Service Credit for Retirement Annuities of USPS Employees When USPS Has Not Made Required Contributions

Service Credit for Retirement Annuities of

USPS Employees When USPS Has Not

Made Required Contributions

The Office of Personnel Management may not address the United States Postal Service’s

failure to make statutorily required retirement contributions by denying its employees

accrued service credit under the Federal Employees’ Retirement System during their

periods of qualifying federal employment.

November 1, 2011

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

OFFICE OF PERSONNEL MANAGEMENT

AND

THE GENERAL COUNSEL AND EXECUTIVE VICE PRESIDENT

UNITED STATES POSTAL SERVICE

On June 22, 2011, the United States Postal Service (“USPS” or “Postal

Service”) notified the Office of Personnel Management (“OPM”) that,

because of its financial difficulties, the Postal Service, as a cash conserva-

tion measure, was suspending its employer contributions to the Civil

Service Retirement and Disability Fund (“the Fund”) on behalf of those

postal employees covered by the Federal Employees’ Retirement System

Act (“FERS”), 5 U.S.C. §§ 8401–8479 (2006 & Supp. IV 2010). In light

of that suspension, OPM requested an opinion from our Office regarding

(1) whether, and to what extent, OPM has discretion to offset the Postal

Service’s obligation to make employer retirement contributions against a

“surplus” the Postal Service asserts that it has accumulated in the Fund;

and (2) whether postal employees are entitled to receive service credit, for

purposes of determining their eligibility for retirement and calculating the

amount of their retirement annuity, for periods of employment during

which the Postal Service has not made its required employer contribu-

tions. 1 The Postal Service, an independent agency, joined OPM in the

request for an opinion and agreed to be bound by our decision. 2

1 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal

Counsel, from Elaine Kaplan, General Counsel, Office of Personnel Management (July

14, 2011) (“OPM Memo”). OPM enclosed with its submission an undated paper it had

received from USPS, with the heading “Effect of Suspension of Agency Contribution to

181

35 Op. O.L.C. 181 (2011)

In its submission to the Office of Legal Counsel (“OLC”), the Postal

Service indicated that, despite earlier disagreement, it now “does not

contest OPM’s position that the Postal Service is still obligated by the

statute to make its employer contribution, despite the existence of the

surplus.” USPS Memo at 14; see also id. at 4. The Postal Service, howev-

er, also specifically stated that it considers the question “whether the

[Postal Service’s] Board [of Governors] was justified in its decision to

suspend the employer contribution in order to conserve cash so as to avoid

a shutdown in mail service” to be outside “the scope of [OLC’s] review.”

Id. at 3 n.2. Thus, we do not address (i) whether OPM could offset the

Postal Service’s required contributions against any surplus it may have in

the Fund; (ii) whether the Postal Service’s apparent statutory violation

may be excused; or (iii) what other avenues of recourse OPM may have

against the Postal Service for its failure to make the statutorily required

contributions. Instead, this opinion addresses only the question whether,

under the relevant provisions of the FERS statute, postal employees are

entitled to receive service credit for periods during which the Postal

Service has not made the required employer contributions to the Fund.

The Postal Service argues that its employees should receive such credit.

Id. at 2–14. OPM disagrees, maintaining that employees cannot be credit-

ed with service for periods in which no employer contributions have been

made into the Fund. OPM Memo at 5–9. For the reasons that follow, we

agree with the Postal Service that OPM may not address the Postal Ser-

vice’s failure to make statutorily required contributions by denying its

employees accrued service credit under FERS during their periods of

qualifying federal employment.

I.

In 1986, Congress enacted the Federal Employees’ Retirement System

Act of 1986, Pub. L. No. 99-335, 100 Stat. 514 (codified as amended at

FERS on Employees” (“USPS Paper”). OPM has agreed provisionally to provide service

credit to postal employees who may retire while the issue is pending before our Office.

OPM Memo at 2.

2 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal

Counsel, from Mary Anne Gibbons, General Counsel and Executive Vice President,

United States Postal Service (Aug. 12, 2011) (“USPS Memo”).

182

Service Credit for Retirement Annuities of USPS Employees

5 U.S.C. §§ 8401–8479 and scattered U.S.C. sections), a system of re-

tirement and other benefits for federal employees that will gradually

supersede the Civil Service Retirement System (“CSRS”), which has

been in effect since 1920. See Pub. L. No. 66-215, 41 Stat. 614 (1920)

(codified as amended at 5 U.S.C. §§ 8331–8351 (2006 & Supp. 2010)).

In enacting FERS, Congress set out, among other things, “to establish a

Federal employees’ retirement plan which is coordinated with title II of

the Social Security Act”; “to ensure a fully funded and financially sound

retirement benefits plan for Federal employees”; and “to assist in build-

ing a quality career work force in the Federal Government.” Pub. L. No.

99-335, § 100A(1), (2), & (5), 100 Stat. at 516 (codified at 5 U.S.C.

§ 8401 note (2006)). 3 With certain exceptions, the Act became effective

on January 1, 1987. Id. § 702, 100 Stat. at 631 (codified at 5 U.S.C.

§ 8401 note). Since then, most newly hired federal employees who are

covered by Social Security have also been covered by FERS.

FERS is a three-tiered retirement system that consists of Social Securi-

ty, a basic annuity, and a Thrift Savings Plan (“TSP”). See 5 U.S.C.

§ 8403 (2006) (except as otherwise provided, benefits payable under

FERS are in addition to benefits payable under the Social Security Act);

id. §§ 8410–8425 (2006 & Supp. IV 2010) (basic annuity); id. §§ 8431–

8440f (2006 & Supp. IV 2010) (TSP). 4 The Postal Service and its em-

ployees fall within FERS coverage. 39 U.S.C. § 1005(d) (2006 & Supp.

III 2009). The dispute between OPM and the Postal Service concerns the

basic annuity.

Under FERS, an “employee,” as defined in 5 U.S.C. § 8401(11)

(2006), must complete at least five years of creditable civilian service

under 5 U.S.C. § 8411 to be eligible for the annuity. 5 U.S.C. § 8410

3 From Congress’s enactment of the Social Security Act in 1935, Pub. L. No. 74-271,

49 Stat. 620 (1935), until 1983, federal employees were excluded from Social Security

coverage. In 1983, the Social Security Act was amended to cover newly hired federal

employees. Pub. L. No. 98-21, § 101, 97 Stat. 65, 67–70 (1983) (codified at 42 U.S.C.

§ 410). That expansion of Social Security was a major impetus behind the adoption of

FERS, the new retirement system for federal employees, in 1986. See generally S. Rep.

No. 99-166, at 1–2 (1985) (providing background on the CSRS and amendment of the

Social Security Act to cover federal employees).

