Densley v. Department of Retirement Systems
| Decision Date | 15 November 2007 |
| Docket Number | No. 79951-2.,79951-2. |
| Citation | 173 P.3d 885,162 Wn.2d 210 |
| Parties | James A. DENSLEY, Petitioner, v. DEPARTMENT OF RETIREMENT SYSTEMS, Respondent. |
| Court | Washington Supreme Court |
Johnna Skyles Craig, Office of the Attorney General, Timothy Dunning Ford, Office of Attorney General, Olympia, WA, for Respondent.
¶ 1 We are called upon to interpret a statute, RCW 41.40.170(3), that entitles public employees to retirement service credit in the Washington Public Employee Retirement System 1 (PERS 1) for certain military service. James Densley appeals the decision of the Washington State Department of Retirement Systems (DRS) that denied him service credit under that statute for a portion of his military service that predated his public employment, to wit: weekend drills and summer training camps he participated in as a member of the Washington Army National Guard, time he spent traveling home from active duty, and a one-day physical examination he underwent while he was a member of the United States Army Reserve. The primary question before us is whether the aforementioned statute provides retirement service credit for military service that is not "active federal service" and, if not, whether drills and training with the Washington Army National Guard are "active federal service."
¶ 2 We hold that RCW 41.40.170(3) does not require military service to be active federal service. Thus, Densley's service with the Washington Army National Guard qualifies for retirement service credit. Nevertheless, we hold that he is not entitled to service credit for the weekend drills, because at the time of that service, retirement credit was only given when 10 days or more were worked in a month. Densley's weekend drills amounted to only two days per month. We, therefore, affirm the portion of the Pierce County Superior Court's decision that upheld DRS' denial of retirement service credit for Densley's weekend drills, and we reverse the remainder of the decision.
¶ 3 In 1972, Densley was commissioned as a second lieutenant in the United States Army Reserve (Reserve), under Title 10 U.S.C. In that year, he was on active duty for three months at Fort Eustis, Virginia. The army allowed Densley 10 days for travel to and from his active duty service, and he claims to have spent five of those days in transit home, from November 8 to 12, 1972.
¶ 4 On November 14, 1972, Densley joined the Washington Army National Guard (Guard). For the next three-and-a-half years, Densley participated in a two-day weekend drill each month and an annual 15-day training camp each summer. In April 1976, he transferred from the Guard to the Reserve. He remained a member of the Reserve until his mandatory retirement in 2000. In September 1976, Densley was ordered to report for a physical examination and did so. The army deemed this as one day of inactive service.
¶ 5 The following year, in May 1977, Densley was hired as a deputy Pierce County prosecuting attorney. As a public employee, he became eligible for membership in PERS 1 at that time. He later established retroactive membership in PERS 1 to May 1977. He remained a public employee until his retirement from the Pierce County Prosecutor's office in December 2005.
¶ 6 Densley was called to active duty with the army for three months in 1990, during Operation Desert Shield/Desert Storm. DRS gave Densley three months of retirement service credit for active duty service, pursuant to RCW 41.40.170(1). After Densley completed 25 years of service credit with PERS 1, DRS also credited him with three months of service, under RCW 41.40.170(3) for his pre-employment active duty at Fort Eustis, Virginia, in 1972.1
¶ 7 In 2004, Densley requested additional retirement service credit for the three summer trainings and 41 weekend drills he attended with the Guard. The DRS plan administrator denied this request. Densley petitioned the DRS petitions examiner for an internal review, seeking reversal of the plan administrator's determination. The petitions examiner denied Densley's petition, concluding that military service must be "active federal service" to qualify for retirement service credit under the provisions of RCW 41.40.170(3) and that, in her judgment, Guard training was not active federal service.
¶ 8 Densley appealed that decision to the DRS presiding officer. Densley and DRS both moved for summary judgment. The presiding officer denied Densley's motion and granted summary judgment in DRS' favor.
