N OTE : This disposition is nonprecedential. 

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

______________________

JOHN B. LEPORE, Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent

______________________

2018

- 1474

______________________ Petition for review of the Merit Systems Protection Board in No. DC

- 0831

- 17

- 0683 -I- 1.

______________________
Decided: January 9, 2019

______________________
N ORMAN J ACKMAN , Jackman & Roth, LLP, Lincoln, NH, for petitioner.

R EBECCA S ARAH K RUSER , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represen ted by R EGINALD T HOMAS B LADES , J R ., R OBERT E DWARD K IRSCHMAN , J R ., J OSEPH H. H UNT

.

______________________
Before M OORE , R EYNA , and W ALLACH , Circuit Judges.LEPORE v. OFFICE OF PERS

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P ER C URIAM

. Petitioner John Lepore seeks review of a final decision of the Merit Systems Protection Board (“MSPB”)

, which affirm ed the Office of Personnel Management (“OPM”)’s denial of his claim that it miscalculated his retirement annuity

. See Lepore v. Office of Pers. Mgmt . ( Lepore III )

, No. DC

- 0831

- 17 -0 683 -I-1 , 2017 MSPB LEXIS 4665, at *1 ( Nov. 2 , 2017). 1 We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9 ) ( 2012 ). We affirm.

B ACKGROUND 2 Mr. Lepore was employed with the U.S. Department of the Treasury and the U.S. Department of Justice for more than twenty years , J.A. 28, 39 , over seven of which were in “[ l] aw [e]nforcement [s] ervice, ” J.A. 39 ; Lepore III
, 2017 MSPB LEXIS 4665, at *1

. Effective on or about April 16, 198 3
, Mr. Lepore retired under the disability provisions under the Civil Service Retirement System (“ CSRS ”) as authorized by the Civil Service R etirement Act of 1920, which is administered by OPM. See id .; see also Pub. L. No . 66

- 215 , 41 Stat. 614 (codified as amended at 5 U.S.C. §§ 1308, 2102, 2107, 3323, 8331

– 8348 ( 2012 )) ;

1 An administrative judge (“AJ”) issued an initial decision on November 2, 2017, see J.A. 1– 12, which b ecame final when Mr. Lepore did not file a petition for review, see J.A. 5; see also 5 C.F.R. § 1201.113 (2018) (providing “[t]he initial decision of the [AJ] will become the [MSPB]’s final decision [thirty

- five] days after iss uance” unless, inter alia, “any party files a petition for review”). Therefore, we refer to the Initial Decision as the MSPB’s Final Decision.

2 Unles s otherwise noted, we refer to the relevant and undisputed facts of the case as put forth by the MSPB in Lepore III

. See 2017 MSPB LEXIS 4665, at *1 –3. See generally Pet’r’s Br.; Resp’t’s Br.LEPORE v. OFFICE OF PERS

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5 U.S.C. § 8336(c)(1) (providing “entitle [ ment ] to annuity” for a federal “ employee who is separated from the service after becoming [fifty] years of age and completing [twenty] years of service as a law enforcement officer ”) ; s ee J.A. 42−48, 5 2 −58 (Individual Retirement Records)

. 3 Upon his disability retirement

, his title was that of Criminal Inve stigator

. S ee Lepore III
, 2017 MSPB LEXIS 4665, at *1 ; J.A. 31. Thereafter, Mr. Lepore received a federal retir ement annuity

. S ee, e.g., J.A. 40−41 (providing OPM’s calculation of “[p]aid and [d]ue” annuity for Mr. Lepore)

. 4

3 CSRS was replaced by the Federal Employees’ R etirement System (“FERS”) Act of 1986

. See Pub. L. No. 99

- 335, 100 Stat. 514 (codified at 5 U.S.C. §§ 8343a, 8349, 8350

– 8351, 8401

– 8479). “ FERS was designed to improve upon CSRS, with the disability section in particular having minimal differences to CSRS .” Springer v . Adkins

, 525 F.3d 1363, 1367 (Fed. Cir. 2008) (citing S. Rep. No. 99

– 166, at 21 (1985), as reprinted in 1986 U.S.C.C.A.N. 1405, 1426 ) (“To minimize differences from the CSRS, the majority of standards and procedures applicable to the [FERS] are identical to those of the CSRS.”)

