Killip v. Office of Personnel Management

• Decision Date: 14 April 1993
• Docket Number: No. 91-3359,91-3359
• Citation: 991 F.2d 1564
• Parties: Patricia L. KILLIP, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1564

991 F.2d 1564

Patricia L. KILLIP, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 91-3359.

United States Court of Appeals, Federal Circuit.

April 14, 1993.

Patricia L. Killip, Phoenix, AZ, submitted pro se.

Ellen M. McElligott, Attorney, Commercial Litigation Branch, Dept. of Justice, Washington, DC, submitted for respondent. Of counsel were James M. Kinsella, Asst. Director, David M. Cohen, Director, Dept. of Justice and Gail L. Goldberg, Office of General Counsel, Office of Personnel Management, Washington, DC.

Before PLAGER, Circuit Judge, SMITH, Senior Circuit Judge, and CLEVENGER, Circuit Judge.

CLEVENGER, Circuit Judge.

Patricia L. Killip petitions for review of the decision of the Merit Systems Protection Board (MSPB or Board), Docket No. DE08469010425, that affirmed the decision of the Office of Personnel Management (OPM) denying her request to transfer from the Civil Service Retirement System (CSRS) to the Federal Employees' Retirement System (FERS). Because OPM lacked authority to entertain petitioner's request to transfer between the federal retirement systems, we affirm.

I

Congress enacted the Federal Employees' Retirement System Act of 1986, Pub.L. No. 99-335, 1986 U.S.C.C.A.N. (100 Stat.) 514 (FERSA) (codified as amended at 5 U.S.C. §§ 8401-8479 (1988)) on June 6, 1986, thereby creating FERS as an alternative to the retirement benefits program existing under CSRS. Section 301(a) of FERSA provided that federal employees subject to CSRS as of June 30, 1987 could elect to transfer from CSRS to FERS, but only if that election were made during the six-month statutory time period ("open season") from July 1, 1987 to December 31, 1987. FERSA § 301(a)(1)(B), 5 U.S.C. § 8331 note (1988); see 5 C.F.R. § 846.201(a) (1992). Such application to transfer was to be made to the employing agency, with OPM having the authority to reconsider the employing agency's decision. 5 C.F.R. §§ 846.204(c), .205(a) (1992). OPM's decision could then be appealed to the MSPB. 5 C.F.R. § 846.205(e) (1992). To explain relevant details of FERS and the consequences of transferring from CSRS to FERS, OPM issued the "FERS Transfer Handbook" to all federal government employees before the onset of the open season.

A major factor considered by many federal employees in deciding whether to transfer from CSRS to FERS was the applicability of the Public Pension Offset (PPO) provisions of the Social Security Act. Under the PPO, "the amount of Social Security benefits that an individual may receive, based on the Social Security coverage of his or her spouse, is reduced if he or she receives a pension based on work performed for Federal, state or local government." Moriarty v. Office of Personnel Management, 47 M.S.P.R. 280, 282 (1991), aff'd, 989 F.2d 1202 (Fed.Cir.1993) (table). Under such offset, a federal employee who retired under CSRS and who was eligible to receive both retirement benefits and Social Security benefits as, for example, a spouse or surviving spouse, would receive such Social Security benefits in an amount reduced by two-thirds of the amount of the retirement benefits payable based upon his/her earnings while in the federal government. 47 M.S.P.R. at 282; see 42 U.S.C. § 402(b)(4)(A), (c)(2)(A), (e)(7)(A), (f)(2)(A) & (g)(4)(A) (1988); see generally Barnes v. Office of Personnel Management, 980 F.2d 708, 709-11 (Fed.Cir.1992).

As FERSA was originally enacted, employees transferring from CSRS to FERS during the open season were exempt from the effect of the PPO upon Social Security benefits receivable as, for example, a spouse or surviving spouse of a federal employee, because FERS unlike CSRS includes Social Security coverage for federal employees. See, e.g., 42 U.S.C. § 402(b)(4)(A) (Supp. IV 1986) & 42 U.S.C. § 410(a)(5)(H) (1988) (PPO does not apply to wife's benefits if, on the last day of her federal service, her "employment" was, inter alia, covered by FERS). Even at the time of FERSA's passage, however, Congress was considering certain legislative proposals that would have eliminated FERS' exemption from the PPO, thereby subjecting employees retiring under FERS to the offset. On October 29, 1987, as a result of such consideration, the House of Representatives passed legislation which would have completely eliminated the exemption from the PPO for all employees covered by FERS, including retroactively those who elected to transfer during the open season, unless a retiring employee had worked a minimum of five years while subject to FERS. H.R. 3545, 100th Cong., 1st Sess. § 9006 (1987); see 133 Cong.Rec. 30,058-59 (1987). On December 10, 1987, however, the Senate passed its version of the bill which contained no corresponding provision eliminating the exemption from the PPO from FERS. S. 1920, 100th Cong., 1st Sess. (1987). A conference between the Senate and the House was thus required. 133 Cong.Rec. 34,935 (1987); see generally Webb v. Office of Personnel Management, 47 M.S.P.R. 275, 279 n. 4 (1991).

