Lead Opinion
In this сonsolidated appeal from the Merit Systems Protection Board (board) petitioners, air traffic controllers each with civilian/military experience in their jobs exceeding 25 years, request reversal of board decisions sustaining, in each case, denial by the Office of Personnel Management (OPM) of each of their requests for an immediate retirement annuity. We first address and reject OPM’s contention that this court lacks jurisdiction over this appeal, and then reverse the board’s decisions for the reason stated belоw.
Background
Each of these three petitioners has worked more than 25 years as an air traffic controller. In each case, however, less than 25 of these years (approximately 23) were in a civilian capacity as an employee of the Department of Transportation’s Federal Aviation Administration (FAA). Approximately 3 additional years (at the beginning of each petitioner’s career) were in a military capacity, as controllers licensed by the FAA’s predecessor agency, and employed by the Dеpartment of Defense.
The Professional Air Traffic Controllers Organization called an illegal
"(e) An employee who is voluntarily or involuntarily separated from the service, except by removal for cause on charges of misconduct or delinquency, after completing 25 years of service as an air traffic controller or after becoming 50 years of age and completing 20 years of service as an air traffic controller, is entitled to an annuity.”
Petitioners appealed the OPM denials to the board, which, by separate opinions dated May 31, 1983, affirmed on the grounds that petitioners were ineligible because they were removed “for cause” under section 8336(e). On appeal to this court, OPM has abandoned the rationale for which the board affirmed and instead presses only the argument, aside from the initial issue of our jurisdiction, that petitioners’ military time does not count in determining their creditable service for immediate retirement.
Opinion
1. This Court’s Jurisdiction
In Lindahl v. OPM,
We decide here only the question of our jurisdiction to hear the type of appeal before us, i.e., an appeal from an MSPB decision affirming the denial of a claim for annuity following a voluntary physical disability retirement, a decision reached by MSPB under the authority provided it in § 8347(d)(1). In such cases, the initial decision is that of the employee who has elected to retire, and who has asserted disability as the reason, and who has then sought an annuity. [Emphasis supplied.]
In the ease befоre us, while petitioners have elected to retire and are seeking an annuity, they have not asserted as their reason a physical disability. This case therefore differs from, and is not controlled by, Lindahl. In particular, we note that the statutory lynchpin of Lindahl, the section 8347(c) “finality clause” which we held to bar judicial review in that case, applies only to “questions of disability and dependency arising under this subchapter [civil service retirement].”
Recognizing that the Lindahl rationale does not expressly govern jurisdiction here, OPM advances an alternative argument which the court in Lindahl found unnecessary to address.
OPM’s position borders on the frivolous when analyzed from either of two perspectivеs. First, beginning from the “bottom up,” as we did in Lindahl, we set out the precise language of section 8347(d)(1):
(d)(1) Subject to paragraph (2) [concerning mental disability] of this subsection, an administrative action or order affecting the rights or interests of an individual or of the United States under this subchapter [concerning civil service retirement] may be appealed to the Merit Systems Protection Board under procedures prescribed by the Board.
This provision makes it clear that an individual such as any of petitioners whose rights or interests have been affected by an OPM action or order concerning retirеment, may appeal at least to the board. Subsection (d) of section 8347 also includes (d)(2) concerning mental disability, which provision explicitly authorizes an “individual” to appeal to the board under section 7701 and to the court under section 7703. The fact that Congress took extra pains to clarify the avenue of review in the sensitive area of mental disability when it added subsection (d)(2) only bolsters the conclusion that Congress intended such review as well for the subsection (d)(1) nonphysical-disability retirement cases (i.e., those not precluded from review by section 8347(c)). We as much stated in Lindahl:
In § 8347(d)(2) Congress not only allowed but legitimized judicial review in the type of case in which our predecessor court had said it was appropriate, while simultaneously reenacting the express review preclusion in § 8347(c) and making plain that §§ 8347(d)(1) and (d)(2) were exceptions to that preclusion. [Emphasis supplied.]
If any doubt remained whether a nonphysical-disability retirement claim appealable to the board under section 8347(d)(1) were in turn appealable to this court, that doubt should be resolved in favor of thе presumption of judicial review over agency action.
Since our “bottom up” analysis leads us to conclude, with the help of Lindahl, that jurisdiction attaches here, we engage in a “top down” analysis to see if the same conclusion holds. Congress has granted this court “exclusive jurisdiction” over “an appeal from a final order or final decision” of the board рursuant to section 7703(b)(1).
