United States Court of Appeals
`for the Federal Circuit
`______________________
`
`MICHAEL MONTELONGO,
`Petitioner
`
`v.
`
`OFFICE OF PERSONNEL MANAGEMENT,
`Respondent
`______________________
`
`2018-2095
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. DE-0842-18-0087-I-1.
`______________________
`
`Decided: October 2, 2019
`______________________
`
`ALLEN ARTHUR SHOIKHETBROD, Tully Rinckey PLLC,
`Albany, NY, argued for petitioner.
`
` ZACHARY JOHN SULLIVAN, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, argued for respondent. Also repre-
`sented by REGINALD THOMAS BLADES, JR., JOSEPH H. HUNT,
`ROBERT EDWARD KIRSCHMAN, JR., NATHANAEL YALE.
` ______________________
`
`Before TARANTO, CLEVENGER, and HUGHES, Circuit
`Judges.
`
`

`

`2
`
`MONTELONGO v. OPM
`
`TARANTO, Circuit Judge.
`Michael Montelongo applied for a civil service retire-
`ment annuity for which applicants must meet a threshold
`requirement of having at least five years of “civilian ser-
`vice.” 5 U.S.C. § 8410. It is undisputed that Mr. Monte-
`longo could not meet that requirement unless his time as a
`cadet student at the United States Military Academy at
`West Point counted as such service. The Office of Person-
`nel Management (OPM) ruled that the cadet time did not
`qualify and therefore denied him the annuity. The Merit
`Systems Protection Board rejected Mr. Montelongo’s chal-
`lenge to OPM’s ruling. We affirm.
`I
`Mr. Montelongo was a student cadet at West Point
`from July 1973 to June or July 1977—roughly four years.
`He then served in the United States Army from June 8,
`1977, until December 31, 1996, when he retired. Later,
`from June 21, 2001, to March 28, 2005—about three and
`three-quarters years—Mr. Montelongo served as a civilian
`presidential appointee in the Department of the Air Force.
`While he was serving in that civilian position, an Air Force
`human resources officer advised Mr. Montelongo that his
`time as a cadet at West Point could be “bought back” and
`credited toward an eventual civil service annuity under the
`Federal Employees Retirement System (FERS), 5 U.S.C.
`§§ 8401–8479. Mr. Montelongo made the small payment to
`“buy back” his four years as a cadet at West Point.
`On August 15, 2017, Mr. Montelongo applied to OPM
`for a FERS annuity. OPM concluded that only his time as
`a presidential appointee (just under four years) counted as
`a creditable civilian service. In reaching that conclusion,
`OPM necessarily deemed Mr. Montelongo’s active military
`service as well as his cadet time as not creditable civilian
`service. With less than four years of creditable civilian ser-
`vice, OPM ruled, Mr. Montelongo did not satisfy the
`
`

`

`MONTELONGO v. OPM
`
`3
`
`threshold requirement for a FERS annuity, i.e., five years
`of creditable civilian service.
`Mr. Montelongo appealed to the Board. He did not ar-
`gue for counting his post-Academy career in the military;
`the only issue was whether his cadet time should be
`counted in meeting § 8410’s five-year threshold. It was, as
`it still is, undisputed that Mr. Montelongo’s cadet time was
`“military service” that was creditable service under 5
`U.S.C. § 8411(c)(1). But the administrative judge assigned
`to the matter concluded that being “creditable service” un-
`der § 8411 does not make the cadet time into the “civilian
`service” for which § 8410 sets a five-year minimum for an-
`nuity qualification. On that basis, the administrative
`judge agreed with OPM’s denial of the annuity application.
`The denial became the final Board decision when the time
`for full Board review passed and Mr. Montelongo had not
`sought such review.
`Mr. Montelongo timely appealed to this court. We have
`jurisdiction under 28 U.S.C. § 1295(a)(9).
`II
`We must affirm the Board’s decision unless it is “(1) ar-
`bitrary, capricious, an abuse of discretion, or otherwise not
`in accordance with law; (2) obtained without procedures re-
`quired by law, rule, or regulation having been followed; or
`(3) unsupported by substantial evidence.” 5 U.S.C.
`§ 7703(c); see also De Santis v. Merit Systems Protection
`Bd., 826 F.3d 1369, 1372–73 (Fed. Cir. 2016). We review
`the Board’s legal determinations, “such as statutory inter-
`pretation, de novo.” Stephenson v. Office of Pers. Mgmt.,
`705 F.3d 1323, 1326 (Fed. Cir. 2013).
`To be eligible for a FERS annuity, an employee “must
`complete at least 5 years of civilian service creditable un-
`der section 8411 . . . .” 5 U.S.C. § 8410. Under the plain
`language of that provision, for service to count in meeting
`the five-year minimum, it must be both “civilian service”
`
`

