s decision because it was not
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or
unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (2000).

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