Bain v. Office of Personnel Management

• Decision Date: 30 October 1992
• Docket Number: 91-3504,Nos. 91-3503,s. 91-3503
• Citation: 978 F.2d 1227
• Parties: Helen L. BAIN, and E. Jeanne Post and Donna L. Johnson, Petitioners, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1227

978 F.2d 1227

Helen L. BAIN, and E. Jeanne Post and Donna L. Johnson, Petitioners, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Nos. 91-3503, 91-3504.

United States Court of Appeals, Federal Circuit.

Oct. 30, 1992.

Rehearing Denied Feb. 2, 1993.

Barbara A. Atkin, Sr. Appellate Counsel, Nat. Treasury Employees Union, Washington, D.C., argued for petitioners. With her on the brief was Gregory O'Duden, Director of Litigation. Also on the brief was Michael T. Lamb, Asst. Counsel, National Treasury Employees Union, Chicago, Ill., of counsel.

John P. Sholar, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for respondent. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Terrance S. Hartman, Asst. Director. Also on the brief were Vernon B. Park, Gen. Counsel, Thomas F. Moyer, Asst. Gen. Counsel and Earl A. Sanders, Atty., Office of the Gen. Counsel, Office of Personnel Management, of counsel.

Before ARCHER, CLEVENGER, and RADER, Circuit Judges.

RADER, Circuit Judge.

Petitioners, seasonal employees with the Internal Revenue Service (IRS), appeal two final decisions of the Merit Systems Protection Board. Both decisions denied petitioners retirement credit for off-season, non-work periods before October 1, 1980. Bain v. Office of Personnel Management, 49 M.S.P.R. 307 (1991); Post v. Office of Personnel Management, 49 M.S.P.R. 172 (1991). This court consolidated the appeals for briefing and argument. Because the Office of Personnel Management (OPM) did not abuse its discretion in denying retirement credit for non-work periods, this court affirms the Board's decisions.

BACKGROUND

IRS hired petitioners as seasonal "while actually employed" employees. IRS employed these seasonal employees on an "as needed" basis during peak tax filing months; IRS laid them off the remainder of the year. While on active duty, petitioners worked full-time--forty hours each week.

Before October 1, 1980, IRS gave its seasonal employees service credit toward IRS appointed Ms. Bain as a seasonal employee in 1972. Ms. Bain worked an average of six months per year before October 1, 1980. Ms. Bain retired on February 28, 1990. Ms. Johnson received her seasonal appointment in 1966. Ms. Johnson's service record shows that she worked an average of over eight months per year before October 1, 1980. Ms. Johnson retired on March 31, 1989. Ms. Post began seasonal work with IRS in 1967. Ms. Post's record shows an average of over seven months per year of work before October 1, 1980. Ms. Post retired on August 31, 1988.

                retirement only for work periods.  Bain, 49 M.S.P.R. at 308.   Beginning October 1, 1980, IRS gave its seasonal employees retirement credit for non-work periods, treating those periods as leaves of absence.  Id
                

Petitioners elected to retire under the Federal Employees' Retirement System (FERS), 5 U.S.C. §§ 8401-8479 (1988 & Supp. II 1990). Petitioners transferred their service credits under the Civil Service Retirement System (CSRS), 5 U.S.C. §§ 8331-8351 (1988 & Supp. II 1990), to FERS. See 5 U.S.C. §§ 8402(b)(2)(B), 8411(b)(3); 5 C.F.R. § 842.104(b)-(c) (1992).

When computing petitioners' retirement annuities, OPM gave them service credit only for time actually worked before October 1, 1980. Petitioners requested reconsideration of OPM's denial of service credit for non-work periods before October 1, 1980. OPM affirmed its initial denial. Petitioners appealed to the Board.

An administrative judge consolidated Ms. Post's and Ms. Johnson's cases and found them entitled to retirement credit for off-season, non-work periods before October 1, 1980. Post, 49 M.S.P.R. at 174. Upon review, the Board reversed this decision. Id. at 173. In a separate proceeding, an administrative judge did not grant Ms. Bain service credit for non-work periods before October 1, 1980. Upon review, the Board affirmed. Bain, 49 M.S.P.R. at 308.

DISCUSSION

I.

Title 5 of the United States Code sets forth this court's standard for reviewing Board decisions. This court upholds a Board decision unless "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without [following] procedures required by law, rule, or regulation ... or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c) (1988). Petitioners bear the burden of proving entitlement to annuity 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).

II.

