Torres v. Office of Personnel Management, 96-3367
| Decision Date | 12 September 1997 |
| Docket Number | No. 96-3367,96-3367 |
| Citation | 124 F.3d 1287 |
| Parties | Joseph T. TORRES, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
Karen L. Karr, Mohr, Hackett, Pederson, Blakley, Randolph & Haga, P.C., Phoenix, AZ, argued, for petitioner.
Tarek Sawi, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for respondent. With him on brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Anthony H. Anikeeff, Assistant Director.
Before MICHEL, Circuit Judge, SKELTON, Senior Circuit Judge, and CLEVENGER, Circuit Judge.
Joseph T. Torres petitions for review of the final decision of the Merit Systems Protection Board ("Board") in SF-0831-96-0215-I-1. The April 1, 1996 decision of the Administrative Judge ("AJ"), which affirmed the Office of Personnel Management ("OPM") reconsideration decision denying Torres an immediate, "early out" retirement annuity under 5 U.S.C. § 8336(d)(2), became the final decision of the Board when the full Board denied review on August 13, 1996. The appeal was submitted for our decision following oral argument on August 5, 1997. Because OPM lacked statutory authority to impose the requirement it did of long term employment with the agency for Torres to be eligible for the "early out" benefits, we reverse the decision of the Board.
The facts are undisputed here, as they were before the Board. On January 5, 1994, the Bureau of Reclamation of the Department of the Interior (the "agency") submitted a request to OPM for a grant of authority to offer voluntary early retirement in conjunction with a proposed major reduction in force ("RIF"). Based on estimates of the number of employees expected to exercise the option, OPM granted the requested authority on February 2, 1994 pursuant to 5 U.S.C. §§ 8336(d)(2), 8414(b) (1994). In granting the request, OPM delegated to the agency a variety of powers to limit the availability of the offer (e.g., "The agency may establish early retirement windows ..." and "[t]he agency may adopt any fair and objective method for approving applications if the agency finds it must limit voluntary early retirement among its employees."). Most relevant, the grant contained the following restriction:
Early retirements are authorized for eligible employees as long as they were on Interior's rolls at least 30 days before the date of your request, January 5, 1994, and have remained continuously on the agency's rolls since that time.
Mr. Torres challenges the OPM's authority to impose this restriction, arguing that all conditions of eligibility were in the statute itself, which he met.
Mr. Torres worked for the government since 1967 until his retirement (with a break only for military service). He began work for this particular agency, though, on May 1, 1994. (As noted, the early out authority was sought in January.) After receiving several documents and oral communications which indicated to Torres that he was or might be eligible for the "early out" retirement option (including a certified summary of his federal service from OPM), Torres began negotiations for another job. He submitted an application for a voluntary separation incentive payment ("VSIP") and early retirement on February 2, 1995. 1
On February 8, 1995, however, the Regional Personnel and Management Officer of Interior informed Mr. Torres by letter that he was not eligible for early retirement because he was not an employee before the eligibility deadline of December 6, 1993. The letter stated, "[W]e note that you did not transfer to the Department of the Interior until May 1, 1994, almost 4 months [sic] after the deadline to be eligible for early retirement." The letter continued by stating Mr. Torres could remain in his position or retire with just the VSIP, and concluded by asking Mr. Torres to respond.
Torres apparently resigned and then appealed this denial of an early retirement annuity to OPM. The denial was upheld in an initial determination and on reconsideration. Torres then petitioned to the Board, and the AJ affirmed the OPM's decision, reasoning that Mr. Torres was not "serving in a geographic area designated by the Office of Personnel Management" as required by the statute because he was not working for Interior as of one month before the early-out authority was requested. The AJ also rejected Mr. Torres' arguments that he was induced to retire by misrepresentation. The full Board denied review, and Torres timely appealed to this court. Our jurisdiction over the appeal is clear. See 28 U.S.C. § 1295(a)(9) (1994); 5 U.S.C. § 7703 (1994).
This appeal presents an important question of first impression whether OPM can restrict eligibility for statutorily authorized early out annuities beyond the statutory criteria under some theory of implied authority or deference.
The governing statute is 5 U.S.C. § 8336(d)(2) 2 which provides, in relevant part:
(d) An employee who--
...
(2) while serving in a geographic area designated by the Office of Personnel Management is separated from service voluntarily during a period in which the Office [of Personnel Management] determines that--
(A) the agency in which the employee is serving is undergoing a major reorganization, a major reduction in force, a major transfer of function; and
(B) a significant percent of the employees serving in such agency will be separated or subject to an immediate reduction in the basic rate of pay ...;
after completing 25 years of service or after becoming 50 years of age and completing 20 years of service is entitled to an annuity.
(emphasis added). Torres argues that under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), and our decision in Travelstead v. Derwinksi, 978 F.2d 1244, 1250 (Fed.Cir.1992), OPM may not take administrative action which is contrary to the clear intent of Congress or otherwise outside the scope of Congress' delegation to OPM. Thus, Torres argues the agency cannot limit the group who may take advantage of the statute beyond the class announced by Congress in the plain meaning of the statute, and use of the phrase "is entitled" in the statute shows Congress meant the benefit to be non-discretionary. The government does not cite to any other statute or any regulation promulgated under section 8336(d), but argues that OPM has the authority to impose the additional eligibility requirement either because (i) the statute's use of the words "period" and "geographic area" show Congress clearly intended to give OPM broad power to impose time restrictions with respect to who could receive the benefit, or (advanced at oral argument) (ii) the statute is ambiguous, and under step-two of the test in Chevron, OPM's reasonable interpretation should be accorded deference.
The meaning of this statute, however, is clear. See Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82 ( ...
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