Case Information
*2 Before R ADER , Chief Judge, L OURIE , and O’M ALLEY ,
Circuit Judges.
P ER C URIAM .
Mr. Jоhn D. Maiers (“Maiers”) appeals from a decision of the Merit Systems Protection Board (“the Board”) denying his claim under 38 U.S.C. § 4311, a provision of the Uniform Services Employment and Reemployment Rights Act (“USERRA”). The Board held that the De- partment of Health and Human Services (“HHS”) did not violate § 4311—which prohibits the denial of employment benefits on the basis of an employee’s military service— when HHS enrolled Maiers in the Federal Employees Retirement System (“FERS”) rather than the Civil Service Retirement System (“CSRS”). Because the Board correct- ly determined that Maiers did not qualify for enrollment in CSRS and, thus, did not establish the elements of his USERRA claim, we affirm .
B ACKGROUND
Maiers served in the United States Army from Sep- tember 1969 to June 1971, totaling one year and nine months of military service. Between 1971 and 1979, Maiers held a variety оf positions in federal civilian service, accumulating four years and nine months of civilian service. In September 2010, Maiers returned to government service and obtained his current position with the Food and Drug Administration (“FDA”), a division of HHS. When hired, FDA enrolled Maiers in FERS.
Sоon after his enrollment, Maiers emailed the FDA human resources office, arguing that he should have been enrolled in the CSRS offset program (“CSRS Offset”) instead of FERS. An FDA human resources employee *3 JOHN MAIERS
contacted him by letter and explained that he was not еligible for CSRS Offset because he did not have the five years of civilian civil service required for CSRS eligibility.
Unhappy with this determination, Maiers filed a com- plaint with the Department of Labor (“Labor”) alleging that HHS, by enrolling him in FERS instead of CSRS Offset, violated USERRA because HHS discriminated against his military service by discounting it for CSRS eligibility. In a January 28, 2011 letter, Labor explained to Maiers that CSRS eligibility required five years of creditable civilian service prior to December 31, 1986. Labor denied Maiers’ complaint in a subsequent letter dated January 31, 2011.
Maiers next requested that his USERRA complaint be referred to the Office of Special Counsel. The Office of Special Counsel declined to represent Maiers before the Board. Nevertheless, Maiers filed an appeal with the Board on August 5, 2011, alleging, among other things, that HHS violated USERRA when it enrolled him in FERS.
A. The Board’s Initial Decision
Before the Board, Maiers argued that HHS had vio- lated USERRA when it enrolled him in FERS instead of CSRS because, by doing so, HHS discriminated against his military service. The Board found that Maiers failed to establish a USERRA violation. Tо show such a viola- tion, the Board reasoned, Maiers had to make non- frivolous allegations that: (1) he lost a benefit of employ- ment or some other right protected by USERRA, and (2) his military service was a substantial motivating factor in the loss of that right or benеfit. To establish that his military service was a substantial motivating factor, Maiers had to establish first that HHS violated the law, according to the Board. Interpreting 5 U.S.C. § 8402(b)(2)(A), the pertinent provision of FERS detailing CSRS eligibility, the Board concluded that HHS was legally required to enroll Maiers in FERS (not CSRS) because Maiers did not meet the statutory criteria for enrollment in CSRS. Accordingly, since there was no violation of the statute, Maiers’ military service could not be a substantial motivating factor in HHS’ decision.
Having dismissed Maiers’ USERRA claim, the Board dеtermined that it lacked jurisdiction over the remaining claims because Maiers had not filed them with the Office of Personnel Management (“OPM”) and OPM had ren- dered no decision for the Board to review. Furthermore, the Board determined that Maiers could not yеt submit a claim under the Federal Erroneous Retirement Coverage Corrections Act because he had not been employed by HHS for three years. The Board accordingly dismissed Maiers’ remaining claims.
