NOTE: This disposition is nonprecedential.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

______________________ 

NORMAN JACKMAN, Jackman & Roth, LLP, Lincoln, 

NH, for petitioner. 

 REBECCA SARAH KRUSER, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent. Also represented by REGINALD THOMAS BLADES, JR., ROBERT EDWARD 

KIRSCHMAN, JR., JOSEPH H. HUNT. 

 ______________________ 

Before MOORE, REYNA, and WALLACH, Circuit Judges.
2 LEPORE v. OFFICE OF PERS. MGMT. 

PER CURIAM.

Petitioner John Lepore seeks review of a final decision 

of the Merit Systems Protection Board (“MSPB”), which

affirmed 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-0831-17-0683-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. 

BACKGROUND2

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, 1983, Mr. Lepore retired under the disability 

provisions under the Civil Service Retirement System 

(“CSRS”) as authorized by the Civil Service Retirement 

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 became 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 issuance” unless, inter alia, “any party files a petition for 

review”). Therefore, we refer to the Initial Decision as the 

MSPB’s Final Decision. 

2 Unless 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. MGMT. 3

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”); see J.A. 

42−48, 52−58 (Individual Retirement Records).3 Upon his 

disability retirement, his title was that of Criminal Investigator. See Lepore III, 2017 MSPB LEXIS 4665, at *1; 

J.A. 31. Thereafter, Mr. Lepore received a federal retirement annuity. See, 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’ Retirement 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); see id. § 8331(4) (defining “average pay” as “the 

largest annual rate resulting from averaging an employee’s . . . rates of basic pay in effect over any [three] consecutive 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 Pers. 

Mgmt., 382 F.3d 1316, 1318 (Fed. Cir. 2004) (internal 

quotation marks omitted).
4 LEPORE v. OFFICE OF PERS. MGMT. 

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 thereafter, OPM stated

it “was rescinding its final decision at issue,” and the 

MSPB promptly dismissed Lepore I for lack of jurisdiction. Id. Then, in August 2016, upon OPM’s affirmance 

of its initial recalculation denial decision, Mr. Lepore 

again appealed to the MSPB for recalculation of the 

disability gross annuity, arguing that he should be afforded 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; see J.A. 38−39 (letter from OPM), “in view of a 

series of court cases that have changed the way a disability annuity is calculated when employees have performed 

service in positions that are usually tied to higher retirement deduction rates and to higher annuity accrual 

rates,” J.A. 38. Accordingly, OPM calculated 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 reconsideration of OPM’s October 2016 recalculation, arguing 

he was entitled to (1) interest on the one-time retroactive 

payment and (2) payment for administratively uncontrollable overtime (“AUO”) in the recalculation of his “high-3” 

average salary. See 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 the 
LEPORE v. OFFICE OF PERS. MGMT. 5

agency’s determination of [Mr. Lepore]’s high-3 salary.” 

Id. at *9. On remand, OPM issued a June 2017 reconsideration decision affirming its October 2016 decision. J.A. 

23−26. OPM determined that Mr. Lepore’s “high3 . . . average salary was computed correctly, and accurately, and in accordance with applicable laws and regulations.” J.A. 24; see J.A. 24 (finding that “during [Mr. 

Lepore’s] high-3 average salary period[, his] pay rate 

included 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 1979−82).5

In July 2017, Mr. Lepore appealed OPM’s June 2017 

Reconsideration Decision to the MSPB. J.A. 16−22. 

Specifically, he asserted that OPM had “miscalculated” 

his retirement annuity because “[h]e was not given credit . . . in the amount of [25%6] for each of his years of law 

enforcement service for AUO overtime.” J.A. 20 (emphasis added); see J.A. 28 (stating, in Mr. Lepore’s affidavit, 

 

5 While the June 2017 Reconsideration Decision initially 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 Computation 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. 
6 LEPORE v. OFFICE OF PERS. MGMT. 

that “during 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 percentage 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 “Average Salary 

Computation worksheet,” id. at *5 (citing J.A. 26). Specifically, the MSPB found that the Individual Retirement 

Records “certified by the Department of Justice” prove 

that the “rate of basic pay” listed on Mr. Lepore’s Individual Retirement Records “includes 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 referred to any law, rule, or regulation that demonstrates 

OPM was incorrect in utilizing its method of calculating 

his annuity.” Id. at *6. 

