Rosete v. Office of Personnel Management

• Decision Date: 03 February 1995
• Docket Number: No. 94-3342,94-3342
• Citation: 48 F.3d 514
• Parties: Juanita A. ROSETE, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 514

48 F.3d 514

Juanita A. ROSETE, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 94-3342.

United States Court of Appeals Federal Circuit.

Feb. 3, 1995.

Rehearing Denied April 3, 1995.

Juanita A. Rosete, pro se.

John K. Lapiana, Commercial Litigation Branch, Dept. of Justice, Washington, DC, submitted for respondent. With him on the brief were Frank W. Hunger, Asst. Atty., David M. Cohen, Director, and Anthony H. Anikeeff, Asst. Director. Also on the brief were Lorraine Lewis, Gen. Counsel and Murray Meeker, Office of Personnel Management.

Before ARCHER, Chief Judge, and NEWMAN and CLEVENGER, Circuit Judges.

ARCHER, Chief Judge.

Juanita A. Rosete petitions for judicial review of the decision of the Merit Systems Protection Board (MSPB or board), Docket No. SE-0831-93-0385-I-1. The November 24, 1993 initial decision of the administrative judge (AJ) sustained the reconsideration decision of the Office of Personnel Management (OPM) denying Rosete's application for retirement benefits under the Civil Service Retirement Act (CSRA). The initial decision became the final decision of the MSPB on April 18, 1994 when it denied Rosete's petition for review. 62 M.S.P.R. 378. We affirm.

I.

Juanita A. Rosete, a citizen of the Republic of the Philippines, was employed by the Department of the Navy (Navy) from August 25, 1966 to July 3, 1992. Rosete worked in a variety of different positions without a break in service for almost twenty-six years under an indefinite appointment in the excepted service. ¹ On July 3, 1992, in the face of an impending termination pursuant to a reduction-in-force, Rosete opted to retire. Throughout her tenure, the Navy had never classified Rosete's position as covered by the CSRA, and accordingly, she had never contributed to the Civil Service Retirement and Disability Fund. However, pursuant to a collective bargaining agreement between the United States and the Government of the Republic of the Philippines, she was covered by an alternative retirement plan. Thus, upon her retirement, Rosete qualified for and received the required payment of benefits under the provisions of the collective bargaining agreement.

Approximately eight months after her retirement, Rosete applied to OPM for retirement benefits under the CSRA. On April 27, 1993, OPM denied the application because Rosete had never held a position covered by the Act. OPM explained that employees with indefinite appointments were not entitled to retirement benefits under the CSRA because they were not covered employees. In seeking reconsideration of OPM's initial decision in the reconsideration request, Rosete claimed coverage based on legislative history to the CSRA, which she contended required coverage for employees with more than twelve months of continuous service. On July 3, 1993, OPM affirmed its initial decision, reiterating that Rosete's twenty-six years of creditable service did not qualify as a covered position under the CSRA.

Rosete timely appealed the OPM reconsideration decision to the MSPB. After a hearing in Manila, Philippines, the AJ issued an initial decision. The AJ affirmed the findings of OPM that, as an employee in the excepted service with an indefinite appointment, Rosete had not held a position that entitled her to benefits under the CSRA. Rosete's petition for review to the full board was denied and she now appeals to this court.

II.

This court has jurisdiction over appeals from the MSPB under 28 U.S.C. Sec. 1295(a)(9) (1988). Our standard of review requires that we affirm a decision of the MSPB unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c) (1988). The petitioner has the burden of proof of demonstrating entitlement to retirement benefits. Cheeseman v. Office of Personnel Management, 791 F.2d 138, 141 (Fed.Cir.1986), cert. denied, 479 U.S. 1037, 107 S.Ct. 891, 93 L.Ed.2d 844 (1987).

A. Eligibility for retirement benefits under the CSRA, 5 U.S.C. Sec. 8331 et seq. (1988 & Supp. IV 1992), requires that an employee complete at least five years of creditable service and that at least one of the two years of service prior to separation be "subject to" the CSRA, i.e., covered service. Id. Sec. 8333(a-b). The statute states in pertinent part:

Eligibility for Annuity

(a) An employee must complete at least 5 years of civilian service before he is eligible for an annuity under this subchapter.

(b) An employee or Member must complete, within the last 2 years before any separation from service, except a separation because of death or disability, at least 1 year of creditable civilian service during which he is subject to this subchapter before he or his survivors are eligible for annuity under this subchapter based on the separation.... Failure to meet this service requirement does not deprive the individual or his survivors of annuity rights which attached on a previous separation.

