Clark v. Office of Personnel Management

• Decision Date: 12 September 1996
• Docket Number: No. 95-3768,95-3768
• Citation: 95 F.3d 1139
• Parties: Thomas D. CLARK, Michael Heneck, Roger S. Murphy and Ronald S. Steele, Petitioners, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1139

95 F.3d 1139

Thomas D. CLARK, Michael Heneck, Roger S. Murphy and Ronald

S. Steele, Petitioners, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 95-3768.

United States Court of Appeals, Federal Circuit.

Sept. 12, 1996.

Lori A. Gaglione, Kattman & Eshelman, P.A., Jacksonville, FL, argued, for petitioners. With her on the brief, was John F. Kattman.

Armando O. Bonilla, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for respondent. With him on the brief, were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Joseph A. Kijewski, Assistant Director.

Before MICHEL, Circuit Judge, and FRIEDMAN, Senior Circuit Judge, and LOURIE, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

Under the Dual Compensation Act, Pub.L. No. 88-448, §§ 202-203, 78 Stat. 484, 486-87 (1964) (codified as amended at 5 U.S.C. §§ 3502(a) & 6303(a) (1994)) federal civilian employees retired from the military are entitled to credit, for specified civil service purposes, for active military service "during a war, or in a campaign or expedition for which a campaign badge has been authorized." 5 U.S.C. §§ 3502(a) & 6303(a). The Act does not define the term "war." The question is the validity of the Office of Personnel Management (OPM)'s interpretation of this provision that "war" means a Congressionally-declared war and that, if the employee's military service was not in such a "war," the employee is entitled to credit only for military service performed in a campaign or expedition for which a campaign badge was authorized. The Merit Systems Protection Board (Board) upheld OPM's interpretation, and we affirm.

I.

The four petitioners are federal civilian employees. Prior to their civilian service, they served in the military during the Vietnam conflict, but did not participate in a campaign or expedition in that country.

The OPM Guide to Processing Personnel Actions, which instructs personnel employees how to calculate employees' length of service pursuant to all of the federal personnel statutes, states:

In the absence of statutory definitions for "war" and "campaign or expedition," OPM considers to be "wars" only those armed conflicts for which a declaration of war was issued by Congress. The title 38, U.S.C., definition of "war," which is used in determining benefits administered by the Department of Veterans Affairs, includes the Vietnam Era and other armed conflicts. That title 38 definition is NOT applicable for civil service purposes.

OPM, Guide to Processing Personnel Actions 7-31 n. 1 (1994).

The Guide explains:

For example, if retiree was on active duty for the entire period of the Vietnam campaign (07-01-58 through 03-28-73) but served in that campaign (i.e., in Vietnam or southeast Asia) for only 14 months, the retiree is entitled to campaign service credit for only that 14 months. He or she is not entitled to credit for time on active duty outside the campaign area.

OPM, Guide to Processing Personnel Actions 6-14 (1995).

Because none of the petitioners' military service during the Vietnam conflict was performed in southeast Asia, OPM refused to credit that service in calculating their length of service in determining their rights in a reduction in force and their annual leave entitlement.

The petitioners then filed with the Board a request for review of OPM's interpretation of the foregoing provision of the Dual Compensation Act. They contended that their service during the Vietnam conflict was service during a "war" under the Act.

The Board denied the request for review, because previously it had "considered and rejected the arguments raised by the petitioners" in Brooks v. Office of Personnel Management, 59 M.S.P.R. 207 (1993), and the "petitioners have presented no persuasive argument that the Board's decision in Brooks was incorrect." Clark v. Office of Personnel Management, 68 M.S.P.R. 395, 397-98 (1995).

II.

At oral argument the court raised the question whether, in view of the statutory provision that, "in its sole discretion" the Board may grant review of any OPM rule or regulation, we have jurisdiction to review the Board's denial of review in this case. In supplemental briefs, the government contends that we have jurisdiction but that the Board's decision is unreviewable, and the petitioners contend that we have jurisdiction and may review the Board's decision under the traditional standards governing such review.

We conclude that we have jurisdiction to review the Board's decision because the Board decided the merits, i.e., it rejected the petitioners' challenge to OPM's interpretation of the Dual Compensation Act.

Insofar as here pertinent, the Civil Service Reform Act of 1978 provides:

At any time after the effective date of any rule or regulation issued by the Director of the Office of Personnel Management in carrying out functions under section 1103, the Board shall review any provision of such rule or regulation--

....

