Petition for Writ of Certiorari — Bronger v. Office of Personnel Management

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8 5 iad ? Supreme Court, U.S.

No. Pil & p

IN THE OCT 29 1985

JOSEPH SPANIOL. JR,

Supreme Court of the Uniten States cecal

October Term, 1985

WILLARD A. BRONGER, FRANK E. KACPROWICZ,

AND ALBERT J. VEVERKA,

Petitioners,

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Max G. BRITTAIN, JR.

Counsel of Record

TERRILL ELISE PIERCE

CaTHY A. POHL

KOVAR NELSON & BRITTAIN

500 Marquette Building

140 S. Dearborn Street

Chicago, IL 60603

(312) 346-4515

Car_ H. DEBROUX

108 John Street

P.O. Box 232

North Aurora, IL 60542

Of Counsel

Counsel for Petitioners

Pandick Midwest, Inc., Chicago © 733-6000

eee: ee . — er Pa merece parce Pe A IIE ITNT SANA RIS # ACPI ST ST NM RRS: 2%, AD SAI 9 a

QUESTION PRESENTED

Whether military service as an air traffic controller is

creditable toward the twenty-five year service requirement for

early retirement as an air traffic controller pursuant to 5 U.S.C.

§ 8336(e).

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TABLE OF CONTENTS

PAGE

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STATUTORY PROVISIONS INVOLVED .................... 2

STA TEDMBINT Gi? TECRy GA ocesccncecisicesconcnsscntnssnssiescssene 3

REASONS FOR GRANTING WRIT ............cccscceseeseeees a

I. THE DECISION BY THE FEDERAL CIR-

CUIT IN BRONGER IJ IS FUNDAMEN- i

TALLY IN ERROR AND DIRECTLY CON-

FLICTS WITH THE BROA GERIDECISION 4

ll. THE DECISION BELOW RAISES AN

IMPORTANT STATUTORY QUESTION AS

IT RELATES TO ENTITLEMENTS OF

FEDERAL EMPLOYEES AND THE PUB-

LIC INTEREST IN AVIATION SAFETY ....... 6

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TABLE OF AUTHORITIES

PAGE

Cases:

Bronger, et al. v. Office of Personnel Management,

769 F.2d 756 (Fed. Cir. 1985 ) .............cccccsscosseee 1,4

Bronger, et. al. v. Office of Personnel Management,

740 F.2d 1552 (Fed. Cir. 1984)... eee 1,3,4

John Hancock Ins. Co. v. Bartels, 308 U.S. 180

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Statutes

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5 U.S.C. § 8336........ a ee Se Ce Pee 2,4,5

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Legislative History

S.Rep. No. 92-774, 92d Cong., 2d Sess. 3, re-

printed in 1972 U.S. Code Cong. & Adm. News

S.Rep. No. 96-902, 96th Cong., 2d Sess. 1-2,

reprinted in 1980 U.S. Code Cong. & Adm.

NII En Olle sactcrnhictinnsdibnnitietinehensintnaaiearaninemennanennseeen 7

IN THE

Supreme Court of the United States

October Term, 1985

WILLARD A. BRONGER, FRANK E. KACPROWICZ,

AND ALBERT J. VEVERKA,

Petitioners,

Vv.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

OPINIONS BELOW

The rehearing en banc opinion of the United States Court

of Appeals for the Federal Circuit (“Federal Circuit”) in

Bronger, et. al. v. Office of Personnel Management, 769 F.2d

756 (Fed. Cir. 1985), appears in the Appendix hereto (here-

inafter “Bronger II’’). The original opinion of the Federal

Circuit in this case is found at 740 F.2d i552 (Fed. Cir. 1984),

and appears in the Appendix hereto (hereinafter “Bronger ]”’).

The decisions of the Merit Systems Protection Board

(“MSPB”) and of the Office of Personnel Management

(“OPM”) with respect to each of the Petitioners are also

appended hereto.

