Constance HORNER, Director, Office of Personnel Management, Petitioner, v. Joseph D. JEFFREY, Respondent.
No. 86-697.
United States Court of Appeals, Federal Circuit.
July 2, 1987.
823 F.2d 1521
Since there is no indication in the present case that the controversy between the parties extends beyond the accused devices found to be noninfringing, this court properly exercises its discretion to dismiss the cross-appeal in this case as moot. See A.B. Dick Co. v. Burroughs Corp., 798 F.2d 1392, 1400, 230 USPQ 849, 855-56 (Fed.Cir.1986) (mooting cross-appeal on validity and infringement after affirming district court‘s finding of unenforceability); see also Harries v. Air King Products Co., 183 F.2d 158, 162-63, 86 USPQ 57, 61 (2d Cir.1950) (concluding that appellate court had discretion to rely solely on noninfringement where claims are not evidently invalid). Furthermore, the validity issue in this case is not one in which invalidity is plainly evident. See Leesona Corp. v. United States, 530 F.2d 896, 906 n. 9, 208 Ct.Cl. 871 (1976); cf. Mannesmann Demag Corp. v. Engineered Metal Products Co., 793 F.2d 1279, 230 USPQ 45 (Fed.Cir.1986) (where in a case involving a declaratory judgment counterclaim and cross-appeals by both parties, the court summarily affirmed the district court‘s holding that the patent had not been shown to be invalid after first affirming the district court‘s holding of noninfringement).5
Stephen J. McHale, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for petitioner. With him on the brief, were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Robert A. Reutershan.
Kathleen G. Vaght, Noto, Oswald, Hoffheimer, Eisman & Miller, Washington, D.C., argued for respondent. Robert L. Oswald, Noto, Oswald, Hoffheimer, Eisman & Miller, Washington, D.C., was on the brief, for respondent.
Before MARKEY, Chief Judge, FRIEDMAN, RICH, and DAVIS, Circuit Judges, BENNETT, Senior Circuit Judge, SMITH, NIES, NEWMAN, BISSELL, and ARCHER, Circuit Judges.*
BENNETT, Senior Circuit Judge.
In accordance with
* This case was argued before a panel consisting of Davis, Circuit Judge, Bennett, Senior Circuit Judge, and Newman, Circuit Judge, on August 5, 1986. An active judge not on the panel suggested in banc consideration and the court so decided the case on the record before the panel together with the taped arguments of counsel.
BACKGROUND
The background facts are not in dispute and can be summarized as follows. Appellee Joseph D. Jeffrey (Jeffrey) was a midshipman at the United States Naval Academy from June 16, 1938, until December 18, 1941, at which time he entered upon active duty with the United States Navy. Jeffrey retired from active duty with the Navy on February 29, 1964, and was credited with 22 years, 2 months, and 12 days of military service as the basis for his military retired pay. His time as a midshipman at the Naval Academy was not credited for military retirement purposes. Subsequent to his retirement from the Navy, Jeffrey was appointed to a civil service position with the Federal Aviation Agency on April 12, 1965, and he served with that agency and its successor agencies until he voluntarily retired from the civil service on September 4, 1982. Upon his retirement from the civil service position, Jeffrey received credit for 17 years, 4 months, and 23 days of civilian service.
Jeffrey requested that the OPM grant him civil service retirement credit for his time spent as a midshipman. On October 20, 1983, the OPM denied his request for CSRA credit for his midshipman time and then confirmed its denial on reconsideration on September 5, 1984. In denying the request for reconsideration, the OPM stat
Jeffrey appealed to the MSPB. In the initial decision, the presiding official re
The OPM petitioned the full board for review, which was denied by a divided board.5 In denying the petition for review, the board‘s opinion relied on the pre-1956 judicial interpretations of the relevant statutes, finding that Congress only sought to bar double retirement credits for periods of military service. 28 M.S.P.R. at 84. The board also agreed that nothing in the legislative history of the 1956 amendment indicated a congressional intent to alter the existing law as to civil service retirement credit for periods of military service which are not part of the individual‘s military retirement benefits. Id. Therefore, the board concluded that Jeffrey was entitled
The board subsequently denied OPM‘s request to have the board‘s final decision stayed until judicial review by this court could be obtained. Jeffrey v. Office of Personnel Management, 28 M.S.P.R. 434 (1985). Review by this court was sought by the Director of the OPM on the grounds that “the Board‘s decision will have a substantial impact on a civil service law.”7
DISCUSSION
I.
