Bronger v. Office of Personnel Management

• Decision Date: 26 July 1984
• Docket Number: Nos. 83-1349,83-1350 and 83-1376,s. 83-1349
• Citation: 740 F.2d 1552
• Parties: Willard A. BRONGER, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. Frank E. KACPROWICZ, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. Albert J. VEVERKA, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1552

740 F.2d 1552

Willard A. BRONGER, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Frank E. KACPROWICZ, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Albert J. VEVERKA, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Appeal Nos. 83-1349, 83-1350 and 83-1376.

United States Court of Appeals Federal Circuit.

July 26, 1984.

Carl H. DeBroux, North Aurora, Ill., for petitioners.

Helene M. Goldberg, Washington, D.C., for respondent; Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Mary Mitchelson and Thomas W. Petersen, Washington, D.C., on the brief.

Before DAVIS, SMITH and NIES, Circuit Judges.

EDWARD S. SMITH, Circuit Judge.

In this consolidated appeal from the Merit Systems Protection Board (board) petitioners, air traffic controllers each with civilian/military experience in their jobs exceeding 25 years, request reversal of board decisions sustaining, in each case, denial by the Office of Personnel Management (OPM) of each of their requests for an immediate retirement annuity. We first address and reject OPM's contention that this court lacks jurisdiction over this appeal, and then reverse the board's decisions for the reason stated below.

Background

Each of these three petitioners has worked more than 25 years as an air traffic controller. In each case, however, less than 25 of these years (approximately 23) were in a civilian capacity as an employee of the Department of Transportation's Federal Aviation Administration (FAA). Approximately 3 additional years (at the beginning of each petitioner's career) were in a military capacity, as controllers licensed by the FAA's predecessor agency, and employed by the Department of Defense.

The Professional Air Traffic Controllers Organization called an illegal ¹ nationwide strike on August 3, 1981. The FAA proposed removal of nearly all of those controllers, including petitioners, absent from their jobs between August 3 and 5, 1981, on the basis of absence without leave and strike participation. Shortly after this time the FAA called in petitioners to discuss whether they were eligible for immediate retirement in lieu of removal. The FAA and OPM advised petitioners, all of whom were under age 50, that they were not eligible for immediate retirement annuities because they each lacked 25 years of creditable service as required by 5 U.S.C. Sec. 8336(e) (1982). ² The FAA/OPM position was that petitioners' time as military air traffic controllers did not count as service creditable toward civil service retirement. Accordingly, petitioners exercised another option; they requested and received from OPM 1-time lump-sum distributions of their retirement contributions, totaling about $30,000 in each case. Receipt of this cash would normally result, under section 8342(a), in petitioners forfeiting any right to a retirement annuity.

After being removed and receiving their retirement refunds, petitioners realized that other air controllers whose service included over 25 years' time as civilian controllers, had successfully opted for immediate retirement. Petitioners decided to file for such retirement, despite their cash refund requests. OPM denied their requests, both initially and upon reconsideration, on the grounds that their receipt of the lump-sum refunds terminated their rights in the civil service retirement system pursuant to section 8342(a). OPM also took the position that, in any event, petitioners would not have been eligible for immediate retirement annuities because they were involuntarily separated from the FAA "for cause"--i.e., absence without leave and strike participation--and hence ineligible under section 8336(e) for immediate retirement.

Petitioners appealed the OPM denials to the board, which, by separate opinions dated May 31, 1983, affirmed on the grounds that petitioners were ineligible because they were removed "for cause" under section 8336(e). On appeal to this court, OPM has abandoned the rationale for which the board affirmed and instead presses only the argument, aside from the initial issue of our jurisdiction, that petitioners' military time does not count in determining their creditable service for immediate retirement. ³ We therefore address only these two issues.

Opinion

1. This Court's Jurisdiction

In Lindahl v. OPM, ⁴ this court decided in the negative a very specific jurisdictional issue: ⁵

We decide here only the question of our jurisdiction to hear the type of appeal before us, i.e., an appeal from an MSPB decision affirming the denial of a claim for annuity following a voluntary physical disability retirement, a decision reached by MSPB under the authority provided it in Sec. 8347(d)(1). In such cases, the initial decision is that of the employee who has elected to retire, and who has asserted disability as the reason, and who has then sought an annuity. [Emphasis supplied.]

