UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN CHARLES CLEARY,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

NY-0842-21-0134-I-1

DATE: April 11, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

John Charles Cleary, Ridgewood, New Jersey, pro se.

Jane Bancroft, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman 

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed the reconsideration decision of the Office of Personnel Management

(OPM) denying the appellant’s application for a Federal Employees’ Retirement

System (FERS) deferred retirement annuity. Generally, we grant petitions such

as this one only in the following circumstances: the initial decision contains

1

 A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED to address the appellant’s argument that OPM should have accepted

his application for a service credit payment to allow him to secure entitlement to

an annuity under FERS and his contention that his unused sick leave at separation

should have been applied toward his eligibility for an annuity, we AFFIRM the

initial decision. 

BACKGROUND

The material facts in this case are not in dispute. Initial Appeal File (IAF),

Tab 9 at 4; Petition for Review (PFR) File, Tab 1 at 4-6. The appellant worked as

an Assistant United States Attorney with the Department of Justice under a

temporary appointment from September 30 to December 14, 1987. IAF, Tab 4

at 17, 27, 33-34. The appellant was not subject to—covered under—any

retirement system during his temporary appointment. Id. Effective December 15,

1987, the appellant’s position became permanent, and he became subject to

FERS. Id. The appellant resigned effective October 20, 1992, to return to private

practice, with 4 years, 10 months, and 6 days of creditable FERS service. Id.

at 21, 24, 34. While he was employed, the appellant did not seek to make a
3

deposit to obtain FERS credit for his prior temporary Federal service that had not

been subject to retirement deductions. Id. at 7, 15. 

Upon reaching 62 years of age, the appellant filed an application for a

FERS deferred annuity. Id. at 27-29. OPM issued an initial decision denying the

appellant’s application because there were no FERS deductions made from his

temporary service from September 30 to December 14, 1987, and, thus, he only

had 4 years, 10 months, and 6 days of the statutorily required 5 years of FERS

creditable service to be entitled to a FERS retirement annuity. Id. at 24-25. The

appellant requested reconsideration, asserting that he planned his resignation

from Federal service with the belief that he had the requisite 5 years of service at

the time of his resignation and, thus, should qualify for a waiver or exemption

based on his reliance on this belief. Id. at 14-15. He also questioned whether his

516 hours of unused sick leave could be counted as creditable service. Id. at 14,

16. He requested, in the alternative, permission to make the necessary deposit to

obtain service credit for his temporary service, and he completed OPM Standard

Form 3108, Application to Make Service Credit Payment. Id. at 15, 17. OPM

issued a reconsideration decision explaining that it had no administrative

discretion in the matter, and the appellant filed a timely initial appeal to the

Board. IAF, Tab 1 at 5-6, 8-10.

The appellant withdrew his request for a hearing because there was no

factual dispute. IAF, Tab 9 at 4. The administrative judge issued an initial

decision determining that the appellant’s temporary service was not deemed

creditable for purposes of entitlement to a deferred annuity and affirming OPM’s

decision. IAF, Tab 14, Initial Decision (ID) at 3-4. 

The appellant has filed a timely petition for review, and OPM has filed a

timely response in opposition, dated June 21, 2022. 2 PFR File, Tabs 1, 4. 

2

 On September 9, 2022, after the record on review closed, the appellant filed a motion

to submit an additional pleading or, in the alternative, for an extension of time to file a

reply to OPM’s response to his petition for review. PFR File, Tabs 4, 6; see 5 C.F.R.

§ 1201.114(e). The appellant argues that his motion should be granted because “the
4

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the appellant is not entitled to a

deferred retirement annuity.

An employee must complete at least 5 years of civilian service creditable

under 5 U.S.C. § 8411 to be eligible for an annuity under FERS, including a

deferred annuity. 5 U.S.C. §§ 8410, 8413(a); 5 C.F.R. § 842.212(a). Creditable

service under 5 U.S.C. § 8411 is “service with respect to which deductions and

withholdings under [FERS] have been made.” 5 U.S.C. § 8411(b)(2); 5 C.F.R.

