Susan FITZGERALD, Petitioner v. DEPARTMENT OF HOMELAND SECURITY, Respondent
2015-3154
United States Court of Appeals, Federal Circuit.
September 20, 2016
837 F.3d 1346
CONCLUSION
Because the ‘072 application provides an adequate written description of the protein claimed in Abbott‘s ‘915 patent, the ‘915 patent benefits from the priority date of the ‘072 application. We affirm the district court‘s 2015 decision. We dismiss Yeda‘s appeal No. 2015-1663 from the district court‘s 2008 decision for lack of jurisdiction, as it is now moot.
AFFIRMED
Costs
No costs.
JOHN C. HERMAN, Robbins Geller Rudman & Dowd LLP, Atlanta, GA, argued for petitioner. Also represented by CARLTON JONES, ROBERT JAMES LEONARD.
TARA K. HOGAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., PATRICIA M. MCCARTHY, KRISTIN MCGRORY.
Before DYK, SCHALL, and HUGHES, Circuit Judges.
SCHALL, Circuit Judge.
Susan Fitzgerald is an employee of U.S. Customs and Border Protection (“the Agency“), a component of the Department of Homeland Security (“DHS“). She currently works as a “Law Enforcement Specialist (Forensics/Investigative Instructor)” at the Federal Law Enforcement Training Center (“FLETC“) in Glynco, Georgia. In this appeal, she challenges the April 2, 2015 final decision of the Merit Systems Protection Board (“Board“) that sustained the denial by the Agency of her request for secondary Customs and Border Protection Officer (“CBPO“) retirement credit based upon her service as an Instructor at FLETC. J.A. 1-8. For the reasons set forth below, we affirm.
BACKGROUND
I.
Federal retirement laws extend enhanced benefits to certain groups, such as law-enforcement officers (“LEOs“) and firefighters, who have served in physically rigorous positions. Under the Federal Employees’ Retirement System (“FERS“),1 those benefits include, inter alia, eligibility to retire with an annuity at an earlier age than many other federal employees and eligibility to retire based on fewer years of service. Compare
II.
Ms. Fitzgerald began her career with the federal government as an Immigration Inspector (GS-1816 series) with the Immigration and Naturalization Service (“INS“) of the Department of Justice. She worked in that capacity from August 2, 1987, to July 2, 1988. Subsequently, from July 3, 1988, to May 6, 2000, she served as a Customs Inspector (GS-1890 series) with the Customs Service (“Customs“) of the Department of the Treasury.2 Ms. Fitzgerald has been continuously employed in various Instructor positions at FLETC since May of 2000.3 One of her main responsibilities while at FLETC has been providing training to criminal investigators and LEOs from various federal organizations.
On August 3, 2012, Ms. Fitzgerald requested that the Agency review her employment history so that she could obtain CBPO retirement credit for her past service with INS and Customs. The Agency denied her request on July 25, 2013, stating that the Act did not provide “retroactive service” credit for service performed before July 6, 2008, the effective date of the Act. Ms. Fitzgerald requested reconsideration and sought CBPO credit for her service at FLETC after the Act‘s effective date; the Agency denied her request on April 17, 2014.
III.
Ms. Fitzgerald timely appealed the denial of her claim to the Board. After conducting a hearing on September 19, 2014, the administrative judge (“AJ“) to whom the appeal was assigned affirmed the Agency‘s denial in an initial decision dated September 29, 2014. Fitzgerald v. Dep‘t of Homeland Sec., AT-0831-14-0684-I-1, 2014 WL 4987282 (Sept. 29, 2014) (“Initial Decision“). In arriving at his decision, the AJ examined the pertinent statutory and regulatory framework for determining whether Ms. Fitzgerald is entitled to
The Act amended FERS to make CBPOs eligible for enhanced retirement benefits. See Consolidated Appropriations Act, 2008, § 535(b)(2) (codified at
an employee in [DHS] (A) who holds a position within the GS-1895 job series (determined applying the criteria in effect as of September 1, 2007) or any successor position, and (B) whose duties include activities relating to the arrival and departure of persons, conveyances, and merchandise at ports of entry, including any such employee who is transferred directly to a supervisory or administrative position in [DHS] after performing such duties (as described in subparagraph (B)) in 1 or more positions (as described in subparagraph (A)) for at least 3 years.
Id. § 535(b)(1)(C) (codified at
(i) GENERAL RULE.---Except as provided in clause (ii), nothing in this section or any amendment made by this section shall be considered to apply with respect to any service performed as a [CBPO] before [July 6, 2008].
(ii) EXCEPTION.---Service described in section ... 8401(36) ... rendered before [July 6, 2008] may be taken into account to determine if an individual who is serving on or after such effective date then qualifies as a [CBPO] by virtue of holding a supervisory or administrative position in [DHS].
