Opinion

Susan L Simpson v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Feb 28, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.3%

holding that a policy that adds a requirement not found in the relevant statute and regulation is a substantive rule that is invalid unless it is promulgated with notice and comment

How later courts described this case

holding that a policy that adds a requirement not found in the relevant statute and regulation is a substantive rule that is invalid unless it is promulgated with notice and comment

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SUSAN LYN SIMPSON, DOCKET NUMBER

Appellant, AT-0842-18-0549-I-2

DEPARTMENT OF THE NAVY, DATE: February 28, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Stephan B. Caldwell , Esquire, Riverdale, Georgia, for the appellant.

Kendall Scott Rocio , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The agency has filed a petition for review of the initial decision, which

reversed its decision denying the appellant’s request for Federal Employees’

Retirement System (FERS) air traffic controller (ATC) special retirement

coverage. Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision were

not consistent with required procedures or involved an abuse of discretion, and

the resulting error affected the outcome of the case; or new and material evidence

or legal argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that the petitioner has not established any basis under

section 1201.115 for granting the petition for review. Therefore, we DENY the

petition for review and AFFIRM the initial decision, which is now the Board’s

final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

On July 14, 2003, the agency appointed the appellant to the position of Air

Traffic Control Specialist, GS-2152-11. Simpson v. Department of the Navy,

MSPB Docket No. AT-0842-18-0549-I-1, Initial Appeal File (IAF), Tab 10

at 127; Hearing Transcript (HT) at 139 (testimony of the appellant). On

February 16, 2017, the appellant requested a position review, seeking a

determination that she was entitled to special retirement coverage retroactive to

her appointment date. IAF, Tab 24 at 44. On May 8, 2018, the agency issued a

final decision finding that the appellant’s request was untimely and that her

position did not meet the requirements for special retirement coverage. IAF,

Tab 13 at 21-23.

The appellant filed a Board appeal contesting the agency’s decision. IAF,

Tab 1. After a hearing, the administrative judge issued an initial decision

reversing the agency’s determination and ordering the agency to grant the

appellant ATC special retirement coverage. Simpson v. Department of the Navy,

MSPB Docket No. AT-0842-18-0549-I-2, Appeal File (I-2 AF), Tab 20, Initial

Decision (ID). The agency has filed a petition for review, disputing the initial

decision on several bases. Petition for Review (PFR) File, Tab 1. The appellant

has responded in opposition to the petition for review, and the agency has filed a

reply to the appellant’s response. PFR File, Tabs 7-8.

ANALYSIS

Under 5 U.S.C. § 8412(e), an individual employed as an ATC is entitled to

an immediate retirement annuity after 25 years of service or after becoming

50 years of age and completing 20 years of service. This is earlier than most

employees covered under FERS may retire. See 5 U.S.C. § 8412(a)-(c). In

addition, individuals covered by 5 U.S.C. § 8412(e) receive an enhanced annuity

compared to most employees covered under FERS. Compare 5 U.S.C.

§ 8415(a), (i), with 5 U.S.C. § 8415(e). The agency head is responsible for

determining, based on the position description and other appropriate evidence,

whether a given position is an ATC position. 5 C.F.R. §§ 842.803(c), .804(b).

The agency’s final decision is appealable to the Board. 5 C.F.R. § 842.807(a).

An employee seeking special retirement coverage bears the burden of proving, by

preponderant evidence, her entitlement to such coverage. Fritts v. Department of

Homeland Security, 102 M.S.P.R. 265, ¶ 6 (2006).

The appellant has rebutted the presumption that the agency’s retirement status

determination was correct.

If the agency head has not determined that a given position is an ATC

position, and the incumbent employee has not requested such determination

within 6 months of entering the position, then the agency head’s determination

that the service was not so covered at the time of the service is presumed to be

correct. 5 C.F.R. § 842.804(c). The employee may rebut this presumption by

showing that she was unaware of her status or was prevented by cause beyond her

control from requesting that the official status be changed at the time the service

was performed. Id. If the employee does not request ATC credit within the

6-month period specified in section 842.804(c) or show good cause for the failure

to do so, the agency’s determination will be deemed conclusive and the Board

will not review the merits of that determination. Bingaman v. Department of the

Treasury, 127 F.3d 1431, 1441 (Fed. Cir. 1997).

