Ryan v. Merit Systems Protection Bd., 85-2069
| Decision Date | 12 December 1985 |
| Docket Number | No. 85-2069,85-2069 |
| Citation | 779 F.2d 669 |
| Parties | John A. RYAN, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Amy Wind, Kator, Scott & Heller, Washington, D.C., for petitioner. With her on brief were Irving Kator and Joseph B. Scott.
Paul G. Streb, Merit Systems Protection Bd., Washington, D.C., for respondent. With him on brief were Evangeline W. Swift, Gen. Counsel, Mary L. Jennings, Associate Gen. Counsel for Litigation and David C. Kane.
Before MARKEY, Chief Judge, RICH and SMITH, Circuit Judges.
John A. Ryan (Ryan) petitions for review of a decision of the Merit Systems Protection Board, Docket No. BN07528310092, 25 M.S.P.R. 551, reversing the decision of its Presiding Official and dismissing his appeal for lack of jurisdiction. We reverse.
Ryan was hired by Naval Investigation Service (NIS), on September 10, 1962 as a Criminal Investigator, GS-1811, a federal "law enforcement" position entitling him to an increased annuity credit under 5 U.S.C. Sec. 8339(d). 1 In that position Ryan performed In August 1972, Ryan and all other NIS Investigators received a "Notification of Transfer of Function and Offer of Transfer" to a new organization, the Defense Investigative Service (DIS). The "Offer of Transfer" provided that Ryan would retain the title, grade, and pay he enjoyed at NIS. Ryan accepted.
criminal, counter-intelligence and personnel security investigations (PSIs).
A number of transferred NIS investigators (but not Ryan) sought early retirement under 5 U.S.C. Sec. 8336(c). On December 26, 1974, the Civil Service Commission's (CSC) Bureau of Retirement, Insurance, and Occupational Health (BRIOH) denied early retirement because the duties at DIS did not fit the definition of "law enforcement officer" in 5 U.S.C. Sec. 8331(20). A representative former NIS investigator, Cecil G. Boggs, appealed to CSC's Appeals Review Board (ARB), which upheld BRIOH's determination on the view that DIS' principal mission was the performance of PSIs.
Boggs and eighteen present and former NIS investigators (but not Ryan) appealed to the District Court for the District of Columbia. See Boggs v. Regan, Civ. Action No. 79-1090 (D.D.C. June 26, 1981). The district court saw "no need to dispute the merits of the BRIOH and [ARB's] definition of law enforcement work for the purpose of [Sec. 8336(c) ] coverage," and viewed that determination as "a correct interpretation of the law."
The district court nonetheless held the government equitably estopped from denying Boggs Sec. 8336(c) benefits because: (1) the government gave no indication that Boggs would lose those benefits if he accepted transfer; (2) Boggs had every reason to believe that identical retirement coverage would apply to a transfer of function with the same classification; (3) Boggs was given only six days to decide on limited facts, and (4) Boggs' decision, "with its extraordinary consequence of loss of [8336(c) ] coverage was based upon a misconception actively fostered by the government."
Noting the government's position (that work at NIS was law enforcement, but identical work at DIS was not, an inconsistency it found arbitrary and capricious), the district court said "we have the unusual circumstance of no coherent current interpretation of the law which should be protected from the application of estoppel."
The district court rejected the government's argument that estoppel would result in undue harm, finding no support for the implication "that this decision would apply to anyone other than the named plaintiffs in this case," explaining that "[t]his decision does not bar the government from making a decision that as to employees who were not misled in this fashion, PSI work does not qualify for law enforcement retirement coverage."
DIS wrote OPM, requesting an advance decision on crediting Ryan's NIS and DIS service under Sec. 8336(c). OPM responded on July 7, 1982:
The U.S. District Court for the District of Columbia has found in the case of Boggs v. Regan, Civil Action No. 79-1090 that employees of the Naval Investigative Service (NIS) who transferred to the Defense Investigative Service (DIS) with the understanding that their coverage under section 8336(c) would continue, shall receive credit under section 8336(c) for such service. The Solicitor General's Office has decided against appeal from this decision. While no class was certified in this case, we have decided as a matter of policy to apply the decision to the cases of all employees of the NIS who were transferred to the DIS in 1972.