Each of the parties involved in the present case agrees, quite properly, that the plain language of a statute should conclusively settle the issue before this court. See, e.g., Bread Political Action Committee v. Federal Election Commission, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237-38, 71 L.Ed.2d 432 (1982); Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979); Darsigny v. Office of Personnel Management, 787 F.2d 1555, 1557 (Fed.Cir.1986) (“the starting point for interpreting a statute is the language itself“); see also Selman v. United States, 204 Ct.Cl. 675, 498 F.2d 1354, 1356 (1974) (“a clear and unambiguous statute speaks for itself“). However, in their desire to discern the legislative intent of Congress when it enacted, amended, and reamended the Civil Service
The prior OPM and MSPB decisions in this case and the briefs of both parties in this appeal each begin their analyses by citing
(b) In computing length of service for any purpose—
(1) no officer of the Navy or Marine Corps may be credited with service as a midshipman at the United States Naval Academy or as a cadet at the United States Military Academy, United States Air Force Academy, or United States Coast Guard Academy, if he was appointed as a midshipman or cadet after March 4, 1913.... (Emphasis added.)
The critical point is that
However, despite the parties’ attempts to do so, the language of
The language quoted above from
In Jacobs v. United States, 680 F.2d 88 (9th Cir.1982), the Ninth Circuit recently looked to the legislative history of
Officers of the Army and Navy have been expressly prohibited since 1913 from counting cadet or midshipman time in computing length of service. See Act of August 24, 1912, Pub.L. No. 338, ch. 391, 37 Stat. 594; Act of March 4, 1913, Pub.L. No. 433, ch. 148, 37 Stat. 891. Congress found that the previous rule of counting cadet time “discriminat[ed] against the civilian appointee who pays for his own preliminary education and in favor of the graduate of the Military Academy who is educated for his commission at the expense of the Government.” H.R.Rep. No. 270, at 66, 62nd Cong.2d Sess. (1912) (discussed in United States v. Noce, 268 U.S. 613, 618, 45 S.Ct. 610, 611, 69 L.Ed. 1116 [1925]). The House Report notes that “this preposterous practice ... of counting the period of cadet service in computing length of service ... is as indefensible as it is illogical and unfair....” Report at 65-66. Id. at 89-90.
It is equally illogical and unfair to allow a retired military officer who was educated at the public‘s expense at one of the service academies and who subsequently enters government civil service upon his retirement from the military to receive credit for his military academy time for the purposes of civil service retirement when he could not do so upon retirement from the military. The educated-at-his-own-expense military retiree cannot receive this windfall.
As noted previously, the parties spent considerable effort interpreting the various versions of the provisions of the Civil Service Retirement Act. However, such analysis and discussion were unnecessary and resulted from the failure of all concerned to utilize the proper definition of “military service” as it was intended by Congress to be used for all purposes, including the Civil Service Retirement Act.9
Congress provided a definition of “military service” in the subchapter covering the Civil Service Retirement Act, but that definition does not alter the method to calculate length of military service provided in
Furthermore, it is improper to attempt to harmonize title 5 and title 10 by limiting
Repeals by implication are not favored and can only be justified when the earlier and later statutes are irreconcilable. Tennessee Valley Authority v. Hill, 437 U.S. 153, 189-90, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978); Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974); Lovshin v. Department of the Navy, 767 F.2d 826, 842 (Fed.Cir.1985), cert. denied, 106 S.Ct. 1523, 89 L.Ed.2d 921 (1986). “[W]hen two statutes are capable of co-existence, it
The Court of Claims cases cited by the parties only deal with civil service credit for excess military service as a commissioned officer on active duty beyond what was needed for military retirement purposes. See Hobson v. United States, 151 Ct.Cl. 201 (1960); Bond v. United States, 133 Ct.Cl. 204, 135 F.Supp. 433 (1955), cert. denied, 351 U.S. 974, 76 S.Ct. 1031, 100 L.Ed. 1491 (1956); Prentiss v. United States, 123 Ct.Cl. 225, 105 F.Supp. 989 (1952). None of the Court of Claims cases involve civil service credit for time spent by a retired officer as a cadet or midshipman at a service academy. In fact, no judicial precedent has been found discussing the issue presented in the instant case.10 That the OPM and the board agree that the pre-1956 and the post-1982 versions of
Reviewing courts are not obliged to stand aside and rubberstamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congres
sional policy underlying a statute. Such review is always properly within the judicial province, and courts would abdicate their responsibility if they did not fully review such administrative decisions.... “The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.” (quoting American Ship Building Co. v. National Labor Relations Board, 380 U.S. 300, 318 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965)).
