Cullerton v. United States
CourtCourt of Appeals for the Federal Circuit
Date FiledNovember 6, 2026
Docket26-1633
StatusUnpublished
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Full Opinion
Case: 26-1633 Document: 35 Page: 1 Filed: 11/06/2026
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THOMAS K. CULLERTON,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2026-1633
______________________
Appeal from the United States Court of Federal Claims
in No. 1:25-cv-02025-AOB, Judge Armando O. Bonilla.
______________________
Decided: November 6, 2026
______________________
THOMAS KEVIN CULLERTON, St. Augustine, FL, pro se.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
PATRICIA M. MCCARTHY, BRETT SHUMATE.
______________________
Before DYK, CHEN, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
Case: 26-1633 Document: 35 Page: 2 Filed: 11/06/2026
2 CULLERTON v. US
Mr. Thomas Kevin Cullerton filed a complaint at the
Court of Federal Claims (“Claims Court”) seeking sever-
ance pay following his separation from the United States
Forest Service (“Forest Service”). The Claims Court dis-
missed the complaint because Mr. Cullerton’s eligibility for
an immediate retirement annuity disqualified him from re-
ceiving severance pay. We affirm.
BACKGROUND
Mr. Cullerton was an employee of the Forest Service,
an agency of the U.S. Department of Agriculture (“USDA”),
from 2023 until August 23, 2025. His position prior to ter-
mination was Partnership Coordinator. Prior to his Forest
Service employment, Mr. Cullerton was an employee of
several other federal agencies from 2011 to 2023. On De-
cember 1, 2024, Mr. Cullerton applied for disability retire-
ment to the Office of Personnel Management (“OPM”),
citing the effect of injuries sustained during earlier mili-
tary service and alleged occupational injuries linked to his
Forest Service duties, and averring that he was generally
unable to perform daily work duties. The OPM denied dis-
ability retirement, concluding that “there is no supporting
evidence indicating [Mr. Cullerton’s] conditions are of the
severity to render [him] unable from performing the critical
elements of [his] position as a Partnership Coordinator.”
App’x 22. 1 However, Mr. Cullerton represents that the
OPM eventually approved his disability retirement on
March 16, 2026.
On July 8, 2025, the USDA, based in part on
Mr. Cullerton’s disability application statements, informed
him that accommodation of his medical conditions was not
possible “due to the severity of cognitive deficits.”
1 Citations to “App’x” refer to the Appendix filed by
Mr. Cullerton in this appeal. Dkt. No. 7-2.
Case: 26-1633 Document: 35 Page: 3 Filed: 11/06/2026
CULLERTON v. US 3
S. App’x 3 (internal quotation and citation omitted). 2 On
July 23, 2025, the Forest Service informed Mr. Cullerton
that it proposed to remove him for medical inability to per-
form, and on August 20, 2025, the proposed removal was
sustained as “necessary to promote the efficiency of the
Service.” S. App’x 19. He was removed effective Au-
gust 23, 2025. The Forest Service advised Mr. Cullerton
that “[f]ederal government employees removed from fed-
eral service for the efficiency of the service do not receive
severance pay.” App’x 92.
Mr. Cullerton filed a complaint in the Claims Court,
seeking $95,000 in severance pay. 3 The government moved
to dismiss the claim under Claims Court Rule 12(b)(6), ar-
guing that Mr. Cullerton was legally ineligible for sever-
ance pay. The government pointed out that Mr. Cullerton’s
age at the time of separation and length of service entitled
him to an “Minimum Retirement Age (MRA)+10” annuity
under 5 U.S.C. § 8412(g)(1). 4 According to the government,
eligibility for an immediate annuity disqualified
Mr. Cullerton from receiving severance pay under 5 C.F.R.
§ 550.704(b)(5). The Claims Court determined that there
was no dispute that Mr. Cullerton met the criteria for
MRA+10 eligibility, making him ineligible for severance
pay under the applicable regulation, and dismissed the
claim for failure to state a claim.
2 Citations to “S. App’x” refer to the Supplemental
Appendix filed by the government in this appeal. Dkt.
No. 14.
3 Mr. Cullerton supplemented his complaint to add
additional claims that the Claims Court dismissed as out-
side of its Tucker Act jurisdiction. Mr. Cullerton does not
challenge those rulings on appeal.
