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 fil ed 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 adminis trative 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).04-3445 2 DISCUSSION The governing statute for det ermining 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 im plement the statute, which does not define “full year” or “twelfth part,” OPM has devised a methodology that adjusts the nu mber of days in a month when calculating the length of se rvice 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 H andbook states that “[f]or retirement computation purposes, all m onths 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 determini ng lengths of service periods and when combining multiple periods of service. The facts of this case are not in dispute. Using the methodolog y in Chapter 50 of the Handbook, OPM computed the amount of credi table service to be used as the basis for Jezouit’s retirement annuity. By aggregat ing three periods of service—Jezouit’s military service, his continuous period of ci vilian service, and a period representing his unused sick leave—OPM computed Jezouit’s tota l 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 t hat a year consists of 360 days.04-3445 3 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 ear lier OPM publication, but the relevant provision—use of the 30-day month and 360-day year—is the sa me as in the current Handbook. Begley is controlling precedent on that issue. In what appears to be his main argumen t, Jezouit alleges that OPM does not properly apply its own methodology. Jezouit e ssentially argues that the application of OPM’s process is internally inconsistent bec ause, while the Handbook states that a year consists of 360 days, application of the pr ocedure in the Handbook results in one year’s service credit for every 365 or 366 days of serv ice. 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 sele ctively 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 asse rtion that every 360-day period constitutes a
year. Jezouit additionally contends that the B oard 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 lengt hs of service periods and when combining multiple periods of service, but t heir effect is seen only when partial years are04-3445 4 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, alt hough 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 rece ive one year of credit for every 360 days of accumulated sick leave. As ex plained 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 t hat is combined with other peri ods 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 aver age 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 se ction of the Handbook, § 50A2.1-4. Finally, Jezouit complains that the AJ fa iled 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. Ordinar ily, 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 discreti on by the AJ in not giving Jezouit advance notice of the hearing was not prejudicial bec ause the AJ decided only legal issues and therefore the04-3445 5 AJ was not required to hold an evidentiary hearing. Under the circumstances presented by this case, we find no reason to disagr ee with the Board. The case involves no factual dispute that discovery or an evident iary 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 t he Board’s decision because it was not arbitrary, capricious, an abuse of discretion, or ot herwise not in accordance with law, or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (2000).