Anthony S. Stuart v. Office of Personnel Management

United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY S. STUART,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1024
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0842-17-0107-I-1.
______________________
Decided: June 13, 2025
______________________
SHAUN R YAN Y ANCEY, Melville Johnson, P.C., Atlanta,
GA, argued for petitioner. Also represented by J ENNIFER
DUKE ISAACS.
C ORINNE A NNE N IOSI , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
B RIAN M. B OYNTON, PATRICIA M. MC CARTHY, F RANKLIN E.
WHITE , J R .; R OXANN SAMANTHA J OHNSON, Office of General
Counsel, United States Office of Personnel Management,
Washington, DC.
______________________
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STUART v. OPM 2
Before HUGHES, BRYSON, and STARK, Circuit Judges.
B RYSON, Circuit Judge.
Navy veteran Anthony Stuart appeals from a decision
of the Merit Systems Protection Board holding that
Mr. Stuart is not entitled to credit for his periods of mili-
tary service in computing his civilian retirement annuity.
The Board held that Mr. Stuart’s military service could not
be counted in computing his civilian pension because he
was already receiving military retired pay based on a disa-
bility incurred during his military service. We affirm.
I
Mr. Stuart served on active duty in the Navy during
three periods: (1) March 25, 1974, to March 22, 1979; (2)
March 18, 1981, to March 16, 1984; and (3) July 23, 1985,
to April 23, 1991. J.A. 111. In 1991, the Navy placed
Mr. Stuart on the Temporary Disability Retirement List
based on various medical conditions. J.A. 132. The Navy
subsequently informed Mr. Stuart that his disability was
determined to be permanent and that he had been assigned
a 60% disability rating. J.A. 57. Accordingly, as of August
1, 1994, Mr. Stuart was placed on the Permanent Disability
Retirement List, at which point he became eligible to re-
ceive military retired pay. Id. The Defense Finance and
Accounting Service calculated the amount of Mr. Stuart’s
retired pay using two methods, one based on the percent-
age of his disability rating (60%), and the other based on
his total years of service (13 years and 8 months). J.A. 91.
Mr. Stuart received the amount calculated based on his dis-
ability rating, because it yielded a greater gross pay
amount. Id.
After his military service, Mr. Stuart entered into fed-
eral civilian service and became eligible to accrue retire-
ment benefits under the Federal Employees’ Retirement
System (“FERS”). He retired from his civil service position
on November 28, 2015. J.A. 108. On his FERS retirement
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STUART v. OPM 3
application form, Mr. Stuart indicated that he was not
waiving his military retired pay in order to receive credit
toward his FERS retirement benefits for his military ser-
vice. J.A. 111.
On March 23, 2016, the Office of Personnel Manage-
ment (“OPM”) issued an initial decision informing Mr. Stu-
art that his military service was not creditable toward his
FERS annuity calculation because he was receiving mili-
tary retired pay. J.A. 93. OPM explained that by statute
Mr. Stuart could not receive both military retired pay and
FERS credit for his military service unless his military re-
tired pay was awarded for: (1) service-connected disability
either incurred in combat with an enemy of the United
States or caused by an instrumentality of war and incurred
in the line of duty during a period of war; or (2) retirement
from a reserve component of the Armed Services under
chapter 1223 of title 10. Id.; see 5 U.S.C. § 8411(c)(2).
OPM subsequently explained that because Mr. Stuart’s
military retired pay was not awarded for any of the reasons
listed as exceptions in 5 U.S.C. § 8411(c)(2), he was re-
quired to waive his military retired pay if he wished to have
his military service credited toward the calculation of his
FERS annuity. J.A. 66. Mr. Stuart sought reconsideration,
asserting that he was not required to waive his military
retired pay because his military retired pay was based on
his disability, not the length of his service. J.A. 88.