Id. While most service is creditable, not all service is covered. Herrera v. United States, 849 F.2d 1416, 1417 (Fed.Cir.1988). Covered service only includes an appointment that is subject to the CSRA and for which an employee must deposit part of his or her pay into the Civil Service Retirement and Disability Fund. Noveloso v. Office of Personnel Management, 45 M.S.P.R. 321, 323 (1990), aff'd mem., 925 F.2d 1478 (Fed.Cir.1991); see also Esteban v. Office of Personnel Management, 978 F.2d 700, 701 (Fed.Cir.1992).

The CSRA entrusts to OPM the administration of the Civil Service Retirement System. 5 U.S.C. Sec. 8347(a). The statute also permits OPM to exclude certain categories of employees from coverage under the CSRA, in the following provision:

The Office may exclude from the operation of this subchapter an employee or group of employees in or under an Executive agency whose employment is temporary or intermittent.

Id. Sec. 8347(g). Pursuant to this authorization, OPM has promulgated specific regulatory exclusions from covered service. See 5 C.F.R. Sec. 831.201(a)(1-17) (1994).

At issue in this case is the section that excludes employees serving under indefinite appointments from coverage under the CSRA, as follows:

Employees serving under nonpermanent appointments, designated as indefinite, made after January 23, 1955, the effective date of the repeal of Executive Order 10180.

Id. Sec. 831.201(a)(13). OPM and the board both relied on this regulation in denying Rosete's claim for benefits under the CSRA. Rosete contends that "excepted, indefinite" appointments do not fall within the statutory terms "temporary or intermittent" and, therefore, may not be excluded from CSRA coverage.

B. Statutory interpretation is a question of law which this court reviews de novo. Weddel v. Secretary of Dep't of Health & Human Servs., 23 F.3d 388, 391 (Fed.Cir.1994). The first step in statutory interpretation is to ascertain the meaning of the language of the statute using the "traditional tools of statutory construction." Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). If Congress has expressed its intention by clear statutory language, that intention controls and must be given effect. Id. at 843 n. 9, 104 S.Ct. at 2782 n. 9; Skinner v. Brown, 27 F.3d 1571, 1572 (Fed.Cir.1994). However, if the statute is silent or ambiguous on a point "considerable weight" and "substantial deference" must be accorded to the interpretation of a statute by the agency that is responsible for its implementation. Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991); Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150, 111 S.Ct. 1171, 1175, 113 L.Ed.2d 117 (1991); see also Newport News Shipbuilding & Dry Dock Co. v. Garrett, 6 F.3d 1547, 1552 (Fed.Cir.1993). Thus, the agency's interpretation need only be reasonable, Chevron, 467 U.S. at 842-45, 104 S.Ct. at 2781-83; see DeCosta v. United States, 987 F.2d 1556, 1558 (Fed.Cir.1993), and it need not be the only interpretation or even the interpretation that the court would have reached if the issue had initially arisen in a judicial proceeding. Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11; see American Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed.Cir.1986). Accordingly, if the agency applies a statutory mandate in some reasonable manner, this court must sustain the agency interpretation if it is not in variance with the plain meaning of the statute. Chevron, 467 U.S. at 842-45, 104 S.Ct. at 2781-83; see Gannett v. United States, 877 F.2d 965, 968 (Fed.Cir.1989).

C. When the Civil Service Retirement Act was first enacted in 1920, it specifically authorized the exclusion from coverage under the Act of employees with appointments that were either "intermittent or of uncertain duration":

The President shall have power, in his discretion, to exclude from the operation of this Act any employee or group of employees in the classified civil service whose tenure of office or employment is intermittent or of uncertain duration.

Act of 1920, ch. 195, 41 Stat. 614, 614 (emphasis added). Similar language appeared in the 1930 Act. See Act of 1930, ch. 349, Sec. 3(g), 46 Stat. 468, 471. The 1942 Act contained this provision with only minor changes in language:

The President shall have power, in his discretion, to exclude from the operation of this Act any officer or employee or group of officers or employees in the executive branch of the service whose tenure of office or employment is intermittent or of uncertain duration.

Act of 1942, ch. 16, Sec. 3(b), 56 Stat. 13, 15 (emphasis added).

In 1956, the administration of the Civil Service System was restructured. Federal Executive Pay Act of 1956, Pub.L. No. 854, 1956 U.S.C.C.A.N. (70 Stat.) 858, 869. The...