. 4 A former federal employee’s retirement annuity is based upon the employee’s length of service and average salary, where a federal employee’s average salary refers to the three highest paying years used to calculate the average pay. 5 U.S.C. § 8339 (outlining computation of annuity); s ee id. § 8331(4) (defining “average pay” as “t he lar gest annual rate resulting from averaging an emplo yee’s . . . rates of basic pay in effect over any [ three ] consec utive years of creditable service ” (emphasis added)). “The three highest paying years” used to calculate average pay is also referred to as the “high

- 3.” Killeen v. Office of Per s. Mgmt ., 382 F.3d 1316, 1318 (Fed. Cir. 2004) (internal quotation marks omitted).LEPORE v. OFFICE OF PERS

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In April 2016, Mr. Lepore appealed OPM’s denial of his request to recalculate his retirement salary in favor of

an enhanced annuity. See Lepore v. Office of Pers. Mgmt

. ( Lepore I ), No. DC

- 0831

- 16

- 0484 -I- 1, 2016 MSPB LEXIS 2659, at *1 (May 3, 2016)

. Shortly there after

, OPM stated it “ was rescinding its final decision at issue ,” and the MSPB promptly dismissed Lepore I for lack of jurisdi ction. Id

. Then

, in August 2016, upon OPM ’s affirm ance of its initial recalculation denial d eci sion

, Mr. Lepore again appealed to the MSPB for recalculation of the disability gross annuity, arguing that he should be affor ded an enhanced disability annuity based upon his service as a law enforcement officer. See Lepore v. Office of Pers. Mgmt . ( Lepore II ), No. 0831

- 16

- 0801 -I- 1, 2017 MSPB LEXIS 931, at *1 –2 (Feb. 28, 2017).

In October 2016, OPM notified Mr. Lepore that he

was “entitled to enhanced disability retirement benefits

, ” id. at *2; s ee J.A. 38− 39 (letter from OPM)

, “in view of a series of court cases that have changed the way a disabi lity annuity is calculated when employees have performed service in positions that are usually tied to higher retir ement deduction rates and to higher annuity accrual rates, ” J.A. 38. Accordingly, OPM calcu lated a new

, increased annuity gross rate and authorized issuance of a

one

- time retroactive adjustment payment of $99,054.03 “for the amounts [ Mr. Lepore ] should have been receiving since [his] earned annuity commenced as of September 2, 1982

. ” J.A. 38

. Mr. Lepore unsuccessfully sought reco nsideration of OPM’s October 2016 recalculation, arguing he was entitled to ( 1) interest on the one

- time retroactive payment and ( 2) payment for administratively uncontro llable overtime (“AUO”) in the recalculation of h is “high

- 3” average salary

. S ee Lepore II
, 2017 MSPB LEXIS 931, at *2. In February 2017, the AJ remanded the matter to OPM because the AJ was “unable to ascertain from the record whether AUO should have been included in theLEPORE v. OFFICE OF PERS

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agency’s determination of [Mr. Lepore]’s high

- 3 salary.” I

d. at *9

. On remand, OPM issued a June 2017 reconsideration decision affirming its October 2016 decision. J.A. 23−2 6. OPM determin ed that Mr. Lepore’s “high

3 . . . average salary was computed correctly, and acc urately, and in accordance with applicable law s and regul ations.” J.A. 24; see J.A. 24 ( finding that “during [Mr. Lepore’s] high

- 3 average salary period [, his] pay rate include d varying premium pay in amounts equal to 10%, 20%, or 25%
, ” and concluding that therefore the “premium pay was properly included as basic pay in the calculation of [Mr. Lepore’s] high

- 3 salary ”)

, 26 (including

, by OPM

, an “Average Salary Computation” as “Prepared for: [ Mr. ] Lepore” for the relevant years of 1979−8 2). 5

In Ju ly 2017, Mr. Lepore appealed OPM’s June 2017 Reconsideration Decision to the MSPB . J.A. 16−22. Specifically, h e asserted that OPM had “ miscalculated ” his retirement annuity because “[ h] e was not given cre dit

