Miller v. Office of Pers. Mgmt.
| Decision Date | 10 September 2018 |
| Docket Number | 2017-1792 |
| Citation | 903 F.3d 1274 |
| Parties | Richard L. MILLER, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
Debra D’Agostino, The Federal Practice Group Worldwide Service, Washington, DC, argued for petitioner.
Igor Helman, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Allison Kidd-Miller.
Before Prost, Chief Judge, Schall and Chen, Circuit Judges.
Appellant Richard L. Miller is retired. Prior to his retirement, he served in both the military and civilian sectors of the U.S. government. On appeal, he challenges the December 20, 2016 final decision of the Merit Systems Protection Board ("Board") that affirmed the March 28, 2014 reconsideration decision of the Office of Personnel Management ("OPM"). Miller v. Office of Pers. Mgmt. , No. DE-0831-14-0340-I-1, 124 M.S.P.R. 62, 2016 WL 7659226 (M.S.P.B. Dec. 20, 2016), ("Final Decision "). In its reconsideration decision, OPM determined the periods of Mr. Miller’s government service that were "creditable" for purposes of calculating his civil service retirement annuity. Joint Appendix ("J.A.") 24.1
On appeal, Mr. Miller contends that the Board erred in affirming OPM’s determination that he was not entitled to civilian service credit for three discrete time periods of his government service: June 21, 1982, to June 30, 1982 ("Period One"); August 27, 1990, to October 25, 1990 ("Period Two"); and August 22, 1994, to December 22, 1995 ("Period Three"). For the reasons set forth below, we hold that the Board erred in its decision with respect to Periods One and Two, but that it did not err in its decision with respect to Period Three. We therefore affirm-in-part, reverse-in-part, and remand.
As the Board noted, Mr. Miller "has a complicated history of civilian and military service that began in 1970 and concluded in 2012." Final Decision at 1. That history implicates a particular statutory scheme.
The starting point is 5 U.S.C. § 8332. Section 8332(c)(1)(A) provides that "the service of an individual who first becomes an employee ... before October 1, 1982, shall include credit for each period of military service performed before the date of the separation on which the entitlement to an annuity ... is based ...."2 This section, which covers Mr. Miller because he became an "employee" before October 1, 1982, thus allows credit for military service to count towards the calculation of a civil service retirement annuity. However, there are provisos to that allowance. They are spelled out in 5 U.S.C. § 8332(c)(2).
Section 8332(c)(2) is the critical statute in this case. In relevant part, it provides as follows:
(emphasis added). It is undisputed that the provisions of § 8332(c)(2)(A)–(B) do not apply to Mr. Miller.
To the extent that an annuitant who does not satisfy the requirements of § 8332(c)(2)(A)–(B) wishes to count military service towards civil service retirement, the annuitant must waive his or her military retired pay for that period and, in some circumstances, pay a deposit. 5 C.F.R. § 831.301(c). OPM’s regulation at 5 C.F.R. § 831.301(a) tracks the statutory scheme.
With this statutory background in hand, we can turn to the facts of the case.
As noted above, there are three periods of time at issue in this case.
Period One (June 21, 1982–June 30, 1982)
During this period, the Department of Navy employed Mr. Miller as a civilian while he was on terminal leave from the U.S. Army. J.A. 108. Terminal leave is leave taken prior to discharge from the military and is statutorily defined as active duty service. See 10 U.S.C. § 701(e). It is undisputed that, as far as Period One is concerned, Mr. Miller was fully employed as a civilian. It also is undisputed that Mr. Miller received military retirement service credit for this period.
Period Two (August 27, 1990–October 25, 1990)
During this period, Mr. Miller was on leave from his civilian employment at the Defense Intelligence Agency ("DIA") because he had been called up as a reservist to active duty with the U.S. Air Force.3 It is undisputed that Mr. Miller received military retirement service credit for this period.