Here, since the decision not to consider military academy time as military service for any purpose had already been made by Congress, we would be shirking our judicial role to ignore OPM‘s contrary view simply because neither party chose to recognize the error of that view. In the initial MSPB decision, the presiding official observed that the OPM‘s interpretation of the 1956 amendments would have the effect of denying any credit under any system for the years of academy service. Although not for the reasons advanced by OPM, denial of any credit for military academy service as a cadet or midshipman is exactly what Congress intended at all times, not just between 1956 and 1982.11 The lack of evidence as to Congress‘s intent in the legislative history accompanying the 1956 amendment to
II.
The only contrary authority to the holding reached by this opinion is the portion of the Federal Personnel Manual (FPM) which states that “service as a midshipman ...
At first glance, it would appear that an authoritative conclusion on that point should not be necessary to decide the present case since there should be little difficulty finding the FPM provision in question invalid as contrary to
In the instant case, as noted above, there is no reason to believe that Congress delegated authority to the OPM to alter the definition of “military service” provided in
Even assuming the FPM Supplement provision could be considered the equivalent of a regulation, at a minimum, the provision would need to satisfy the two requirements set out in Chrysler Corp. v. Brown, 441 U.S. 281, 301-04, 99 S.Ct. 1705, 1717-18, 60 L.Ed.2d 208 (1979), to be given the “force and effect of law.” Under the Chrysler test, for any agency regulation to have the force and effect of law, it must first prescribe “substantive” or “legislative” rules rather than merely “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” Id. at 301, 99 S.Ct. at 1717. Second, its promulgation must be pursuant to a specific statutory grant of authority and “must conform with any procedural requirements imposed by Congress.” Id. at 302-03, 99 S.Ct. at 1718.
The Federal Personnel Manual, by its own definition, is the “official medium of the Office of Personnel Management for issuing personnel instructions, operational guidance, policy statements, related material on governmentwide personnel programs, and advice on good practice in personnel management to other agencies.” FPM, ch. 171, subch. 2-1 (June 10, 1986); see National Treasury Employees Union v. Reagan, 663 F.2d 239, 243 (D.C.Cir.1981). Since the FPM and its supplements are
Taking the inquiry a step further to look at the specific FPM Supplement provision in question here, it is beyond doubt that the provision could be at most an interpretive regulation since the OPM was not instructed by statute to define further the term “military service” or how its length is to be calculated. “An interpretive regulation ... is one issued ... without delegated legislative power.” Fmali Herb, Inc. v. Heckler, 715 F.2d 1385, 1387 (9th Cir.1983) (where court found that since FDA was not instructed by statute to define term, regulation defining the term was merely interpretive).
[Interpretative] rules are essentially hortatory and instructional in that they go more “to what the administrative officer thinks the statute or regulation means” when applied in particular, narrowly defined, situations.... By merely clarifying the law‘s terms as applied situationally, interpretive or administrative-type rules are used more for discretionary fine-tuning than for general law making.
Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir.1984) (citations omitted).
In the instant case, it is established that there is no reason to believe that Congress delegated authority to the OPM to alter the method provided in
This court in Acosta, in addition to rejecting the argument that the FPM Supplement provision should be accorded the status of a regulation, rejected the argument that because the subject provision existed prior to the latest amendment of section 2105(a), the agency‘s longstanding administrative interpretation was entitled to great deference under an “informed inaction” standard. The court found that where Congress subsequently enacted legislation in the particular area which expressly covered the matter at issue, the statute controlled. Acosta, 803 F.2d at 695. The court also dismissed as incredible the argument that, because the FPM Supplement provision existed in substantially the same form prior to the first enactment of section 2105(a), Congress intended to incorporate that specific provision covering a minor portion of title 5 into the broad definition covering the entire chapter. Id. at 696.
