Case: 19-2187    Document: 30     Page: 1   Filed: 05/29/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                RICHARD J. MCGRATH,
                      Petitioner

                             v.

      OFFICE OF PERSONNEL MANAGEMENT,
                    Respondent
              ______________________

                        2019-2187
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DC-0841-18-0798-I-1.
                 ______________________

                  Decided: May 29, 2020
                  ______________________

    RICHARD J. MCGRATH, Fairfax Station, VA, pro se.

     DOUGLAS T. HOFFMAN, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent. Also represented by JOSEPH H.
 HUNT, STEVEN JOHN GILLINGHAM, ROBERT EDWARD
 KIRSCHMAN, JR.
                   ______________________

     Before CHEN, HUGHES, and STOLL, Circuit Judges.
Case: 19-2187    Document: 30      Page: 2    Filed: 05/29/2020




 2                                           MCGRATH   v. OPM



 HUGHES, Circuit Judge.
      Richard McGrath petitions for review of a final decision
 of the Merit Systems Protection Board affirming the Office
 of Personnel Management’s decision declining to credit 87
 days of military service toward his retirement annuity un-
 der the Federal Employee Retirement System. Because
 the Board’s decision is in accordance with the law and is
 supported by substantial evidence, we affirm.
                               I
     Mr. McGrath served honorably in the United States
 Army from July 1, 1968 to April 7, 1976. Mr. McGrath then
 served a total of 87 days in the Army National Guard of
 Connecticut between 1977 and 1978.
      Mr. McGrath was subsequently employed by the U.S.
 Patent and Trademark Office (PTO), where he worked un-
 til he retired in 2015. When the PTO Human Relations
 Office calculated Mr. McGrath’s active military service for
 purposes of estimating his Federal Employee Retirement
 System (FERS) annuity, the PTO included the 87 days of
 National Guard service. The U.S. Office of Personnel Man-
 agement (OPM) later calculated Mr. McGrath’s active mil-
 itary service for FERS and did not credit those 87 days.
 Mr. McGrath asked OPM to recalculate his FERS annuity
 to include his National Guard service. OPM responded,
 stating that the PTO’s inclusion of his 87 days of National
 Guard duty was in error.
     In its initial decision of March 28, 2018, OPM found
 that Mr. McGrath was not entitled to receive credit for his
 National Guard service in the computation of his FERS an-
 nuity. OPM affirmed this finding in a final decision on Au-
 gust 22, 2018. In that final decision, OPM stated that
 Mr. McGrath’s National Guard service was not creditable
 because it was not “performed under either a ‘call’ by the
 President or an ‘order’ by the Secretary of State.” J.A. 231.
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 MCGRATH   v. OPM                                             3



 Mr. McGrath appealed OPM’s final decision to the Merit
 Systems Protection Board.
      On June 13, 2019, the Administrative Judge affirmed
 OPM’s final decision. McGrath v. Office of Pers. Mgmt.,
 No. DC-0841-18-0798-I-1 (M.S.P.B. June 13, 2019). In her
 decision, the Administrative Judge explained that service
 in the National Guard was ordinarily not creditable “mili-
 tary service” under 5 U.S.C. § 8411(c)(1), which provides
 such credit for “each period of military service.” The stat-
 utory definition of “military service” at 5 U.S.C. § 8401(31)
 excludes service in the National Guard, “except when or-
 dered to active duty in the service of the United States or
 full-time National Guard duty (as such term is defined in
 section 101(d) of title 10) if such service interrupts credita-
 ble civilian service under this subchapter and is followed
 by reemployment in accordance with chapter 43 of title 38
 that occurs on or after August 1, 1990.” The second excep-
 tion, for full-time National Guard duty, applies only to ser-
 vice performed after August 1, 1990. The Administrative
 Judge found that this exception thus did not apply to
 Mr. McGrath’s service in 1977 and 1978. Mr. McGrath
 does not contest this finding on appeal. The Administra-
 tive Judge then determined that Mr. McGrath’s service in
 the National Guard also did not fit within the first excep-
 tion, being ordered to active duty in service of the United
 States. The Administrative Judge held that, for the service
 to be creditable under the first exception, Mr. McGrath was
 required to show by a preponderance of the evidence that
 either he or his unit was formally called into service by the
 President or the Army National Guard of the United
 States.
     The Administrative Judge’s initial decision became the
 final decision of the Board on July 18, 2019. Mr. McGrath
 timely petitioned for review. We have jurisdiction under
 28 U.S.C. § 1295(a)(9).
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 4                                           MCGRATH   v. OPM