4 The TSP is a tax-deferred savings plan for federal employees in which employee con-

tributions are matched in part by employer agency contributions.

183

35 Op. O.L.C. 181 (2011)

(2006). As a general matter, creditable service includes “employment as

an employee . . . after December 31, 1986.” Id. § 8411(b)(1). With cer-

tain exceptions, the annuity of a retiring employee is 1 percent of that

individual’s average pay (the highest average pay in effect over any three

consecutive years of service) multiplied by that individual’s “total [years

of] service.” Id. §§ 8415(a), 8401(3) (defining “average pay”). The

statute establishes different potential retirement ages for employees

depending on the number of years of service completed. Id. § 8412 (2006

& Supp. IV 2010). For example, an employee who is separated from

service after becoming 62 years old and completing five years of service

is entitled to an annuity. Id. § 8412(c). “[S]ervice,” in turn, “means

service which is creditable under section 8411.” Id. § 8401(26). As

these provisions make clear, the determination whether service is cred-

itable under the statute has important ramifications for an employee’s

eligibility to receive a basic annuity, the applicable retirement age, and

the calculation of the amount of the annuity. 5

The FERS basic annuity is funded through a combination of employee

deductions and employer agency contributions to the Civil Service Re-

tirement and Disability Fund. Id. §§ 8422, 8423, 8401(6) (2006 & Supp.

IV 2010). Under FERS, the employing agency is required to deduct and

withhold from each employee’s basic pay a percentage that is equal to 7

percent of basic pay (with a different percentage applicable to Members

of Congress and certain categories of employees) less the Old Age,

Survivors, and Disability Insurance (“OASDI”) tax rate in effect, which

is now 6.2 percent. Id. § 8422(a), (c) (2006 & Supp. IV 2010); 26 U.S.C.

§ 3101(a) (2006). Accordingly, the employer is required by the statute to

deduct 0.8 percent of most employees’ basic pay for contribution to the

Fund.

The employing agency’s own contribution to the Fund is much larger

and is based on the “normal-cost percentage,” which is “the entry-age

normal cost of the provisions of [FERS] which relate to the Fund,” as

computed by OPM “in accordance with generally accepted actuarial

5Creditable service is also important to other facets of the retirement system. For ex-

ample, an employee is not entitled to retain the employer’s contributions to the TSP and

earnings attributable to such contributions before completing specific periods of service.

See 5 U.S.C. § 8432(g)(2) (2006).

184

Service Credit for Retirement Annuities of USPS Employees

practice and standards” and “expressed as a level percentage of aggregate

basic pay.” 5 U.S.C. § 8401(23) (defining “normal-cost percentage”); see

id. § 8423(a) (2006 & Supp. IV 2010). 6 Under the statute, “each employ-

ing agency having any employees or Members subject to section 8422(a)

shall contribute to the Fund an amount” that is the product of the applica-

ble normal-cost percentage and the aggregate amount of basic pay payable

by the agency for the period involved. Id. § 8423(a)(1). In determining the

normal-cost percentage to be applied, the employee deductions required

by section 8422 must be taken into account. Id. § 8423(a)(2). 7 Thus, for

6 “Entry age normal cost” is

generally understood as the percentage of every paycheck that should be invested, over

the total career of each employee in a group of new entrants, to pay fully for all bene-

fits received by that group, including all eligible survivors. Normal cost is formally de-

fined as the present value of future benefits divided by the present value of future com-

pensation. These values are expressed as a percentage of payroll, and provide a

consistent measure of relative pension costs over time.

S. Rep. No. 99-166, at 35 (1985). OPM publishes the “normal cost percentages” for

particular categories of employees in the Federal Register. At the time the Postal Service

suspended its employer contributions to the Fund, the government-wide normal cost

percentage for most employees was 12.5 percent. Federal Employees’ Retirement System;

Normal Cost Percentages, 75 Fed. Reg. 35,098 (June 21, 2010). For the first pay period

commencing on or after October 1, 2011, the normal cost percentage for most employees

rose to 12.7 percent. Federal Employees’ Retirement System; Normal Cost Percentages,

76 Fed. Reg. 32,242, 32,243 (June 3, 2011).

7 Section 8422(a) requires that “[t]he employing agency shall deduct and withhold

from basic pay of each employee . . . a percentage of basic pay.” 5 U.S.C. § 8422(a)(1).

Thus, so long as the individual is an “employee,” see id. § 8401(11), and is not otherwise

excluded from coverage under the statute, see id. § 8402 (2006), the individual is “subject

to section 8422(a),” and the employing agency is required to make contributions to the

Fund under section 8423. There is no dispute here that the Postal Service’s employees for

whom the employer contributions have been withheld are “employees” for purposes of

FERS. As a general matter, the FERS definition of “employee” refers to the definition of

“employee” for CSRS benefits under chapter 83, in 5 U.S.C. § 8331(1) (2006). Section

8331(1), in turn, defines the term by reference to 5 U.S.C. § 2105. Under section 2105(a),

an “employee” is an individual who is “appointed in the civil service” by a federal

official; “engaged in the performance of a Federal function”; and “subject to the supervi-

sion” of a federal official. 5 U.S.C. § 2105(a) (2006); see Taylor v. OPM, 82 M.S.P.R.

237, 241 (M.S.P.B. 1999). Employees of the Postal Service, who are generally covered by

the retirement statutes by virtue of 39 U.S.C. § 1005(d), must still meet the definition of

“employee” to be covered by FERS. See Taylor, 82 M.S.P.R. at 241. An “employee” for

purposes of FERS must also be covered by title II of the Social Security Act. 5 U.S.C.

§ 8401(11).

185

35 Op. O.L.C. 181 (2011)

most employees, employing agencies contribute to the Fund an amount

equal to 11.9 percent of basic pay—the aggregate normal cost of 12.7

percent minus the 0.8 percent employee deduction—which is more than

93 percent of the normal cost. OPM, which has authority to prescribe

regulations under the statute, id. § 8461(g) (2006), has construed FERS to

require the employing agency to “remit in full the total amount of normal

cost (which includes both employee deductions and Government contribu-

tions), so that payment is received by the Fund on the day of payment to

the employee of the basic pay from which the employee deductions were

made.” 5 C.F.R. § 841.504(h) (2011); see also id. § 841.413 (2011). 8

II.