On February 27, 2017, OPM affirmed its initial deci-
sion and found that Mr. Stuart was ineligible to receive
credit for his military service in the calculation of his FERS
annuity. J.A. 84–85. OPM explained that Mr. Stuart’s ac-
tive-duty service was an “integral part” of his military re-
tired pay, whether calculated based on the percentage of
his disability or the length of his service. J.A. 85.
Mr. Stuart appealed OPM’s determination to the Merit
Systems Protection Board. In an initial decision, the ad-
ministrative judge held that Mr. Stuart must meet the
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STUART v. OPM 4
requirements of 5 U.S.C. § 8411(c)(2) to credit his military
service toward his FERS annuity. J.A. 71. The adminis-
trative judge found that Mr. Stuart was not entitled to such
credit because it was undisputed that Mr. Stuart had not
waived his military retired pay, and that he did not meet
any of the exceptions to the rule against double crediting
military service for both military retired pay and a civil ser-
vice annuity. Id. The administrative judge also found that
because Mr. Stuart was awarded retirement pay based on
his period of military service, it was irrelevant whether the
amount of that award was calculated based on the percent-
age of his disability or the length of his service. J.A. 71–
72. The administrative judge thus concluded that Mr. Stu-
art was not entitled to receive FERS credit for his military
service. J.A. 72.
The full Board affirmed the initial decision, modifying
it only to clarify the administrative judge’s “analysis re-
garding whether [Mr. Stuart’s] retired pay is based on his
military service.” J.A. 6. The Board held that the admin-
istrative judge erred in finding that the method used to cal-
culate Mr. Stuart’s military retired pay was irrelevant, but
nonetheless agreed with her ultimate finding that his re-
tired pay was based on his military service. J.A. 7.
While the Board acknowledged that the amount of
Mr. Stuart’s retired pay was not calculated based on the
length of his service, it explained that he was awarded re-
tired pay for disability that “occurred during his military
service.” Id. Moreover, the Board found that there was no
evidence to suggest that Mr. Stuart’s military retired pay
was based solely on his most recent period of service and
that Mr. Stuart “does not distinguish among his periods of
military service.” J.A. 8. The Board therefore found that
Mr. Stuart’s retired pay “is ‘based on’ all his periods of mil-
itary service.” Id. Finally, the Board declined to disturb
the administrative judge’s finding that Mr. Stuart did not
dispute that he does not meet any of the statutory excep-
tions to the rule against double crediting military service
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STUART v. OPM 5
for both military retired pay and a civilian retirement an-
nuity. J.A. 9.
II
A
Section 8411(c) of title 5 provides that for purposes of
computing a civil service retirement annuity, a federal em-
ployee “shall be allowed credit for . . . each period of mili-
tary service performed after December 31, 1956, and before
the separation on which title to annuity is based.” 5 U.S.C.
§ 8411(c)(1). In order to avoid double crediting, however,
the statute provides that if the employee “is awarded re-
tired pay based on any period of military service, the ser-
vice of the employee . . . may not include credit for such
period of military service” unless an exception applies. Id.
§ 8411(c)(2); see also Miller v. Off. of Pers. Mgmt., 903 F.3d
1274, 1281 (Fed. Cir. 2018) (The bar against double count-
ing periods of military service “comes into play when a civil
service annuitant seeks to increase his or her annuity by
adding to his or her creditable civilian service military ser-
vice time for which the annuitant is receiving military re-
tirement pay.”).1 The statute provides only two exceptions
to the rule against crediting a period of military service for
both FERS and military retirement benefits.
First, a period of military service may be credited for
FERS annuity when military retired pay for that period is
awarded “based on a service-connected disability (i) in-
curred in combat with an enemy of the United States; or
(ii) caused by an instrumentality of war and incurred in
line of duty during a period of war as defined by
1 Although Miller addressed the bar against double
crediting of military service under the Civil Service Retire-
ment System (“CSRS”), 5 U.S.C. § 8332(c)(2), that statute
contains the same language as 5 U.S.C. § 8411(c)(2), which
applies to benefits under FERS.
