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Miller v. Office of Personnel Management

United States Court of Appeals, Federal Circuit

September 10, 2018

RICHARD L. MILLER, Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent

          Petition for review of the Merit Systems Protection Board in No. DE-0831-14-0340-I-1.

          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.

          SCHALL, CIRCUIT JUDGE.

         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, 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.

         Background

         I. Statutory Framework

         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:

If an employee . . . is awarded retired pay based on any period of military service, the service of the employee . . . may not include credit for such period of military service unless the retired pay is awarded-
(A) based on a service-connected disability-
(i) incurred in combat with an enemy of the United States; or
(ii) caused by an instrumentality of war and incurred in line of duty during a period of war as defined by section 1101 of title 38; or
(B) under chapter 1223 of title 10 (or under chapter 67 of that title as in effect before the effective date of the Reserve Officer Personnel Management Act).

(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.

         II. Mr. Miller's Military and Civilian Service

         As noted above, there are three periods of time at issue in this case.

         Period One (June 21, ...


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