Section 8411 of title 5 sets forth the type of service creditable toward retirement under FERS. Creditable service under FERS includes, with some exceptions, service creditable under CSRS. 5 U.S.C. § 8411(b)(3) (1988). Section 8332(f) makes leaves of absence creditable toward retirement under CSRS. Thus, an employee receives credit under that section for leaves to perform military service or to recuperate from an injury suffered while working for the Government. 5 U.S.C. § 8332(f) (1988). Section 8332(f) further provides:

[C]redit may not be allowed for so much of other leaves of absence without pay as exceeds 6 months in the aggregate in a calendar year.

Id. Thus, under CSRS, an employee receives no more than six months retirement credit per year for leaves of absence without pay. FERS contains a similar six-month limit on service credit for leaves of absence. 5 U.S.C. § 8411(d); see also 5 C.F.R. 842.304(a)(4) (1992).

In defining employees entitled to FERS benefits, 5 U.S.C. § 8401(11) adopts the definition in 5 U.S.C. § 8331(1). Section 8331(1)(A) in turn adopts the broad definition of "employee" at 5 U.S.C. § 2105. ¹

                Although title 5 defines "employee" broadly, section 8331(1)(iii) gives OPM authority to exclude certain workers from CSRS benefits.   OPM "may exclude" those employees "whose employment is temporary or intermittent."  5 U.S.C. § 8347(g).   A similar provision allows OPM to exclude temporary or intermittent employees from FERS coverage.  5 U.S.C. § 8402(c)(1)
                

Taken as a whole, the statutory schemes of FERS and CSRS allow federal employees up to six months per year of retirement credit for leaves of absence, provided OPM has not excluded the employee from FERS or CSRS benefits as a "temporary or intermittent" worker. 5 U.S.C. §§ 8347(g), 8402(c)(1). Thus, this appeal presents the issue of whether OPM properly classified petitioners as intermittent workers during their off-season, non-work periods before October 1, 1980.

III.

Title 5 charges OPM with administering both FERS and CSRS. See 5 U.S.C. §§ 8347(a), 8461. The Civil Service Commission (CSC) preceded OPM in this capacity. See 5 U.S.C. § 8347(a) (1976) (amended in 1978, replacing the CSC with the OPM). Title 5, however, does not mention seasonal workers, nor give instructions on classifying seasonal employees as part-time or intermittent workers. Indeed, the Code does not define "intermittent."

OPM interpreted the term "intermittent" in title 5 to encompass seasonal workers and therefore denied petitioners retirement credit for annually recurring non-work periods before October 1980. In making this interpretation, OPM followed a 1965 policy. In an August 2, 1965, Memorandum of Understanding, CSC instituted the policy denying IRS seasonal employees retirement credit for leaves of absence.

In the 1965 Memorandum, the General Accounting Office (GAO), IRS, and CSC sought to place IRS seasonal employees within one of the three employment classifications--full-time, part-time, or intermittent. ² After weighing alternatives, CSC in the 1965 Memorandum instructed IRS to give seasonal employees service credit as full-time employees, except that non-work periods would earn no retirement credit. The Memorandum stated that this hybrid arrangement would equitably credit service to seasonal employees. This decision effectively placed seasonal employees in an intermittent status.

In computing petitioners retirement annuities, OPM followed the 1965 Memorandum and denied petitioners service credit toward retirement for their inactive periods before October 1, 1980. In the decisions on review here, the Board sustained OPM, finding that the record evidence showed that petitioners' service was "intermittent in nature." Bain, 49 M.S.P.R. at 310; Post 49 M.S.P.R. at 176.

In the absence of any statutory standards, this court reviews the Board's determination of whether the agency based its action on a "permissive interpretation of the statute." Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). In other words, this court accords "substantial weight to an agency's interpretation of a statute it administers." American Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed.Cir.1986) (citing Zenith Radio Corp. v. United States, 437 U.S. 443, 450-51, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978)). Moreover, the agency's statutory interpretation "need not be the only reasonable interpretation or the one which the court views as the most reasonable." Consumer Prods. Div., SCM Corp. v. Silver Reed Am., Inc., 753 F.2d 1033, 1039 (Fed.Cir.1985) (citing Fulman v. United States, 434 U.S. 528, 534-36, 98 S.Ct. 841, 845-47, 55 L.Ed.2d 1 (1978) (emphasis in original)); see also Federal Election Comm. v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39, 102 S.Ct. 38, 46, 70 L.Ed.2d 23 (1981).

This court finds no basis for reversing the Board's approval of OPM's classification. Petitioners did not show either that OPM's long-standing ³ employment classifications were unreasonable or that OPM unreasonably classified IRS seasonal employees as intermittent workers.

Under OPM regulations, intermittent employees are non-full-time workers without a prearranged regular tour of duty. 5 C.F.R. § 831.703(b) (1992). Petitioners' service records show that their work periods varied from year to year. Petition...