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STUART v. OPM 6
section 1101 of title 38.” Id. § 8411(c)(2)(A). Second, a pe-
riod of military service may be credited toward FERS an-
nuity when military retired pay for that period is awarded
“under chapter 1223 of title 10,” which deals with retired
pay for persons in non-regular service. Id. § 8411(c)(2)(B).
As the Board found, it is clear that Mr. Stuart is receiv-
ing military retired pay and that he has elected not to
waive his military retired pay, a requirement for having
“years of uniformed service counted with his civilian ser-
vice in the calculation of a civil service annuity.” Absher v.
United States, 805 F.2d 1025, 1026 (Fed. Cir. 1986). It is
also clear that Mr. Stuart has not established that either
exception under section 8411(c)(2) applies to him.2
Mr. Stuart argues that section 8411(c)(2) “does not ap-
ply to [him] because he was not awarded military retired
pay based on any period of his military service.” Appel-
lant’s Opening Br. at 11. Specifically, Mr. Stuart argues
2 In his reply brief, Mr. Stuart argues that being dis-
charged without a discharge certificate prevented him from
asserting that he fell within one of the exceptions under
section 8411(c)(2)(A), although he does not make any show-
ing that his disability fell within either exception. Appel-
lant’s Reply Br. at 1. The closest he comes to doing so is to
contend that because he worked with hazardous materials
while he was in the Navy, “[h]e was harmed greatly in serv-
ing his country similar to those servicemen who were in-
jured in combat or by an instrumentality of war during a
period of war,” and that “he should be entitled to the excep-
tion just as those servicemen are entitled to the exception.”
Id. at 4. These arguments fail to raise a factual dispute
about whether his disability was incurred in combat or by
an instrumentality of war in the line of duty during a pe-
riod of war. Nor does he suggest that he was awarded re-
tirement pay for non-regular service under chapter 1223 of
title 10.
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STUART v. OPM 7
that he is “entitled to receive credit for his military service
under FERS because his military disability retirement pay
was not based on his years of service” but was “based on
his disability percentage.” Id. at 10.
We disagree with Mr. Stuart’s argument that military
retired pay calculated based on the percentage of disability
does not qualify as “retired pay based on any period of mil-
itary service.” As an initial matter, section 8411(c)(2)
clearly contemplates that military retired pay awarded
“based on a service-connected disability” constitutes a type
of “retired pay based on any period of military service.”
Otherwise, it would make no sense for the statute to refer
to retired pay based on specific service-connected disabili-
ties as exceptions to the principle against double crediting
a period of military service.
By Mr. Stuart’s logic, it would be irrelevant whether a
service-connected disability was incurred in combat or
caused by an instrumentality of war in the line of duty dur-
ing a period of war; double crediting would be allowed so
long as the veteran’s military retired pay was calculated
based on the percentage of his disability.
That is not what the statute says. See Francis v. Off.
of Personnel Mgmt., 985 F.2d 585, 1992 WL 379430, at *2
(Fed. Cir. 1992) (“[The appellant] would have us hold that
all military disability pay is exempt from the demands of
section 8332(c)(2). Doing so, however, would render super-
fluous the language of section 8332(c)(2)(A)(i) and (ii) that
exempts retired pay based on specific disabilities.”).
The plain language of section 8411(c)(2) thus bars dou-
ble crediting Mr. Stuart’s military service in computing his
FERS annuity.
B
To buttress his argument, Mr. Stuart invokes this
court’s decision in Babakitis v. Office of Personnel Manage-
ment, 978 F.2d 693 (Fed. Cir. 1992), as requiring that his
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STUART v. OPM 8
military service be credited in calculating his civilian an-
nuity even though he is receiving military retired pay for
those periods of service. That case, however, does not sup-
port his position.3 In particular, Babakitis does not stand
for the proposition that a period of military service may be
double credited if the amount of military retired pay was
calculated based on the veteran’s percentage of disability,
rather than the length of his service.