. . . in the amount of [2 5% 6 ] for each of his years of law enforcement service for AUO overtime .” J.A. 20 (emph asis added) ; see J.A. 2 8 (stating

, in Mr. Lepore’s affidavit

,

5 While the June 2017 Reconsideration D ecision in itially incorrectly stated that the time period used to compute Mr. Lepore’s average salary was “February 1, 2010, through January 13, 2010,” J.A. 23, this mistake was immediately corrected by amendment such that the “correct period is September 2, 1979 through September 1, 1982,” J.A. 30; see J.A. 26 (employing the correct 1979−82 time period in OPM’s Average Salary C omput ati on table).

6 Mr. Lepore originally identified “2.5%” in his MSPB appeal. J.A. 20. However, based upon the record below and the briefings on appeal, the parties do not dispute that Mr. Lepore actually intended to request 25%. See, e.g. , Pet’r’s Br. 9; Resp’t’s Br. 6– 7.LEPORE v. OFFICE OF PERS

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that “d uring all of my ‘ [high] -3’ years I worked what is called [ AUO ], more than [nine] hours per week”)

. Mr. Lepore further argued that nothing on the record “show[s] the addition of AUO to the base pay, ” J.A

. 60, and that “[ b] ecause the AUO always exceeded 25%, that percen tage is what must be added to [his] ‘ rate of basic pay, ’” J.A

. 61 (emphasis added)

. In November 2017, the MSPB affirmed OPM’s June 2017 Reconsideration Decision

, Lepore III , 2017 MSPB LEXIS 4665, at *1 , determining that OPM’s recalculation of Mr. Lepore’s federal annuity was “ accurate ,” id. at *6, in light of OPM’s previously provided “Avera ge Salary Computation worksheet

, ” id. at *5 (citing J.A. 26). Speci fically, the MSPB found that the I ndividual Retirement R ecords “certified by the Department of Justice” prove that th e “rate of basic pay” listed on Mr. Lepore’s I ndividual Retirement R ecords “ include s premium pay or AUO

. ” Id. at *5 –6; see J.A. 42−48, 51−58 (Individual Retirement Records)

. The MSPB concluded that Mr. Lepore did not meet his burden, because, inter alia, he “ha [d] not r eferred to any law, rule, or regulation that demonstrates OPM was incorrect in utilizing its method of calculating his annuity.” Id. at *6

. D ISCUSSION
I. Standard of Review and Legal Standard We will uphold a dec ision of the MSPB unless it is “arbitrary, c apricious, an abuse of discretion, or otherwise not in accordance with law” or “unsupported by substa ntial evidence.” 5 U.S.C. § 7703(c) (1), (3) ; s ee Grover v. Office of Pers. Mgmt.

, 828 F.3d 1378, 138 2 (Fed. Cir. 2016 ) (applying § 7703(c) to review an MSPB decision)

. Fin dings of fact are reviewed for substantial evidence. See Crawford v. Dep’t of the Army , 718 F.3d 1361, 1365 (Fed. Cir. 2013) . Substantial evidence is “such relevant ev idence as a reasonable mind might accept as adequate to support a conclusion.” Shapiro v. Soc. Sec. Admin ., 800LEPORE v. OFFICE OF PERS

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F.3d 1332, 1336 (Fed. Cir. 2015) ( internal quotation marks and citation omitted). “The petitioner bears the burden of establishing error in the [MSPB]’s decision.” Harris v. Dep’t of Veterans Affairs , 142 F.3d 1463, 1467 (Fed. Cir. 1998)

. In accordance with statutory authority

, a former fe deral employee’s monthly retirement annuity is calculated using “average pay,” which is defined as “the largest annual rate resulting from averaging an emplo yee’s . . . rates of basic pay in effect over any [three] co nsecutive years of creditable service ,” commonly referred to

as the high -3 average salary years. 5 U.S.C. § 8331(4) (internal quotati on marks omitted) ; see Killeen , 382 F.3d at 1318

. “[B]asic pay” is defined by § 83 31(3) , which states that basic pay may include , inter alia, certain types of premium pay provided for under 5 U.S.C. § 5545 (c)