The ultimate legislative compromise between the House and the Senate on the PPO issue resulted in passage of the Omnibus Budget Reconciliation Act of 1987 (OBRA), Pub.L. No. 100-203, § 9007, 1987 U.S.C.C.A.N. (101 Stat.) 1330, 1330-289, 42 U.S.C. § 402(b)(4), (c)(2), (e)(7), (f)(2) & (g)(4) (1988), on December 22, 1987, a scant nine days before the close of the open season. Under section 9007, the exemption from the PPO remained in effect for an employee who converted from CSRS to FERS during the specified six-month open season, i.e., before January 1, 1988. For all other individuals subject to FERS, the exemption from the PPO applied only if the employee performed at least five years of service while subject to FERS before retirement, as in the original House proposal. See 133 Cong.Rec. 36,849-50, 36,996 (1987); H.R.Conf.Rep. No. 495, 100th Cong., 1st Sess. 803 (1987) (House Conference Rep.), reprinted in 1987 U.S.C.C.A.N. 2313-1, 2313-1245, 2313-1548-49; Webb, 47 M.S.P.R. at 279 n. 4.

In OBRA, Congress recognized that express statutory provisions might permit employees to transfer from CSRS to FERS during election periods other than the original open season. Congress, however, provided that the exemption from the PPO would not apply to an employee who "elect[ed] to become subject to [FERS], ... pursuant to law after December 31, 1987," unless she qualifies for the exemption by having worked five or more years under FERS. OBRA § 9007(a)-(e), 42 U.S.C. § 402(b)(4)(A)(ii)(II), (c)(2)(A)(ii)(II), (e)(7)(A)(ii)(II), (f)(2)(A)(ii)(II) & (g)(4)(A)(ii)(II) (1988) (emphasis added). Congress interpreted this language to require the five-year criterion to

be effective with respect to employees who elect to become covered under FERS during any election period which may occur on or after January 1, 1988.

House Conference Rep. at 803, reprinted in 1987 U.S.C.C.A.N. at 2313-1549. Originally as part of FERSA, Congress apparently provided at least two such election periods pursuant to "law" permitting an election to transfer after December 31, 1987 by extending the time period for election for a narrowly defined class of individuals. See FERSA § 301(a)(2), 5 U.S.C. § 8331 note (1988) (an individual who is "reemployed" by the federal government subsequent to June 30, 1987, and who is then subject to CSRS, has six months from the date of reemployment in which to elect to transfer to FERS); FERSA § 301(d)(1), (d)(4)(A), 5 U.S.C. § 8331 note (1988) (extension of time period in which to elect permitted when (i) request for extension made during original open season and (ii) extension needed to secure, inter alia, a modification of a divorce decree, in order to procure consent to FERS election from former spouse). Congress has also provided for other such election periods in subsequent legislation. See, e.g., Intelligence Authorization Act for Fiscal Year 1993, Pub.L. No. 102-496, § 802 (sub-s 301(d)), 1992 U.S.C.C.A.N. (106 Stat.) 3180, 3196, 3243 (1992) (person designated to participate in Central Intelligence Agency Retirement & Disability System after December 31, 1987 has six months to transfer to FERS from date of designation); National Defense Authorization Act for Fiscal Year 1993, Pub.L. No. 102-484, § 1062, 1992 U.S.C.C.A.N. (106 Stat.) 2315, 2504-05 (1992) (Judges of Court of Military Appeals have the same rights under FERS as "reemployed" individuals, FERSA § 301(a)(2), and have the right to transfer to FERS within 30 days of enactment of this act).

In early 1988, acting only pursuant to its general regulatory authority, FERSA § 101(a), 5 U.S.C. § 8461(b) ¹, (g) ² (1988), and without specific statutory authority, OPM promulgated a regulation allowing belated elections to transfer to FERS, after the open season, for employees satisfying the regulation's criteria:

(a) Belated elections. On determination by an employing office that the FERS transfer handbook issued by OPM was not available to an individual in a timely manner or an individual was unable, for cause beyond his or her control, to elect FERS coverage within the prescribed time limit, the employing office may, within 6 months after expiration of the individual's opportunity to elect FERS coverage under [5 C.F.R.] § 846.201, accept the individual's election of FERS coverage.

(b) Correction of administrative errors related to election. During the 6-month period after the expiration of an individual's opportunity to elect FERS coverage under § 846.201, the employing office may make prospective corrections of administrative errors regarding an individual's opportunity to elect FERS coverage, including failure to provide the election form ... to an individual.

5 C.F.R. § 846.204(a), (b) (1992); see 52 Fed.Reg. 19,231, 19,236 (May 21, 1987). On November 10, 1988, Congress enacted the Technical & Miscellaneous Revenue Act of 1988 (TMRA), Pub.L. No. 100-647, 1988 U.S.C.C.A.N. (102 Stat.) 3342. In that Act, Congress recognized the...