N OTE : This disposition is nonprecedential. 

# United States Court of Appeals **for the Federal Circuit**

__________________________

WILLIAM W. HULVEY, Petitioner,

v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.

__________________________

2011-3065

__________________________
Petition for review of the Merit Systems Protection
Board in Case No. PH0831100249-I-1.

____________________________

Decided: June 13, 2011

____________________________

W ILLIAM W. H ULVEY , Morgantown, West Virginia, pro

se.

M ELISSA M. D EVINE , Trial Attorney, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were T ONY W EST

, Assistant Attorney General, J EANNE E. D AVIDSON , Director, and D EBORAH A. B YNUM , Assistant Director.

__________________________HULVEY v. OPM 2

Before R ADER

, Chief Judge , and L OURIE and B RYSON

, Circuit Judges

.
P ER C URIAM

.

William W. Hulvey appeals fr om the decision of the Merit Systems Protection Board (the “Board”) affirming that Hulvey’s Civil Service Retirement System (“CSRS”) annuity had been correctly computed by the Office of Personnel Management (“OPM”). Because OPM did not miscalculate Hulvey’s a nnuity, and because OPM’s method of calculation is a reasonable interpretation of § 8332, we affirm

.

B ACKGROUND

The facts of this case are undisputed. Petitioner William Hulvey is a CSRS annuitant who retired effective May 5, 2005. Hulvey had two pertinent periods of federal employment: military service from October 22, 1970, through February 26, 1971; and civilian service from April 14, 1974, through September 6, 2006. 1 Hulvey also had 1,567 hours of accumulated unused sick leave.

OPM computed Hulvey’s total service to be 33 years, 5 months, and 29 days ( i.e. , 4 months and 5 days of military service; 32 years, 4 months, and 23 days of civilian service; and 9 months and 1 day of unused sick leave pursuant to OPM’s chart for converting hours of unused sick leave to months and days, J. A. 78). The 29 days were eliminated as an impermissibl e fraction of a month under 5 U.S.C § 8332(a). Thus, according to OPM, Hulvey’s

1 As the Board noted, Hulvey indicated that afterprevailing on an Equal Employment Opportunity complaint of discrimination he was awarded a retroactive promotion, salary increase, and extension of his retirement date to September 6, 2006. J.A. 12.HULVEY v. OPM 3

total creditable service was 33 years and 5 months. Hulvey petitioned for recalculation, J.A. 23, and OPM affirmed its determination of 33 years and 5 months of creditable service, J.A. 19.

Hulvey appealed to the MSPB, asserting that his total
creditable service was miscalculated. J.A. 31. With regard to his military service, Hulvey asserted that he served a total of 3 months and 36 days ( i.e. , 10 days in October 1970; 3 full months from November 1970 to January 1971; and 26 days in February 1971). After applying OPM’s rule that each month contains 30 days (discussed below), Hulvey a sserted that his creditable military service totaled 4 months and 6 days. Adding this military service to the beginning date of his civilian service (April 14, 1974), Hulvey asserted that his beginning “service computation date” should be December 8, 1973. (In contrast, OPM’s service computation date, based on one fewer day of creditable military service, was December 9, 1973.) Using this allegedly correct service computation date, Hulvey then calculated his total creditable service to be 33 year s, 6 months, and 1 day ( i.e. , 24 days in December 1973; 32 ye ars and 8 full months fromJanuary 1974 through August 2006; and 6 days in September 2006; plus 9 months and 1 day of unused sick leave).

In an initial decision dated May 12, 2010, the Boardaffirmed OPM’s calculation, determining that the calculation was correct and that, pursuant to Begley v. Office of Personnel Management , 60 F.3d 804 (Fed. Cir. 1995),OPM’s calculation method was a reasonable interpretation of 5 U.S.C. § 8332(a). J.A. 11–15. Hulvey filed a petition for review at the Board, and in a final order dated November 19, 2010, the Board denied the petition. J.A.HULVEY v. OPM 4

6–9. Hulvey timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

D ISCUSSION

In an appeal from a decisi on of the MSPB, we must affirm the decision unless it is found to be: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regu lation having been followed; or (3) unsupported by substa ntial evidence.” 5 U.S.C. § 7703(c) (2006); see also Koyen v. Office of Pers. Mgmt.

, 973 F.2d 919, 922 (Fed. Cir. 1992).

When reviewing an agency’s construction of a statute that it administers, we look first to the language of the statute and ask “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842 (1984). If the statute is silent or ambiguous as to the specific issue, we ask “whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843. In cases involving implicit legislative delegation to the agency, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. at 844.

On appeal, Hulvey assert s that OPM’s method of computing total federal service credit pursuant to 5U.S.C. § 8332 is “inequitable and randomly discriminatory,” because, by considering each month to have 30days, it can in some circumstances credit a federal employee with fewer than all of the days the employee actually worked. Hulvey thus asserts that OPM’s service calculation method is “inherently unreasonably” and impermissible under Chevron

.HULVEY v. OPM 5

Hulvey contends in partic ular that OPM’s method misapplied 5 U.S.C. § 8332(a), disregarded § 8332(b), and
failed to follow the method of calculation set forth in the Civil Service Retirement System and Federal Employees Retirement System Handbook for Personnel and Payroll Offices (“CSRS and FERS Handbook”). According to Hulvey, these errors resulted in a miscalculation of his creditable service, as detailed above. Specifically, Hulvey asserts that he served in the military for 4 months and 6 days, not 4 months and 5 days as calculated by OPM. He
further contends that he was denied an additional day of service when OPM merged his military and civilian
services to determine his total creditable federal service. Thus, Hulvey maintains, he is entitled to a total of 33 years, 6 months, and 1 day of creditable service. Hulvey requests that we reverse the Board’s decision, order the Board to recalculate his federal creditable service, and order payment of prior annuity underpayments with
interest.

