True v. Office of Personnel Management, 90-3310

• Decision Date: 25 February 1991
• Docket Number: No. 90-3310,90-3310
• Citation: 926 F.2d 1151
• Parties: Gordon R. TRUE, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1151

926 F.2d 1151

Gordon R. TRUE, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 90-3310.

United States Court of Appeals, Federal Circuit.

Feb. 25, 1991.

Sophia E. Davis, Cohen, Weiss & Simon, New York City, argued, for amicus curiae, Nat. Ass'n of Letter Carriers, AFL-CIO. With her on the brief was Keith E. Secular. Also on the brief, for amicus curiae was Sally M. Tedrow, O'Donoghue & O'Donoghue, Washington, D.C. Gordon R. True, Corinth, Ky., filed a brief pro se.

Hillary Stern, Dept. of Justice, Washington, D.C., argued, for respondent. Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Catherine A. Christman, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, D.C., were on the brief, for respondent.

Before MARKEY, ARCHER and MICHEL, Circuit Judges.

MARKEY, Circuit Judge.

Gordon True, a retired employee of the United States Postal Service, appeals the March 13, 1990 final decision of the Merit Systems Protection Board (Board), No. SL08318910291, holding that Mr. True was not entitled to a redetermined annuity under 5 U.S.C. Sec. 8344(a) (1988) because he had not completed five years of actual service after becoming reemployed. 44 M.S.P.R. 251. The Board held that he was entitled only to a supplemental annuity under 5 U.S.C. Sec. 8344(a). We affirm. ¹

I BACKGROUND

On May 30, 1978, Mr. True, then an employee of the United States Postal Service (USPS), applied to the Office of Personnel Management (OPM) for immediate retirement under the Civil Service Retirement Act (CSRA), 5 U.S.C. Sec. 8336 (1988). Mr. True was separated effective June 16, 1978, and was awarded a civil service retirement annuity. In December 1981, he elected to receive federal employees' compensation under the Federal Employee's Compensation Act (FECA), based on a 1978 work-related injury, in lieu of the annuity benefits that he was receiving under the CSRA. ² In 1982 the Department of Labor approved his FECA application and reimbursed OPM for the annuity payments OPM had made since his retirement date.

On December 25, 1982, Mr. True was reemployed by the USPS on a part-time basis (four hours per day). He remained reemployed on that basis until he retired again on December 3, 1987. During the entire period of reemployment, Mr. True worked four hours and took leave without pay (LWOP) for four hours each work day. He received FECA benefits for the hours in LWOP status.

Upon his second retirement, OPM advised Mr. True that under 5 U.S.C. Sec. 8344(a) he was entitled to a supplemental annuity but not to a fully redetermined annuity. OPM determined that Mr. True had completed the equivalent of only 2 years, 6 months, and 18 days of actual reemployment service, and thus had not completed the 5 years of actual full-time reemployment service statutorily required for entitlement to a redetermined annuity. On reconsideration, OPM adhered to that position and Mr. True petitioned the Board.

In an initial decision, the Administrative Judge (AJ) held that "OPM erred in finding that the appellant should not be credited for his employment service for the hours he was considered in an LWOP status during the five-year period of reemployment." The AJ concluded that Mr. True "had at least five years of continuous employment for purposes of entitlement to a redetermined The Board reversed the initial decision and sustained OPM's reconsideration decision, holding that "OPM's decision that [Mr. True] is entitled to a supplemental annuity rather than a redetermined annuity must be affirmed since he was employed continuously for over one year but less than five years." The Board determined that the AJ erred in concluding that Mr. True was entitled to service credit for the period during which he was in LWOP status and receiving FECA benefits.

                annuity."    OPM petitioned for review of that initial decision
                

II ISSUE

Whether the Board erred in determining that Mr. True was not entitled to a redetermined annuity pursuant to 5 U.S.C. Sec. 8344(a).

III

OPINION

Standard of Review

According to 5 U.S.C. Sec. 7703(c) (1988), we must sustain the Board's decision unless we conclude that it is: (1) "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;" (2) "obtained without procedures required by law, rule, or regulation having been followed;" or (3) "unsupported by substantial evidence." See Phillips v. United States Postal Serv., 695 F.2d 1389, 1390 n. 2 (Fed.Cir.1982); Kochanny v. Bureau of Alcohol, Tobacco & Firearms, 694 F.2d 698, 700 n. 3 (Fed.Cir.1982).