                              II
      Our review of a decision by the Board is limited. The
 Board’s decision may only be reversed if we conclude that
 it was “(1) arbitrary, capricious, an abuse of discretion, or
 otherwise not in accordance with law; (2) obtained without
 procedures required by law, rule, or regulation having been
 followed; or (3) unsupported by substantial evidence[.]”
 5 U.S.C. § 7703(c); see Lengerich v. Dep’t of Interior, 454
 F.3d 1367, 1369 (Fed. Cir. 2006). The Board’s interpreta-
 tion of statutes, however, is a question of law that this
 Court reviews de novo. Lengerich, 454 F.3d at 1370.
     Mr. McGrath argues that the Board misinterpreted the
 governing statutes when it determined under what circum-
 stances service in the National Guard would be creditable.
 Specifically, Mr. McGrath argues that the Board improp-
 erly interpreted 10 U.S.C. § 12602, which concerns general
 compensation and benefits for members of the Army Na-
 tional Guard of the United States. Mr. McGrath argues
 that the 87 days of service at issue should be considered “in
 Federal service as a Reserve of the Army” under either
 § 12602(a)(1) or (2).
     In its final decision, the Board considered § 12602 but
 determined that it did not relieve Mr. McGrath of the re-
 quirements set forth in 5 U.S.C. § 8401(31). That section
 provides definitions specific to FERS and explicitly states
 that creditable military service “does not include service in
 the National Guard except when ordered to active duty in
 the service of the United States.” 5 U.S.C. § 8401(31).
     We agree with the Board’s interpretation. The provi-
 sions of 10 U.S.C. § 12602(a) do not render creditable, for
 purposes of FERS, National Guard service that does not fit
 within the exceptions provided by 5 U.S.C. § 8401(31). Sec-
 tion 12602 concerns benefits for reserve components of the
 Army. Definitions for those purposes may differ from defi-
 nitions for purposes of FERS, a civil service retirement sys-
 tem governed by chapter 84 of Title 5. If, as Mr. McGrath
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 MCGRATH   v. OPM                                           5



 asserts, members of the Army National Guard are always
 deemed to be in federal service by virtue of their continuous
 membership in the Army National Guard of the United
 States, even when serving as members of the Army Na-
 tional Guard of a state, there could be no National Guard
 duty that is not in federal service—and § 8401(31)’s re-
 quirement that creditable National Guard service be “in
 the service of the United States” would be mere surplusage.
 Cf. 10 U.S.C. § 12401 (“Members of the Army National
 Guard of the United States and the Air National Guard of
 the United States are not in active Federal service except
 when ordered thereto under law.”).
      We conclude that the Board did not err in holding that
 Mr. McGrath must show that, for the 87 days in dispute,
 he was formally ordered into federal service, pursuant to
 Title 10, by the President or other federal authority. Clark
 v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003) (hold-
 ing that “members of the National Guard only serve the
 federal military when they are formally called into the mil-
 itary service of the United States” (citing Perpich v. Dep’t
 of Defense, 496 U.S. 334 (1990))). Other courts have con-
 sistently drawn the same distinction. See id. at 1366–68
 (collecting cases). Substantial evidence supports the
 Board’s factual finding that neither Mr. McGrath nor his
 unit were formally called into federal service during the 87
 days at issue.
                              III
    We have considered Mr. McGrath’s additional argu-
 ments and find them unpersuasive. For the foregoing rea-
 sons, we affirm the Board’s decision.
                         AFFIRMED
     No costs.
