Parker v. Office of Personnel Management

• Decision Date: 03 September 1992
• Docket Number: No. 92-3242,92-3242
• Citation: 974 F.2d 164
• Parties: Elizabeth M. PARKER, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 164

974 F.2d 164

Elizabeth M. PARKER, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 92-3242.

United States Court of Appeals Federal Circuit.

Sept. 3, 1992.

Elizabeth M. Parker, submitted pro se.

Margaret L. Baskette, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, D.C., submitted, for respondent. With her on the brief, were Stuart S. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Martha H. DeGraff, Asst. Director. Also on the brief, were Vernon B. Parker, Gen. Counsel, Thomas F. Moyer, Asst. Gen. Counsel and Jill Gerstenfield, Atty., Office of Personnel Management, of counsel.

Before MAYER, MICHEL and LOURIE, Circuit Judges.

MAYER, Circuit Judge.

Elizabeth M. Parker appeals the decision of the Merit Systems Protection Board, 52 M.S.P.R. 173 (1991), that her disability retirement annuity application was untimely. We reverse.

Background

Elizabeth M. Parker was employed as a Psychiatric Nursing Assistant by the Department of Veterans Affairs (DVA) Medical Center in Little Rock, Arkansas, for over twenty years when, on November 12, 1988, she was separated from service on the ground that she was physically unable to perform her duties. On November 9, 1989, Parker obtained a packet containing disability retirement annuity application forms from the DVA. At this time, she asked when her application had to be filed with the Office of Personnel Management (OPM), and she was told by Lois Holcomb of the DVA Medical Center's personnel office that it needed to be postmarked within a year of her separation. Parker went promptly to the post office and mailed the application that day, but it did not arrive at OPM's Boyers, Pennsylvania, office until November 16, 1989.

The statute governing disability retirement annuities states, "A claim may be allowed under this section only if the application is filed with the Office [OPM] before the employee or Member is separated from the service or within 1 year thereafter." 5 U.S.C. § 8337(b) (1988). The statute permits waiver of the time limit only if the applicant is mentally incompetent. Id. OPM's accompanying regulation states, "An applicant for disability retirement must submit an application for retirement before separation from service or within one year after separation from service, but this time limit may be extended in the case of an employee who is found to be incompetent," and, "An employee or Member who is retiring on account of disability shall file an application for annuity with OPM before his separation from the service or within 1 year thereafter." 5 C.F.R. § 831.501(a) & (c) (1992).

In January 1990, OPM informed Parker that it was denying her application as untimely because it was not received until more than one year after her separation from service had elapsed, and that therefore it was not filed within the period provided by statute and regulation. After reconsideration, OPM affirmed the denial of Parker's application as untimely. It rejected her arguments that she complied with the directions given her to postmark the application within the one-year period, and that she had a reasonable expectation the application would arrive within the one-year time period because she had until November 13 for the papers to reach OPM, which should have been sufficient time.

Parker appealed to the Merit Systems Protection Board. In the initial decision, the administrative judge reversed OPM's reconsideration decision, rejecting its argument that 5 C.F.R. § 831.501 "means the date received, whether it says it or not." He also rejected OPM's assertion of a "long-standing policy" of using the date of receipt as the filing date, finding instead that "the regulations are far from clear as to what constitutes a filing date for a disability retirement application." He pointed to OPM's inconsistent deadlines in other contexts for filing documents: at times requiring receipt and at other times requiring only a postmark before a given deadline.

On OPM's petition for review of the initial decision, the board reversed, concluding that there was "persuasive evidence below to support [OPM's] assertion that its long-standing policy has been to consider the receipt date as being the date that an application for disability retirement was filed." Parker v. Office of Personnel Management, 52 M.S.P.R. 173, 176 (1991). The board pointed to an affidavit created for the case by the Deputy Assistant Director of OPM's Office of Retirement Programs which stated, "It is OPM's long-standing policy to interpret 'filing' as date of receipt by OPM." Id. The board also observed that it owed deference to OPM's interpretation of the statute.

On this appeal, Parker argues that the statute does not define filing as date of receipt and that "OPM's stated policy of using date of receipt is ambiguous and not always true." She argues, further, that "[i]n the regulations where date of receipt is the filing date, it is made clear," and that, "OPM's policy is not written nor is it a part of the regulations."

Discussion

In Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), the Supreme Court said, "If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation." If it exercises this authority, "considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer." Id. at 844, 104 S.Ct. at 2782; see also Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Thus, by enacting regulations, departments and agencies inform the public of their statutory interpretations, and the cases counseling deference recognize these efforts at putting a "gloss" on statutes by regulation or by interpretive activities on the public record. See, e.g., Chevron, 467 U.S. 837, 104 S.Ct. 2778; Udall, 380 U.S. at 4, 85 S.Ct. at 795 ("the Secretary has consistently construed both orders not to bar oil and gas leases; moreover, this interpretation has been made a repeated matter of public record"); Davis v. Office of Personnel Management, 938 F.2d 1283, 1285 (Fed.Cir.1991); True v. Office of Personnel Management, 926 F.2d 1151, 1154 (Fed.Cir.1991).

Bowen v. Georgetown University Hospital, 488 U.S. 204, 212, 109 S.Ct. 468, 473, 102 L.Ed.2d 493 (1988), contrasted established agency interpretations to which deference is due with post-hoc rationalizations of agency actions to which deference is not due. "We have never applied the [Chevron principle] to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice." And, further, "Deference to what appears to be nothing more than an agency's convenient litigating position would be entirely inappropriate." Id. at 213, 109 S.Ct. at 474. That in Bowen it was appellate counsel rationalizing an agency action, while here it is a line official who is trying to justify OPM's position is a distinction without a difference. The same result obtains: post-hoc rationalizations will not create a statutory interpretation deserving of deference. The board's reliance on the conclusory, unsubstantiated affidavit produced for this case is misplaced. It is insufficient to establish the existence of a regular, long-honored policy of public record.

OPM's argument that it consistently requires that applications be received within one year is also deflated by inconsistent regulations. Some require that applications be received within a deadline, e.g., 5 C.F.R. § 831.109(e)(1) (1992) ("A request for reconsideration must be received by OPM within 30 calendar days from the date of the original decision"); id. § 831.621(f)(2) ("Any modification ... must be in writing and received in OPM no later than the date provided for applications"), while others merely require that an application be postmarked within a deadline, e.g., id. § 831.1304(b) ("a request for reconsideration ... must be postmarked within 30 calendar days"). Of course, these provisions do not pertain to Parker's application, but they illustrate the absence of uniformity in filing requirements. Thus the board was off the mark when it said that OPM "consistently requires in various regulatory provisions that submissions be received by OPM by a certain date." 52 M.S.P.R. at n. 1. The cited regulations also show that OPM can readily communicate to the public...