§ 842.103(c). OPM records reflect that the appellant’s temporary appointment

from September 30 to December 14, 1987, was excluded from FERS. IAF, Tab 4

at 33-34; see generally 5 U.S.C. § 8402(c)(1); 5 C.F.R. § 842.105(a)(1)

(permitting OPM to exclude temporary appointments from FERS

deductions/coverage). The administrative judge did not err in finding that the

appellant’s temporary service is not deemed creditable for purposes of entitlement

U.S. Supreme Court and other [F]ederal courts, in the period June 30, 2022 to date,

have strengthened and reinforced the fundamental administrative law principles invoked

in [his] Petition.” PFR File, Tab 6 at 4. Once the record closes on review, no

additional evidence or argument will be accepted unless it is new and material and was

not readily available before the record closed. Maloney v. Executive Office of the

President, 2022 MSPB 26, ¶ 4 n.4; 5 C.F.R. § 1201.114(k). Contrary to the appellant’s

vague assertion of a change in law sometime between June 30, 2022, and the time of his

motion on September 9, 2022, we can locate no case law that would further his legal

argument in this case. Therefore, we deny the appellant’s motion to submit an

additional pleading. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)

(finding that the Board will not grant a petition for review based on new evidence

absent a showing that it is of sufficient weight to warrant an outcome different from

that of the initial decision); see also 5 C.F.R. § 1201.114(a)(5). 
5

to a deferred annuity, and the appellant does not contest this issue .

3

 ID at 3; PFR

File, Tab 1. 

The appellant is not permitted to make a service credit payment to secure

entitlement to an annuity under FERS.

The appellant argues that he could obtain 5 years of creditable service and

secure entitlement to an annuity under FERS by making a service credit payment.

IAF, Tab 11 at 5-7; PFR File, Tab 1 at 5. OPM’s regulation at 5 C.F.R.

§ 842.305(a) allows for an employee subject to FERS or a former employee who

is entitled to an annuity to make a deposit for civilian service that was performed

before 1989 and would have been creditable under the Civil Service Retirement

System if the employee had been subject to that chapter. See 5 C.F.R.

§ 842.305(a); 5 C.F.R. § 842.304(a)(2); see also 5 U.S.C. § 8411(b)(3). OPM

rejected the appellant’s application to make a service credit deposit for the period

of his temporary appointment because he was not a current employee or former

3

 As to the appellant’s argument that his unused sick leave should have been credited

toward eligibility for a deferred annuity, in its final decision OPM stated that “[a]ccrued

and unused sick leave to an employee’s credit at date of separation is not creditable for

eligibility or computation purposes in a deferred retirement.” IAF, Tab 4 at 11. The

appellant asserted below that OPM had failed to provide any legal authority for this

conclusion, IAF, Tab 1 at 5, but the initial decision did not address this issue, ID.

Although the appellant does not raise this argument in his petition for review, we note

that OPM was correct that the appellant’s unused sick leave is not creditable toward

eligibility for a deferred annuity under FERS. At the time of the appellant’s separation,

there was no provision in FERS that would allow the use of accrued sick leave to meet

eligibility requirements for a deferred annuity. See Federal Employees’ Retirement

System Act of 1986, Pub. L. No. 99-335, 100 Stat. 514, as amended by Pub. L. No.

99-556, 100 Stat. 3131 (1986); see also Asprin v. Office of Personnel Management,

53 M.S.P.R. 320, 323 (1992) (holding that the law in effect at the time the employee

separated from Federal service must be applied in determining eligibility for a deferred

annuity). The National Defense Authorization Act for Fiscal Year 2010, Pub. L. No.

111-84, 123 Stat. 2615, enacted on October 28, 2009, provided FERS annuitants with

service credit for a percentage of their unused sick leave from the date of enactment of

the law. However, the provision applies only to employees who retire on an immediate

annuity, and it is explicitly inapplicable “in determining . . . annuity eligibility.”