`

`4
`
`MONTELONGO v. OPM
`
`and “creditable under section 8411.” It is not enough for
`the applicant’s service to satisfy the second half of this dual
`requirement, i.e., that it be creditable under § 8411—which
`means that it is “service” used for certain FERS purposes
`such as calculating the amount of an annuity to which the
`applicant is otherwise entitled. See id., § 8401(26) (defin-
`ing “service” as “service which is creditable under section
`8411”); id., § 8415(a) (“the annuity of an employee retiring
`under this subchapter is 1 percent of that individual’s av-
`erage pay multiplied by such individual’s total service”).
`The service that qualifies under § 8410 also must satisfy
`the first half of that section’s dual requirement: it must be
`“civilian service.”
`We agree with the Board that Mr. Montelongo’s cadet
`service was not “civilian service.” The statute, in its defi-
`nitional section, expressly specifies that West Point cadet
`time is “military service.” Id., § 8401(31). That definition
`is key to resolution of the legal issue because the relevant
`FERS statutory provisions make clear that, at least as rel-
`evant here, “military service” and “civilian service” are dis-
`tinct categories.
`Thus, § 8411 includes both military and civilian service
`as creditable “service,” but it recognizes the distinction: it
`provides “credit for,” among other things, certain periods of
`“military service,” § 8411(c)(1), while separately allowing
`credit for and referring to certain “civilian service,”
`§ 8411(b)(3), (i)(1). The definitional section of the statute,
`§ 8401, also separately refers to “military service,”
`§ 8401(31), and to “civilian service,” § 8401(11)(C), (12)(A),
`31, 37(A), 38(A). Indeed, the specific subsection that de-
`fines “military service” to include cadet time itself refers to
`“civilian service” as something distinct. § 8401(31). In this
`statutory context, which contains no other provision that
`overrides the separation of the two categories for present
`purposes, the qualification of cadet time as “military ser-
`vice” means that it is not “civilian service.”
`
`

`

`MONTELONGO v. OPM
`
`5
`
`In Brown v. Office of Personnel Management, 872 F.2d
`401, 402 (Fed. Cir. 1989), we insisted on the military-civil-
`ian distinction in a very similar context involving the FERS
`program. The question there was whether certain military
`service creditable under 5 U.S.C. § 8411 counts for meeting
`a “civilian service” eligibility requirement for FERS bene-
`fits to widows stated in § 8442. We held that it does not.
`We explained: “That section 8442(b)(1) says ‘civilian ser-
`vice
`creditable under
`section 8411’ and
`section
`8411(c)(1)(A) allows credit for military service prior to 1957
`does not change the basic requirement of section 8842 that
`creditable service must be civilian service to establish eli-
`gibility.” Brown, 872 F.2d at 402. That reasoning carries
`over to the § 8410 issue here.
`It also is consistent with precedent under the counter-
`part of the FERS provision at issue here for the Civil Ser-
`vice Retirement System (CSRS) that pre-dated the 1986
`enactment of the FERS regime. Specifically, 5 U.S.C.
`§ 8333(a), since its enactment in 1948, has used language
`similar to § 8410, requiring five years of “civilian service”
`for eligibility for an annuity. Both before and after the en-
`actment of the FERS provisions, we have held that only ci-
`vilian service counts under the CSRS eligibility provision,
`so that, while military service may count in calculating the
`amount of an annuity if eligibility is established, the five-
`year minimum for eligibility may not be met by combining
`civilian and military service. See, e.g., Villanueva v. Office
`of Pers. Mgmt., 980 F.2d 1431, 1432–33 (Fed. Cir. 1992);
`Tirado v. Dep’t of Treasury, 757 F.2d 263, 264 (Fed. Cir.
`1985). That precedent reinforces our reliance on the “civil-
`ian service”/“military service” distinction in interpreting
`§ 8410.
`In our non-precedential decision in Reid v. Office of Per-
`sonnel Management, 708 F. App’x 677 (Fed. Cir. 2017), we
`drew the same conclusion about § 8410 that we draw here.
`We explained:
`
`