The reasoning used in Acosta applies with equal or greater force to the present case. Congress amended
The “informed inaction” standard rejected in Acosta also has no applicability to the present situation for two reasons. First, the subject FPM provision conflicts with a different statute than the one that it supposedly interprets. Congress cannot be held to have approved or even been aware of the contrary provisions in the FPM issued under title 5 when it reenacted the provisions contained in
Second, since nothing in title 5 itself can properly be read to contradict or question the provisions of
As a final point, we note that the Director argues that since the OPM is the agency responsible for administering the Civil Service Retirement Act, OPM interpretations of that Act are entitled to deference and therefore the board should have deferred to the OPM‘s interpretation of
Congress authorized OPM to administer the CSRA and to promulgate implementing regulations.
5 U.S.C. § 8347(a) . The long-standing interpretation placed on a statute by the agency charged with its administration should be followed unless there are compelling indications that it is wrong. E.g., Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); (other citations omitted).
Money v. Office of Personnel Management, 811 F.2d 1474, 1477 (Fed.Cir.1987); see also Horner v. Andrzjewski, 811 F.2d 571, 574 (Fed.Cir.1987) (“As a general rule, a long-standing interpretation of a statute by an agency charged with its administration must be upheld if reasonable.“). On the other hand, the Supreme Court has observed that:
courts are the final authorities on issues of statutory construction. They must reject administrative constructions of [a] statute, whether reached by adjudication or by rulemaking, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement.
Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981) (citations omitted); Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1565 (Fed.Cir.1985), cert. denied, 106 S.Ct. 1514, 89 L.Ed.2d 913 (1986); see also Al Tech Specialty Steel Corp. v. United States, 745 F.2d 632, 642 (Fed.Cir.1984) (“‘deference [to an agency interpretation] is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history‘” (citations omitted)).
However, under the facts of the present case, the above general rules of statutory interpretation have limited applicability since it is not OPM‘s interpretation of
This court cannot ignore and thus give implicit judicial approval to a statutory interpretation that is contrary to the plain language of the statute. In United States v. Missouri Pacific Railroad Co., 278 U.S. 269, 277-78, 49 S.Ct. 133, 136, 73 L.Ed. 322 (1929), the Supreme Court made the following observation when urged to construe a statute which, like the one in the present case, contained no ambiguity:
The language of [the] provision is so clear and its meaning so plain that no difficulty attends its construction in this case. Adherence to its terms leads to nothing impossible or plainly unreasonable. We are therefore bound by the words employed and are not at liberty to conjure up conditions to raise doubts in order that resort may be had to construction. It is elementary that where no ambiguity exists there is no room for construction. Inconvenience or hardships, if any, that result from following the statute as written must be relieved by legislation.
Examination of the legislative history of
Accordingly, we reverse the decision of the Merit Systems Protection Board for the reasons outlined in this opinion. We express no opinion on the parties’ analysis of the legislative history of
REVERSED.
NIES, Circuit Judge, concurring.
Because the present appeal does not require us to address the larger issue of civilian retirement credit for academy time under past or present law and that issue was not addressed by the parties, I do not join either the majority or dissenting opinions on that issue. I do concur in result with the majority but would resolve this appeal in favor of the government on the narrower issue raised by the parties. That issue has nothing to do with whether academy time can or cannot be treated as “military service” for purposes of credit towards civilian retirement under prior or current statutes.
OPM denied Jeffrey credit towards civilian retirement for time spent at the Naval Academy, not because it was academy time, but because Jeffrey received a military pension. It is undisputed that CSC and its successor OPM consistently interpreted the 1956-1982 version of section 8332(c) to preclude credit for civilian retirement purposes of any military service time if the employee received military retirement pay. That interpretation closely tracks the statutory language during that time period which stated (with exceptions not pertinent here): “[A]n employee ... shall be allowed credit for periods of military service ... [unless] an employee ... is awarded retired pay on account of military
In its attack on the majority‘s analysis, the dissent eloquently sets out the principles that require us to uphold an agency‘s long-standing interpretation. Application of those same principles requires us to uphold the twenty-five year uniform interpretation by CSC and OPM that receipt of a military pension under the 1956-1982 statute precludes credit towards civilian retirement of any military service.
