Mullins v. Opers, 100,439. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

• Decision Date: 13 September 2005
• Docket Number: No. 100,439. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.,100,439. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.
• Citation: 2005 OK CIV APP 67,122 P.3d 872
• Parties: Richard Henry MULLINS, on behalf of himself and those similarly situated, Plaintiff/Appellant, v. OKLAHOMA PUBLIC EMPLOYEES RETIREMENT SYSTEM, and Stephen C. Edmonds, Executive Director, in his individual and official capacity, Don Kilpatrick, Howard Conyers, Vic Thompson, Carroll Fisher, Richard Haughland, Oscar B. Jackson, Jr., DeWayne McAnally, and Faye Waits, Trustees for the Oklahoma Public Employees Retirement System, in their official and individual capacities, Defendants/Appellees.
• Court: Oklahoma Supreme Court

122 P.3d 872

2005 OK CIV APP 67

Richard Henry MULLINS, on behalf of himself and those similarly situated, Plaintiff/Appellant, v. OKLAHOMA PUBLIC EMPLOYEES RETIREMENT SYSTEM, and Stephen C. Edmonds, Executive Director, in his individual and official capacity, Don Kilpatrick, Howard Conyers, Vic Thompson, Carroll Fisher, Richard Haughland, Oscar B. Jackson, Jr., DeWayne McAnally, and Faye Waits, Trustees for the Oklahoma Public Employees Retirement System, in their official and individual capacities, Defendants/Appellees.

No. 100,439. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Court of Civil Appeals of Oklahoma, Division No. 3.

April 22, 2005.

Certiorari Dismissed September 13, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Nancy Coats, Judge.

AFFIRMED.

Keith A. Ward, Richardson, Stoops, Richardson & Ward, Tulsa, OK, for Appellant.

Wellon B. Poe, Assistant Attorney General, David L. Kearney, Gable & Gotwals, Oklahoma City, OK, James M. Sturdivant, Amelia A. Fogleman, Gable & Gotwals, Tulsa, OK, for Appellees.

Opinion by LARRY JOPLIN, Presiding Judge.

¶ 1 Plaintiff/Appellant Richard Henry Mullins (Mullins), a retired state employee, seeks review of the trial court's Order granting a Motion to Dismiss filed by Oklahoma Public Employees Retirement System (OPERS) and individually named OPERS trustees (Trustees) (collectively Defendants). Mullins contends the trial court erred in dismissing his case because Defendants violated state and federal statutes, constitutional rights and the common law when they denied him prior service credits towards retirement benefits for the two years he served in the military. Upon review of the record and law, we find no error and therefore affirm.

¶ 2 Mullins served in the military between July 1956 and July 1958. He went to work for the Oklahoma Public Health Department in 1986. Ultimately, Mullins retired as a state employee and began collecting retirement benefits from the public employee retirement system, OPERS. Mullins never applied for retirement credits based upon his two years of military service nor did he pursue administrative remedies to obtain such credits.

¶ 3 In September 2003, Mullins individually and on behalf of others similarly situated filed a Petition against OPERS and Trustees in the District Court of Oklahoma County seeking damages for the alleged wrongful failure to grant credits for preemployment military service. On Defendants' motion, the trial court dismissed the suit for failure to state an actionable claim.

¶ 4 In this appeal, Mullins alleges the trial court erred in dismissing his suit because the failure to grant retirement credits violated state statutory rights,¹ federal statutory rights² and the Oklahoma Constitution.³ Mullins further contends the trial court erred in granting immunity to Trustees. Lastly, Mullins complains the trial court erred by including in its order a matter not previously raised or briefed. Defendants argue that Mullins' suit was properly dismissed because neither state nor federal statutes apply; Mullins failed to pursue administrative remedies; and because Mullins failed to establish a loss of retirement benefits to which he was entitled.⁴

¶ 5 Whether retirement credit is given for military service is a matter of statutory construction and a question of law. We review questions of law de novo.⁵ We first review state statutory rights regarding military service and retirement credits.

¶ 6 Generally, statutory rights to retirement benefits ripen into contractual rights once state employees become eligible for payment of those benefits.⁶ At that point, statutory retirement benefits receive constitutional protection⁷ and protection from being diminished by the legislature, either through repeal⁸ or passage of a new statute.⁹

¶ 7 Pertinent Oklahoma statutes to this appeal are found in Title 72 (Soldiers and Sailors) and in Title 74 (State Government). Through these statutes, war veteran state employees can receive up to five (5) years credit towards retirement benefits based upon prior military service. Title 72 O.S. 1997 § 67.13a¹⁰ conferred such benefits on war veterans through 1998,¹¹ and, 74 O.S.1998 § 913 confers such benefits historically and through the present.