The dispute between OPM and the Postal Service was precipitated by

the Postal Service’s decision, in light of its current financial crisis, to

conserve cash by suspending its employer contributions for the basic

annuity, effective June 24, 2011, for those postal employees covered by

FERS. OPM Memo at 1; USPS Memo at 2. The Postal Service is continu-

ing to withhold employee deductions from basic pay; it also continues to

make its automatic and matching contributions to the TSP accounts of

FERS employees and to remit those contributions, along with employee

TSP contributions. USPS Memo at 2. OPM does not dispute that the

Postal Service and its employees continue to satisfy all the requirements

of the statute except the agency’s obligation to make employer contribu-

tions to the Fund for the basic annuity. The question we must address is

8 FERS further requires OPM to compute the amount of the “supplemental liability” of

the Fund as of the close of each fiscal year, both with respect to current or former em-

ployees of the Postal Service and other individuals. 5 U.S.C. § 8423(b)(1). The “supple-

mental liability” is the estimated excess of the actuarial present value of all future benefits

payable from the Fund based on the service of current or former employees or Members

of Congress over the sum of the actuarial present value of employee deductions, employer

contributions, and the Fund balance. Id. § 8401(27). The amount of any supplemental

liability must be amortized in 30 equal annual installments, with interest. Id. § 8423(b)(2).

At the end of each fiscal year, OPM must notify the Postmaster General of the amount of

the required installment computed with respect to current or former postal employees and

the Secretary of the Treasury of the amount computed with respect to other individuals.

Id. § 8423(b)(3). Upon receiving such notifications, the Postal Service is required to pay,

and the Secretary of the Treasury is required to credit, to the Fund the amounts specified.

Id. § 8423(b)(4).

186

Service Credit for Retirement Annuities of USPS Employees

thus narrow: whether postal employees are entitled to service credit for

retirement purposes for the periods in which the Postal Service has sus-

pended its employer contributions under 5 U.S.C. § 8423, but in all other

respects has complied with the FERS statute.

OPM states that its “longstanding interpretation of the statute,” as codi-

fied in its regulations, provides that “in order for an employee to be cov-

ered under FERS, an agency must make the periodic contributions to the

Retirement Fund that are required by law.” OPM Memo at 2. OPM does

not claim that FERS expressly provides that employer contributions are a

necessary precondition for employee coverage or that employees shall not

receive service credit for periods in which their employing agencies fail to

make employer contributions. Instead, OPM points out that section 8423

of FERS mandates that USPS must make contributions to the Fund on

behalf of employees covered by FERS. See 5 U.S.C. § 8423(a)(1) (“[e]ach

employing agency having any employees . . . subject to section 8422(a)

shall contribute to the Fund” an amount that is based on the normal-cost

percentage set by OPM) (emphasis added)). And while section 8423 does

not expressly make the mandatory employer contributions a precondition

to employee eligibility, in OPM’s view, the relevant OPM regulation

does:

To be covered under FERS, an individual must:

(a) Be an employee, Member, or specifically covered by another

provision of law;

(b) Be covered by social security;

(c) Have retirement deductions withheld from pay and have agen-

cy contributions made; and

(d) Be paid based on units of time.

Except as provided in § 842.104 and as excluded by § 842.105, an

employee or Member is covered by FERS.

5 C.F.R. § 842.103 (2011) (emphasis added); see also id. § 842.304(a)

(2011) (providing, with exceptions not relevant here, that “an employee

. . . is entitled to credit for all purposes under FERS for a period of civil-

ian service with the Government or the U.S. Postal Service—[p]erformed

after December 31, 1986, which is covered service under subpart A of this

part,” a reference back to section 842.103) (emphasis added).

187

35 Op. O.L.C. 181 (2011)

As OPM explains, section 842.103 “merges the various statutory re-

quirements applicable to FERS into one regulatory provision that deter-

mines whether an individual is covered by FERS.” OPM Memo at 5.

OPM’s basic claim is thus that, “while there is no single provision in the

statute which states that each of these requirements is essential to ‘cover-

age,’ when read as a whole, it was clearly reasonable for OPM to make

coverage dependent upon compliance with all of the statutory require-

ments.” Id. at 6. In OPM’s view, section 842.103 makes “clear” that “to

be ‘covered by FERS’ an individual must not only have deductions with-

held from their pay—their employing agency must make the necessary

contributions” as well. Id. at 5–6.

On its face, section 842.103 is not as free from ambiguity as OPM sug-

gests. In particular, the last sentence in the provision states that “[e]xcept

as provided in § 842.104 and as excluded by § 842.105, an employee or

Member is covered by FERS,” 5 C.F.R. § 842.103, language that appears

to define coverage under FERS without making employer contributions a

prerequisite. We do not think that the ambiguity in this language can be

resolved by examining OPM’s practice because there does not appear to

be any relevant practice: OPM has pointed us to no instance of an agency

refusing to remit the contributions it is statutorily required to pay under

CSRS or FERS. Cf. OPM Memo at 9 (stating that no agency has failed to

make employer contributions under CSRS). Nonetheless, we assume that

OPM’s interpretation of its own regulation is entitled to deference, and

thus that section 842.103 has the meaning OPM suggests. See Talk Am.,

Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2261 (2011).

In addition to relying on the statutory text and its regulation, OPM also

finds support for its view in Congress’s purpose. OPM notes that “Con-

gress created FERS as a fully funded pension system,” intending that “the

Fund would be placed on a firm financial footing by requiring agencies to

pay the full ‘normal costs’ for FERS employees.” OPM Memo at 6. In

light of Congress’s “‘interest in sound fiscal and accounting manage-

ment,’” id. at 7 (quoting S. Rep. No. 99-166, at 29 (1985)), OPM contends

that it is “highly unlikely that Congress would have provided that em-

ployees would be considered ‘covered’ by FERS and credited for their

service if their employing agencies did not make the requisite contribution

to the Fund.” Id.

188

Service Credit for Retirement Annuities of USPS Employees

The Postal Service, for its part, does not deny that FERS requires it to

make its employer contributions, USPS Memo at 4, 14, or that Congress

intended that FERS be placed on a sound financial footing, id. But it

points out that Congress chose to further this goal by requiring all em-

ployers to contribute to the Fund, not by depriving employees of service

credit in the highly unusual situation in which an agency fails to make its

required payments. Id. at 2–3. The Postal Service contends that under the

statute, “creditable service is generated so long as employees are perform-

ing the required service for the Federal government and are contributing

the required amounts to their pension, without regard to whether the

employing agency cannot or does not make its employer contribution.” Id.

at 2. None of the key statutory provisions, in the Postal Service’s view,

“indicate[s] that creditable service under FERS is dependent on the em-

ployer contribution.” Id. at 6. The Postal Service emphasizes that in

enacting the basic annuity, Congress “intended to provide clearly defined

and reliable benefits to employees”—a purpose that would be “vitiated by

OPM’s interpretation, which would predicate the level of employee bene-

fits on the funding decisions of agency officials.” Id. at 3; see also id. at

12. Accordingly, the Postal Service argues that OPM’s interpretation of

FERS, as embodied in its regulations, is at odds with the statute or, at

least, unreasonable, id. at 5, and that OPM cannot enforce the Postal

Service’s statutory obligation to contribute by denying service credit to its

employees.