OPM made no comment with respect to mandatory retirement of transferred NIS investigators under Sec. 8335(b).
On August 5, 1982, DIS wrote Ryan, quoting in full OPM's statement, supra, and adding:
3. Effective January 1, 1978, a law enforcement officer or firefighter must be separated from the service and is entitled to an immediate annuity on account of age retirement [when the conditions of Sec. 8335(b) are met].
4. Since you will have 20 years of creditable service on September 10, 1982 and have reached age 55, your retirement is mandatory on September 10, 1982. However, I am extending your mandatory retirement date to no later than January 22, 1983. Should you wish to exercise your right to retire before that date, you may do so.
Ryan's oral reply to DIS was rejected and Ryan was mandatorily retired on January 31, 1983.
Appearing pro se, Ryan appealed to the Board on February 16, 1983, saying his retirement was "against my will," and requesting reinstatement.
To DIS' assertion that he was improperly trying "to reap the benefits of 8336(c)" while ignoring the public policy behind early retirement, Ryan replied on March 24, 1983, saying Ryan acknowledged Congress' intent embodied in sections Sec. 8335(b) and 8336(c), but said three conditions were required for mandatory retirement: (1) age, (2) length of service, and (3) employment as "a law enforcement officer or a firefighter" as defined in Sec. 8331(20). While admitting that he met the first two conditions, Ryan asserted that condition (3), and hence the justification for mandatory retirement, was lacking.
Before the Presiding Official, DIS challenged the board's jurisdiction over mandatory separations under Sec. 8335(b), citing Lawrence v. Department of the Army, 9 MSPB 63, 9 M.S.P.R. 419 (1982). Ryan, having the burden, 5 CFR Sec. 1201.56(a)(2), maintained that because his separation was not in accordance with law, it was an adverse action under the board's jurisdiction.
The Presiding Official found that Ryan had 20 years of creditable service for Sec. 8336(c) retirement purposes "even though the work which he performed on and after October 1, 1972 primarily involved PSI's which was not 'law enforcement' in nature." Having reviewed the language of Sec. 8335, its legislative history, and the court's decision in Boggs, the Presiding Official concluded:
I find that appellant is no more covered by Sec. 8335(b) than an individual who is appointed to a law enforcement officer position at age 25 and at age 46 transfers to a non-law enforcement officer position in another agency. Such a person undoubtedly would not be subject to mandatory retirement upon reaching age 55. Appellant transferred from his law enforcement position with NSI at age 49 and thereafter was not subject to 8335(b) which was enacted at a later date. It was only as a result of the Boggs decision that he was entitled to additional retirement credit under 8336(c) and 8339(d). [Emphasis in original.]
Noting that Ryan's separation was required by no law, rule or regulation, the Presiding Official found it an adverse removal action under 5 U.S.C. Sec. 7512, and thus within the board's jurisdiction. He further found that the agency's failure to process the action in accordance with 5 U.S.C. Sec. 7513 constituted harmful error and reversed the separation.
The full board reversed, saying the Presiding Official interpreted the district court's decision in Boggs, supra, "too narrowly":
... Since Sec. 8336(c) only grants the special retirement coverage to law enforcement officers and firefighters, it is clear Further, the Boggs court noted that it could not be disputed that the investigator plaintiffs had every reason to believe that the same retirement coverage would apply to a transfer of the same function with the same classification to the new agency.... Therefore, the Board can reasonably infer that the court intended that these employees were to be considered as law enforcement officers in exactly the same way as they were prior to the transfer.
that in the absence of Congressional intent to the contrary, appellant's status must be considered a law enforcement officer to be entitled to retirement credit under that section.
The board analogized its decision to that in Graber v. Office of Personnel Management, 20 M.S.P.R. 267 (1984), in which it had reversed an OPM denial of Sec. 8336(c) retirement to a law enforcement officer who was transferred to an attorney position, but continued to perform substantially the same duties, considering it anomalous for OPM to deny that position Sec. 8336(c) coverage. Thus, the board reasoned, Ryan's "position at the agency must be considered as law enforcement since he was performing the same duties as those he performed with DIS [sic, NIS], a position granted law enforcement credit by the former CSC."
The board vacated the Presiding Official's decision and dismissed Ryan's appeal for lack of jurisdiction over mandatory retirements under Sec. 8335(b).
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