In her initial decision, the administrative judge found that, although the

appellant did not request a coverage determination within 6 months of entering

the Air Traffic Control Specialist position, she was unaware of her status at the

time and requested a coverage determination promptly after she learned of her

status. ID at 2-4. Specifically, the administrative judge found that the appellant

was not initially aware of her status and believed that she was covered under the

ATC retirement system. ID at 3. It was not until she attended a 2013 retirement

seminar that the appellant noticed that her leave and earnings statement indicated

that she was not in the ATC special retirement system. Id. The seminar

instructor told the appellant that this was probably a coding error, and that she

should contact the Defense Finance Accounting Service to get it corrected.

ID at 3-4. However, once it became clear that this was more than a coding issue,

the appellant “began to vigorously pursue[] the matter.” ID at 4. Based on these

facts, the administrative judge found that the appellant successfully rebutted the

presumption of 5 C.F.R. § 842.804(c) and proceeded to the merits of the

retirement coverage determination. ID at 4.

On review, the agency argues that the evidence does not support the

administrative judge’s findings. PFR File, Tab 1 at 9-12, 17-25. Specifically, the

agency argues that there is no evidence to support the appellant’s testimony that

she attempted to correct her retirement coverage expeditiously after the 2013

retirement seminar; the earliest documentary evidence of the appellant’s attempt

to correct her retirement coverage dates to March 2016—3 years after the 2013

retirement seminar. PFR File, Tab 1 at 9-11, 19-20; IAF, Tab 13 at 7-9. In fact,

the appellant made several prior inconsistent statements about when the

retirement seminar was held and when she first attempted to contest her

retirement coverage. PFR File, Tab 1 at 11-12, 20-23. The agency argues that,

by waiting 3 years to pursue special retirement coverage, the appellant did not act

expeditiously and therefore failed to rebut the presumption of correctness as set

forth in 5 C.F.R. § 842.804(c). Id. at 23-25.

We find that the agency’s arguments provide no basis to disturb the initial

decision because they conflate the date on which the appellant became aware of a

problem with her retirement coverage code with the date on which she became

aware of a problem with her actual retirement coverage. The administrative judge

did not find that the appellant became aware of her retirement status during the

2013 seminar. Rather, she found that the appellant became aware that the coding

on her leave and earnings statement was inconsistent with ATC special retirement

coverage. ID at 3-4. Her efforts to correct the coding issue do not show that she

was yet aware that she was actually in a non-ATC retirement system. See

Streeter v. Department of Defense, 80 M.S.P.R. 481, ¶ 9 (holding that, when an

appellant claims that she was unaware of her retirement status under 5 C.F.R.

§ 842.804(c), the question is whether she was actually unaware). In other words,

the appellant was under the impression that the coding did not match her

coverage. It was during this process of attempting to correct the presumed coding

error that the appellant learned that the coding was correct and that her position

had been excluded from ATC special retirement coverage. ID at 4.

There is nothing in the record to contradict the administrative judge’s

finding that the appellant worked expeditiously thereafter to attain ATC special

retirement coverage. ID at 3-4. Not only is this finding consistent with the

appellant’s testimony, HT at 142-82 (testimony of the appellant), but it is also

consistent with the documentary evidence that the agency cites on review. This

evidence shows that, on March 23, 2016, the appellant contacted the agency’s

Civilian Benefits Center (CBC), stating that she was “in the Wrong [sic]

retirement code.” I-2 AF, Tab 13 at 7-8. The CBC worked on the issue for

several months, trying to get the retirement code “corrected.” Id. at 8. It was not

until June or July 2016 that a human resources official notified CBC that the

coding was not a clerical error because the appellant’s position description “does