We assume that OPM’s authority to implement FERS by regulation,

5 U.S.C. § 8461(g), would entitle it, in appropriate circumstances, to

deference in its construction of FERS pursuant to Chevron, U.S.A., Inc. v.

Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). However,

OPM’s construction of the statute is entitled to deference only “if the

statute is silent or ambiguous with respect to the specific issue” at hand.

Id. at 843. If, on the other hand, “Congress has directly spoken to the

precise question at issue,” and in so doing made its intent clear, “that is

the end of the matter.” Id. at 842. And here, for the reasons set forth

below, we conclude that FERS makes clear that postal employees who

otherwise qualify for retirement benefits under FERS are both covered by

and accrue service credit under the statute notwithstanding the Postal

Service’s failure to make its employer contributions pursuant to 5 U.S.C.

§ 8423. Thus, OPM’s interpretation of FERS—that OPM can address the

189

35 Op. O.L.C. 181 (2011)

Postal Service’s failure to remit the required contributions by depriving

employees of accrued service credit—is foreclosed by the statute.

III.

A.

“We begin with the text of the statute.” Kasten v. Saint-Gobain Per-

formance Plastics Corp., 131 S. Ct. 1325, 1331 (2011). Section 8410 of

FERS, which governs eligibility, provides: “Notwithstanding any other

provision of this chapter, an employee or Member must complete at least

5 years of civilian service creditable under section 8411 in order to be

eligible for an annuity under this subchapter.” 5 U.S.C. § 8410. Central to

resolving this controversy is section 8411, which governs creditable

service. It provides that “[t]he total service of an employee . . . is the full

years and twelfth parts thereof, excluding from the aggregate the fraction-

al part of a month, if any.” Id. § 8411(a)(1). Section 8411 further speci-

fies, in relevant part, that for purposes of FERS, “creditable service of an

employee . . . includes . . . employment as an employee . . . after Decem-

ber 31, 1986.” Id. § 8411(b), (b)(1). These provisions are not vague or

unclear. They indicate plainly the category of employees who are eligible

for FERS benefits, and Congress’s broad, but not unbounded, definition

of “creditable service” for FERS purposes.

Section 8401(11) excludes certain categories of individuals from the

definition of “employee,” and section 8402 excludes certain categories of

individuals from coverage under FERS. Id. §§ 8401(11), 8402. But these

exclusions are irrelevant to the present dispute. As USPS points out, OPM

does not argue that “the non-payment of the employer contribution means

that Postal Service employees are no longer ‘employees’ under the FERS

statute or that they now fall within one of the exceptions in 5 U.S.C.

§ 8402 by virtue of such non-payment.” USPS Memo at 6. And the postal

employees potentially affected by their employer’s non-payment of its

contributions are still engaged in “employment.” The plain language of

FERS, then, supports the view that employees earn creditable service so

long as they are employed as “employee[s]” after December 31, 1986,

5 U.S.C. § 8411(b)(1), regardless of whether their employer has suspend-

ed its contributions to the Fund.

190

Service Credit for Retirement Annuities of USPS Employees

To be sure, as noted earlier, OPM acknowledges that FERS’s definition

of “creditable service” does not mention employer contributions. Its

argument is that a correct determination of what counts as “creditable

service” under FERS does not depend on the wording of section

8411(b)(1) alone, but also on the overall statutory plan—in particular, on

the fact that another provision of FERS clearly requires employer contri-

butions as part of the overall FERS scheme.

We agree that section 8423 of FERS requires employers to make con-

tributions to the Fund. We further agree that “[i]nterpretation of a word or

phrase depends upon reading the whole statutory text, considering the

purpose and context of the statute.” Dolan v. U.S. Postal Serv., 546 U.S.

481, 486 (2006). However, the mere fact that employer contributions are a

mandatory part of the overall FERS scheme does not indicate that OPM is

authorized to suspend or eliminate the accrual of employees’ service

credit as a remedy for an employer’s failure to make such contributions.

Cf. Harris Trust & Sav. Bank v. Salomon Smith Barney Inc., 530 U.S.

238, 247 (2000) (ERISA’s “‘comprehensive and reticulated’ scheme

warrants a cautious approach to inferring remedies not expressly author-

ized by the text” (citations and internal quotation marks omitted)). As

noted above, the specific statutory provision that addresses creditable

service says nothing that suggests that an employee’s accrual of credit

depends on the fact or extent of employer contributions. Section 8423 of

FERS likewise fails to mandate, or even suggest, that a lapse in an em-

ploying agency’s contributions should result in a denial of service credit

to that agency’s employees.

Certainly, as OPM states, section 8423 reflects Congress’s goal that

“the Fund . . . be placed on a firm financial footing by requiring agencies

to pay the full ‘normal costs’ for FERS employees.” OPM Memo at 6. But

it does so not by stipulating that employees will earn service credit (and

therefore future benefits) only if their employers make all required contri-

butions, but rather by imposing on agency employers a legal obligation to

make the required contributions. OPM itself has suggested no reason to

think that in practice this statutory mechanism has proven ineffective in

serving Congress’s goal. Cf. OPM Memo at 9 (“no agency has ever de-

faulted on its obligation to make the required contributions” under CSRS).

191

35 Op. O.L.C. 181 (2011)

Moreover, the text of the FERS statute suggests that Congress consid-

ered the question of statutory mechanisms to address funding shortfalls

and enacted a mechanism to deal with one kind of shortfall, without

indicating that the suspension of employee service credit might be used as

a solution to that or any other funding deficiency. Specifically, the statute

provides that, in the event that OPM determines, on an annual review, that

an agency’s employer contributions do not in fact satisfy the statute’s

funding goals, OPM must notify the Postmaster General (or the Secretary

of the Treasury, as applicable) of any “supplemental liability” and the

amount of the required installment payments, amortized over 30 years.

5 U.S.C. § 8423(b); see supra note 8. The Postal Service must then pay

the amount specified in the notification to address the funding shortfall.

5 U.S.C. § 8423(b)(4)(B). The existence of this supplemental liability

process does not affirmatively authorize the Postal Service to avoid mak-

ing its employer contributions as they come due in favor of amortizing

such payments over 30 years. But the existence of a supplemental liability

remedy for at least one type of funding shortfall shows that Congress was

aware of the possibility that the employer contributions remitted under

section 8423 might in some circumstances fail to result in agency funding

of the full costs of employee benefits. Congress chose nonetheless to

provide expressly for only one response to such a possibility. In light of

that awareness, the omission of any other mechanism for addressing this

or other kinds of shortfalls, such as denying service credit to employees

when their employer defaults on its contributions, suggests that “the

statute fails to mention [other responses] ‘by deliberate choice, not inad-

vertence.’” Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1076 (2011) (cita-

tion omitted).