Id. § 535(e)(2)(B)(i)-(ii) (emphasis added). Thus, while not retroactive, the Act is retrospective. In other words, it does not allow service rendered before the July 6, 2008 effective date to form the basis for CBPO retirement credit. However, it does permit such prior service to be considered when determining whether a position held in DHS on or after the effective date (Ms. Fitzgerald‘s circumstance) qualifies as a “supervisory or administrative” position for purposes of CBPO retirement credit (the question in Ms. Fitzgerald‘s case). See 76 Fed. Reg. at 41,994 (explaining that if an individual is in a supervisory or administrative position on July 6, 2008, that individual‘s eligibility to be a CBPO will be determined by “looking back at the individual‘s employment history to determine whether the requirements for coverage would have been met if the provisions of [section] 535 had been in effect during the earlier employment history“).
Pursuant to its authority to promulgate regulations to implement the amendments to FERS, OPM issued final regulations governing enhanced retirement benefits for CBPOs on July 18, 2011. The regulations’ definition of CBPO relates to the definition of CBPO in
Under the regulations, a primary CBPO position is a position “classified within the [CBPO] (GS-1895) job series (determined applying the criteria in effect as of September 1, 2007) or any successor position whose duties include the performance of work directly connected with activities relating to the arrival and departure of persons, conveyances, and merchandise at ports of entry.”
(1) Supervisory; i.e., a position whose primary duties are as a first-level supervisor of [CBPOs] in primary positions;
or
(2) Administrative; i.e., an executive, managerial, technical, semiprofessional, or professional position for which experience in a primary [CBPO] position is a prerequisite.
Id. (emphasis added).
An employee‘s service in a primary CBPO position is automatically “covered,” meaning the service is credited toward retirement eligibility under
(i) A first-level supervisor of an employee in [a Retrospective CBPO Position];
or
(ii) A executive, managerial, technical, semiprofessional, or professional position for which experience in [a Retrospective CBPO Position] is a mandatory prerequisite.
Id. § 842.1003(c)(2)(i)-(ii) (emphasis added).
Before the Board, Ms. Fitzgerald did not contend that any of her Instructor positions at FLETC were primary posi-
In considering Ms. Fitzgerald‘s prior service, the AJ began by looking to the rules for service that occurred before September 1, 2007, because Ms. Fitzgerald transferred to FLETC in the year 2000. The AJ found that Ms. Fitzgerald‘s positions at INS and Customs qualified as Retrospective CBPO Positions, which meant she had completed the requisite 3 years of service in a primary position before transferring to FLETC. See Initial Decision at 4. Next, the AJ considered whether the Instructor position at FLETC to which Ms. Fitzgerald initially transferred (“the Initial Position“) qualified as a secondary position. The AJ found that “there is no evidence” that the Initial Position qualified as a “first-level supervisor” position under
On this point, the AJ looked to the Initial Position‘s job description and determined that experience in a Retrospective CBPO Position was not a prerequisite for the position.5 Rather, the AJ noted, the position description only required experience or knowledge as an LEO. Id. According to the AJ, although Ms. Fitzgerald acquired the requisite knowledge and skill to qualify for the Initial Position through her years of service in Retrospective CBPO Positions with INS and Customs, the position description included no language suggesting that knowledge or experience unique to CBPOs was required to perform the duties of the Initial Position. See id. at 4-5. The AJ therefore concluded that the Initial Position did not qualify as a secondary position under
In addition to her arguments on the merits of her eligibility for CBPO retirement credit, Ms. Fitzgerald asserted that OPM‘s regulations were inconsistent with the statute. The AJ disagreed. In his view, OPM‘s interpretation of the phrase “super-
Ms. Fitzgerald filed a petition for review of the Initial Decision. Echoing the AJ‘s reasoning, a two-member panel of the Board denied the petition and affirmed the Initial Decision, which became the Board‘s final decision. See J.A. 1-9. Ms. Fitzgerald timely petitioned for review of the final decision. We have jurisdiction pursuant to
DISCUSSION
I.
We review the Board‘s decision to determine whether 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.”
Ms. Fitzgerald makes two arguments on appeal. First, she contends that the regulations upon which the Board based its decision should be found invalid for contradicting the plain language of
II.
A.
“Our review of questions of statutory interpretation is de novo, except to the extent deference to an agency‘s construction of a statute it administers is required under the two-step analysis set forth in Chevron.” NSK Ltd. v. United States, 390 F.3d 1352, 1354 (Fed. Cir. 2004) (citation omitted); see also Vassallo v. Dep‘t of Def., 797 F.3d 1327, 1330 (Fed. Cir. 2015) (explaining that we review an agency‘s statutory interpretation using the two-pronged framework established by Chevron). The first prong of Chevron requires us to assess “whether Congress has directly spoken to the precise question at issue“; if so, we “must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). If the statute does not answer the specific question at issue, however, meaning that it is “silent or ambiguous,” then, under prong two of Chevron, we must determine whether the agency provided “a permissible construction of the statute.” Id. at 843; Hymas v. United States, 810 F.3d 1312, 1318 (Fed. Cir. 2016). “If Congress has explicitly left a gap for [an] agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.” Chevron, 467 U.S. at 843-44. “Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844. In other words, to survive judi-
Ms. Fitzgerald argues that OPM‘s regulations—namely,
In support of her position, Ms. Fitzgerald avers that OPM‘s regulations also conflict with the purpose of the statute. According to Ms. Fitzgerald, the legislative history shows that the Act was intended to help recruit and retain CBPOs by providing to them the same retirement benefits enjoyed by LEOs. The regulations do not promote these goals, she contends, because, under the regulations, CBPOs may not transfer to positions for which their experience is valuable but not a prerequisite without losing their CBPO status and associated retirement credit. Without such flexibility, Ms. Fitzgerald reasons, CBPOs have less incentive to work at DHS.