The government responds by arguing that the Board correctly affirmed OPM’s calc ulation of Hulvey’s creditable service periods. The government asserts that the Board properly followed Begley , which held that OPM’s method of calculation is a reasonable interpretation of itsstatutory authority to compute creditable service. Moreover, the government contends that OPM’s calculationcomplies with § 8332(b) and the CSRS and FERS Handbook.

We agree with the government that the Board properly applied our holding in Begley to affirm OPM’s calculation of Hulvey’s creditable service. The statute governing creditable service is 5 U.S.C. § 8332. In relevant part, it provides:HULVEY v. OPM 6

(a) The total service of an employee or Member is the full years and twelfth parts thereof, excluding from the aggregate the fractional part of a month, if any.

(b) The service of an employee shall be credited from the date of original employment to the date of separation on which title to annuity is
based in the civilian service of the Government.

. . .

Because § 8332(a) does not define the term “twelfth parts,” OPM was obligated to devise its own formula to give effect to this statutory language. Begley , 60 F.3d at 805–06. Under its formula, OPM considers a year to have 360 days and each month to have 30 days, and OPM gives30 days’ credit for each full calendar month that an employee works regardless of the actual number of days contained in the particular month’s work. Id. at 806 (citing CSRS and FERS Handbook § 50A2.1-3(B)); see also
J.A. 72–78.

In Begley , we upheld OPM’s system of calculating service credit as a reasonable interpretation of the references in § 8332(a) to “twelfth parts” and “months.” Begley , 60 F.3d at 806. Hulvey seeks to distinguish Begley from the facts of this case by argu ing that the calculation in Begley involved a “fractional year,” whereas Hulvey’s calculation involves a “fractional month.” We reject this alleged
distinction. Both Begley and this case involve the calculation of creditable service under 5 U.S.C § 8332 using OPM’s method. We held there, as we do here, that OPM’s method is a reasonable interp retation of § 8332(a). The Board correctly determined that it was bound by BegleyHULVEY v. OPM 7

with regard to the reasonabl eness of OPM’s computation
method. 2

Our holding is also consistent with the language of § 8332(b) and the CSRS and FERS Handbook. Hulvey contends that OPM’s computation method violates the statutory requirement that “[t]he service of an employee shall be credited from the date of original employment to the date of separation.” 5 U.S.C. § 8332(b). Although Begley explicitly addressed only § 8332(a), its holding equally applies to the lang uage of § 8332(b). OPM’s calculation expressly accounted for Hulvey’s dates of original employment and his da tes of separation, both for his military and civilian periods of service. J.A. 20. Thus, OPM’s method, which necessar ily accounts for dates of original employment and separation, is a reasonable interpretation of both subsec tions (a) and (b) of 5 U.S.C. § 8332. See Begley , 60 F.3d at 806. Further, because the
CSRS and FERS Handbook me rely sets forth the rules and procedures for applying OPM’s calculation method, we reject Hulvey’s argument that OPM’s method is contrary to the Handbook.

Hulvey nevertheless contends that OPM’s method as applied to him is unfair. Be th at as it may, we recognized
in Begley that in rare instances OPM’s method may credit an employee with fewer days than he or she actually
worked. Begley , 60 F.3d at 806. To the extent that Hul-

2 We note, moreover, that in his own allegedly correct creditable service calculat ion Hulvey relies in part on OPM’s practice of converting 30 days into a full month of service. Pet’r’s Informal Br . at Question 3. Hulvey’s approach of selectively ado pting only the parts of the OPM method that he likes “c annot be squared with any coherent construction of section 8332(a).” Begley , 60 F.3d at 806.HULVEY v. OPM 8

vey’s case presents one such instance, our holding in Begley specifically accounted for this possibility.

Finally, Hulvey alleges that OPM’s calculation method discriminates against Hulvey and all federal employees in general, and that OPM thereby engages in personnel practices prohibited by 5 U.S.C. § 2302(b)(10)and 2302(b)(11). We reject these allegations. Section 2302(b)(10) prohibits discrimination on the basis of
conduct that does not adversel y affect the performance of the employee or the performance of others. Section 2302(b)(11) prohibits personnel actions that violate a veterans’ preference requirement. Aside from alleging unfairness in OPM’s method of calculating creditableservice—a method we have upheld as a reasonable interpretation of a statutory provision—Hulvey does not allege any conduct or action that vi olates 5 U.S.C. § 2302(b)(10) or 2302(b)(11).

C ONCLUSION

We have considered all of Hulvey’s arguments and find them unpersuasive. Accordingly, we affirm the
determination of the Board.

AFFIRMED

C OSTS

No costs.