In sum, none of the most clearly relevant provisions of the statute sug-

gests that either employee eligibility or creditable service under FERS

depends upon the extent of the employer’s contributions to the Fund. As

OPM insists, and the Postal Service effectively concedes, the plain lan-

guage of FERS’s key provisions specifies that agency employers must

contribute to the Fund the normal cost of their covered employees’ basic

pay. At the same time, these provisions fail to link an agency’s failure to

comply with this requirement to the affected employees’ eligibility for an

annuity or accrual of creditable service. Instead, they appear on their face

to provide that an employee is entitled to service credit so long as he or

192

Service Credit for Retirement Annuities of USPS Employees

she is employed as an “employee” after December 31, 1986. See 5 U.S.C.

§ 8411(a) & (b). Given the harsh penalty federal employees would suffer

if they were denied FERS coverage or service credit for periods of em-

ployment during which their agency employers failed to make the re-

quired contributions to the Fund—an action over which the employees

have no control—the absence of any reference in FERS’s key provisions

to OPM’s authority to impose that particular remedy for an agency’s

noncompliance strongly suggests that Congress did not intend such au-

thority to exist. As we discuss next, we do not think any of OPM’s addi-

tional arguments in support of this authority are persuasive.

B.

OPM offers several other arguments that, in its view, show that the

FERS statute requires employer contributions as a condition of employ-

ees’ coverage and accrual of creditable service under FERS. First, OPM

relies heavily on the Postal Service’s concession that, to receive service

credit under FERS, an employee must have deductions withheld from his

or her wages, even though, in the Postal Service’s view, the employing

agency’s contributions are not required for that purpose. OPM Memo at 7;

see USPS Memo at 5–10. OPM insists that these two propositions cannot

be reconciled because it is illogical to distinguish between the employee’s

deduction and the employer’s contribution—both of which are statutorily

required and neither of which is expressly linked by the statutory text to

accrual of service credit—for purposes of determining whether an em-

ployee accrues creditable service for periods when employee deductions

or employer contributions have not been made. OPM Memo at 7.

We need not resolve this issue. As a practical matter, the Postal Service

has continued to withhold from its employees’ basic pay the deductions

required under 5 U.S.C. § 8422—including the employee deductions—

and to deposit the deductions into the Fund. USPS Memo at 2. If fulfill-

ment of the Postal Service’s obligations under section 8422 is a necessary

condition to postal employees receiving credit under FERS, that condition

is being met. Furthermore, although OPM and the Postal Service agree

that a failure to make these employee deductions would affect employees’

ability to earn creditable service, we are unsure that they are correct. In

our view, this issue is difficult, particularly in the context of a scheme in

193

35 Op. O.L.C. 181 (2011)

which it is the agency’s legal obligation to effectuate the employee deduc-

tion. See 5 U.S.C. § 8422(a). In fact, the answer to the question may well

depend on the reason that employee deductions have not been made. 9 In

any event, even if employee deductions constitute a prerequisite to the

accrual of service credit under FERS—one that does not appear in the

FERS eligibility or accrual provisions themselves—that would not neces-

sarily mean that employer contributions likewise would be a prerequisite

for the accrual of such credit, because the significance and treatment of

employee deductions and employer contributions within the statutory

scheme are different. Each argument for linking employee service credit

to separate requirements in the statute would have to be considered on its

own terms.

Both OPM and the Postal Service cite different subsections of section

8411—some requiring employee deductions as a condition of receiving

creditable service and a couple requiring employee deductions and em-

9 For example, if the employer failed to make the employee deduction because the af-

fected employee was not subject to deductions under 5 U.S.C. § 8422, the employee’s

eligibility for coverage and ability to accrue creditable service under FERS might be

implicated. Cf. Tomboc v. OPM, 355 Fed. Appx. 422, 424 (Fed. Cir. 2009) (noting that

“[w]hile the absence of deductions” under the CSRA “is an indication” regarding whether

a position is covered, “it is not necessarily dispositive”). Alternatively, if the employer

failed to make the employee deductions because of an agency error, the error may be

corrected, see 5 C.F.R. § 841.505 (2011); and, in any event, an agency error would not

necessarily affect the employee’s entitlement to coverage. Cf. Noveloso v. OPM, 45

M.S.P.R. 321, 324 n.2 (M.S.P.B. 1990) (noting, in addressing CSRS coverage, that “[i]f

no deductions were withheld because of agency error, or because it was not determined

until after the fact that such service should have been covered, the employment will still

constitute covered service”); accord Staffney v. OPM, 54 M.S.P.R. 99, 102–03 (M.S.P.B.

1992) (same, under CSRS coverage); In re Kaltakji, 1 M.S.P.R. 63, 64 (M.S.P.B. 1978)

(same). But see 5 U.S.C. § 8339(i) (2006) (providing, for purposes of computing a CSRS

annuity, that the total service of an employee “shall not include any period of civilian

service . . . for which retirement deductions or deposits [under section 8334] have not

been made” unless the employee makes a deposit under section 8334(c) or (d)(1) or no

deposit is required for such service as specified under section 8334(g) or another statute).

And, for the same reasons that an agency error may not affect the employee’s entitlement

to coverage, a willful agency refusal to make the required employee deductions likewise

may not affect that entitlement. For the reasons stated in the text, however, we need not

decide the circumstances, if any, in which an employing agency’s failure to make the

employee deductions and deposit them into the Fund would affect an employee’s cover-

age and accrual of service under FERS.

194

Service Credit for Retirement Annuities of USPS Employees

ployer contributions—to support their respective positions. On the one

hand, OPM contends that, where Congress intended to permit service

credit to be afforded even if no contributions were made by the agency, it

did so explicitly. It cites as an example section 8411(b)(3), which permits

employees to receive service credit for periods of employment during

which no employing agency contributions or employee deductions were

paid into the Fund for certain service performed prior to January 1, 1989.

OPM Memo at 8 n.5. In such instances, the employee must make a deposit

into the Fund of 1.3 percent of his or her basic pay, with interest, for that

period of service. Id. (citing 5 U.S.C. § 8411(f)(2)). 10 However, no em-

ploying agency contribution is required for that period. Id. 11 The Postal

10 Section 8411(b)(3), with the introductory language in section 8411(b), provides:

For the purpose of this chapter, creditable service of an employee or Member in-

cludes[,] except as provided in subsection (f) or (h), any civilian service (per-

formed before January 1, 1989, other than any service under paragraph (1) or (2))

which, but for the amendments made by subsections (a)(4) and (b) of section 202

of the Federal Employees’ Retirement System Act of 1986, would be creditable

under subchapter III of chapter 83 of this title (determined without regard to any

deposit or redeposit requirement under such subchapter, any requirement that the

individual become subject to such subchapter after performing the service in-

volved, or any requirement that the individual give notice in writing to the offi-

cial by whom such individual is paid of such individual’s desire to become sub-

ject to such subchapter)[.]