JURISDICTION

The original judgment of the Court of Appeals for the

Federal Circuit was entered on July 26, 1984. A petition for

rehearing en banc was granted and decided on August 1, 1985,

and this petition for certiorari was filed within 90 days of that

date. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

United States Code, Title 5:

§ 2101.

§ 2105.

§ 2109.

§ 3307.

§ 8331.

§ 8332.

§ 8333.

§ 8336.

Civil Service; armed forces; uniformed services

Employees

Air Traffic Controllers

Competitive services; maximum-age entrance

requirements; exceptions

Definitions

Creditable service

Eligibility for annuity

Immediate retirement

United States Code, Title 28:

§ 1295(a)(9) Jurisdiction of the United States Court of

Appeals for the Federal Circuit

The pertinent text appears in the appendix pursuant to Rule

21.1(f) of the Supreme Court Rules.

STATEMENT OF THE CASE

This case involves a dispute between Petitioners, who are

former air traffic controllers, and OPM, regarding Petitioners’

entitlement to early retirement benefits under the Civil Service

Retirement System. Petitioners were removed by the Federal

Aviation Administration (“FAA”) from their positions as air

traffic controllers in August 1981 as a result of the nationwide

strike called by the Professional Air Traffic Controllers Organi-

zation (“PATCO”).

Petitioners were informed by OPM that they were not

entitled to early retirement benefits on the grounds that: |) they

lacked the appropriate number of service years; 2) they had

been involuntarily separated for cause; and 3) their receipt of a

jump sum refund terminated their rights in the Civil Service

Retirement System. *

Petitioners appealed OPM’s denial of their early retirement

benefits to the MSPB, because each of them had more than the

requisite twenty-five years of creditable service as an air traffic

controller (“ATC”) when military service and civilian service

in said position were combined. More specifically, each of the

Petitioners has served approximately twenty-three (23) years

as a civilian ATC and approximately three (3) years as a

military ATC. The MSPB affirmed OPM’s denial of benefits on

the ground that Petitioners were removed for cause.?

‘OPM later abandoned its argument that Petitioners were

ineligible for early retirement because they had been removed for

cause. OPM recognized that such a position was untenable since other

air traffic controllers removed pursuant to the PATCO strike were

given the option of early retirement. Bronger I, supra, 740 F.2d at

1554. OPM aiso abandoned its argument that Petitioners’ receipt of

the lump sum voided their rights to early retirement. Id.

2 As noted, OPM later abandoned any reliance on this “removal

for cause” argument. Accordingly, the basis for MSPB’s affirmance is

no longer valid.

Petitioners appeale“ :iie MSPB decisions to the Federal

Circuit pursuant to 28 U.S.C. 1295(a)(9). On appeal, Petition-

ers argued that their military service should be creditable for

purposes of early retirement benefits pursuant to 5 U.S.C.

8336(e). On July 26, 1984, a three-judge panel of the Federal

Circuit decided that military service as an air traffic controller

was creditable toward early retirement under the statute.

Bronger I, supra. On August 1, 1985, the Federal Circuit

agreed to rehear the case en banc, and issued its Bronger I]

opinion, which held that military service as an air traffic

controller was not creditable toward early retirement. It is the

Bronger II decision which Petitioners now seek to have this

Court review and reverse.

REASONS FOR GRANTING WRIT

I. THE DECISION BY THE FEDERAL CIRCUIT IN

BRONGER II 1S FUNDAMENTALLY IN ERROR AND

DIRECTLY CONFLICTS WITH THE BRONGER I

DECISION

An air traffic controller’s statutory entitlement to early

retirement benefits after the requisite years of service in said

position is an issue of critical importance to the management of

this country’s air traffic control system and to the safety of the

public which depends on the system.

The issues concerning retirement benefits for federal em-

Ployees can be heard only by the Federal Circuit. 28 U.S.C.

§ 1295(a)(9). The Federal Circuit has issued two opinions on

the issue of whether military service as an air traffic controller is

creditable toward a civilian air traffic controller’s early retire-

ment. The two opinions embody directly contrary inter-

pretations of the same statutory provisions.