4 Mr. Cullerton’s age and years of service were estab-
lished from his complaint and exhibits thereto.
Case: 26-1633 Document: 35 Page: 4 Filed: 11/06/2026
4 CULLERTON v. US
Mr. Cullerton timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo the Claims Court’s dismissal of a
claim for failure to state a claim upon which relief can be
granted. LaBonte v. United States, 43 F.4th 1357, 1367
(Fed. Cir. 2022). On a motion to dismiss, a court must ac-
cept as true all factual allegations in the complaint. Cam-
bridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir.
2009).
Mr. Cullerton’s eligibility for severance pay is governed
by 5 U.S.C. § 5595(b), which provides in part:
Under regulations prescribed by the President or
such officer or agency as he may designate, an em-
ployee who—
(1) has been employed currently for a con-
tinuous period of at least 12 months; and
(2) is involuntarily separated from the ser-
vice, not by removal for cause on charges of
misconduct, delinquency, or inefficiency;
is entitled to be paid severance pay in regular pay
periods by the agency from which separated.
5 U.S.C. § 5595(b).
However, the statute also provides that the definition
of a severance-eligible employee excludes someone subject
to any “retirement system applicable to an employee . . .
who, at the time of separation from the service, has fulfilled
the requirements for immediate annuity under such a . . .
system.” 5 U.S.C. § 5595(a)(2)(iv) (emphasis added). Con-
sistent with § 5595(a)(2)(iv), the applicable regulation pro-
vides that “[a]n employee is not eligible for severance pay
if he or she . . . [i]s eligible upon separation for an immedi-
ate annuity from a Federal civilian retirement system or
Case: 26-1633 Document: 35 Page: 5 Filed: 11/06/2026
CULLERTON v. US 5
from the uniformed services.” 5 C.F.R. § 550.704(b), (b)(5).
An “immediate annuity” includes a “recurring benefit pay-
able under a retirement system applicable to Federal civil-
ian employees or members of the uniformed services that
the individual is eligible to receive . . . at the time of the
involuntary separation from civilian service or that begins
to accrue within 1 month after such separation, excluding
any Social Security retirement benefit.” 5 C.F.R.
§ 550.703.
Thus, we must determine whether the Claims Court
correctly determined Mr. Cullerton was eligible for such an
annuity, here, the MRA+10 annuity. “An employee . . .
who is separated from the service after attaining the appli-
cable minimum retirement age under [5 U.S.C. § 8412(h)]
and completing 10 years of service is entitled to an annu-
ity.” 5 U.S.C. § 8412(g)(1). The minimum retirement age
for Mr. Cullerton, born in 1966, is 56 years and 4 months. 5
Mr. Cullerton was thus eligible for the MRA+10 annuity at
separation because he was 58 years old when separated,
meeting the age requirement, and had 14 years of service,
meeting the years-of-service requirement.
Mr. Cullerton argues that he was not eligible to receive
the MRA+10 annuity because he never applied for or re-
ceived it, electing to pursue disability retirement benefits
5 For an individual born in 1966, § 8412(h)(1)(D) pro-
vides a minimum retirement age of “56 years of age plus
the number of months in the age increase factor deter-
mined under paragraph (2)(B).” Section 8412(h)(2)(B) pro-
vides that “the age increase factor shall be equal to two-
twelfths times the number of months in the period begin-
ning with January 1965 and ending with December of the
year in which the date of birth occurs.” The age increase
factor for Mr. Cullerton is thus two-twelfths times 24
months, which equals four months to be added to the 56
years under paragraph (h)(1)(D).
Case: 26-1633 Document: 35 Page: 6 Filed: 11/06/2026
6 CULLERTON v. US
instead. But Mr. Cullerton’s failure to seek such benefits
does not alter his immediate eligibility for the MRA+10 an-
nuity.
Mr. Cullerton also argues that he was not eligible for
the MRA+10 annuity because the USDA failed to forward
his records to the OPM. This does not affect whether
Mr. Cullerton was eligible for benefits.
Mr. Cullerton’s immediate eligibility for an MRA+10
annuity disqualified him from receiving severance pay as a
matter of law. The Claims Court did not err in dismissing
Mr. Cullerton’s claim for severance pay.
We have considered Mr. Cullerton’s other arguments
and find them unpersuasive.
AFFIRMED
COSTS
No costs.