                   NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                     is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                         04-3445

                                LAWRENCE S. JEZOUIT,

                                                              Petitioner,

                                            v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                              Respondent.

                             __________________________

                              DECIDED: February 17, 2005
                             __________________________


Before LOURIE, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit Judge.

PER CURIAM.

      Lawrence S. Jezouit filed an appeal with the Merit Systems Protection Board

(“Board”) challenging the Office of Personnel Management’s (“OPM’s”) computation of

his retirement annuity.       After an administrative judge (AJ) sustained OPM’s

reconsideration decision,1 the full Board reopened the appeal and affirmed the AJ’s

initial decision with modifications.2 Jezouit petitions for review of that final decision,

which we affirm.




      1
             Jezouit v. Office of Pers. Mgmt., Docket No. BN-0831-02-0194-I-1
(M.S.P.B. Jan. 16, 2003).
      2
             Jezouit v. Office of Pers. Mgmt., 97 M.S.P.R. 48 (2004).
                                      DISCUSSION

       The governing statute for determining creditable service for retirement annuity

purposes provides that “the total service of an employee . . . is the full years and twelfth

parts thereof, excluding from the aggregate the fractional part of a month, if any.” 5

U.S.C. § 8332(a) (2000). To implement the statute, which does not define “full year” or

“twelfth part,” OPM has devised a methodology that adjusts the number of days in a

month when calculating the length of service on which the retiree’s annuity will be

based. See CSRS and FERS Handbook for Personnel and Payroll Offices §§ 50A2.1-2

& 50A2.1-3 (Apr. 1998) (“Handbook”). Section 50A2.1-3.B of the Handbook states that

“[f]or retirement computation purposes, all months have 30 days” and “a year consists of

360 days (12 x 30 days).” It is apparent from the examples provided in the Handbook

that OPM’s use of a 30-day month and 360-day year is simply a mechanism to account

for partial months and years when determining lengths of service periods and when

combining multiple periods of service.

       The facts of this case are not in dispute. Using the methodology in Chapter 50 of

the Handbook, OPM computed the amount of creditable service to be used as the basis

for Jezouit’s retirement annuity.   By aggregating three periods of service—Jezouit’s

military service, his continuous period of civilian service, and a period representing his

unused sick leave—OPM computed Jezouit’s total creditable service as 40 years and 8

months. Jezouit claims he is entitled instead to an annuity based on 41 years and 3

months of creditable service. He obtains this result by adding up the number of days of

service plus the days of unused sick leave and dividing by 360, a process he argues is

required by the Handbook’s statement that a year consists of 360 days.

04-3445                                      2
        To the extent Jezouit challenges OPM’s methodology as an incorrect

interpretation of the statute, we are not persuaded. This court has previously upheld

OPM’s methodology as a reasonable interpretation of § 8332(a). See Begley v. Office

of Pers. Mgmt., 60 F.3d 804, 806 (Fed. Cir. 1995).         As Jezouit points out, Begley

addresses the methodology set forth in an earlier OPM publication, but the relevant

provision—use of the 30-day month and 360-day year—is the same as in the current

Handbook. Begley is controlling precedent on that issue.

        In what appears to be his main argument, Jezouit alleges that OPM does not

properly apply its own methodology. Jezouit essentially argues that the application of

OPM’s process is internally inconsistent because, while the Handbook states that a year

consists of 360 days, application of the procedure in the Handbook results in one year’s

service credit for every 365 or 366 days of service. The fallacy in Jezouit’s argument is

that the 360-day year on which he relies operates only in conjunction with the 30-day

month adopted by OPM. Jezouit cannot selectively use the 360-day year without the

corresponding assumption that each month has thirty days. See id. For purposes of

determining length of service, a full calendar year is considered to have only 360 days,

but that is not equivalent to Jezouit’s assertion that every 360-day period constitutes a

year.

        Jezouit additionally contends that the Board erred when it stated the 360-day

year does not apply to him because he had more than a year of continuous service. In

a sense he is correct, but this argument does not help his cause. The 30-day month

and 360-day year apply when determining lengths of service periods and when

combining multiple periods of service, but their effect is seen only when partial years are

04-3445                                     3
at issue. In Jezouit’s case, OPM used its 30-day month/360-day year rule when it

determined the length of his civilian service, which included thirty-four complete years

plus a partial year, and when it combined his service periods to compute total creditable

service. Therefore, although the 360-day year does apply to Jezouit, it does not apply

in the way he claims, i.e., to give him one year of retirement credit for every 360 days of

service.

      Jezouit further argues that he should receive one year of credit for every 360

days of accumulated sick leave. As explained in Chapter 50 of the Handbook, OPM

converts hours of unused sick leave to years, months, and days, and treats the result as

any other period of service that is combined with other periods to obtain total creditable

service. Therefore, for the reasons already discussed, there is no merit to Jezouit’s

assertion that OPM did not give him proper credit for his unused sick leave.

      We also reject Jezouit’s contention that OPM erred by not using a 360-day year

when computing his high-3 average pay. As the Board noted, it appears that Jezouit’s

proposed method would result in a lower average pay than that calculated by OPM. In

any event, there is no mention of a 360-day year in either the relevant statute, 5 U.S.C.

§ 8331(4) (2000), or the relevant section of the Handbook, § 50A2.1-4.

      Finally, Jezouit complains that the AJ failed to notify him beforehand that a status

conference would also serve as the hearing in his case, and therefore he was denied

discovery and an evidentiary hearing. Ordinarily, a petitioner is entitled to a hearing on

the merits of his case before the Board. 5 U.S.C. § 7701(a)(1) (2000). The Board

found that any abuse of discretion by the AJ in not giving Jezouit advance notice of the

hearing was not prejudicial because the AJ decided only legal issues and therefore the

04-3445                                     4
AJ was not required to hold an evidentiary hearing. Under the circumstances presented

by this case, we find no reason to disagree with the Board. The case involves no

factual dispute that discovery or an evidentiary hearing would resolve, and Jezouit has

not explained how the AJ’s alleged failure to allow discovery and order an evidentiary

hearing has prejudiced him.

      For the reasons discussed, we affirm the Board’s decision because it was not

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or

unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (2000).




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