Period Three (August 22, 1994–December 22, 1995)
During this period, Mr. Miller worked at DIA in a civilian position. However, in response to his request, the Air Force Board for Correction of Military Records ("AFBCMR") retroactively returned him to active military service for the period. J.A. 94. As a result, DIA voided his civilian service retroactively, placing him in military leave-without-pay status for this period. J.A. 106. As in the case of Periods One and Two above, Mr. Miller received military retirement service credit for this period. See J.A. 58. Mr. Miller does not assert that he made a deposit to OPM for this period or that he waived his military retirement pay for the period.
As noted, in its reconsideration decision, OPM determined that Periods One, Two, and Three did not constitute creditable service for purposes of calculating Mr. Miller’s civil service retirement annuity. Mr. Miller timely appealed to the Board.
In an initial decision, the administrative judge ("AJ") to whom the appeal was assigned reversed-in-part and remanded. J.A. 25. The AJ concluded first that, although Mr. Miller asserted that he had made a post-1956 deposit for Period One, Mr. Miller was not entitled to civilian service credit for the period because he had not established by a preponderance of the evidence that he had waived his military retirement pay for the period. According to the AJ, § 8332(c)(2) thus barred Mr. Miller from receiving civilian service credit for the overlapping periods of military and civilian service involved in Period One.4 J.A. 30.
Regarding Period Two, the AJ found that Mr. Miller was in leave-without-pay status during this period. J.A. 31. Since Mr. Miller failed to establish by preponderant evidence that he was on annual leave during the period, the AJ determined that Mr. Miller had failed to establish that he was in civilian pay status. Id. Thus, the AJ concluded, Mr. Miller had failed to establish that Period Two constituted creditable civilian service pursuant to § 22A5.1-3(C) of OPM’s CSRS and FERS Handbook for Personnel and Payroll Offices (1998) ("Handbook "). J.A. 30. Section 22A5.1-3(C) of the Handbook states, The AJ ruled that Mr. Miller was entitled to service credit towards his civil service retirement annuity if he was required to make, and did make, a deposit, as provided by § 22A6.1-2(A) of the Handbook . J.A. 31. He ordered OPM to determine whether Mr. Miller was required to make a deposit and, if so, whether he did make such a deposit. Id.
Addressing Period Three and relying on § 22A6.1-4(A)–(B) of the Handbook (relating to retroactive reinstatement into military service with back pay and allowances), the AJ found that Mr. Miller was entitled to civilian service credit for this period because he should have been deemed on military leave with pay. Thus, reasoned the AJ, Mr. Miller should have received civilian instead of military service credit for the period. J.A. 32. OPM timely petitioned for review of the AJ’s initial decision.
In its final decision, the Board let stand the AJ’s ruling that Mr. Miller was not entitled to any civilian service retirement credit for Period One. Final Decision at 3 n.1. However, it reversed the AJ’s decision with respect to Periods Two and Three. Id. at 5–10. It thus affirmed OPM’s reconsideration decision.
Regarding Period Two, the Board did not disturb the AJ’s finding that Mr. Miller was in leave-without-pay status during this period. However, it reversed the AJ’s decision on the ground that the AJ’s interpretation of the Handbook was contrary to the plain language of § 8332(c)(2), which the Board found "precludes the award of double credit for overlapping periods of civilian and military service, except under circumstances that do not appear to apply in this case." Final Decision at 6. The Board stated, "[T]he Handbook does not explain why the general prohibition against an individual receiving both civilian and military service credit for the same period, delineated in ... the statute[,] ... would not apply in a situation like this." Id. at 6–7.5 The Board found that only if Mr. Miller had waived his military retirement service credit for the period could he have received civilian service credit for the period. Id.
Turning to Period Three, the Board found that Mr. Miller’s military records had been corrected to reflect continuous military service. Final Decision at 7–8. In addition, the Board found no proof that Mr. Miller had waived his military retirement credit for the period. Instead, it found that the evidence indicated that Mr. Miller had, in fact, received military retirement credit for the period. Id. at 9–10. The Board thus held that Mr. Miller had not met his burden of proving...
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