Horner v. Jeffrey

• Decision Date: 02 July 1987
• Docket Number: No. 86-697,86-697
• Citation: 823 F.2d 1521
• Parties: Constance HORNER, Director, Office of Personnel Management, Petitioner, v. Joseph D. JEFFREY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1521

823 F.2d 1521

Constance HORNER, Director, Office of Personnel Management, Petitioner, v. Joseph D. JEFFREY, Respondent.

No. 86-697.

United States Court of Appeals, Federal Circuit.

July 2, 1987.

Stephen J. McHale, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for petitioner. With him on the brief, were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Robert A. Reutershan.

Kathleen G. Vaght, Noto, Oswald, Hoffheimer, Eisman & Miller, Washington, D.C., argued for respondent. Robert L. Oswald, Noto, Oswald, Hoffheimer, Eisman & Miller, Washington, D.C., was on the brief, for respondent.

Before MARKEY, Chief Judge, FRIEDMAN, RICH, and DAVIS, Circuit Judges, BENNETT, Senior Circuit Judge, SMITH, NIES, NEWMAN, BISSELL, and ARCHER, Circuit Judges. ^*

BENNETT, Senior Circuit Judge.

In accordance with 5 U.S.C. Sec. 7703(d) (1982), ¹ Constance Horner, as Director of the Office of Personnel Management (OPM or agency), petitioned this court for review of the final decision of the Merit Systems Protection Board (MSPB or board) in Jeffrey v. Office of Personnel Management, 28 M.S.P.R. 81 (1985). In its Jeffrey decision, the MSPB reversed an OPM decision which determined that Mr. Jeffrey was not entitled to credit under the Civil Service Retirement Act (CSRA) for time spent as a midshipman at the United States Naval Academy which was not used in calculating his military retirement benefit. This court granted the OPM's petition for review and, for the reasons outlined in the following opinion, we reverse the decision of the board.

BACKGROUND

The background facts are not in dispute and can be summarized as follows. Appellee Joseph D. Jeffrey (Jeffrey) was a midshipman at the United States Naval Academy from June 16, 1938, until December 18, 1941, at which time he entered upon active duty with the United States Navy. Jeffrey retired from active duty with the Navy on February 29, 1964, and was credited with 22 years, 2 months, and 12 days of military service as the basis for his military retired pay. His time as a midshipman at the Naval Academy was not credited for military retirement purposes. Subsequent to his retirement from the Navy, Jeffrey was appointed to a civil service position with the Federal Aviation Agency on April 12, 1965, and he served with that agency and its successor agencies until he voluntarily retired from the civil service on September 4, 1982. Upon his retirement from the civil service position, Jeffrey received credit for 17 years, 4 months, and 23 days of civilian service.

Jeffrey requested that the OPM grant him civil service retirement credit for his time spent as a midshipman. On October 20, 1983, the OPM denied his request for CSRA credit for his midshipman time and then confirmed its denial on reconsideration on September 5, 1984. In denying the request for reconsideration, the OPM stated Jeffrey appealed to the MSPB. In the initial decision, the presiding official reversed the OPM, finding that the agency had offered no evidence nor was there any legislative history to support the contention that Congress had deliberately changed the law when the wording of 5 U.S.C. Sec. 8332(c) was changed in 1956. The presiding official ruled that "OPM's interpretation of the law would have the effect of denying any credit under any system for the 3 1/2 years of [Jeffrey's] Academy service. This was not the intent of Congress prior to 1956 nor after 1982." (Emphasis in original.)

                that the version of 5 U.S.C. Sec. 8332(c) in effect at the time of Jeffrey's retirement from federal service in September 1982 2 did not allow credit for his time as a midshipman since he had not waived his military retired pay and he did not meet any of the listed exceptions.  The OPM further noted its view that a subsequent amendment to section 8332(c) which would allow civil service retirement credit for military service time for which no military retirement pay credit was awarded did not take effect until October 1, 1982, and was therefore inapplicable to Jeffrey since it was after the effective date of his retirement. 3   The OPM also rejected Jeffrey's reliance on judicial precedent decided before October 1, 1956, since the predecessor statute to 5 U.S.C. Sec. 8332(c) in existence at that time 4 was similar to the post-October 1, 1982, version of the statute.  In short, the OPM's position was that military service time not used in the computation of military retirement pay could be credited for civil service retirement pay only if the retirement from federal service occurred before October 1, 1956, or after October 1, 1982
                