. 5 U.S.C. § 8331(3) (internal quotation marks omitted)

. Law enforcement officers are eligible to receive a sp ecial form of overtime compensation, defined as a type of premium pay under § 5545 (c)(2)

, referred to as AUO. See 5 U.S.C. § 5545(c)(2) ( describ ing AUO and provid ing that an employee “in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular, unscheduled overtime duty [,]

. . . shall re ceive premium pay for this duty ” ). This AUO premium pay is “an appropriate percentage, not less than [ ten ] percent nor more than [ twenty

- five ] percent , of the rate of basic pay for the position, as determined by taking into consideration the frequency and duration of irregular, unscheduled overtime duty required in the position.” Id

. (emphasis added).LEPORE v. OFFICE OF PERS

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II. The MSPB Correctly Affirmed OPM’s Recalculation of Mr. Lepore’s Federal Retirement Annuity Because OPM’s

June 2017 Recalculation Decision Took into Account the Premium Pay for AUO

The MSPB determined that OPM properly recalcula ted Mr. Lepore’s rate of basic pay to include A UO using the Department of Justice’s certified salary rates. Lepore III
, 2017 MSPB LEXIS 4665, at *5 –6 (citing J.A. 23 ). Mr. Lepore’s main contention is that OPM improperly calc ulated h is high

- 3 average salary by not including AUO as part of his basic pay. See Pet’r’s Br. 8 −10. Mr. Lepore asserts that there was “no evidence that AUO was inclu ded in the annuity calculation.” Id. at 8 (formatting mod ified)

. We disagree with Mr. Lepore

. Substantial evidence supports th e MSPB’s decision that OPM properly recalculated Mr. Lepore’s retirement salary and annuities to include AUO

. See Lepore III , 2017 MSPB LEXIS 4665, at *5 –6; see also J.A. 26 (OPM’s Average Salary Computation worksheet). The parties
agree that Mr. Lepore was a “ law enforcement officer ” as defined in § 8331 (20 ), see generally Pet’r’s Br.; Resp’t’s Br., and as such, was entitled to receive AUO as a type of premium pay when warranted

, s ee 5 U.S.C. § § 5545(c)(2)

, 8331(3)(D) ; 5 C.F.R. § 550.141 ( providing authorization of
p remium pay on an annual basis)

. On relevant pages of Mr. Lepore’s retirement records during the period of his high

- 3 average salary years

, the re are numerous not ations in the “remarks” column of the table s expressly stating that Mr. Lepore obtained percentage adjustments of “10%,” “20%,” or “25%” of premium payment included. See, e.g

., J.A. 54 ( including an action , on January 10
, 198 2
, with the notation “ 20 % PRM PY INCL”), 55 (awar ding , on October 4, 1981, a “ MERIT INCREASE ” and noting “25% PRM PY INCL” )

. The se are the same range of percentages that an employee can receive as AUO. See 5 U.S.C. § 5545(c)(2) ( stating that AUO “ premium pay ” is “an appropriate percentage, not less than [ ten ] percent norLEPORE v. OFFICE OF PERS

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more t han [ twenty

- five ] percent , of the rate of basic pay for the position ” (emphasis added) ). Therefore, substantial evidence supports the MSPB’s decision to affirm OPM’s June 2017 Reconsideration D ecision that found its calc ulations already included AUO as part of Mr. Lepore’s basic pay. Mr. Lepore’s counterarguments lack merit. First, Mr. Lepore contends that these rates are somehow incorrect or that he did not actually receive premium pay as part of his basic pay

. S ee Pet’ r’s Br. 9 ( referencing J.A. 62

– 66, which provide rates of pay in a document that he offered as supporting evidence and is titled the “Rates of Pay Under the General Schedule” for the years 1978 to 1982)

. We disagree. The generalized rates of pay that Mr. Lepore would prefer we rely upon, as found in the “Rates of Pay Under the General Schedule” for the years 1978 to 1982, do not contradict or inform our understanding of the evidence of the Government