B. The Board’s Final Decision
Maiers filed a request for the full Board to review the
Board’s initial decision. In his request, Maiers argued
that: (1) the initial decision’s interpretation of FERS
violates USERRA; (2) the initial decision suffered from
numerous procedural problems,
including
improper
dismissal for lack of jurisdiction, improper reliance on
Labor’s findings, and failure by the administrative judge
to clearly articulate his findings; and (3) the administra-
tive judge failed to apply this court’s holding in
Butter-
baugh v. Department of Justice
,
The Board affirmed the initial decision because the administrative judge correctly found that Maiers did not meet the statutory requirements for CSRS eligibility and failed to demonstrate that HHS incorrectly applied the law. The Board also concluded that the administrative *5 JOHN MAIERS
judge’s failure to cite Butterbaugh did not render the decision any less correct. Finally, the Board dismissed Maiers’ procedural arguments because, in its view, they lackеd merit.
Maiers appeals the Board’s decision to this court. On appeal, Maiers argues that: (1) the Board incorrectly interpreted 5 U.S.C. § 8402(b)(2)(A), which provides the pertinent CSRS eligibility requirements, to require five years of civilian service; (2) USERRA trumps prior federаl law to the extent that law conflicts with USERRA; and (3) under Butterbaugh, the Board erred in requiring Maiers to show that his military service was a substantial moti- vating factor for HHS’s decision.
L EGAL S TANDARD
The court “shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be (1) arbitrary, capricious, an abuse of discre- tion, 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.” 5 U.S.C. § 7703(c). The Bоard’s interpretation of a statute is a determination of law that we review de novo on appeal. See Marano v. Dep’t of Justice , 2 F.3d 1137, 1141 (Fed. Cir. 1993).
D ISCUSSION
As this case largely turns on the correct interpretation
5 U.S.C. § 8402(b)(2)(A), we begin with a discussion of the
statutory scheme. In 1920, Congress established CSRS as
a retiremеnt system for certain federal employees. CSRS
was subsequently replaced by FERS in 1986 for federal
employees, effective on January 1, 1987.
See
FERS Act of
1986, Pub. L. No. 99-335, 100 Stat. 514 (1986). Certain
employees in service prior to that date could opt out of
FERS, however, and sеek to remain covered under CSRS.
5 U.S.C. § 8331(1)(L)(x);
Conner v. Office of Pers.
Mgmt
,
The exception
in dispute here
is
found
in
§ 8402(b)(2)(A). It can be satisfied, among other ways, by
an employee “having been subject to subchapter III of
chapter 83 of this title” and “having completed at least 5
years of civilian service creditable under subchapter III of
chapter 83 of this title.” 5 U.S.C. § 8402(b)(2)(A).
“[S]ubchapter III of chapter 83 of this title” contains
provisions detailing the CSRS system.
See
5 U.S.C.
§§ 8331-51. Accordingly, for an employee to be eligible for
CSRS after the institution of FERS, he or she must have
previously been subject to CSRS and have had at least
five years of creditable civilian service under CSRS.
See Conner
,
Turning to Maiers’ claim, we agree with the Board that he is ineligible for CSRS coverage because he lacks five years of creditаble “civilian service.” Maiers argues that creditable “civilian service” should include prior military service because § 8332 allows military service sometimes to be creditable under CSRS. Allowing mili- tary service to be creditable in some situations but not others, he contends, would be inconsistent. We are not persuaded.
In cases involving the construction of a statutory pro- vision, the starting point is always the language of the statute itself. Ernst & Ernst v. Hochfelder , 425 U.S. 185, 197 (1976). The pertinent provision here requires five years of “civilian service.” 5 U.S.C. § 8402(b)(2)(A)(ii)(I). The plain meaning of the word “civilian” is “of or relating to civilians; not in or of the armed forces; non-military.” civilian , O XFORD E NGLISH *7 JOHN MAIERS
D ICTIONARY , http://www.oed.com/view/Entry/33577? redirected%20From=civilian#eid (last visited Mar. 27, 2013). Plainly, Maiers’ military service is insufficient to make him eligible for CSRS coverage.