5 U.S.C. § 8411(b), (b)(3). Section 8411(f)(2) prohibits an employee from receiving

“credit under this chapter for any service described in subsection (b)(3) for which retire-

ment deductions under subchapter III of chapter 83 have not been made, unless such

employee or Member deposits an amount equal to 1.3 percent of basic pay for such

service, with interest.” Id. § 8411(f)(2). Section 8411(f)(1) requires an employee who has

received a refund of CSRS retirement deductions for service described in subsections

(b)(2) or (b)(3) to “deposit[] an amount equal to 1.3 percent of basic pay for such service,

with interest,” as a condition of receiving credit for such service. Id. § 8411(f)(1).

The Senate Committee on Governmental Affairs released a Committee Print in Octo-

ber 1986, four months after the enactment of FERS, that set out a detailed section-by-

section analysis of the statute. The committee print explains that section 8411(b)(3)

“provides that creditable service includes . . . service before January 1, 1989, which was

either non-covered or was not vested under CSRS in which case a contribution must be

made under subsection (f).” S. Comm. on Governmental Affairs, 99th Cong., Supple-

mental Information Regarding the Federal Employees’ Retirement System Act of 1986,

at 7 (Comm. Print 1986) (“FERS Comm. Print”).

11 Section 8411(b)(3) is not unique in requiring employees who had not contributed to

the Fund (sometimes because they had been covered by other retirement systems) but who

195

35 Op. O.L.C. 181 (2011)

Service, on the other hand, cites two instances in which the statute ex-

pressly requires the payment of an employer contribution to render certain

service creditable, arguing that there would have been no reason for

Congress to have explicitly required an employer contribution if accrual

of service credit is invariably conditioned on an agency’s having made

employer contributions to the Fund. USPS Memo at 8 (citing 5 U.S.C.

§ 8411(e), (g) (the latter of these added in subsequent amendments to

FERS)). 12

seek service credit within the FERS system, to make payments to the Fund equal to the

amounts that would have been deducted as FERS employee contributions for that period

of service—without any mention of the necessity of an employer contribution. See, e.g.,

5 U.S.C. § 8411(b)(4) & (5) (the latter of these added in subsequent amendments to

FERS); USPS Paper at 6. In still other instances, Congress treated service for which

deductions were not paid to the Fund as creditable with no requirement of any kind of

employee or employer deposit. See 5 U.S.C. § 8411(c)(1)(A) (military service performed

before January 1, 1957); id. § 8411(d) (certain periods of leave without pay); USPS Paper

at 7.

12 Section 8411(e) provides:

Credit shall be allowed for periods of approved leave without pay granted an employee

to serve as a full-time officer or employee of an organization composed primarily of

employees . . . , subject to the employee arranging to pay, through the employee’s em-

ploying agency, within 60 days after commencement of such leave without pay,

amounts equal to the retirement deductions and agency contributions which would be

applicable under sections 8422(a) and 8423(a), respectively, if the employee were in

pay status. If the election and all payments provided by this subsection are not made,

the employee may not receive credit for the periods of leave without pay, notwith-

standing the third sentence of subsection (d).

5 U.S.C. § 8411(e) (emphasis added). Section 8411(g), in turn, provides that “[a]ny

employee who—

“(1) served in a position in which the employee was excluded from coverage un-

der this subchapter because the employee was covered under a retirement system

established under section 10 of the Federal Reserve Act; and

“(2) transferred without a break in service to a position to which the employee

was appointed by the President, with the advice and consent of the Senate, and in

which position the employee is subject to this subchapter,

“shall be treated for all purposes of this subchapter as if any service that would have been

creditable under the retirement system established under section 10 of the Federal Reserve

Act was service performed while subject to this subchapter if any employee and employer

deductions, contributions or rights with respect to the employee’s service are transferred

from such retirement system to the Fund.” Id. § 8411(g) (emphasis added).

196

Service Credit for Retirement Annuities of USPS Employees

None of these examples, in our view, supports either inference. As the

Postal Service observes, section 8411 sets forth a variety of rules regard-

ing when certain types of service that fall outside the scope of section

8411(b)(1) (the service at issue here) nonetheless may be credited for

FERS purposes. Id. Congress’s varying responses to divergent coverage

and employee deduction scenarios do not shed light on what it intended as

a general matter for employees otherwise covered by FERS. With respect

to section 8411(b)(3), for example, Congress’s decision to allow the

accrual of service credit for employees in a transitional period during the

early implementation of FERS and to address the absence of retirement

deductions by requiring that the employee deposit an amount compensat-

ing for those missing employee deductions, 5 U.S.C. § 8411(f)(2), sug-

gests, at most, that Congress viewed employee deductions as more signif-

icant to coverage requirements than employer contributions. By the same

token, that Congress required employer contributions to be made as a

condition of receiving service credit in the examples cited by the Postal

Service, id. § 8411(e), (g), shows little more than that Congress chose to

impose that additional requirement in those instances and explicitly pro-

vided for employer contributions to make the requirement clear. 13

13 For similar reasons, we do not find Congress’s treatment of reemployed annuitants

in 5 U.S.C. § 8468, on which the Postal Service relies, see USPS Memo at 6–7, particular-

ly illuminating. In language added to that section after the enactment of FERS, the statute

provides that, with certain exceptions, if the annuitant becomes reemployed, “deductions

for the Fund shall be withheld from the annuitant’s pay under section 8422(a) and contri-

butions under section 8423 shall be made.” 5 U.S.C. § 8468(a) (2006). The Postal Service

makes much of the fact that a subsequent subsection provides that if an annuitant “subject

to deductions under the second sentence of subsection (a)” serves for at least 5 years, the

annuitant may elect to have his or her rights redetermined under FERS. Id.

§ 8468(b)(2)(A) (emphasis added). The Postal Service finds it significant that this subsec-

tion mentions “deductions” and not employer “contributions.” But an employee subject to

“deductions” under the second sentence of section 8468(a) would also be subject to

“contributions,” and so there was no need for Congress to repeat the full phrase in section

8468(b)(2)(A) to indicate the employees to whom it was referring. Moreover, contrary to

the Postal Service’s assertion that Congress made clear that reemployed annuitants earn

service credit “so long as ‘deductions’ are being made from their basic pay,” USPS Memo

at 7, Congress merely referred to reemployed annuitants who were “subject to deduc-

tions,” without regard to whether the deductions were actually “being made.” See

5 U.S.C. § 8468(b)(2)(A). More importantly, however, we believe again that Congress’s

policy determination about the coverage of reemployed annuitants tells us little about

197

35 Op. O.L.C. 181 (2011)

What these examples reveal is that, even where there was no other stat-

utory commitment to treat service as creditable under FERS or where

employees were covered under other federal retirement systems, Congress

sometimes extended FERS service credit in exchange for the payment of

specified employee deductions—or the payment of employer contribu-

tions, or the relinquishment of service credit under other retirement sys-

tems, or without imposing any conditions—to serve some other policy

goal, such as increased portability of retirement benefits. See Pub. L. No.