5 U.S.C. § 8415(m)(2)(A). Thus, even if we applied the law in effect at the time the

appellant filed his application for a deferred annuity, his unused sick leave at separation

would not be creditable toward his eligibility for a deferred annuity.
6

employee entitled to an annuity at the time of his application to complete the

deposit. IAF, Tab 4 at 7-8, 17-20; see 5 C.F.R. § 842.305(a). The appellant has

challenged OPM’s interpretation of 5 C.F.R. § 842.305(a) and argues that there is

no mandate in OPM’s regulations that a deposit be made while an individual is

still employed by the Federal Government. IAF, Tab 11 at 5-7; PFR File, Tab 1

at 5.

The U.S. Court of Appeals for the Federal Circuit has addressed this issue

in its nonprecedential decision in Holland v. Office of Personnel Management,

113 F. App’x 384 (Fed. Cir. 2004). 4 First, the court explained that an agency’s

interpretation of its own regulations receives substantial deference and will be

applied by the court unless plainly erroneous or inconsistent with the regulation.

See Holland, 113 F. App’x at 386 (citing Auer v. Robbins, 519 U.S. 452, 461-62

(1997), superseded in part on other grounds by regulation as stated in Crowe v.

Examworks, Inc., 136 F. Supp. 3d 16, 28 n.8 (D. Mass. 2015)). The court looked

at OPM’s publications at the time and concluded that OPM’s interpretation,

which is consistent with its position in the present case, was based on a

reasonable interpretation of the regulation at 5 C.F.R. § 842.305(a). Id.

at 386-87; IAF, Tab 4 at 7-8, Tab 11 at 5-6; PFR File, Tab 4 at 4-5.

We, too, have reviewed OPM guidance to determine its current

interpretation of its regulation. OPM advises individuals who wish to make

service credit payments that they “must begin the application process as an

employee.” Retirement Services, FERS Information, Creditable Service,

https://www.opm.gov/retirement-center/fers-information/creditable-service/ (last

visited Apr. 10, 2024). Furthermore, OPM’s sheet titled “Information About

Service Credit Payments” states the following:

4

 The Board may rely on a nonprecedential decision of the Federal Circuit when, as

here, it finds its reasoning persuasive. Encarnado v. Office of Personnel Management,

116 M.S.P.R. 301, ¶ 12 n.6 (2011).
7

Payment for civilian service can be made by . . . You, after you leave

the Federal government, provided you are eligible for a deferred

annuity because you have at least five years of paid civilian service

when you leave. If you are not eligible for a deferred annuity, but

you have at least 5 years of combined paid and unpaid civilian

service, you may pay a deposit for the unpaid service provided you

apply before leaving FERS covered service. 

IAF, Tab 4 at 20 (emphasis added). 

Thus, OPM’s public interpretation of its regulation is entirely consistent

with its position in this case; the appellant may not make a payment for civilian

service because he did not have 5 years of paid civilian service at the time of his

separation from Federal service. Id. at 5-6, 20. We agree with the Federal

Circuit in Holland that this interpretation is consistent with the plain language of

the regulation allowing a payment by a “former employee or Member 5 who is

entitled to an annuity.” 5 C.F.R. § 842.305(a). Accordingly, the appellant is not

entitled to an annuity because he does not have 5 years of creditable service, i.e.,

“service with respect to which deductions and withholdings under [FERS] have

been made.” 5 U.S.C. §§ 8410, 8411(b)(2), 8413(a); 5 C.F.R. §§ 842.103(c),

842.212(a). 

Therefore, the initial decision, as modified by this Final Order, is affirmed.

NOTICE OF APPEAL RIGHTS6

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

5

 Member means Member of Congress. See 5 U.S.C. § 2106; 5 C.F.R. § 842.102. 

6

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.
8

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
9

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
10

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of
11

competent jurisdiction.7 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

7

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 
12

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.