In the case before us, while petitioners have elected to retire and are seeking an annuity, they have not asserted as their reason a physical disability. This case therefore differs from, and is not controlled by, Lindahl. In particular, we note that the statutory lynchpin of Lindahl, the section 8347(c) "finality clause" which we held to bar judicial review in that case, applies only to "questions of disability and dependency arising under this subchapter [civil service retirement]." ⁶

Recognizing that the Lindahl rationale does not expressly govern jurisdiction here, OPM advances an alternative argument which the court in Lindahl found unnecessary to address. ⁷ OPM contends that this court may not review petitioners' appeals because none of petitioners is an "employee or applicant for employment" as required by section 7703(a), providing for judicial review of board decisions. OPM points out that section 7701(a), providing for appeals to the board, is likewise limited to an "employee, or applicant for employment." By contrast, OPM argues that section 8347(d)(1), providing for civil service retirement appeals to the board, covers "individual[s]," a class of people broader than "employee[s]." Petitioners fall outside the "employee" class, according to OPM, since they were former employees when they applied for retirement. Moreover, OPM cites the lack of mention in the legislative history of the Civil Service Reform Act (CSRA) ⁸ of judicial review of civil service retirement cases. Instead, the CSRA focuses on judicial review of adverse, disciplinary actions taken by an agency against an employee.

OPM's position borders on the frivolous when analyzed from either of two perspectives. First, beginning from the "bottom up," as we did in Lindahl, we set out the precise language of section 8347(d)(1):

(d)(1) Subject to paragraph (2) [concerning mental disability] of this subsection, an administrative action or order affecting the rights or interests of an individual or of the United States under this subchapter [concerning civil service retirement] may be appealed to the Merit Systems Protection Board under procedures prescribed by the Board.

This provision makes it clear that an individual such as any of petitioners whose rights or interests have been affected by an OPM action or order concerning retirement, may appeal at least to the board. Subsection (d) of section 8347 also includes (d)(2) concerning mental disability, which provision explicitly authorizes an "individual" to appeal to the board under section 7701 and to the court under section 7703. The fact that Congress took extra pains to clarify the avenue of review in the sensitive area of mental disability when it added subsection (d)(2) only bolsters the conclusion that Congress intended such review as well for the subsection (d)(1) nonphysical-disability retirement cases (i.e., those not precluded from review by section 8347(c)). We as much stated in Lindahl: ⁹

In Sec. 8347(d)(2) Congress not only allowed but legitimized judicial review in the type of case in which our predecessor court had said it was appropriate, while simultaneously reenacting the express review preclusion in Sec. 8347(c) and making plain that Secs. 8347(d)(1) and (d)(2) were exceptions to that preclusion. [Emphasis supplied.]

If any doubt remained whether a nonphysical-disability retirement claim appealable to the board under section 8347(d)(1) were in turn appealable to this court, that doubt should be resolved in favor of the presumption of judicial review over agency action. ¹⁰ The express preclusion to judicial review set forth in section 8347(c) applies only, as we have discussed above, to "questions of disability and dependency."

Since our "bottom up" analysis leads us to conclude, with the help of Lindahl, that jurisdiction attaches here, we engage in a "top down" analysis to see if the same conclusion holds. Congress has granted this court "exclusive jurisdiction" over "an appeal from a final order or final decision" of the board pursuant to section 7703(b)(1). ¹¹ Section 7703(b)(1) provides that "a petition to review a final order or final decision of the Board shall be filed" in this court. Section 7703(a)(1) states who may file such a petition: "[a]ny employee or applicant for employment adversely affected or aggrieved by a final order or decision" of the board. ¹² We now address OPM's argument that petitioners are not "employee[s] or applicant[s] for employment" eligible to appeal here.

As OPM admits, "employee" as used in section 7703 is not defined there or in chapter 77 of title 5. The subchapter on civil service retirement includes a definition for purposes of that subchapter at section 8331(1)(A), which refers to the general "employee" definition at section 2105. The relevant part of that definition, section 2105(a)(1)(D), covers "an individual who is--(1) appointed in the civil service by * * * (D) an individual who is an employee under this section." The records before us show that the FAA removed petitioners in September 1981,...