(B) on the granting by the Board, in its sole discretion of any petition for such review filed with the Board by any interested person, after consideration of the petition by the Board;

5 U.S.C. § 1204(f)(1) (1994).

Ordinarily, the Board could be expected to decide questions relating to OPM's rules and regulations in connection with its review of adverse actions taken against individual employees that involve a particular rule or regulation. In section 1204(f)(1)(B), however, Congress explicitly authorized the Board to review directly any provision of any OPM rule or regulation. In stating that the decision whether to grant such review was in the Board's "sole discretion," Congress provided that, if the Board decided not to grant review, that would be the end of the matter, and that Board decision would not be subject to further review by this court.

For example, the Board might decline review because it concluded that the issue could be more appropriately determined in connection with review of an adverse individual personnel action. That is precisely what the Board did in the Brooks case, discussed further below, with regard to a petition for judicial review of OPM's implementation of 5 U.S.C. § 6303(a). In Brooks, the Board explained:

In determining whether to exercise its regulatory review authority, the Board considers, inter alia, the likelihood that a particular issue will be reached on appeal Brooks, 59 M.S.P.R. at 211 (citation omitted).

the availability of other equivalent remedies, the extent of a regulations' application to the Federal service, and the strength of the arguments against the validity of the regulation's implementation. Here, 5 U.S.C. § 3502(a)(4)(B), pertaining to RIF retention, is likely to be interpreted in a RIF appeal to the Board under 5 C.F.R. § part 351; we, therefore, do not rule specifically on that issue. Because a determination under section 6303(a)(3)(B), relating to creditable military service for annual leave purposes, is not appealable and because OPM's FPM rules are applicable to the entire federal service, we consider whether to review OPM's rules pertaining to that matter, although, as set forth above, we decline review because the arguments against the validity of the rules are unpersuasive on the merits.

If, however, the Board does consider the merits of the issue under the OPM rule or regulation, then its decision is subject to judicial review in this court.

In the present case the Board did consider the merits of the petitioners' challenges to OPM's interpretation of the term "war," but rejected those challenges because it had "considered and rejected the same arguments" in Brooks with regard to a petition for judicial review of OPM's implementation of 5 U.S.C. § 6303(a). The Board stated in this case:

In Brooks, the Board denied a request for review of Subchapter 6, S6-1.8, and Subchapter 7, Figure 7-7, based on the same argument. The Board held that OPM's rules validly implement 5 U.S.C. § 6303(a)(3)(B). 59 M.S.P.R. at 212-15. The Board found that the language and legislative history of the Dual Compensation Act reflect that Congress did not intend to give the word "war" in 5 U.S.C. § 6303(a)(3)(B) the definition of "period of war" set out in 38 U.S.C. § 101(11). Id. The Board declined to consider whether the rules validly implemented 5 U.S.C. § 3502(a)(4)(B) because that provision was likely to be interpreted in a RIF appeal to the Board under 5 C.F.R. Part 351. 59 M.S.P.R. at 211. The petitioners have presented no persuasive argument that the Board's decision in Brooks was incorrect.

Clark, 68 M.S.P.R. at 397-98.

Under the subheading "Order" of its opinion, the Board simply demonstrates a rejection of the petitioners' contentions on the merits, where it states:

Petitioners have failed to show that Subchapter 6, Section 6-1.8, and Subchapter 7, Figure 7-7, of OPM's Guide to Processing Personnel Actions violate 5 U.S.C. § 6303(a)(3)(B) and they have failed to show that OPM's rules as promulgated or implemented constitute a prohibited personnel practice under 5 U.S.C. § 2302(b)(11). The request for regulation review is therefore DENIED.

The fact that the Board's disposition of the case took the form of denial of the request for review rather than affirmance or sustaining of OPM's interpretation of the Dual Compensation Act did not make the Board's decision any less a decision on the merits or insulate it from judicial review as a matter within the Board's "sole discretion." The Board's action was similar to that of some courts of appeals that, upon upholding a decision of an administrative agency, deny or dismiss the petition for review rather than affirm the agency decision. Compare Carter v. Immigration and Naturalization Serv., 90 F.3d 14 (1st Cir.1996) (denying and dismissing petition for review of Board of Immigration Appeals order) with Ivezaj v. Immigration and Naturalization Serv., 84 F.3d 215 (6th Cir.1996) (affirming...