The preclusive effect of a military pension in the 1956-1982 period, per OPM‘s interpretation, encompasses not only military service credited towards military retirement, but also any uncredited military service, not simply academy time, e.g., active duty service beyond thirty years. The dissent relies on OPM‘s interpretation of academy time as military service to overturn OPM‘s interpretation of the preclusive effect of a military pension. It simply sets up a strawman and knocks it down.
In any event, I would hold that the MSPB erred in substituting its interpretation of the 1956-1982 version of the statute for that of OPM.
PAULINE NEWMAN, Circuit Judge, with whom FRIEDMAN and DAVIS, Circuit Judges, join, dissenting.
This court has now decided to eliminate pension rights that have existed for some sixty years. The majority has determined that the civil service law must yield to the military law, and concluded that Congress never intended to grant civilian pension rights to service academy graduates, although they have been granted for decades. Thus, the majority has determined that the administrators of the civil service law have long been in conflict with the military law. In the course of this determination the majority has extended the military law beyond its reasonable context.
This court today finds a long-standing civil service practice, that of crediting time as a midshipman toward civil service retirement, to be in conflict with the laws governing the military service. The majority expresses no surprise that such a conflict has not been spotted until now, but is not daunted in taking corrective action.
The majority does not hold that the administrative agency‘s practices have conflicted with the civil service laws they have implemented over the decades. The law governing civil service retirement credits for military veterans who serve in the civil service is the civil service law, not the military law. Nevertheless, to remedy this newly-discovered conflict, the majority not only reinterprets the civil service law in effect between 1956 and October 1, 1982, but also the corresponding laws before 1956 and after October 1, 1982—although they have not been challenged. The majority thus concludes that time in the service academies shall not be counted toward civilian pensions, whether or not a military pension is paid. That is a much broader issue than the one on which this appeal arose.
OPM and the MSPB agree that the pre-1956 and post-1982 laws authorize the civil service pension credits here eliminated. The 1982 amendment, according to the OPM, changed the law that OPM relies on in the action at bar, which deals solely with the 1956-1982 period. The majority, in its ruling that the General Military Law always barred these civil service pension credits, has declared the entire operation illegal from the start.
The Military Laws
The majority relies on the following provision in the General Military Law,
In computing length of service for any purpose—
(1) no officer of the Navy or Marine Corps may be credited with service as a midshipman at the United States Naval Academy or as a cadet at the United States Military Academy, United States Air Force Academy, or United States
Coast Guard Academy, if he was appointed as a midshipman or cadet after March 4, 1913....
This text in various forms has coexisted in unchallenged harmony with the civil service statutes. The military law does not state that service as a midshipman may not be considered by any other law for the purpose of such other law, but refers solely to computations of length of service as an officer under the military law.
The context of this provision illustrates its scope and meaning. The preceding section,
Service Credit: officers may not count enlisted service performed while serving as cadet or midshipman.
Section 971(a) prevents officers from counting as enlistment time their service at a military academy. Section 972(b) then provides that time in the academy is not to be counted in computing the officer‘s length of service for any purpose. The limitation of section 971 to “officers” illustrates Congress’ intent to legislate only an officer‘s longevity credits, not a civilian‘s. Neither section (a) nor (b) discusses any impact on a civilian‘s future opportunities that may recognize and credit his or her military past.
Section 971(b) originated, and for most of its history appeared in, the military appropriations acts, dealing with military pay, military allotments and allowances, military retirement, etc. The provisions of a statute must be read in context. See Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 591-92, 7 L.Ed.2d 492 (1962) (“‘we must not be guided by a single sentence or member of a sentence, but [should] look to the provisions of the whole law, and to its object and policy.‘“) (brackets in original) (quoting Mastro Plastics Corp. v. Labor Board, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956)).
It is reasonable to read these provisions as intended to exclude military academy time from all calculations of service obligations and service pay based on length of service. Such reading is supported by the context in which these provisions arose, and is in complete harmony with the civil service procedures here struck down. For example, in the Act of June 7, 1924 the subject provision appeared in the following context:
TITLE I—MILITARY ACTIVITIES AND OTHER EXPENSES OF THE WAR DEPARTMENT INCIDENT THERETO
* * * * *
Finance Department Pay, and So Forth of the Army
* * * * *
For additional pay to officers for length of service, $5,374,830: Provided, that in computing for any purpose the length of service of any officer of the Army who was appointed to the United States Military Academy or the United States Naval Academy ... the time spent at either academy shall not be counted.