In its decision in Bronger I, the Federal Circuit held that 5

U.S.C. § 8336(e) entitles civilian air traffic controllers to early

retirement after twenty-five years of service in controlling air

traffic, whether that service was rendered in the military or as a

civilian. The court held that the statute provides benefits to

individuals who are “employees”, as defined in 5 U.S.C.

§ 2105, engaged as “air traffic controllers”, defined in 5 US.C.

§ 2109( 1). The statute requires twenty-five years of “service”,

as defined in 5 U.S.C. $§ 8331( 12) and 8332(c), in air traffic

control work. Since 5 U.S.C. § 8332(c) permits the crediting of

military service, the court properly credited Petitic ners’ military

service as controllers.

With no new arguments cr cases to support its statutory

interpretation, OPM requested that the Federal Circuit grant a

rehearing en banc. The court agreed to do so and on rehearing

completely altered its reading of the statute. The court held

that the years of service requirement in 5 U.S.C. § 8336(e)

relates to service in a civilian position with the Department of

Transportation or the Department of Defense. Thus, at least

for air traffic controllers, the court held that military service was

not creditable toward early retirement. The court’s reasoning in

Bronger II is inexplicable.

Since only the Federal Circuit can rule on the instant issue,

there can be no conflict between circuits. However, as set forth

above, there is a very clear conflict among the judges of the

Federal Circuit itself. Moreover, the government argued, and

the Federal Circuit apparently agreed, that the case presents an

issue of exceptional importance.? The result of this decision

3 Under Rule 35 of the Federal Rules of Appellate Procedure

and Rule 1% a) of the Rules of the Federal Circuit, a rehearing en

banc is deemed an “extraordinary procedure” to be granted only

when the original decision conflicts with precedent or presents a

question of “exceptional importance”. OPM cited no conflicting

precedent, but rather contended that the issue was a precedent-setting

question of exceptional importance. The Federal Circuit obviously

agreed. Petitioners submit that this is the very reason the issue should

be heard by this Court.

affects not only present Petitioners, but all air traffic controllers

and their rights under the Civil Service Retirement System.

This direct conflict within the Federal Circuit concerning

the interpretation of an important federal statute justifies the

grant of certiorari to review the judgment below. See, John

Hancock Ins. Co. v. Bartels, 308 U.S. 180, 181 (1939)

(“Because of conflict in the Court of Appeals of the Fifth

Circuit, due to the differing views of the judges composing the

court in the cases cited, and because of the importance of the

question, we granted certiorari.” (footnote omitted) ) There-

fore, Petitioners request that the Court grant certiorari on the

issue presented here.

II. THE DECISION BELOW RAISES AN IMPORTANT

FEDERAL QUESTION AS IT RELATES TO

ENTITLEMENTS OF FEDERAL EMPLOYEES AND

THE PUBLIC INTEREST IN AVIATION SAFETY

The decision below raises important issues concerning the

statutory construction of a federal law, which affects not only

past and future air traffic controllers, but the public at large.

The two opinions rendered to date raise serious Statutory

considerations which should be settled by this Court. Petition-

ers’ entitlement to benefits is based on the Statutory definition of

“service”. 5 U.S.C. § 8332(c). The definition of “service” is a

cornerstone of the civil service retirement program. The

holding in Bronger II creates exceptions to what constitutes

“service” which simply do not appear in the statute.

Furthermore, the holding is contrary to the legislative

history of the statute and vitiates the Congressional intent in

creating it. The issue of an air traffic controllers’ eligibility for

early retirement benefits directly affects the public safety and

therefore the statute must be carefully examined with the

legislative intent in mind.

The law, as amended in 1972, subjected air traffic con-

trollers to a maximum entry age and a mandatory retirement

age of 56, and simplified the normal civil service procedures for

removing an individual from his job. S. Rep. No. 92-774, 92d

Cong., 2d Sess. 3, reprinted in 1972 U.S. Code Cong. & Adm.

