John B. Lepore v. Office of Personnel Management

The calculation of annuities for government employees upon their retirement is governed by 5 U.S.C. 8331(4). This section requires a determination of “the largest annual rate resulting from averaging an employee’s rates of basic pay in effect over any 3 consecutive years of creditable service....” This requires an analysis of the employee’s rates of basic pay over his/her entire career, although the figure is usually determined by the last three years of that person’s employ by the government. In our case, the documents show that the last three years of Petitioner’s government service, ending on April 16, 1983 produced the “largest annual rate of basic pay” and the Administrative Judge found that it was uncontested that Petitioner’s retirement date was April 16, 1983. The question presented is whether the court below had the right to ignore that finding, in plain violation of Rule 52(a)(6) which states that “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”