For its part, the government contends that the statute is silent regarding what constitutes a “supervisory or administrative” position for purposes of CBPO status. Given this silence, and pursuant to its statutory authority to administer the Act, the government argues, OPM promulgated valid regulations that are entitled to deference under Chevron. In the government‘s view, Congress‘s reliance on OPM to fill the gaps as to the meaning of the term “supervisory or administrative” position is consistent with its approach to retirement benefits for other special groups (e.g., LEOs and firefighters), which indicates it intended for the Act to be implemented in the same manner. The government also suggests that Congress‘s silence as to the meaning of this term is consistent with its express delegation of rulemaking authority to OPM to administer the Act.
Regarding prong two of Chevron, the government urges that OPM‘s interpretation is based on a permissible construction of the statute. According to the government, the regulations are consistent with the purpose of recruiting and retaining CBPOs because they provide enhanced retirement benefits to CBPOs consistent with those enjoyed by other special groups, and they ensure that senior CBPOs stay in the Agency to share their knowledge and experience with junior CBPOs.
B.
In our view, Congress has not directly spoken to the precise question at issue in this case. We have explained that
Congress‘s awareness of OPM‘s approach to other special retirement groups bolsters our conclusion on the first prong of Chevron. As noted, LEOs and firefighters already received enhanced retirement benefits when the Act was enacted in 2007. Because the statute in place did not define “supervisory or administrative” positions for the purpose of qualifying as an LEO or a firefighter, OPM issued regulations that did. See
Contrary to Ms. Fitzgerald‘s assertion, neither the statute nor the legislative history clearly demonstrates that Congress intended for secondary CBPO positions to include any supervisory or administrative position in DHS. Section 8401(36) plainly refers to “a” supervisory or administration position, not “any” such position. Accepting Ms. Fitzgerald‘s interpretation would impermissibly read the word “any” into the statute. See Vallee v. Office of Pers. Mgmt., 58 F.3d 613, 615 (Fed. Cir. 1995) (“It is incorrect to read a statute contrary to its plain text, absent compelling evidence of contrary congressional intent.“) Lest there be any doubt on this point, counsel for Ms. Fitzgerald agreed at oral argument before us that
Accordingly, we conclude that Congress has not “directly spoken” to the question of what constitutes a supervisory or administrative position in DHS for the purpose of meeting the definition of a CBPO under
C.
Turning to prong two of Chevron, we think
In any event, Ms. Fitzgerald does not explicitly argue that OPM‘s interpretation is an impermissible construction of the statute. Rather, she asserts that the regulations are inconsistent with the purpose of the Act, which could be read as a contention that the regulations are unreasonable. Either way, we are not persuaded. Ms. Fitzgerald cites legislative history that suggests the purpose of the Act is “to help recruit and retain [CBPOs] by providing
Accordingly, because we find that Congress has not answered the specific question at issue and because we find that OPM has provided a permissible construction of the statute, we conclude that the regulations at issue are not invalid.
III.
A.
We now turn to the Agency‘s denial of Ms. Fitzgerald‘s claim for retirement credit for her service at FLETC from July 6, 2008, forward.
Ms. Fitzgerald asserts that, even if the regulations at issue are not invalid, the Board incorrectly determined that the Initial Position was not a secondary position. The parties do not dispute that the Initial Position was not a supervisory position under
The government responds that there is no evidence in the record indicating that the Initial Position required experience in a Retrospective CBPO Position. In its view, the job description alone is substantial evidence that an individual could have obtained the Initial Position without ever having served in a Retrospective CBPO Position.
B.
As explained above, in order for Ms. Fitzgerald to prevail on her claim for retirement credit based upon her serving as an Instructor at FLETC, the Board had to find, inter alia, that CBPO experience in a Retrospective CBPO Position was a mandatory prerequisite for the Initial Position, meaning the Initial Position qualified as a secondary position under
On its face, the job description only required “[e]xperience in a primary Federal law enforcement position.” See J.A. 351-53. Nor did it implicitly indicate that the requisite experience pertained to work related to the unique duties of an individual in a Retrospective CBPO Position--i.e., work directly connected with activities relating to the arrival and departure of persons, conveyances, and merchandise at ports of entry. See id.;
Accordingly, we conclude that the Board‘s decision that Ms. Fitzgerald‘s prior service did not meet the criteria of
CONCLUSION
We hold that
AFFIRMED
Costs
Each party shall bear its own costs.