DISCUSSION

I. Standard of Review and Legal Standard

We will uphold a decision of the MSPB unless it is 

“arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law” or “unsupported by substantial evidence.” 5 U.S.C. § 7703(c)(1), (3); see Grover v. 

Office of Pers. Mgmt., 828 F.3d 1378, 1382 (Fed. Cir. 2016) 

(applying § 7703(c) to review an MSPB decision). Findings 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 evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Shapiro v. Soc. Sec. Admin., 800 
LEPORE v. OFFICE OF PERS. MGMT. 7

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 federal employee’s monthly retirement annuity is calculated 

using “average pay,” which is defined as “the largest 

annual rate resulting from averaging an employee’s . . . rates of basic pay in effect over any [three] consecutive years of creditable service,” commonly referred to 

as the high-3 average salary years. 5 U.S.C. § 8331(4)

(internal quotation marks omitted); see Killeen, 382 F.3d 

at 1318. “[B]asic pay” is defined by § 8331(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 special 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) (describing AUO and providing 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 receive 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).
8 LEPORE v. OFFICE OF PERS. MGMT. 

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 recalculated Mr. Lepore’s rate of basic pay to include AUO 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 calculated his 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 included in the annuity calculation.” Id. at 8 (formatting modified). We disagree with Mr. Lepore. 

Substantial evidence supports the 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, see 5 U.S.C. §§ 5545(c)(2), 

8331(3)(D); 5 C.F.R. § 550.141 (providing authorization of 

premium pay on an annual basis). On relevant pages of

Mr. Lepore’s retirement records during the period of his 

high-3 average salary years, there are numerous notations in the “remarks” column of the tables 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, 

1982, with the notation “20% PRM PY INCL”), 55 (awarding, on October 4, 1981, a “MERIT INCREASE” and 

noting “25% PRM PY INCL”). These 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 nor 
LEPORE v. OFFICE OF PERS. MGMT. 9

more than [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 Decision that found its calculations 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. See 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 were awarded specifically to Mr. Lepore, as discussed 

above. See J.A. 62−66; cf. Grover, 828 F.3d at 1384 (finding that OPM relied upon “internally contradictory” 

Individual Retirement Records, and therefore remanding 

to the MSPB for further evidentiary gathering and determination of overtime pay). Rather, the MSPB properly

considered all evidence of record related to Mr. Lepore’s 

annuity recalculation, including when it specifically 

compared the salary rates in the Government-certified 

Individual Retirements Records with the General Schedule pay rates 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 [Individual Retirement Records] salary includes premium pay or AUO in the basic 

rate of pay.”). We have previously approved such reliance 

upon internally consistent individual retirement recordsas proper. See Thomas v. Office of Pers. Mgmt., 350 F. 

App’x 448, 450 (Fed. Cir. 2009) (affirming the MSPB’s 
10 LEPORE v. OFFICE OF PERS. MGMT. 

decision that OPM could rely only on certified individual 

retirement records, 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. Pet’r’s Br. 10; see 525 F.3d at 

1367. However, Springer is inapposite. Springer involved

the resolution of whether the plain 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 challenges the 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 enforcement 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 awarded 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 precedent in Springer. 

Third, Mr. Lepore also raises three additional arguments on appeal. See Pet’r’s Br. 11 (arguing that correction of the “starting date of [his] retirement should be 

accepted as April 16, 1983,” and that he is entitled 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 was

never raised before the MSPB in the proceedings below, 

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

therefore waived, see Bosley v. Merit Sys. Prot. Bd., 162

F.3d 665, 668 (Fed. Cir. 1998) (“A party in an MSPB 
LEPORE v. OFFICE OF PERS. MGMT. 11

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 is 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. We deem 

this claim waived. See Pet’r’s Br. 11, 13. The MSPB 

properly upheld OPM’s retirement annuity recalculation. 

CONCLUSION

We have considered Mr. Lepore’s remaining arguments and conclude that they are without merit. For the 

reasons stated above, the Final Decision of the Merit 

Systems Protection Board is

AFFIRMED