Kiszka v. Office of Personnel Management, 04-3038.

• Decision Date: 22 June 2004
• Docket Number: No. 04-3038.,04-3038.
• Parties: Richard T. KISZKA, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

372 F.3d 1301

Richard T. KISZKA, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 04-3038.

United States Court of Appeals, Federal Circuit.

DECIDED: June 22, 2004.

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

Paul D. Kovac, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director and Deborah A. Bynum, Assistant Director. Of counsel on the brief was Melanie Watson, Attorney, Office of the General Counsel, Office of Personnel Management, of Washington, DC.

Before RADER, BRYSON, and LINN, Circuit Judges.

BRYSON, Circuit Judge.

Richard T. Kiszka appeals from a decision of the Merit Systems Protection Board, Docket No. SF-0831-02-0453-I-1, 94 M.S.P.R. 109, denying Mr. Kiszka's application for a retirement annuity under the Civil Service Retirement System ("CSRS"). We affirm.

I

Mr. Kiszka served in the United States Army from August 1965 through January 1966. He then served as a civilian technician in the Massachusetts Army National Guard ("MANG") from August 1972 through November 1984. In November 1984, Mr. Kiszka separated from MANG to enter full-time National Guard duty in the Active Guard/Reserve ("AGR"). Mr. Kiszka does not dispute that he was terminated from MANG and that he neither requested nor was given a leave of absence. Shortly after enrolling in AGR, Mr. Kiszka withdrew the contributions he had paid into CSRS during his tenure with MANG.

Mr. Kiszka served in AGR from November 1984 to May 1994, at which time he was re-appointed as a civilian technician in MANG. MANG characterized his 1994 appointment as a reemployment pursuant to the Veterans' Reemployment Rights Act ("VRRA"), 38 U.S.C. Chapter 43. After his appointment, Mr. Kiszka did not make a redeposit of the CSRS contributions he had previously withdrawn. Mr. Kiszka continued to work in MANG until 1999 when he reached age 55. At that time, he retired after being involuntarily separated from the National Guard upon reaching the mandatory retirement age and time in rank. See 10 U.S.C. §§ 14506, 14513.

Shortly before his retirement, Mr. Kiszka filed an application for CSRS benefits. He claimed that he had a total of more than 27 years of federal service (four months in the Army, almost 10 years in AGR, and almost 18 years in MANG). OPM made interim annuity payments to Mr. Kiszka for two years, but eventually denied his application in February 2002. OPM then demanded that Mr. Kiszka repay the $54,966 in interim annuity payments that it had made while his application was under consideration.

OPM denied Mr. Kiszka's application for retirement for several reasons. Pertinent to this appeal, OPM first determined that Mr. Kiszka's service in AGR was not creditable toward his retirement. According to 5 U.S.C. § 8331(13), creditable military service "does not include service in the National Guard except when ordered to active duty in the service of the United States or full-time National Guard duty ... if such service interrupts creditable civilian service under this subchapter and is followed by reemployment in accordance with chapter 43 of title 38." OPM determined that Mr. Kiszka's return to service with MANG was not a reemployment because he was not on a leave of absence from MANG when he served in AGR but instead was separated. Thus, according to OPM, Mr. Kiszka's time in AGR did not "interrupt[] creditable civilian service ...," 5 U.S.C. § 8331(13). OPM further determined that, even though MANG characterized Mr. Kiszka's return as a reemployment, "[a]n erroneous action by an agency cannot create a right to benefits to which an individual would otherwise not be entitled." OPM also ruled that by obtaining a refund of the contributions he made to CSRS while he was employed by MANG, Mr. Kiszka negated his eligibility for retirement benefits based on the time covered by the refund. OPM concluded that "the statute governing civil service refunds [5 U.S.C. § 8342(a)] bars credit for periods of service covered by a refund unless an employee returns to Federal employment and renews eligibility to receive civil service benefits based on a subsequent separation."

On Mr. Kiszka's request for reconsideration, OPM affirmed its initial decision. OPM reiterated that Mr. Kiszka was not entitled to be treated as having been reemployed by MANG because he was separated from MANG rather than being on a leave of absence.