99-335, § 100A(3), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note)

(one purpose of FERS was “to enhance portability of retirement assets

earned as an employee of the Federal Government”). In our view, the

discrete scenarios addressed in section 8411 provide little assistance, one

way or another, in the assessment whether Congress intended to authorize

OPM to deny service credit to employees otherwise subject to the FERS

retirement plan for periods of employment under that plan if agencies

violated the statutory requirement that they make employer contributions

to the Fund.

Finally, as noted above, OPM argues that, in light of Congress’s crea-

tion of FERS as a “fully funded pension system,” OPM Memo at 6, and

its purpose to ensure “sound fiscal and accounting management,” id. at 7

(citing S. Rep. No. 99-166, at 29), “it is highly unlikely that Congress

would have provided that employees be considered ‘covered’ by FERS

and credited for their service if their employing agencies did not make the

requisite contribution[s] to the Fund.” Id. But, of course, Congress did

require employing agencies to make specified contributions to the Fund,

and the Postal Service is legally obligated to do so. See supra pp. 184–

186, 191. The question here is only whether Congress intended that the

remedy for the Postal Service’s failure to meet its obligations would be to

deny employees the service credit that the statute contemplates they will

earn.

We agree with OPM that Congress was concerned with the fiscal man-

agement of the Fund. But “ensur[ing] a fully funded and financially sound

retirement benefits plan for Federal employees,” Pub. L. No. 99-335,

§ 100A(2), 100 Stat. at 516 (codified at 5 U.S.C. § 8401 note), was only

whether Congress intended generally to condition coverage and accrual of service credit

for FERS employees on the agency’s deposit of its employer contributions into the Fund.

198

Service Credit for Retirement Annuities of USPS Employees

one of several congressional purposes in enacting FERS. Among other

things, Congress also enacted FERS to establish a new retirement plan “to

assist in building a quality career work force in the Federal Government.”

Id. § 100A(5). That goal could well be subverted if Congress were to

create a retirement system in which employees’ retirement benefits could

be diminished or stripped away by their agencies’ failure to pay the statu-

torily required contributions into the Fund. Even recognizing that a fully

funded pension system was an important congressional objective, “no

legislation pursues its purposes at all costs. Deciding what competing

values will or will not be sacrificed to the achievement of a particular

object is the very essence of legislative choice—and it frustrates rather

than effectuates legislative intent simplistically to assume that whatever

furthers the statute’s primary objective must be the law.” Rodriguez v.

United States, 480 U.S. 522, 525–26 (1987).

Further, although we do not “resort to legislative history to cloud a

statutory text that is clear,” Ratzlaf v. United States, 510 U.S. 135, 147–48

(1994), we believe that, to the extent that the legislative history of FERS

is illuminating, it undermines, rather than supports, the view that Con-

gress intended to deny employees eligibility and creditable service under

FERS for periods of employment in which their employing agencies fail

to make their required employer contributions to the Fund.

The legislative history makes clear that Congress intended the basic

annuity in FERS to operate as a defined benefit plan. See, e.g., S. Rep.

No. 99-166, at 6, 9, 30, 42; FERS Comm. Print at 7. Such a plan consists

of “a general pool of assets” out of which an employee, “upon retirement,

is entitled to a fixed periodic payment.” Hughes Aircraft Co. v. Jacobson,

525 U.S. 432, 439 (1999) (citation omitted). “A defined benefit plan

promises a participant a specific amount of pension benefits at retirement

determined under a formula based on years of participation in the plan,

and in most nonbargained plans, based on an average of compensation.”

Stephen R. Bruce, Pension Claims: Rights and Obligations 17–18 (1988)

(“Bruce”); see also James E. Burk, Pension Plan Management Manual:

Administration and Investment ¶ 1.01[8], at 1-8 (1987) (“Burk”) (benefits

in a defined benefits plan determined “by a formula that is generally

related to service and compensation”); H.R. Comm. on Post Office and

Civil Serv., 98th Cong., Designating a Retirement System for Federal

Workers Covered by Social Security 6 (Comm. Print 1984) (prepared by

199

35 Op. O.L.C. 181 (2011)

the Congressional Research Service) (“CRS Comm. Print”) (“A defined

benefit plan determines benefit amount by a formula. Upon reaching the

terms specified in the definition of eligibility (usually a combination of

age and years of service), the worker receives the benefit computed from

the application of the formula to the employee’s years of service and

salary.”). 14

The FERS basic annuity follows this model. FERS promises partici-

pants a specific level of benefits by application of a formula that is gen-

erally dependent on the employee’s average pay and total service,

5 U.S.C. § 8415(a), and that bases the employing agencies’ contributions

on the “normal-cost percentage” of benefits, id. § 8423(a), which is

actuarially computed by OPM. Id. § 8401(23); cf. Burk ¶ 2.01, at 2-4

(employer’s contribution in a defined benefit plan is actuarially comput-

ed). The benefit formula in a defined benefit plan “is geared to providing

a specific retirement benefit rather than based on the rate of contributions

made by the employer to the pension fund.” Burk ¶ 2.01, at 2-5. A pen-

sion plan covered by the Employee Retirement Income Security Act of

1974 (“ERISA”), 29 U.S.C. §§ 1001–1461 (2006 & Supp. III 2009), for

example, “is liable for benefits without regard to whether the employer

has made required contributions.” ABA Section of Labor and Employ-

ment Law, Employment Benefits Law 279 (1991). Thus, it was well

established by the time Congress enacted FERS, see USPS Memo at 9,

that a multiemployer pension plan covered by ERISA, which is analo-

gous in many respects to the multi-agency approach of FERS, must

award credit based on the service performed for a participating employer

regardless of whether the employer made the required contributions for

such service. As the Supreme Court recognized a year before the enact-

ment of FERS:

14 By contrast, under a “defined contribution plan,” the promise is that “certain contri-

butions will be made and credited to an employee’s individual account. Contribution rates

are fixed, usually as a percentage of the employee’s earnings. Such plans do not guarantee

an employee any fixed level of benefits at retirement. An employee’s benefit will vary,

depending on the amount of the contributions and the interest and capital appreciation

accumulated on them.” Burk ¶ 1.02[8], at 1-8 –1-9; see also Hughes, 525 U.S. at 439;

Bruce at 18. “Under defined contribution plans, employers know exactly what the pension

obligation is and the benefits are fully funded at the time of the contribution. Employees

bear the risk of variable market performance[.]” CRS Comm. Print at 6–7.