¶ 9 Densley petitioned the Pierce County Superior Court for judicial review. On review, the superior court affirmed the presiding officer's order, finding no errors of law and substantial evidence to support the findings of fact. Densley then appealed to the Court of Appeals, which certified the case to this court, determining "that it presents a fundamental and urgent issue of broad public import requiring prompt and ultimate determination." Order of Certification, Densley v. Dep't of Retirement Sys., No. 35568-0-II, at 1 (Wash.Ct.App. Mar. 21, 2007). We accepted certification of the appeal and now review whether Densley is entitled to additional retirement service credit.
¶ 10 Judicial review of an administrative action is governed by the Administrative Procedure Act (APA). RCW 34.05.510. A reviewing court will only "grant relief from an agency order in an adjudicative proceeding" in certain enumerated situations, including:
(c) The agency has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure;
(d) The agency has erroneously interpreted or applied the law;
(e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court ...;
(f) The agency has not decided all issues requiring resolution by the agency;
... or
(i) The order is arbitrary or capricious.
RCW 34.05.570(3). Furthermore, a "court shall grant relief only if it determines that a person seeking judicial relief has been substantially prejudiced by the action complained of." RCW 34.05.570(1)(d). The person seeking relief bears the burden of proof. RCW 34.05.570(1)(a). When reviewing an agency's interpretation or application of a statute, this court uses the error of law standard and "may substitute its interpretation of the law for the agency's." Postema v. Pollution Control Hearings Bd., 142 Wash.2d 68, 77, 11 P.3d 726 (2000) (citing R.D. Merrill Co. v. Pollution Control Hearings Bd., 137 Wash.2d 118, 142-43, 969 P.2d 458 (1999)).
¶ 11 Most "employees of the state of Washington and its political subdivisions" are members of the legislatively created Washington Public Employees' Retirement System (PERS). RCW 41.40.020-.023. DRS is charged with administering and managing PERS. RCW 41.40.020; RCW 41.50.030. PERS is currently divided into three plans. See RCW 41.40.010(33)-(35). "[P]ersons who first became members of the system prior to October 1, 1977," as Densley did, are covered by PERS 1. RCW 41.40.010(33). Benefits upon retirement depend partially on the years of service a member has provided. RCW 41.40.185. Service is defined as "periods of employment in an eligible position or positions for one or more employers rendered to any employer for which compensation is paid." RCW 41.40.010(9)(a). "Employer" includes any department or office of any political subdivision of the State, such as the Pierce County Prosecutor's office. RCW 41.40,010(4)(a).
¶ 12 PERS 1 members can also receive service credit for certain military service they perform. RCW 41.40.170 provides:
(1) A member who has served or shall serve on active federal service in the military or naval forces of the United States and who left or shall leave an employer to enter such service shall be deemed to be on military leave of absence if he or she has resumed or shall resume employment as an employee within one year from termination thereof.
(2) If he or she has applied or shall apply for reinstatement of employment, within one year from termination of the military service, and is refused employment for reasons beyond his or her control, he or she shall, upon resumption of service within ten years have such service credited to him or her.
(3) In any event, after completing twenty-five years of creditable service, any member may have service in the armed forces credited to him or her as a member whether or not he or she left the employ of an employer to enter the armed service: PROVIDED, That in no instance, described in this section, shall military service in excess of five years be credited: AND PROVIDED FURTHER, That in each instance the member must restore all withdrawn accumulated contributions, which restoration must be completed within five years of membership service following the first resumption of employment or complete twenty-five years of creditable service: AND PROVIDED FURTHER, That this section will not apply to any individual, not a veteran within the meaning of RCW 41.04.005.
Subsection (1) allows service credit for "interruptive" active military service—active service that interrupts public employment. See also RCW 41.40.710(4) (). Subsection (3) entitles 25-year members to service credit for "noninterruptive" military service completed prior to their public employment.
¶ 13 Most of the limitations in RCW 41.40.170 are not at issue, it not being disputed that Densley: has completed 25 years of creditable service, has not claimed more than five years of military service credit, has not withdrawn accumulated contributions early, and is a veteran. Instead, this case turns on the meaning of the phrase "service in the armed forces" in subsection (3).
¶ 14...
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