not reflect the duties of an ATC and should not be in the coverage.” Id. The

earliest documentary evidence even suggesting that the agency informed the

appellant of her status is a CBC case log entry dated July 6, 2016, stating that the

appellant’s supervisor had briefed her on the issue. Id. According to the agency,

the appellant requested a new coverage determination on October 13, 2016—

approximately 3 months later. IAF, Tab 13 at 21. Because the appellant sought a

special retirement coverage determination within 6 months of the date that she

became aware of her status, we find that the presumption of correctness under

5 C.F.R. § 842.804(c) has been rebutted and that the Board may review the merits

of the agency’s determination. See Mosely v. Department of Veterans Affairs,

86 M.S.P.R. 302, ¶¶ 8-9 (2000).

The appellant has stated a claim upon which relief can be granted.

An appeal within the Board’s jurisdiction may be dismissed for failure to

state a claim if the appellant cannot obtain effective relief before the Board even

if her allegations are accepted as true. Young v. Federal Mediation and

Conciliation Service, 93 M.S.P.R. 99, ¶ 5 (2002), aff’d, 66 Fed. App’x 858

(Fed. Cir. 2003). In this case, the agency argued that, if the Board were to find

that the appellant’s Air Traffic Control Specialist position met the requirements

for ATC coverage, then the maximum separation age provisions of 5 U.S.C.

§ 8425(a) would also apply. I-2 AF, Tab 5 at 5. Applying those provisions, the

appellant’s age would preclude her from serving the minimum 20 years in her

position before reaching her mandatory separation date. Id. at 6. The agency

argues that, therefore, the appellant can present no set of facts in which she could

actually obtain an ATC retirement, and so her appeal should be dismissed for

failure to state a claim upon which relief can be granted. Id. at 7-8. The

administrative judge denied the agency’s motion, finding that the issue before her

was the retirement system in which the appellant should be placed—not whether

she is ultimately entitled to receive an ATC annuity. I-2 AF, Tab 10 at 1-2. The

agency contests this ruling on review. PFR File, Tab 1 at 13-17.

We decline to revisit the administrative judge’s ruling because, whatever

the merits of the agency’s argument, the issue is now moot. According to the

agency, the appellant’s mandatory separation date would have been in April 2023,

but she would not have had 20 years of service as an Air Traffic Control

Specialist until 3 months later—July 14, 2023. PFR File, Tab 1 at 16. Both of

those dates have now passed. Therefore, the appellant now has more than

20 years of service in her position, regardless of whether she should have, in

hindsight, been separated before she reached that mark. In other words, even

assuming that the agency should have separated the appellant from service in

April 2023, the agency did not do so, and the appellant’s age is no longer a bar to

her earning an ATC annuity.

The appellant’s Air Traffic Control Specialist position meets the requirements for

air traffic controller special retirement coverage.

For purposes of special retirement coverage, an ATC is “a civilian

employee of the Department of Transportation or the Department of Defense in an

air traffic control facility or flight service station facility who is actively engaged

in the separation and control of air traffic or in providing preflight, inflight, or

airport advisory service to aircraft operators.” 5 U.S.C. §§ 2109(1), 8401(35);

5 C.F.R. § 842.802. The agency denied the appellant’s request for ATC

coverage, finding that the “primary duties” of her position were not to engage in

the separation and control of aircraft but to “plan, establish, and conduct a

continuing training and proficiency development program for the local ATC

facility.” IAF, Tab 13 at 21-22, 61-63. According to the agency, to meet the

“actively engaged” requirement of the statute, Department of Defense (DOD)

components require that an employee be actively engaged in separating and

controlling aircraft at least 25% of the time, whereas the appellant was actively

engaged in separating and controlling aircraft only about 15% of the time.

Id. at 12-14.

In her initial decision, the administrative judge found that the agency’s

25% requirement had no support in the statute or the Office of Personnel

Management’s (OPM) implementing regulations. ID at 7. She found that,

although the statute required firefighters and law enforcement officers to perform

certain duties as their “primary duties” as a condition of special retirement

coverage, there was no such “primary duty” requirement for ATCs. Id. Because

it was undisputed that the appellant was actively engaged in the separation and

control of aircraft at least some of the time, even if was not her primary duty, the

administrative judge found that she was entitled to ATC special retirement

coverage. ID at 6-8.