Mr. Kiszka appealed OPM's decision to the Merit Systems Protection Board. The administrative judge who was assigned to the case reversed OPM's decision. The administrative judge ruled that there was no evidence that Mr. Kiszka intended to make a permanent career of his active duty service in the National Guard or "in any manner [made] an affirmative waiver of his reemployment rights under the VRRA." Moreover, even though Mr. Kiszka did not take a leave of absence from his civilian position, the administrative judge ruled that "once a person meets the criteria for reemployment following military service, as [Mr. Kiszka] has here, the agency must consider him to have been on furlough or leave of absence during the period of military duty." In a footnote, the administrative judge added that Mr. Kiszka is entitled to credit for his previous civilian service even though he did not redeposit his earlier retirement contributions when he was reemployed. In such a case, the administrative judge stated, his annuity would be actuarially reduced based upon his age and the redeposit due at the time of his retirement.

OPM appealed the administrative judge's decision to the full Board, which reversed. The Board ruled that Mr. Kiszka was not entitled to reemployment with MANG after his service in AGR because when he left MANG he did not request a leave of absence. The Board concluded that "the plain language of [38 U.S.C. § 2024(d) (1974)] expressly conditioned the employee's right to be returned to civilian employment, under Title 38, on his having requested leave from his employer." The Board addressed Mr. Kiszka's argument that such a request would have been futile based on National Guard policy and concluded that "even if one or more government officials misinformed the appellant about the procedures to follow when leaving his civilian employment to begin his AGR service, any such misinformation would provide no basis for finding that the appellant is entitled to be treated as though he had requested and obtained leave," since "the government cannot be estopped from denying benefits not otherwise permitted by law even if the claimant was denied monetary benefits because of his reliance on the mistaken advice of a government official." The Board noted that OPM did not challenge the administrative judge's decision that, if Mr. Kiszka is otherwise entitled to annuity, he is entitled to receive credit for his service during the time for which he received a refund of his contributions. Nevertheless, the Board concluded that "[u]nder 5 U.S.C. §§ 8334(d)(1) and 8342(a), such an action generally terminates an employee's right to any future retirement annuity based on the service covered by those contributions." The Board noted that it was not addressing OPM's argument that Mr. Kiszka forfeited his reemployment rights by abandoning his civilian career in favor of a career in the military.

Mr. Kiszka petitions this court for review of the full Board's decision.

II

Mr. Kiszka argues that he was entitled to reemployment with MANG after his service in AGR, even though he did not request or receive a leave of absence from MANG prior to enrolling in AGR. The pertinent statute, 5 U.S.C. § 8336(d), provides:

(d) An employee who —

(1) is separated from the service involuntarily, except by removal for cause on charges of misconduct or delinquency

. . .

. . .

after completing 25 years of service or after becoming 50 years of age and completing 20 years of service is entitled to an annuity....

Mr. Kiszka argues that, because he was involuntarily separated from MANG and he was over 50 years old when he was separated, he is entitled to an annuity if he completed 20 years of service. Mr. Kiszka asserts that if his 10 years in AGR and almost 18 years in MANG are all credited, he has completed more than 27 years of federal service. OPM responds that Mr. Kiszka's time in AGR should not be counted toward the requirement of 20 years of service, because it was not followed by "reemployment" in MANG.

Under 5 U.S.C. § 8332(c), military service may be creditable toward a CSRS annuity. Under 5 U.S.C. § 8331(13), however, the definition of "military service" does not include "service in the National Guard except when ordered to active duty in the service of the United States or full-time National Guard duty ... if such service interrupts creditable civilian service under this subchapter and is followed by reemployment in accordance with chapter 43 of title 38." If Mr. Kiszka's AGR service interrupted creditable civilian service and was followed by reemployment in accordance with chapter 43 of title 38, then his AGR service would fall within the definition of "military service" and would be creditable toward his annuity.

Because Mr. Kiszka sought reemployment in May 1994, his reemployment rights are governed by the Vietnam Era Veterans Readjustment Assistance Act of 1974, Pub. L. No. 93-508, 88 Stat. 1578 (codified as amended at 38 U.S.C. §§ 2021-27 (1988)) ("VRRA")¹. Section 2024(d) of the VRRA governed Mr. Kiszka's reemployment rights:

(d) Any employee not covered by subsection (c) of this section who holds a position described in clause (A) or (B) of section 2021(a) shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty training in the Armed Forces of the United...