¶ 8 Section 67.13a, although dropping the provision in 1998 bestowing retirement credits on war veterans, continues to define "war veterans"¹² as those having specified dates and/or circumstances of service. Tile 74 O.S. § 902 incorporated that definition by reference, through the year 1998, in the statutory definition of "military service".¹³ In 1998, § 902 defined "`military service' by setting forth the same dates and circumstances as those delineated in § 67.13a."¹⁴ Mullins military service does not fall within the dates or circumstances set out in the statutory definitions of "war veterans" or "military service."

¶ 9 OPERS is obligated to distribute income to beneficiaries in accordance with the law.¹⁵ However, no Oklahoma statute mandates OPERS credit 1956 through 1958 preemployment military service when calculating retirement benefits. Thus, OPERS does not violate state law when it does not credit such service.

¶ 10 Mullins contends that even if retirement credits are not available under Oklahoma law, federal statutes mandate such credits be granted. Mullins relies upon the Uniformed Services Employment and Reemployment Rights Act (USERRA or the Act) for support of this contention.¹⁶ Consequently, we examine the Act.

¶ 11 The general purpose of the USERRA is to eliminate or minimize disadvantages to civilian careers and employment that results from uniformed service.¹⁷ The Act seeks to ensure that veterans are not "treated more harshly than non-veterans."¹⁸ An employer is prohibited under the Act from engaging in discrimination that is substantially motivated by "service in the uniformed services,"¹⁹ during the initial and re-employment process, during the decision making process regarding retention and promotion, and when granting any benefit of employment,²⁰ whether the service occurred before or during employment.²¹

¶ 12 The term "benefit of employment" includes pension plans,²² but pension plans are generally excluded from the term "employer" under the Act,²³ so to limit their liability to violations of provisions specifically dealing with pension plans. The Act specifically precludes pension plans from discriminating against employees who leave work to serve in the military.²⁴ The plan must give service credit to employees who were away from work as if no break in employment occurred.²⁵ Interim military service is thus considered the equivalent of employment service for purposes of determining "nonforfeitability of the person's accrued benefits and for the purpose of determining the accrual of benefits under the plan."²⁶ This prevents employees who serve in the military during their employment from being treated more harshly than those who do not so serve.

¶ 13 The Act does not, however, go so far as to require veterans be treated better than non-veterans.²⁷ Nor is the Act invoked when all similarly situated employees are denied a benefit of employment that is granted to qualifying veterans.²⁸

¶ 14 The record in the present case fails to show OPERS violated the Act because (1) pension plans are specifically excluded from general provisions of the Act pertaining to employers; (2) no violation of specific provisions of the Act mandating service credits for interim military service was shown because the service in issue occurred prior to employment and thus fell outside the scope of the pension provisions of the Act; (3) the claimed benefit is denied to all similarly situated individuals; and (4) the claimed discrimination does not differentiate between veterans and non-veterans. USERRA does not mandate the relief sought by Mullins.²⁹

¶ 15 Because Mullins did not establish a right to such retirement credits under state or federal laws, he did not establish a property right subject to due process protection.³⁰ Further, because USERRA was not shown to apply, the Act does not preempt Oklahoma statutes. As both Mullins' constitutional and preemption issues are moot, we proceed to examine Mullins' remaining contentions.

¶ 16 Mullins contends he was not obligated to comply with the Oklahoma Government Tort Claims Act (GTCA) because any claim made for the benefits in issue would have been denied based upon OPERS' policy to deny retirement credits when the prior service does not fall within the definitions of "war veterans" and "military service." Thus, argues Mullins, filing a GTCA claim would be a perfunctory act and the law does not require futile acts. As such, Mullins contends his failure to comply with the GTCA should be excused.

¶ 17 In Apache, the Oklahoma Supreme Court recognized that although "the law does not require one to do a vain or useless thing or to perform an unnecessary act to obtain relief" that equitable doctrine will not be invoked to block state statutes requiring pursuit of administrative remedies.³¹ In Bordwine,³² it was held: "Bordwine's tort claims ... against OFPRS, the Executive Director and the individual members of the Board of Trustees are barred by operation of the Oklahoma Governmental Tort Claims Act, 51 O.S. § 151, et. seq ..." Under the facts of this case and statutory mandates, Mullins' failure to comply with the GTCA is not excused.

¶ 18 We next address Mullins' contention that Trustees were not entitled to immunity. Generally, those who act on behalf of the State and its instrumentalities are immune from liability for such acts,³³ even when suit is based upon the failure to adopt or enforce a law.³⁴ There are statutory directives that when Trustees make decisions regarding the distribution of funds, they are carrying out lawfully assigned tasks,³⁵ are generally within the scope of...