Redetermined Annuity Entitlement

The factual pattern presented in this case is one of first impression in relation to the relief sought. Mr. True seeks to have his retirement annuity redetermined with credit for his time spent in LWOP status. It is well settled that, as the applicant, Mr. True must demonstrate by a preponderance of the evidence his entitlement to the retirement benefit he seeks. See Cheeseman v. Office of Personnel Management, 791 F.2d 138, 141 (Fed.Cir.1986) (holding "that the Board has not acted arbitrarily, capriciously, outside the law, or abused its discretion in placing the burden of proving entitlement on the applicant for benefits"), cert. denied, 479 U.S. 1037, 107 S.Ct. 891, 93 L.Ed.2d 844 (1987). Mr. True has failed to carry his burden.

Entitlement to a redetermined annuity is governed by section 8344(a) of the CSRA. It provides in pertinent part:

If an annuitant receiving annuity from the Fund.... becomes employed in an appointive or elective position, his service on and after the date he is so employed is covered by this subchapter. Deductions for the Fund may not be withheld from his pay unless the individual elects to have such deductions withheld under subparagraph (A). An amount equal to the annuity allocable to the period of actual employment shall be deducted from his pay, except for lump-sum leave payment purposes under section 5551 of this title. The amounts so deducted shall be deposited in the Treasury of the United States to the credit of the Fund. If the annuitant serves on a full-time basis, except as President, for at least 1 year, on a part-time basis for periods equivalent to at least 1 year of full-time service, in employment not excluding him from coverage under section 8331(1)(i) or (ii) of this title--

(A) deductions for the Fund may be withheld from his pay (if the employee so elects), and his annuity on termination of employment is increased by an annuity computed under section 8339(a), (b), (d), (e), (h), (i) and (n) of this title as may apply based on the period of employment and the basic pay, before deduction, averaged during that employment; and

(B) his lump-sum credit may not be reduced by annuity paid during that employment.

.... If the described employment of the annuitant continues for at least 5 years, or the equivalent of 5 years in the case of part-time employment, he may elect, instead of the benefit provided by subparagraph (A) of this subsection, to deposit in the Fund (to the extent deposits or deductions have not otherwise been made) an amount computed under section 8334(c) of this title covering that employment and have his rights redetermined under this subchapter.

5 U.S.C. Sec. 8344(a) (emphasis added). ³

Thus, under section 8344(a), a reemployed annuitant must be employed for the equivalent of at least five years of full-time service before his or her entitlement to a redetermined annuity is warranted. If the five year service requirement is not met, an annuitant is entitled to a supplemental annuity when the period of employment equates to at least 1 year of full-time service. The Board held that only "actual work" may be counted toward satisfaction of the service requirements of section 8344(a). Mr. True and NALC maintain that the Board's refusal to count his time in LWOP status is "not in accordance with law." We disagree.

The plain language of the statute supports the Board's holding that section 8344(a) requires at least five years of actual employment before an annuitant may qualify for a redetermined annuity. Early on, section 8344(a) refers to "the period of actual employment." Later, the same section reads: "If the described employment of the annuitant continues for at least 5 years, or the equivalent of 5 years in the case of part-time employment, he may ... have his rights redetermined under this subchapter." 5 U.S.C. Sec. 8344(a) (emphasis added). The phrase "described employment" necessarily refers back to the section's previous and only description, i.e., "actual employment." Hence, at least the equivalent of 5 years of full-time actual employment is necessary before the right to a redetermined annuity is triggered. Nothing within the plain meaning of section 8344(a), or within that of any other statute, makes an exception for retired/reemployed persons who are also FECA beneficiaries. ⁴

The agency charged with administration of the CSRA has consistently employed the present plain meaning interpretation of section 8344(a). OPM's regulations clearly articulate: "If the annuitant is employed continuously for at least five years ... and actually serves for at least 5 years on a full-time basis, or the equivalent of 5 years of full-time service on a part-time basis, ... the annuitant may ... have his or her retirement rights redetermined under the law in effect at separation date." 5 C.F.R. Sec. 831.803(b) (1990) (emphasis added). Moreover, OPM defines "full-time service" to mean "any actual service in which the reemployed annuitant is scheduled to work the number of hours and days required by the administrative work-week for his or her grade or class (normally 40 hours)." 5 C.F.R. Sec. 831.803(e) (emphasis added).

The Supreme Court has succinctly stated: "When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its...