- certified premium pay rates that w ere awarded specifically to Mr. Lepore

, as discussed above

. See J.A. 62−6 6; cf

. Grover

, 828 F.3d at 138 4 ( fin ding that OPM relied upon “internally contradictory” I ndividual Retirement R ecords, and the refore remanding to the MSPB for further evidentiary gathering and dete rmination of overtime pay). Rather, the MSPB properly considered all evidence of record related to Mr. Lepore’s annuity recalculation , including when it specifically
compar ed the salary rates in the Government

- certified I ndividual R etire ments R ecords with the General Sche dule pay rate s provided by Mr. Lepore

, and found the former to be the only correct and “accurate” evidence of Mr. Lepore’s pay rate

. Lepore III , 2017 MSPB LEXIS 4665, at *6 ; see id

. (“[ T] he [I ndivid ual Retireme nt Re cord s] salary includes premium pay or AUO in the basic rate of pay.”) . We have previously approved such reliance upon internally consistent individual retirement recor ds as proper. See Thomas v. Office of Pers. Mgmt ., 350 F. App’x 448, 450 (Fed. Cir. 2009) (a ffirming the MSPB’sLEPORE v. OFFICE OF PERS

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decision that OPM could rely only on certified i ndividual retirement r ecords

, rather than petitioner’s evidence of tax forms, emails, and pay stubs). Second, Mr. Lepore argues OPM’s decision is contrary to our opinion in Springer

. Pe t’r’s Br. 10 ; see 525 F.3d at 1367. However, Springer is inapposite. Spring er involved the resolution of whether the pl ain language of “FERS [§ ] 8415 concerning firefighters’ annuities

. . . in view of the legislative intent disallow [ed] incorporation of the age and years of service requirements of [§] 8412(d) ” when calculating an enhanced annuity retirement. Id . at 1367. Here, Mr. Lepore did not raise , and does not raise on appeal, a similar statutory argument; instead, he cha llenges t he factual finding regarding the calculation of his high

- 3 average salary. See J.A. 20 (asserting that OPM had “miscalculated [Mr. Lepore’s] retirement annuity” because “[ h] e was not given credit

. . . in the amount of [25%] for each of his years of law e nforcement service for AUO overtime”). Moreover, OPM found that Mr. Lepore met all necessary requirements under the relevant CSRS statutory scheme and related case precedent, and awar ded enhanced annuity in his favor in the sum of $99,054.03. See J.A. 38 . We find OPM’s recalculated annuity in favor of Mr. Lepore does not violate our prec edent in Springer

. Third, Mr. Lepore also raises t hree additional arg uments on appeal

. See Pet’r’s Br. 11 (arguing that corre ction of the “starting date of [his] retire ment should be accepted as April 16, 1983 ,” and that he is entitle d to “pre

- judgment interest on the [back] payment made to [him] after a wait of 34 years”), 13 ( arguing that “[Mr. Lepore] should be reimbursed for his attorney’s fees”)

. Regarding Mr. Lepore’s starting date , this argument w as never raised before the MSPB in the proceedings below

, s ee generally J.A. 16−22 (Mr. Lepore’s appeal form )

, and is therefore waived, s ee Bosley v. Merit Sys. Prot. Bd ., 162 F.3d 665, 668 (Fed. Cir. 1998) (“A party in an MSPBLEPORE v. OFFICE OF PERS

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proceeding must raise an issue before the administrative judge if the issue is to be preserved for review in this court. ”). Regarding Mr. Lepore ’s pre

- judgment interest claim , we have held that “where the payment of interest by the government i s not authorized, it is barred.” Maurer v. Office of Pers. Mgmt. , 236 F.3d 1352, 1356 (Fed. Cir. 2001) . Mr. Lepore cites no law, statute, or case authority that would allow prejudgment interest in his case. Mr. Lepore also cites no authority to support his claim for attorney fees , which he makes for the first time in the conclusion section of his opening brief. W e deem this claim waived

. S ee Pet’r’s Br. 11, 13

. The MSPB properly upheld OPM’s retirement annuity re calculation

. C ONCLUSION We have considered Mr. Lepore’s remaining arg uments and conclude that they are without merit. F or the reasons stated above, the Final Decision of the Merit Systems Protection Board is

AFFIRMED