Ch. 291, 43 Stat. 892, 895-96. These provisions, of which the majority has provided a comprehensive list, were codified in 1934 as part of Title 10, as follows:
Chapter 25—PAY AND ALLOWANCES
* * * * *
Longevity Pay
* * * * *
§ 684. Time served as cadet at Military or Naval Academy. The service of a cadet who has been appointed to the United States Military Academy or to the United States Naval Academy, since August 24, 1912, or who shall hereafter be appointed to either of those academies, shall not be counted in computing for any purpose the length of service of an officer of the Army.
* * * * *
Chapter 26—RETIREMENT
* * * * *
SERVICE COUNTED IN DETERMINING RIGHT TO RETIREMENT
* * * * *
§ 952. Period of cadetship at Military or Naval Academy. In computing for any purpose the length of service of any officer of the Army appointed after Au
gust 24, 1912, the time spent at either academy shall not be counted.
The corresponding sections that were eventually transferred to
Nothing in these sections of the military law bars any other law from counting military academy time for the purpose of such other law. It is reasonable, and it avoids the conflict here created, to view these statutes as they have always been viewed, as pertaining to their own area of authority.
The civil service laws have contained many and varied provisions relating to veterans’ rights as civilian employees in the civil service. Included have been duplicate pension credits for disabled veterans and credits for military service that is not counted in computing military retirement pay. Even during the period here disputed by OPM, the civil service retirement acts have consistently been administered to include in civilian pension calculations certain military service credits that the military laws expressly exclude. This administration of the civil service law has not been deemed inimical to the military law. To the contrary, these statutes have, until today, coexisted.
Title 10 and Title 5 are readily construed in harmony, merely by recognizing that the words “for any purpose” in
The Civil Service Retirement Laws
The 1920 Civil Service Retirement Act, as the present Act, contemplated the inclusion of military service in civil service retirement calculations, excluding only “the period of his or her military or naval service upon which such [military] pension or compensation is based“. 41 Stat. at 615.
This text was continued in the 1930 Civil Service Retirement Act, which was administered, according to the Federal Personnel Manual (“FPM“), as follows:
Credit is allowed for all honorable military or naval service ... with the following exceptions:
(1) If an employee receives retired pay on account of military or naval service, the period of service upon which retired pay is based shall be excluded.
Tables I and III ... may be used for determinations as to whether service was active military service [for civil service retirement credit]. Table I, [beginning on] page VI-12, lists the parts of the armed forces of the United States.
FPM R5-29.02 (July 11, 1946). Table I lists the following “components” of the Regular Navy:
Commissioned and enlisted personnel
Navy Nurse Corps
FPM VI-13 (July 19, 1945).
The OPM and the Board agree: “There is no question that this language [referring to
In 1956 the Civil Service Retirement Act was amended in major ways not here pertinent.
(c) Except as provided by subsection (d) of this section, an employee or Member shall be allowed credit for periods of military service before the date of the separation on which title to annuity is based. However, if an employee or Member is awarded retired pay on account of military service, his military service may not be credited unless the retired pay is awarded
(1) on account of a service-connected disability—
(A) incurred in combat with an enemy of the United States; or
(B) caused by an instrumentality of war and incurred in line of duty during a period of war as defined by section 301 of title 38; or
(2) under chapter 67 of title 10.
According to OPM‘s argument, this enactment changed the calculation of civil service retirement to eliminate military academy time, because it replaced the pre-1956 words:
the period of military or naval service upon which such retired pay is based shall not be included ...
with the words:
his military service may not be credited.... OPM states that this change
meant that if an employee received any military retired pay whatsoever, the employee would no longer receive civil service retirement credit for any uncredited military service. Under this interpretation, the retiree would receive neither civil nor military service retirement credit for those periods of military service not included in the calculation of military retired pay.
The MSPB, disagreeing with the OPM, interpreted this word change as merely continuing the exclusion of dual retirement credit except for disabled veterans. The Board stated: “OPM‘s interpretation of the law would have the effect of denying any credit under any system for the 3 1/2 years of [Jeffrey‘s] Academy service. This was not the intent of Congress prior to 1956 nor after 1982. As to the exact intent of Congress in passing the 1956 legislation, the agency has offered no evidence to support its contention that the law was being deliberately changed.” Jeffrey v. Office of Personnel Management, No. DC08318410693, slip. op. at 4 (MSPB Jan. 8, 1985) (emphasis in original).