Our case lаw fully supports this interpretation of
CSRS and, in analogous circumstances, explicitly rejects
Maier’s argument. In
Tirado v. Dep’t of Treasury
, 757
F.2d 263 (Fed. Circ. 1985), we analyzed § 8337(a), a
provision of CSRS that requires five years of civilian
service for disability retirement eligibility. 757 F.2d
at 264-65. We rejected the argumеnt that military service
creditable under § 8332 for the purpose of calculating the
proper annuity should also count as civilian service to
meet the eligibility requirements of § 8337(a).
Id.
at 265.
We explained that the five-year civilian service require-
ment is a “threshold standard of eligibility” and only if
this threshold standard is met could military service be
counted to determine the appropriate annuity.
Id.
“Con-
gress obviously wanted only those individuals with a
minimum of federal
civilian
service to be entitled to a
federal civil service annuity.”
Id.
;
see also Tizo v. Office of
Pers. Mgmt
,
Maiers attempts to distinguish our case law by argu- ing that, in those cases, we interpreted sections of CSRS itself, not the section of FERS that currently governs CSRS eligibility. This distinction is of no moment. Our prior case law interpreted the requirements for CSRS eligibility, which at that time were outlined in provisions of CSRS. We are again analyzing similar requirements for CSRS eligibility, but those requirements are now housed in FERS, among other places. We can appropri- ately take guidance from this precedent. [1]
Maiers next argues that USERRA supersedes federal
retirement law and requires that he be allowed to count
his military service toward CSRS’s five-year requirement.
It is a “cardinal principle of statutory construction that
repeals by implication are not favored.”
U.S. v. United
Cont’l Tuna Corp.
,
*9 JOHN MAIERS
Having determined that Maiers is not eligible for
CSRS, his USERRA claim falls apart. A claim under 38
U.S.C. § 4311 of USERRA requires the claimant to show
that he was (1) denied a benefit of employment and (2) his
military service was a substantial motivating factor for
the denial.
See Sheehan v. Dep’t of Navy
,
In
Butterbaugh
, we determined that claimants need
not show that their military service was a substantial
motivating factor when the benefits at issue were only
available to those in military service.
Butterbaugh
,
Here, under the relevant statute, Maiers is not eligi- ble for CSRS coverage. So even under this court’s holding in Butterbaugh , Maiers’ USERRA claim fails. Further- more, the Board did not err by conducting its analysis under Sheehan instead of Butterbaugh . Butterbaugh only eliminates the substantial motivating factor requirement when the benefits at issue arе available only to those in military service. CSRS is available to civilian government Circ. 2001) (refusing to consider arguments made by pro se appellant at oral argument).
employees as well as military service personnel. Accord- ingly, the Board correctly applied Sheehan to resolve Maiers’ claim by finding that he failed to show that his military service was a substantial motivating factor in the denial of a benefit.
C ONCLUSION
The Board correctly determined that Maiers was not eligible for CSRS coverage and that Mаiers, thus, failed to establish the elements of a successful USERRA claim. The Board’s dismissal of the present appeal is therefore affirmed .
AFFIRMED
Notes
[1] Maiers also argues that HHS should wait to de- termine his CSRS eligibility because, in just a few more months, he would have the required five yeаrs of civilian service. But § 8402(b)(2)(A) requires that the five years of service be completed prior to the employee’s reemploy- ment into government service. Connor , 104 F.3d at 1348 (“Subsection (b)(2)(A) requires employees who have returned to government service аfter an absence to have had five years of creditable service . . . .”) (emphasis added).
[2] Somewhat relatedly, Maiers also argues for the first time in his reply brief that the Equal Protection Clause of the Fifth Amendment requires that his military service count towards CSRS’s five year requirement. We refuse to consider this argument, however, as “[i]t is well settled that an appellant is not permitted to make new arguments that it did not make in its opening brief.” Pieczenik v. Dyax Corp. , 265 F.3d 1329, 1332-33 (Fed.