Richard L. Miller v. Office of Personnel Management
2016 MSPB 44
| MSPB | 2016Background
- Appellant (Richard L. Miller) had overlapping civilian employment at the Defense Intelligence Agency (DIA) and Air Force active duty at various times between 1970 and 2012; two disputed periods are Aug 27–Oct 25, 1990, and Aug 22, 1994–Dec 22, 1995.
- OPM initially calculated ~15 years, 3 months of CSRS credit for the appellant and on reconsideration found 15 years, 3 months, 29 days, excluding the two disputed periods because of concurrent military service.
- Administrative judge relied on OPM’s CSRS/FERS Handbook and remanded to give civilian credit for Aug 27–Oct 25, 1990 (subject to deposit rules) and for Aug 22, 1994–Dec 22, 1995 (based on AFBCMR correction).
- OPM petitioned for review, arguing the Handbook cannot override 5 U.S.C. § 8332(c)(2) and 5 C.F.R. § 831.301(a)(2), which generally prohibit double credit for the same period of military and civilian service unless narrow exceptions apply.
- The Board granted OPM’s petition, reversed the initial decision, and affirmed OPM’s reconsideration determination excluding those periods from CSRS credit because the appellant did not show he waived military retirement credit or otherwise met statutory exceptions.
Issues
| Issue | Plaintiff's Argument (Miller) | Defendant's Argument (OPM) | Held |
|---|---|---|---|
| Whether Miller is entitled to CSRS civilian credit for Aug 27–Oct 25, 1990 (overlaps active military duty while on LWOP) | Handbook §22A6.1‑2(A) permits civilian credit for periods on active military duty while on leave; any required deposit can be paid | 5 U.S.C. §8332(c)(2) bars double credit for overlapping military and civilian service unless narrow exceptions apply; Miller received military credit and did not show waiver or an applicable exception | Reversed IJ; Miller not entitled to CSRS credit for that period absent proof he waived military credit or satisfied statutory exception |
| Whether Miller is entitled to CSRS civilian credit for Aug 22, 1994–Dec 22, 1995 (AFBCMR retroactive military reinstatement) | Handbook §22A6.1‑4(B) suggests retroactive reinstatement/back pay (or similar corrective action) can permit civilian credit without deposit or waiver | Same statutory prohibition (5 U.S.C. §8332(c)(2)); Handbook cannot override statute/regulation; AFBCMR correction does not, by itself, show waiver of military credit or an exception | Reversed IJ; Miller not entitled to CSRS credit for that period absent proof he waived military credit or satisfied statutory exception |
Key Cases Cited
- Cheeseman v. Office of Personnel Management, 791 F.2d 138 (Fed. Cir.) (claimant bears burden to prove entitlement to retirement benefits)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (U.S.) (clear statutory language controls agency interpretations)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir.) (court will normally enforce filing deadlines)
- Forsythe v. Office of Personnel Management, 85 M.S.P.R. 593 (MSPB) (OPM properly denied overlapping CSRS credit)
- Hicks v. Office of Personnel Management, 44 M.S.P.R. 340 (MSPB) (OPM interpretation of civil service retirement law entitled to deference)
- Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434 (MSPB) (clear statutory language is conclusive absent contrary legislative intent)