On petition for review, the agency argues that the Department of the Navy,

the Department of the Army, and the Department of the Air Force all use the 25%

requirement for ATC special retirement coverage. PFR File, Tab 1 at 25.

It explains that, because the statutes and regulations do not specify what

percentage of time an employee must spend actively engaged in separating and

controlling aircraft, DOD looked to OPM’s classification standards for guidance.

Id. The classification standards provide that an employee’s duties are

“significant and substantial” when they occupy at least 25% of her time, and so

the agency adopted this as a reasonable threshold for ATC special retirement

coverage. Id.; IAF, Tab 10 at 26, Tab 13 at 62.

However, the question is not whether the 25% requirement is reasonable—

the question is whether it is lawful. For the reasons explained by the

administrative judge, we find that it is not. ID at 6-8. The agency does not seem

to have considered that the statutes and regulations are silent on the minimum

percentage of ATC duties required because there was no minimum percentage

intended. The plain language of the statute provides ATC retirement coverage for

employees who are actively engaged in the separation and control of aircraft—

full stop. 5 U.S.C. §§ 2109(1)(A)(i); 8401(35), 8412(e). Unlike special

retirement for firefighter and law enforcement positions, there is no requirement

that such ATC duties be “primary,” “significant and substantial,” occupy a certain

percentage of the employee’s time, or anything of the sort. 5 U.S.C. § 8401(14)

(A)(i), (17)(A)(i); 5 C.F.R. § 842.802. Congress’s decision to omit a primary

duty requirement from its definition of ATC has every appearance of being

intentional in light of its decision to include such a requirement for firefighters

and law enforcement officers in the very same statute. “When Congress includes

particular language in one section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” Moulton v. Office of

Personnel Management, 2023 MSPB 26, ¶ 17 (citing Russello v. United States,

464 U.S. 16, 23 (1983)); see Hyundai Steel Co. v. United States, 19 F.4th 1346,

1353 (Fed. Cir. 2021). This principle applies all the more strongly when

comparing provisions found in the same section of a statute.

DOD’s policy imposing a 25% time threshold is not a procedural

mechanism, a gap-filling measure, or a resolution of ambiguity. It is an

additional substantive requirement for ATC special retirement coverage that the

agency has added on top of the requirements already imposed by Congress. As a

result, the agency’s ATC special retirement coverage policy is contrary to the

law. See United States v. Picciotto, 875 F.2d 345, 348 (D.C. Cir. 1989) (holding

that a policy that adds a requirement not found in the relevant statute and

regulation is a substantive rule that is invalid unless it is promulgated with notice

and comment). 2 The agency is attempting to make this case more complicated

than it is. It is undisputed that the appellant is actively engaged in ATC duties at

We note that OPM—not DOD or any DOD component—is the agency authorized to

prescribe regulations to carry out 5 U.S.C. chapter 84. 5 U.S.C. § 8461(g). The agency

has identified nothing in OPM’s regulations or guidance to support its position in this

case. In this regard, we observe that not even OPM has been authorized to create new

substantive requirements for ATC special retirement coverage.

least some of the time. PFR File, Tab 1 at 26. Therefore, she meets the

definition of ATC for purposes of 5 U.S.C. § 8401(35). Because the appellant

meets this definition, she is entitled to special retirement coverage under 5 U.S.C.

§ 8412(e). No further analysis is required.

ORDER

We ORDER the agency to grant the appellant the appropriate amount of

ATC retirement credit. In connection with these awards, the appellant is

ORDERED to make appropriate arrangements with the agency to deposit into the

Civil Service Retirement and Disability Fund an amount to cover the higher

withholding rate that applies to aircraft controller positions.

We also ORDER the agency to tell the appellant promptly in writing when

it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 4 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following