News 2287, generally. Air traffic controllers were thus deprived

of many of the employment protections granted to civil service

employees in general. In return, Congress invested in retraining

opportunities for controllers and an early retirement program it

hoped would encourage controliers to leave the service volun-

tarily before their skills began to decline. Id.

The 1972 law represented a comprehensive plan “to

promote aviation safety and provide for the efficient control of

air traffic by extending early benefits and management flexibi-

lity needed to recognize the extreme pressures and stress of air

traffic control work”. S. Rep. No. 96-902, 96th Cong., 2d Sess.

1-2, reprinted in 1980 U.S. Code Cong. & Adm. News 2714.

Undoubtedly service as a military air traffic controller is just as

taxing on an individual as that same service rendered as a

civilian air traffic coritroller. If military service is not credited,

the intent of Congres “to discourage the use of older personnel

in controller positions and to give the controller assurance of

eventual relief from a long span of control work” is extirpated.

S. Rep. No. 92-774, 92d Cong., 2d Sess. 3, reprinted in 1972

U.S. Code Cong. & Adm. News 2287, 2294-95.

In the course of granting special early retirement benefits

to air traffic controllers, it is clear that Congress was concerned

with air safety for the traveling public.

No other Government worker is so directly involved in the

safety of millions of Americans, who travel by air each

year, or the safety of many millions of dollars of aviation

equipment used to transport the public.

S. Rep. No. 92-774, 92d Cong., 2d Sess. 3, reprinted in 1972

U.S. Code Cong. & Adm. News 2287, 2289. Congress was

seeking to provide protection for the public, n not jude an extra

benefit to workers:

Like skilled atheletes, most controllers lose proficiency to

some degree after 40, and in the interest of the public’s

safety, should not be retained as controllers beyond the

time they can perform satisfactorily. Under existing law,

there is little that can be done to alleviate this problem.

S. Rep. No. 92-774, 92d Cong., 2d Sess. 3, reprinted in 1972

U.S. Code Cong. & Adm. News 2287, 2288.

The statute itself, and the legislative history applicable

thereto, amply support the court’s holding in Bronger I that

military service as an air traffic controller should be credited for

purposes of early retirement. The magnitude of these concerns

clearly demonstrate that the proper interpretation of this feder-

al statute as it relates to air traffic controllers constitutes an

important question of federal law which should be settled by

this Court.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Federal Circuit in

Bronger II.

Respectfully submitted,

Max G. BriTTalIn, Jr.

Counsel of Record

TERRILL ELISE PIERCE

CaTHY A. POHL

KoOvarR NELSON & BRITTAIN

500 Marquette Building

140 S. Dearborn Street

Chicago, IL 60603

(312) 346-4515

Car_ H. DEBROUX

108 John Street

P.O. Box 232

North Aurora, IL 60542

Of Counsel

Counsel for Petitioners

APPENDIX

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UNITED STATES COURT OF APPEALS

For the Federal Circuit

WILLAKD A. BRONGER,

Petitioner,

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

FRANK E. KACPROWICZ,

Petitioner,

Vv.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

ALBERT J. VEVERKA,

Petitioner,

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

Appeal No. 83-1349

Appeal No. 83-1350

Appeal No. 83-1376

Carl H. DeBroux, of N. Aurora, Illinois, argued for

petitioners.

Helene M. Goldberg, Commercial Litigation Branch,

Department of Justice, of Washington, D.C., argued for re-

spondent. With her on the brief were Richard K. Willard,

Acting Assistant Attorney General, David M. Cohen, Director,

Mary Mitchelson and Thomas W. Petersen.