The OPM petitioned the full board for review, which was denied by a divided board. ⁵ In denying the petition for review, the board's opinion relied on the pre-1956 judicial interpretations of the relevant statutes, finding that Congress only sought to bar double retirement credits for periods of military service. 28 M.S.P.R. at 84. The board also agreed that nothing in the legislative history of the 1956 amendment indicated a congressional intent to alter the existing law as to civil service retirement credit for periods of military service which are not part of the individual's military retirement benefits. Id. Therefore, the board concluded that Jeffrey was entitled The board subsequently denied OPM's request to have the board's final decision stayed until judicial review by this court could be obtained. Jeffrey v. Office of Personnel Management, 28 M.S.P.R. 434 (1985). Review by this court was sought by the Director of the OPM on the grounds that "the Board's decision will have a substantial impact on a civil service law." ⁷ 5 U.S.C. Sec. 7703(d). This court granted the petition for review. The central issue for review is whether Jeffrey is entitled to civil service retirement credit for his time as a midshipman at the Naval Academy which was not used in the calculation of his military retirement benefit.

to civil service retirement credit for his academy time since it was clear that there would be no double credit for that time. ⁶

DISCUSSION

I.

Each of the parties involved in the present case agrees, quite properly, that the plain language of a statute should conclusively settle the issue before this court. See, e.g., Bread Political Action Committee v. Federal Election Commission, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237-38, 71 L.Ed.2d 432 (1982); Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Southeastern Community College v. Davis, 442 U.S. 397, 405 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979); Darsigny v. Office of Personnel Management, 787 F.2d 1555, 1557 (Fed.Cir.1986) ("the starting point for interpreting a statute is the language itself"); see also Selman v. United States, 204 Ct.Cl. 675, 498 F.2d 1354, 1356 (1974) ("a clear and unambiguous statute speaks for itself"). However, in their desire to discern the legislative intent of Congress when it enacted, amended, and reamended the Civil Service Retirement Act, the parties did not give proper weight to the plain and unambiguous language of 10 U.S.C. Sec. 971(b)(1) (1982 & Supp. III 1985). Since section 971(b)(1) determines the outcome of this case, the parties' extensive examination of the varying language of 5 U.S.C. Sec. 8332(c) (1982) and its predecessor statutes is misplaced and unnecessary.

The prior OPM and MSPB decisions in this case and the briefs of both parties in this appeal each begin their analyses by citing 10 U.S.C. Sec. 971(b)(1). Unfortunately, each analysis overlooks the importance of that statute to the resolution of the specific issue presented in this case. That section of the statute reads as follows:

(b) In computing length of service for any purpose --

(1) no officer of the Navy or Marine Corps may be credited with service as a midshipman at the United States Naval Academy or as a cadet at the United States Military Academy, United States Air Force Academy, or United States Coast Guard Academy, if he was appointed as a midshipman or cadet after March 4, 1913.... (Emphasis added.)

10 U.S.C. Sec. 971(b)(1) (1982).

The critical point is that 10 U.S.C. Sec. 971(b)(1) does not limit the bar on the use of time spent as a midshipman in computing length of military service merely to the computation of military retirement pay. It bars the use of military academy service as a cadet or midshipman in computing length of military service for all purposes. Section 971(b) contains no ambiguity in need of clarification; in fact, the statute's language cannot be clearer. The OPM, the board, and Jeffrey have all avoided the plain language of the statute by improperly reading artificial limitations into the statute's language.

However, despite the parties' attempts to do so, the language of 10 U.S.C. Sec. 971(b) is The language quoted above from 10 U.S.C. Sec. 971(b) is the latest version of Congress's unwavering intent to prohibit the use of military academy time as military service time for any purpose. The bar against the use of military academy time as military service time for any purpose has been present in statutes since at least 1912. See Act of August 24, 1912, Pub.L. No. 338, ch. 391, 37 Stat. 569, 594; Act of March 4, 1913, Pub.L. No. 433, ch. 148, 37 Stat. 891. While the title and location of the relevant provisions have not remained constant, ⁸ the material provisions of the statute have never been altered. It is inescapable that at all times since 1913 Congress has clearly and permanently intended to prohibit the use of military academy time in calculating the length of military service for any purpose.

not limited solely to military retirement purposes or to military purposes. The statute's "for any purpose" language must therefore include calculations of length of military service for purposes of determining civil service retirement entitlements. In the case before u...