As OPM admits, “employee” as used in section 7703 is not defined there or in chapter 77 of title 5. The subchapter on civil service retirement includes a definition for purposes of that subchapter at section 8331(1)(A), which refers to the general “employee” definition at section 2105. The relevant part of that definition, section 2105(a)(1)(D), covers “an individual who is —(1) appointed in the civil service by * * * (D) an individual who is an employee under this section.” The records before us show that the FAA removed petitioners in September 1981, and that in each case petitioners applied for their lump-sum retirement distributions shоrtly thereafter,
In short, OPM’s restrictive “employee” argument would likely strip this court of jurisdiction over most board decisions in the civil service retirement area. Not only is this position contrary to our suggestion in Lindahl, as discussed in our “bottom up” analysis supra, but it is contrary to OPM’s legislative history argument when applied to the facts of this case. OPM contends that the CSRA legislative history is devoid of reference to retirement appeals, while replete with reference to taking disciplinary or adverse actions against federal employees. If so, the records before us clearly demonstrate an adverse or disciplinary action against each of petitioners: both OPM and the board relied at least in part on petitioners having been involuntarily removed “for cause” — i.e., disciplined for absence without leave and strike participation — as a basis for denying them immediate retirement under section 8336(e). Thus the adverse action is, by the tеrms of section 8336(e), inextricably bound up with each of the retirement claims before us.
2. The Military Service
Petitioners contend that the FAA and OPM wrongly advised them that their military time as air traffic controllers did not count toward the 25 years of air controller service required under section 8336(e) for immediate retirement. In support of their argument that the military time does count, petitioners cite the defini
For the purpose of this title [title 5]— (1) “air traffic controller” or “controller” means an employee of the Department of Transportation or the Department of Defense * * *[.]
OPM counters that this definition, which on its face supports petitioners’ position, does not mean what it says. OPM cites the legislative history of this provision, wherein Congress repeatedly stated its intent that the controllers in the Department of Defense which it meant that section 2109(1) would cover were civilian controllers only — a very small subgroup.
While OPM’s contentions are well taken, they are not dispositive. In addition to examining closely the definition of “air traffic controller,” as we have just done, it is equally if not more important that we focus on the meaning of “service.” The issue of what counts as creditable service is, after all, what is disputed here. We know that petitioners were civilian “air traffic controllers” eligible for some type of civil service retirement benefits when they so applied in 1981.
At the beginning of the subchapter dealing with civil service retirement, section 8331(12) defines “service” as “employment creditable under section 8332 of this title.” That section, entitled “Creditable service,” states in pertinent part:
(c)(1) * * *
(A) 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 under this subchapter is based * * *[.]
If the employee is awarded retirement pay based on his military service, however, section 8332(c)(2) provides that this military service may not be, in effect, counted twice by applying to civil service retirement as well. This does not apply to petitioners, who have not applied separately for military retirement pay based on their few years of military service. We note also that section 8331(13) defines “military service” as “honorable active service,” about which there is no dispute as regards petitioners.
Taking these statutory provisions together, we have, on the one hand, a definition of “air traffic controller” which appears to exclude military controllers, and, on the other hand, a definition of “creditable service” which includes military service in computation of civil service retirement benefits. The latter definition applies to the service of an “employee” which, in each of petitioners’ cases, is specifically modified by the definition for “air traffic controller.”
Though seemingly circular, the relationships of these provisions do not, in our view, conflict. Rather, they harmonize. One first asks, who, under section 8336(e), is eligible for immediate retirement? Answer: an “employee,” specifically modified here to encompass only an “air traffic controller,” as provided in sections 8331(1)(A), 2105(a), and 2109(1). Second, one asks, how, under section 8336(e), is the “service” of an air traffic controller to be computed?
REVERSED.
Notes
. Section 7311(3) of 5 U.S.C. (1982) prohibits participation in a strike against the Government. See Schapansky v. Department of Transp.,
. All section references are to title 5, U.S.C., except where otherwise indicated. Section 8336(e) states:
. OPM has conceded that, if this court takes jurisdiction and finds that the military time constitutes creditable service, then petitioners are entitled to apрly to OPM for immediate retirement. Such an application, to be successful, would require petitioners to refund their lump-sum distributions. The issue concerning military time was raised before the board, but the presiding official based her decision on the § 8336(e) "for cause” exception.