Mr. Babakitis had an initial ten-year period of active-
duty service in the military, followed by a period of civilian
service that ended with his retirement in 1973. When he
separated from the civil service in 1973, he began receiving
a Civil Service Retirement Act (“CSRA”) annuity that cred-
ited his ten years of military service that preceded his ci-
vilian employment. Following his retirement from the civil
service, Mr. Babakitis embarked on another period of ac-
tive duty in the military. Subsequently, during that second
period of military service, Mr. Babakitis became disabled
and was awarded a military disability pension, which was
calculated based on the percentage of his disability because
it provided a larger amount than the calculation based on
the length of his service.
At issue in that case was whether Mr. Babakitis’s mil-
itary disability pension nullified his “entitlement to credit
3 Mr. Stuart also argues that the Board erred “in not
considering relevant language from the OPM CSRS and
FERS Handbook regarding waiver of military retired pay.”
Appellant’s Opening Br. at 11. The Board, however, did
consider the Handbook. The Board found that Mr. Stuart’s
“military service, during which he developed a disability, is
not similar to those types of military service described in
the Handbook.” J.A. 8–9. The Board also found that “the
Handbook does not conflict with 5 U.S.C. § 8411(c), or our
analysis of that statutory provision.” J.A. 9. There is no
error in those findings.
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STUART v. OPM 9
under CSRA for his [initial] ten-year period of military ser-
vice.” 978 F.2d at 694. The court held that there was no
impermissible double crediting of the initial ten-year pe-
riod because Mr. Babakitis’s military pension was not
“based on” that initial period. See id. at 696 (“The statute
begins with a direction that credit shall be given for each
period of military service before the annuitant separates
from a civilian position. It is, thus, necessary to look first
at whether Babakitis’s military pension is based on his in-
itial ten years in the military.”).
The court explained that “[t]he calculation of Ba-
bakitis’s disability annuity was ‘based on’ (1) a disability
which occurred during his final period of military service
and (2) the extent of his disability, not on the total length
of his military service.” Id. That statement, however, does
not mean that retired pay cannot be “based on” a period of
military service if its amount is calculated using the per-
centage of the veteran’s disability. The court’s analysis
was confined to whether Mr. Babakitis’s retired pay was
“based on” his initial period of military service, and the
court found no connection between that period and his mil-
itary retired pay, which was only awarded after he became
disabled during the later period of service. See id. at 695
(“As an initial matter it should be understood that only mil-
itary service time prior to civilian employment is at is-
sue.”).
Because Mr. Babakitis’s military pension was not
“based on” his initial period of military service, he did not
run afoul of the double crediting prohibition of sec-
tion 8411(c), which precludes crediting a period of service
that resulted in retired military pay if the veteran is seek-
ing credit for “such service” toward his civilian retirement
annuity. This court’s decision in Babakitis therefore does
not give Mr. Stuart the right to obtain credit for his mili-
tary service toward both his military retirement pay and
his FERS retirement annuity.
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STUART v. OPM 10
C
Finally, Mr. Stuart asserts at one point in his brief that
“[h]is military retired pay had to be based on his final pe-
riod of service because the U.S. military would not have al-
lowed [him] to re-enlist with a disabling medical condition.”
Appellant’s Opening Br. at 22. Mr. Stuart, however, did
not make any argument regarding the distinctness of his
periods of service before the Board. See J.A. 8 (“[Mr. Stu-
art] acknowledges on review that his military retirement
was based on disabilities that he acquired while working
with hazardous substances during his military service, and
he does not distinguish among his periods of military ser-
vice. Therefore, we find that the appellant’s retired pay is
‘based on’ all his periods of military service within the
meaning of 5 U.S.C. § 8411(c)(2).”). The Board, in any
event, found “no evidence to suggest that his military re-
tired pay was based solely on his most recent period of ser-
vice.” Id. We find no error in that finding.
We therefore uphold the Board’s analysis of the statute
and its application to Mr. Stuart’s case.
AFFIRMED
C OSTS
No costs.
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