ON PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING IN BANC

Appealed from: Merit Systems Protection Board

2-a

UNITED STATES COURT OF APPEALS

For The Federal Circuit

WILLARD A. BRONGER,

Petitioner,

v. Appeal No. 83-1349

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

FRANK E. KACPROWICZ, )

Petitioner,

v. Appeal No. 83-1350

OFFICE OF PERSONNEL MANAGEMENT,

Respondent. |

ALBERT J. VEVERKA, ) Appeal No. 83-1376

Petitioner, | ON PETITION FOR

v. REHEARING AND

OFFICE OF PERSONNEL MANAGEMENT, | SUGGESTION FOR

Respondent. | REHEARING IN

BANC

DECIDED: August 1, 1985

Before MaRKEY, Chief Judge, FRIEDMAN, RICH, DAvIs, BALD-

WIN, KASHTWA and BENNETT, Circuit Judges, MILLER,* Senior

Circuit Judge, and SMITH, NiEs, NEWMAN and BISSELL, Circuit

Judges.

Nugs, Circuit Judge.

These consolidated appeals are from a decision of the

Merit Systems Protection Board (MSPB) upholding the denial

by the Office of Personnel Management (OPM) of petitioner’s

eariy retirement claims under 5 U.S.C. § 8336(e) (1976). The

* Judge Miller assumed senior status effective June 6,

1985.

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appeals were originally decided by a three-judge panel which,

by a two-to-one majority, reversed the decision of the MSPB.

740 F.2d 1552 (Fed. Cir. 1984). The government filed a

petition for rehearing and a suggestion for rehearing in banc,

which was stayed pending the outcome of the Supreme Court’s

review of Lindahl v. Office of Personnel Management, 718 F.2d

391 (Fed. Cir. 1983) (in banc), involving a question of the

subject matter jurisdiction of this court which was pertinent to

these appeals. The stay was vacated, and the court voted to

review the merits of these appeals in banc, upon the issuance of

Lindahl v. Office of Personnel Management, 105 S. Ct. 1620

(1985), in which the Supreme Court held that an appeal from

the decision of the MSPB on certain aspects of a civil service

retirement claim could be taken directly to this court. These

appeals present an issue of statutory interpretation, which is one

type of issue held to be within the jurisdiction of this court

under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1). Jd.

at 1633.

Specifically, the issue is whether, under 5 US.C.

§ 8336(e), petitioners’ time in the military in assignments

having air traffic control duties is creditable as “years of

service” toward early retirement from a civilian position as an

air traffic controller. Having considered the positions of the

parties and the panel decision, the court, in banc, holds that

OPM properly refused to credit petitioners’ military service in

calculating their eligibility under § 8336(e) for early retire-

ment. Accordingly, we affirm the denial of petitioners’ claims.

Background

On August 3, 1981, the Professional Air Traffic Controllers

Organization (PATCO) called a nationwide strike of air traffic

controllers employed by the Department of Transportation,

Federal Aviation Administration (FAA). The FAA responded

by taking appropriate steps to remove those controllers believed

to be strike participants.' However, controllers who were

eligible for retirement at that time were given the option of

voluntarily retiring, thereby avoiding disciplinary proceedings.

Because the FAA considered the petitioners in these appeals to

be ineligible for retirement by reason of an insufficient number

of years of service, the option of retirement was foreclosed to

them by FAA, and petitioners were removed from their posi-

tions in adverse action proceedings. Petitioners subsequently

requested and received lump-sum distributions of their respec-

tive retirement contributions.

After removal, petitioners appiied to the Office of Person-

nel Management (OPM) for early retirement benefits under 5

U.S.C. § 8336(e) (1976) which provides:

(e) An employee who is voluntarily or involuntarily

separated from the service, except by removal for cause on

charges of misconduct or delinquency, after completing 25

years of service as an air traffic controller or after becominz

50 years of age and completing 20 years of service as an air

traffic controller, is entitled to an annuity.

At the time the claims for annuities were filed, each

petitioner was under 50 years old and had approximately 23

years of service in a civilian position as an FAA air traffic

controller. In addition, prior to employment at the FAA, each

petitioner had served approximately three years in the military,

presumably as an “air traffic controller.”’2

OPM denied the claimed benefits on the grounds that

petitioners: (1) did not meet the minimum “years of service”

1See Schapansky v. Department of Transportation, FAA,

735 F.2d 477 (Fed. Cir. 1984) for a discussion of the events

surrounding the strike and the removal of FAA air traffic

controllers.