. Lindahl v.OPM,
. Id. at 393.
. Section 8347(c). See also Lindahl,
. Lindahl,
. Pub.L. No. 95-454, 91 Stat. 1111. See 1978 U.S.CODE CONG. & AD.NEWS 2723 et seq. for legislative history.
. Lindahl,
. See Lindahl,
. 28 U.S.C. § 1295(a)(9) (1982).
. Section 7701(a), providing for appeals to the board, also refers to "[a]n employee, or applicant for employment." However, as our "bottom up” analysis makes clear, a person appealing a nonphysical-disability, non-mental-disability retirement claim to the board does so under § 8347(d)(1).
. The records shоw the effective dates of Bronger's, Kacprowicz’s, and Veverka’s removals to have been, respectively, September 15, 2, and 9, 1981, while the dates on which they filed for lump-sum distributions were September 22, October 5, and October 13, 1981.
. Indeed § 8342(a)(1)(A) as currently in force requires that an employee be "separated from the service for at least thirty-one consecutive days" before becoming entitled to be paid the lump-sum credit. Pub.L. No. 97-253, 96 Stat. 794, Sept. 8, 1982. Section 8342(a) as in effect when petitioners applied for the lump-sum refunds similarly referred to an "employee * * * who is separated from the service." In Ellis v. United States,
. As mentioned in note 3, supra, however, OPM concedes this point if we hold adversely to OPM on the two issues appealed to us. In other words, OPM is admitting that, if indеed the military time counts, then petitioners should have been permitted to apply for immediate retirement in lieu of removal.
. In 1980 Congress amended § 2109(1) to add the Department of the Defense. Pub.L. No. 96-347, 94 Stat. 1150. The purpose of the amendment was to extend early retirement benefits "to civilian air traffic controllers working for the Department of Defense,” a small group of some 320 controllers, as opposed to the 20,000 working for the Department of Transportation. S.REP. NO. 902, 96th Cong., 2d Sess. 1-2, reprinted in 1980 U.S.CODE CONG. & AD.NEWS 2714 (emphasis supplied). See also the legislative history of the original 1972 law providing early retirement benefits for controllers, wherein Congress stated that it considered including civilian Department of Defense controllers, but decided not to. Pub.L. No. 92-297, 86 Stat. 141, S.REP. NO. 774, 92d Cong., 2d Sess., at 3-4, reprinted in 1972 U.S.CODE CONG. & AD.NEWS 2287 at 2289-91.
. See notes 3 and 15, supra. The "for cause” rationale upon which the board based its decision is now moot, since OPM concedes that the immediate retirement would have been offered in lieu of removal.
Dissenting Opinion
dissenting.
This is the first opinion of this court to declare that this court has jurisdiction over decisions of the MSPB under 5 U.S.C. § 8347(d)(1). I dissent. I also urge that the government request review of this decision by the Supreme Court in conjunction with Lindahl v. Office of Personnel Management,
The jurisdiction of this court over appeals of MSPB decisions is found in 28 U.S.C. § 1295(a)(9):
(a) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction—
(9) of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to sections 7703(b)(1) and 7703(d) of title 5.
In Lindahl, in which both members of the majority of this panel dissented, this court held in banc that claims under § 8347(d)(1) did not fall within § 7703. Specifically, the court held:
To hold that judicial review of all § 8347(d)(1) decisions had all along been available under § 7703, would be to render superfluous Congress’ action in § 8347(d)(2), making judicial review available for particular claims under § 7703.
This holding is essential to the case, not merely the court’s interpretation of § 8347(c) that all judicial review is precluded with respect to the fact of the claimant’s disability. It was, however, § 8347(c) which, in Lindahl, gave clear meaning to the review provisions of § 8347(d). The conclusion stated in the Lindahl majority opinion is as follows:
This court’s grant of jurisdiction to review MSPB decisions is broad but not unlimited. Among the limitations on that grant is necessarily a statute expressly excluding review of certain decisions. Such a statute is spelled out in 5 U.S.C. § 8347(e) and (d). The government’s motion to dismiss must therefore be granted.
However, the discussion of § 8347(c) in Lindahl has created a straw on which the majority here clings to distinguish the subject appeals.