`

`6
`
`MONTELONGO v. OPM
`
`The plain language of § 8410 requires five years of
`civilian service. To allow the non-civilian, i.e. mil-
`itary, service to count towards the eligibility crite-
`ria in § 8410 would render superfluous the word
`“civilian.” . . . The latter part of § 8410, “creditable
`under 5 U.S.C. § 8411,” does not expand the mean-
`ing of “at least 5 years of civilian service,” but nar-
`rows the types of civilian service that may give rise
`to eligibility.
`Id. at 678–79. We find that reasoning to be sound and now
`adopt the Reid reasoning and conclusion.
`Mr. Montelongo correctly observes that an earlier non-
`precedential decision, Cieslinski v. Office of Personnel Man-
`agement, 610 F. App’x 979 (Fed. Cir. 2015), includes a
`statement that is contrary to the legal conclusion we reach
`here and reached in Reid. In Cieslinski, we stated in dic-
`tum that “[b]y statute, a federal employee ‘must complete
`at least 5 years of civilian service,’ to include military ser-
`vice 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.” Id. at 980 (emphasis
`added). But that statement is not binding, both because it
`was made in a non-precedential decision and because it
`was neither necessary to the result reached (which denied
`the FERS annuity sought) nor even part of the rationale of
`decision (which rested on the fact that the employee had
`requested and received a refund of his FERS contributions,
`nullifying any annuity rights he may have held). Id. at 981.
`Reid itself recognized the Cieslinski statement and ex-
`plained that it had not been necessary to the court’s deci-
`sion. Reid, 708 F. App’x at 679. As we now hold, the
`statement in Cieslinski was incorrect.
`Mr. Montelongo seeks support for his legal position in
`§ 1115 of the National Defense Authorization Act for Fiscal
`Year 2008 (NDAA), Pub. L. 110-181, 122 Stat. 3, 361. But
`all that provision did with respect to FERS annuities was
`
`

`

`MONTELONGO v. OPM
`
`7
`
`to add cadet service to the definition of “military service” in
`5 U.S.C. § 8401(31); it did not characterize cadet service as
`“civilian service.” (It made a similar change in 5 U.S.C.
`§ 8331(13), governing the CSRS regime.) As we have al-
`ready discussed, the statutory treatment of cadet service
`as “military service” undermines rather than aids Mr.
`Montelongo’s position on application of § 8410’s “civilian
`service” to cadet service.
`Mr. Montelongo next urges us to adopt a distinction be-
`tween “pure” military service and “not pure” military ser-
`vice, arguing that his cadet service is in the latter category
`and that it therefore should count under § 8410. But noth-
`ing in the FERS statute makes that distinction. As already
`noted, the FERS statute’s definitional section makes cadet
`service simply “military service,” which contrasts with “ci-
`vilian service.”
`Finally, Mr. Montelongo points to (a) the “buying back”
`advice given to him by the Air Force’s human resources de-
`partment and (b) a section on “Creditable Military Service,”
`from an OPM handbook, that states, “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.” J.A.
`54. The advice did not, and the handbook does not, specif-
`ically address the threshold requirement of § 8410. In any
`event, neither OPM’s handbook nor a government em-
`ployee’s advice overrides the clear language of the statute.
`See Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 415–
`16 (1990) (holding “payments of money from the Federal
`Treasury are limited to those authorized by statute” even
`when erroneous oral and written advice is given by a gov-
`ernment employee); see also Koyen v. Office of Pers. Mgmt.,
`973 F.2d 919, 921–22 (Fed. Cir. 1992) (denying survivor’s
`annuity to claimant whose spouse failed to make election
`by statutory deadline after relying on incorrect information
`provided by OPM).
`
`

`

`8
`
`MONTELONGO v. OPM
`
`For the foregoing reasons, the decision of the Board is
`affirmed.
`The parties shall bear their own costs.
`AFFIRMED
`
`
`
`