The legislative history accompanying the 1956 enactment supports the MSPB‘s view that no substantive change was intended. The House Report identified those employees who would be affected by the Act. H.R.Rep. No. 2854, 84th Cong., 2d Sess. 1, 7-8, 24-25 (1956). There was no reference to persons with military service or military academy time who would lose existing retirement credits toward civil service retired pay; nor was there a calculation of savings to the government if civil service pensions were so reduced.3
Equally absent over all these years was any suggestion of conflict with the General Military Law
The Federal Personnel Manual after the 1956 Act continued to provide, without qualification:
Service as Midshipman ... constitutes military service for credit purposes.
FPM R-5-19 (March 20, 1959).
Although Mr. Jeffrey retired before the effective date of the October 1, 1982 Act, OPM relies heavily on the 1982 amendment of
The pertinent regulation continued to prohibit dual payment except for disabled veterans, and the Federal Personnel Manual was not substantively changed in 1982 or later from the prior version, and continues to state that:
[S]ervice as a midshipman ... constitutes military service for credit purposes.
FPM 831-1 Supp. S3-5(b) (September 21, 1981). This practice was constant, before, during, and after the period now challenged by OPM.
The court can not ignore this long-standing interpretation by the agency charged with administering its own law:
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.
... [A] court may not substitute its own contruction of a statutory provision for a reasonable interpretation made by the administrator of an agency.
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (emphasis added).
Despite the agency‘s consistent and reasonable interpretation and the lack of Congressional address to this asserted long-standing conflict, the majority holds that OPM and its predecessors have always incorrectly construed the law. We have repeatedly held that deference is due to an agency‘s interpretation of its own statute. E.g., Minnesota Power & Light Co. v. United States, 782 F.2d 167, 170 (Fed.Cir.1986); Burlington Northern R.R. Co. v. United States, 752 F.2d 627, 629 (Fed.Cir.1985); Al Tech Specialty Steel Corp. v. United States, 745 F.2d 632, 642 (Fed.Cir.1984); Melamine Chemicals Inc. v. United States, 732 F.2d 924, 928 (Fed.Cir.1984); Nabisco, Inc. v. United States, 220 Ct.Cl. 332, 599 F.2d 415, 422 (1979). If Congress intended to forbid that which has been done for decades, its silence is not evidence of that intent.
This long-standing administrative construction is entitled to great weight, particularly when, as here, Congress has revisited the Act and left the practice untouched.
Saxbe v. Bustos, 419 U.S. 65, 74, 95 S.Ct. 272, 279, 42 L.Ed.2d 231 (1974). Accord Zenith Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978). See also Consumer Products Division, SCM Corp. v. Silver Reed America, Inc., 753 F.2d 1033, 1039, 3 Fed.Cir.(T) 83, 90 (Fed.Cir.1985) (agency‘s “interpretation of the statute need not be the only reasonable interpretation or the one which the court views as the most reasonable“).
The question is not whether the Federal Personnel Manual has the status of law. The Manual shows the agency practice, and as such is of compelling weight as to agency interpretation of, and the open and notorious coexistence of, these civil and military service laws. It is impertinent to attribute decades of acquiescence of Congress as due to ignorance.
Although agency discretionary authority does not encompass statutory interpreta
The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.
Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974).
There is a judicial obligation to preserve, if possible, rather than to invalidate. Practices that have coexisted for decades should not easily be declared in fatal opposition. The majority has reached a policy decision, not a legal one. The majority believes, for it so states, that it is unfair for service academy graduates, educated at taxpayer expense, to receive civilian pension credits as compared with other veterans. To remedy this perceived inequity the court has created conflict where the legislators and the executive and the administrators have seen none, and has resolved the conflict in accordance with its preference. This is not the role of the judiciary.
AMSTAR CORPORATION and Enviro-Clear Company, Inc., Appellants/Cross-Appellees, v. ENVIROTECH CORPORATION and Energy Fuels Nuclear, Inc., Appellees/Cross-Appellants.
Appeal Nos. 86-1340, 86-1360.
United States Court of Appeals, Federal Circuit.
July 7, 1987.