To return to the statute, 5 U.S.C. § 8347(b) provides:
(b) ... The Office [OPM] shall adjudicate all claims under this subchapter [5 USCS §§ 8331 et seq. re retirement]. With respect to review of such OPM decisions, 5 U.S.C. § 8347(d) provides:
(d)(1) Subject to paragraph (2) of this subsection, an administrative action or order affecting the rights or interests of an individual or of the United States under this subchapter may be appealed to the Merit Systems Protection Board under procedures prescribed by the Board.
(2) In the case of any individual found by the Office to be disabled in whole or in part on the basis of the individual’s mental condition, and that finding was made pursuant to an application by an agency for purposes of disability retirement under section 8337(a) of this title,*1559 the procedures under section 7701 of this title shall apply and the decision of the Board shall be subject to judicial review under section 7703 of this title.
The subject clаims are ordinary voluntary retirement claims decided by OPM under 5 U.S.C. § 8347(b). Such claims are appealable to the board under 5 U.S.C. § 8347(d)(1). No statute specifically grants review of § 8347(d)(1) claims and the majority points to none.
In any event, by their nature, voluntary retirement claims arе not appropriately reviewed under § 7703, which spells out a standard of review tailored to cases where the government is the initiator of action and bears the burden of proof, i.e., adverse action eases. That Congress chose to put involuntary mental disability cases into the category of adverse actions is rational, in view of the nature of the claim. The government is seeking to force the “claimant” out of service because of an alleged mental condition; the “claimant” is seeking to avoid forced retirement on such grounds. The parallel with an adverse action is clear.
This court is not the first to have considered the jurisdictional grant of § 7703(b)(1). In Lancellotti v. Office of Personnel Management,
The legislative history of the Civil Service Reform Act of 1978, P.L. 95-4154, 92 Stat. 1111, 1143, also suggests that section 7703 was enacted to provide judicial review of adverse actions initiated by agencies against employees engaged in misconduct or performing at an unacceptable lеvel. Petitioner’s claims do not fall within the scope of section 7703; we therefore reject the Board’s statement of jurisdiction. [Footnote omitted.]
Thus, the majority has created a conflict between the circuits.
The majority’s focus on the discussion of § 8347(c) in Lindahl is misplaced. § 8347(c), which says that OPM decisions on “questions” of disability and dependency are not subject to review, is jurisdictional in the sense that it places a limitation on the scope of the consent of the sovereign to suit. Cf. Army & Air Force Exchange Service v. Sheehan,
A holding that there is no direct appeal to this court does not foreclose the possibil
I appreciate that if jurisdiction is found to be in the Claims Court and district courts under the Tucker Act, this court would have jurisdiction over the appeal under 28 U.S.C. § 1295(a)(2) and (3). See, Heisig v. United States,
The majority errs in essentially treating this court as having the same jurisdiction as the U.S. Court of Claims to which Tucker Act claims (28 U.S.C. § 1491) were brought from MSPB decisions. Prior to the 1982 amendment
Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the Court of Claims ... as provided in chapters 91 ... of title 28.
Whether the Court of Claims reviewed the MSPB decision directly, i.e., on cross-motions for summary judgment, or after proceedings in its trial division, was immaterial. All cases were Chapter 91 Tucker Act cases. That type of jurisdiction has not been granted to this court. Heisig v. United States,
I would, accordingly, dismiss this appeal for lack of jurisdiction and would entertain a motion to trаnsfer the case to the U.S. Claims Court, which should be the forum to determine whether it has jurisdiction over the claim in the first instance.
. Compare 5 U.S.C. § 7121(f) re appeals to this court of arbitration decisions.
The majority vaguely finds support for Kits exercise of jurisdiction because of adverse1 or disciplinary actions against appellants but does not assert that appellants’ appeals to the board fall within 5 U.S.C. § 7701. Clearly they do not under precedent of this court. Williams v. Office of Personnel Management,718 F.2d 1553 (Fed.Cir.1983).
. While the same is true with respect to any kind of involuntary retirement casе, it is the clear prerogative of Congress to prescribe the method of and extent of review for any grant, and we have specifically denied reviewability of involuntary disability claims. Henderson v. ÓPM,
. The circuits continue to review appeals of MSPB decisions filed before the transfer of jurisdiction to this court by the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25. A similar conflict between circuits was noted by the Supreme Court in Morton v. United States, — U.S. ---, ---,
. In Lancellotti,
. Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25.
. I presume that the claims at this time amount to more than $10,000 so that transfer to a district court is not a viable alternative.