Dowling v. Office of Personnel Management, 04-3040.

Decision Date22 December 2004
Docket NumberNo. 04-3040.,04-3040.
Citation393 F.3d 1260
PartiesEdward J. DOWLING, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

William Lafferty, Lafferty & Lafferty, of Burlington, Massachusetts for petitioner.

David A. Harrington, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and William F. Ryan, Assistant Director. Of counsel were Franklin E. White Jr., Assistant Director; John S. Groat and Gerald M. Alexander, Attorneys. Also of counsel was Wade Plunkett, Attorney, Office of the General Counsel, Office of Personnel Management, of Washington, DC.

Before RADER, DYK, and PROST, Circuit Judges.

PROST, Circuit J.

The petitioner, Edward Dowling, asks this court to review the final decision of the Merit Systems Protection Board ("the Board") granting the appeal of the Office of Personnel Management ("OPM") and rejecting his request that his active duty military service be counted towards his Civil Service Retirement System ("CSRS") retirement annuity. Dowling v. Office of Pers. Mgmt., 94 M.S.P.R. 127 (2003). Because the Board's decision was not arbitrary, capricious, an abuse of discretion, otherwise not in accordance with the law, or unsupported by substantial evidence, we affirm.

BACKGROUND

The petitioner served on active duty in the U.S. Army between March 4, 1962 and September 1, 1962. Four years later, on May 2, 1966, he was appointed to a civilian position in the Army that required him, as a condition of his employment, to maintain his membership in the National Guard. He continued in this position until July 31, 1987. Mr. Dowling then began service in the Massachusetts Army National Guard ("MAANG") and entered active guard reserve ("AGR") duty on August 1. On September 29 of that same year, he was separated from his position civilian position with the Army. He continued his AGR service until September 6, 1999 and was reappointed to his civilian position with the Army effective July 18, 1999. On February 16, 2001, Mr. Dowling lost his National Guard membership on account of his having reached sixty years of age. That same month, he applied for a CSRS annuity. The Army separated him from his civilian position for a second time on March 10, 2001, because of his loss of National Guard membership.

After receiving Mr. Dowling's CSRS annuity application, OPM began paying him CSRS retirement annuity payments, assuming that he was entitled to CSRS credit for his twelve years of AGR service. Eventually, however, OPM determined that he was not entitled to a CSRS credit for his twelve years of AGR service and informed him that he had received annuity payments that were in excess of what he was entitled to receive. After Mr. Dowling's request for reconsideration, OPM affirmed its initial decision.1

Mr. Dowling appealed OPM's decision to the Board. After a hearing, the Board's administrative judge issued an initial decision reversing OPM's decision. Dowling v. Office of Pers. Mgmt., Docket No. BN831M020061-l-1 (M.S.P.B. July 2, 2002). OPM filed a petition for review with the full Board and won a grant of its petition for review of the administrative judge's initial decision. Dowling v. Office of Pers. Mgmt., 94 M.S.P.R. 127 (2003) ("Final Decision"). The Board found that the petitioner waived his reemployment rights when he left his civilian position to enter AGR service. Accordingly, the Board determined that he was not entitled to a full CSRS annuity and reversed the administrative judge's initial decision. Id.

Mr. Dowling timely appealed the Board's decision to this court. We have jurisdiction to hear this appeal under 28 U.S.C. § 1295(a)(9).

DISCUSSION

We must set aside any Board decisions that are:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) obtained without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.

5 U.S.C. § 7703(c) (2004). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938).

Mr. Dowling alleges that the Board wrongly reversed the administrative judge's initial order and improperly discounted his twelve years of AGR service in calculating his CSRS retirement annuity. The crux of his argument is that when he left his civilian position with the Army in 1987, he still retained reemployment rights with the Army. In his view, he exercised those rights when he returned to the Army in 1999 and, as a result, was entitled to have his twelve years of AGR duty counted towards his civilian CSRS retirement annuity.

Mr. Dowling does not dispute that his reemployment rights are governed by the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). See 38 U.S.C. § 4301-33 (2004). Instead, he argues that our precedent in Woodman v. Office of Personnel Management, 258 F.3d 1372 (Fed.Cir.2001) is distinguishable from this case. He asserts that his case is different from Woodman's because, unlike Woodman, when he began his AGR service he could not have completed the twenty years of service prior to his sixtieth birthday required to receive full military retirement benefits. He also notes that he was reemployed...

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7 cases
  • Erickson v. U.S. Postal Service
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • 15 Julio 2009
    ...multiple service extensions intended to make a permanent career in the military. Id. at 1379; see also Dowling v. Office of Pers. Mgmt., 393 F.3d 1260, 1262-63 (Fed.Cir.2004) (finding abandonment where employee served in active guard reserve for 12 years, accepted separation from his civili......
  • Tavares v. Office of Personnel Management, No. 04-3039 (Fed. Cir. 10/14/2005), 04-3039.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • 14 Octubre 2005
    ...in his reply brief that affirmance of that part of the Board's decision is compelled by our decisions in Dowling v. Office of Personnel Management, 393 F.3d 1260 (Fed. Cir. 2004), and Moravec v. Office of Personnel Management, 393 F.3d 1263 (Fed. Cir. Mr. Tavares does contend, however, that......
  • Barker v. Office of Adjutant Gen. of State
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    • Indiana Appellate Court
    • 10 Junio 2009
    ...sought service extensions, all suggest his "de facto resignation" from civilian service. Also on point is Dowling v. Office of Personnel Management, 393 F.3d 1260 (C.A.Fed.Cir.2004), where the court upheld a finding that a civilian technician who had left his position to enter the AGR progr......
  • Corkery v. Office of Personnel Management, No. 04-3036 (Fed. Cir. 10/14/2005), 04-3036.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • 14 Octubre 2005
    ...in his reply brief that affirmance of that part of the Board's decision is compelled by our decisions in Dowling v. Office of Personnel Management, 393 F.3d 1260 (Fed. Cir. 2004), and Moravec v. Office of Personnel Management, 393 F.3d 1263 (Fed. Cir. Mr. Corkery does contend, however, that......
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    • United States
    • Mercer University School of Law Mercer Law Reviews No. 56-4, June 2005
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    ...Interferences (BPAI) hears, among other things, appeals of USPTO examiners' final rejections of patent applications. 43. In re Crish, 393 F.3d at 1260. Anticipation is when the USPTO determines that a claimed invention is not new or novel and, therefore, not subject to patent protection. 44......

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