shaw bransford & roth case law update

Federal Circuit: Cadet Service Cannot Help Satisfy Five-Year FERS Service Requirement

A political appointee retired from federal service after almost four years of civilian service, relying on advice from a human resources official that he could “buy back” time spent as a cadet at West Point and credit it towards the five years of civilian service required to qualify for a FERS retirement annuity. When OPM found that he was ineligible for an annuity, he appealed to the Merit Systems Protection Board, which affirmed OPM’s decision. The employee appealed. On October 2, 2019, the United States Court of Appeals for the Federal Circuit affirmed the Board’s decision.

The employee, a student cadet at the U.S. Military Academy at West Point, from 1973 to 1977, also served in the Army from 1977 to 1996 before retiring from the U.S. military. In 2001, the employee was appointed by President George W. Bush to a civilian appointment in the Department of the Air Force, and served in that position until March 28, 2005. While serving in that position, the employee spoke to an Air Force human resources officer. The human resources officer advised the employee that his time as a cadet at West Point could be “bought back” in order to qualify for a FERS civil service annuity under 5 U.S.C. § 8401-8479. On that advice, the employee paid to buy back his cadet service, believing it would make him meet the threshold requirement for a FERS annuity of having at least five years of “civilian service” under 5 U.S.C. § 8410.

In order to be eligible for a FERS annuity under 5 U.S.C. § 8410, an employee “must complete at least 5 years of civilian service creditable under section 8411.” Those five years must therefore be both civilian service and creditable service. The appeals court held that West Point cadet time, specifically defined in 5 U.S.C § 8401(31), was military service. Therefore, cadet time could not qualify as civilian service. The employee cited a non-precedential decision in Cieslinski v. OPM, 610 F. App’x 979 (Fed. Cir. 2015), which stated in dictum that “[b]y statute, a federal employee ‘must complete at least 5 years of civilian service,’ to include military service if the employee has made the required deposit (and not taken a refund of that deposit), in order to be qualified to receive a FERS annuity payment.” The appeals court declined to adopt the rationale from Cieslinski, which was not published as a precedential decision, and held that the dicta in Cieslinski was incorrect.

The employee also argued that the appeals court should treat his cadet time as something separate from “pure” military service, but the appeals court found “nothing in the FERS statute” that makes the distinction sought by the employee. The employee also argued that the human resources official, and guidance from an OPM handbook, stated that “Military service is credited under FERS rules if…[t]he employee had less than 5 years of civilian service (other than CSRS Interim or Offset service) upon becoming covered by FERS.” But the appeals court noted that neither advice from a human resources official nor an OPM handbook could override the clear language of the statute.

For the above stated reasons, the appeals court affirmed the Board’s decision.

Read the full case: Montelongo v. Office of Personnel Management.


This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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