200

Service Credit for Retirement Annuities of USPS Employees

The consistent view of the Secretary of Labor is that, under ERISA’s

minimum participation, vesting, and benefit accrual standards for

pension plans . . . a pension plan covered by ERISA must award

credit “solely on the basis of service performed for a participating

employer, regardless [of] whether that employer is required to con-

tribute for such service or has made or defaulted on his required con-

tributions.” In the Secretary’s judgment, “[a]ny plan term or Trus-

tees’ resolution to the contrary is . . . unlawful and unenforceable.”

Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Transp., Inc., 472

U.S. 559, 567 n.7 (1985) (citations omitted). 15

Given this backdrop, it would be reasonable to expect some indication

in the text of FERS, or at least in its legislative history, if Congress had

intended to depart from these principles and make accrual of employee

15 Accord Cent. States, Se. & Sw. Areas Pension Fund v. Gerber Truck Serv., Inc.,

870 F.2d 1148, 1151 (7th Cir. 1988) (“Multi-employer plans are defined-contribution in,

defined-benefits out. Once they promise a level of benefits to employees, they must pay

even if the contributions they expected to receive do not materialize[.]”); Bruce at 135–

36 (“[H]ours of service for use in determining [years of work] are determined solely on

the basis of hours of work, or hours for which payment is due the employee from the

employer, without reference to the delinquency or nondelinquency of the employer’s

contributions to the [multiemployer] plan.”). As the Supreme Court noted, the longstand-

ing position of the Secretary of Labor at the time of the enactment of FERS was that

ERISA required that credit for hours worked “must be given solely on the basis of

service performed for a participating employer, regardless whether that employer is

required to contribute for such service or has made or defaulted on his required contribu-

tions. Any plan term or Trustees resolution to the contrary is, in our judgment, unlawful

and unenforceable.” Dep’t of Labor Advisory Op. No. 76–89 (Aug. 31, 1976); accord

Dep’t of Labor Advisory Op. No. 78-28A (Dec. 5, 1978); Dep’t of Labor Advisory Op.

78-21A (Oct. 16, 1978); Dep’t of Labor Advisory Op. No. 78-20A (Oct. 6, 1978); see

also Rules and Regulations for Minimum Standards for Employee Pension Benefit Plans,

41 Fed. Reg. 56,462, 56,464 (Dec. 28, 1976) (explaining, with respect to 29 C.F.R.

§ 2530.200b-2, regarding accrual of hours of service, that employee hours “must be

credited to an employee regardless of whether contributions are required to be made to

the plan on account of such hours or whether such contributions, even though required,

have not in fact been made”). Before the passage of FERS, the IRS had also issued a

Revenue Ruling explaining that a multiemployer plan that did not credit all years of

service because of an employer’s failure to make the required contributions failed to

meet the requirements of “a qualified pension plan” that it provide “definitely determi-

nable benefits” to its employees and violated the minimum participation and vesting

standards of the Internal Revenue Code. Rev. Ruling 85-130, 1985-2 C.B. 137.

201

35 Op. O.L.C. 181 (2011)

benefits contingent on employer contributions. Instead, the legislative

history underlines that Congress intended to establish a new retirement

plan for federal employees that would “provid[e] employees with finan-

cial security through a retirement program that compares favorably with

those found in the private sector.” S. Rep. No. 99-166, at 38. 16 It is unlike-

ly, in light of this goal, that Congress would have incorporated into FERS

an arrangement that would have been unlawful in the private sector with-

out saying so.

Finally, OPM argues that construing FERS to give employees an enti-

tlement to service credit without the employer’s contribution “would be

inconsistent with the Director’s fiduciary responsibilities to the Fund.”

OPM Memo at 7. But, as set forth above, OPM is obligated under the

statute to award service credit to employees who satisfy the statutory

conditions set forth, see supra Part III.A, and to “pay all benefits that are

payable under subchapter II, IV, V, or VI of this chapter from the Fund.”

5 U.S.C. § 8461(a). As we read the statute, OPM is required to pay those

benefits without regard to whether the employing agency—here, the

Postal Service—has made its employer contributions to the Fund. The

Director’s fiduciary obligations thus include awarding service credit and

paying benefits in accordance with the statute, and he would not violate

those obligations by doing so.

16 See also, e.g., 132 Cong. Rec. 11,912 (1986) (statement of Rep. Myers) (conference

report includes “many of the concepts that a great many of the better private retirement

programs have”); id. at 11,909 (1986) (statement of Rep. Ford) (Congress had an oppor-

tunity “to create a new pension system with the best features found in the private sector”);

id. at 11,304 (1986) (statement of Sen. Gore) (“The retirement system which we have

developed employs a three-tier design that combines Social Security with a defined

benefit tier that focuses on providing a reliable base pension benefit[.]”); id. at 11,303

(1986) (statement of Sen. Glenn) (FERS “provides Government employees with a three-

part program which is comparable to plans widely used in private industry” and “one that

helps to recruit and maintain an excellent and skilled work force”); id. at 11,301 (1986)

(statement of Sen. Stevens) (praising the new retirement plan as “a top notch, economical

retirement system for the Federal workforce which is on part with the best in the private

sector,” providing “solid retirement benefits” and “offering financial security to Federal

retirees”); S. Rep. No. 99-166, at 4 (emphasizing that “the Federal Government must have

the ability to attract and retain highly qualified individuals in all occupations” and that

“[a]n attractive, flexible retirement plan can assist the government in meeting these

objectives . . . to build a career workforce” and “to assist in recruiting midcareer employ-

ees”).

202

Service Credit for Retirement Annuities of USPS Employees

IV.

“If, upon examination of ‘the particular statutory language at issue, as

well as the language and design of the statute as a whole,’ . . . it is clear

that [the agency’s] interpretation is incorrect, then we need look no fur-

ther[.]” Fort Stewart Sch. v. FLRA, 495 U.S. 641, 645 (1990) (quoting

K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)). In our view,

FERS has “directly spoken to the precise question at issue,” Chevron, 467

U.S. at 842, and OPM may not address the Postal Service’s failure to

make the employer contributions required by FERS by denying postal

employees coverage or creditable service under FERS. We do not address

the propriety of any other action OPM might take to address the Postal

Service’s failure to make the required contributions to the Fund.

VIRGINIA A. SEITZ

Assistant Attorney General

Office of Legal Counsel

203