2 Petitioners’ discharge papers designate their specialties

by number and/or title. For example, Bronger’s reads “27250 -

Air Route & Appr Control Opr.”

S-a

requirement, and (2) had been separated for cause. Petitioners

sought review before the MSPB, which affirmed OPM’s deci-

sion on the ground that petitioners were ineligible under

§ 8336(e) because they had been removed “for cause.” On

appeal to this court, however, OPM concedes that refusal on the

ground that petitioners were removed for cause would result in

disparate treatment of petitioners vis-a-vis other controllers

who were given the option of retirement. Accordingly, OPM

now relies solely on its alternative position, i.e., that petitioners’

military service does not count as “years of service” toward

early retirement from a civilian air traffic controller position.

Analysis

The pertinent statute, 5 U.S.C. § 8336(e), quoted supra,

provides, inter alia, for early retirement benefits to an employee

under 50 years of age upon completion of “25 years of service

as an air traffic controller.” The term “air traffic controller” is

defined in 5 U.S.C. § 2109(1) (Supp. [V 1980) to mean “an

employee of the Department of Transportation or the Depart-

ment of Defense who ... is actively engaged in the separation

and control of air traffic ...”; “employee” is defined in 5

U.S.C. § 2105(a) (1976) to mean an individual “appointed in

the civil service”; and “civil service” is defined in 5 U.S.C.

§ 2101 (1976) to exclude “uniformed services,” i.e., military

service. Thus, under a literal reading of the statute, the years of

service requirement in § 8336(e) relates to service in a civilian

position with the Department of Transportation or the Depart-

ment of Defense.? There is no military position that meets the

requirements for “service as an air traffic controller” under the

statute.

3 The conclusion that the statute means civilian service

makes petitioners’ remaining arguments comparable to those

rejected in Tirado v. Department of the Treasury, 757 F.2d 263

(Fed. Cir. 1985) (military service does not count towards

disability retirement under 5 U.S.C. § 8337(a) (1982), which

requires five years of civilian service ).

6-a

The petitioners, nevertheless, assert that military service

involving air traffic control duties should be credited in view of

5 U.S.C. §8331(12) (1976), which provides that “service

means employment creditable under § 8332.” 5 U.S.C.

§ 8332(c) (1976) provides, in pertinent part:

section, an employee or Member shall be allowed credit

for periods of military service before the date of the

separation on which title to annuity is based.

Originally petitioners asserted that the above provision

required inclusion of any and all years in the military in

computing years of service for early retirement under

§ 8332(c). However, in view of the speciiic limitation in

§ 8336(e) that early retirement is available only after “25 years

service as an air traffic controller,” (emphasis added) this

argument is clearly untenable. Petitioners now assert the

position of the Bronger panel which devised a limitation

restricting creditable military service under § 8332(c) to “mili-

tary service as controllers.” 740 F.2d at 1558. Regardless of the

merits of this retirement plan, neither the statute itself nor the

legislative history justifies such an interpretation. If Congress

had intended that military service in a position comparable to

civilian air traffic controller be counted as “years of service”

toward early retirement, one would expect that Congress would

have provided either a limitation in § 8332(c) on the type of

military service to be counted or would have specified in

§ 8336(e) to include time in the military as an “air traffic

controller” within “years of service.” Congress did neither.

Similarly, the legislative history, after noting that con-

trollers enter the civil service “often after military service,”

gives no indication that military service is to count in computing

eligibility years for early retirement. S. Rep. No. 774, 92d

Cong., 2d Sess. 3, reprinted in 1972 U.S. Code Cong. & Ad.

News 2287, 2289.

Thus, with no conflicting provision in the statute and no

expression by Congress of a contrary intent, there is no basis for

7-a

departing from the precise definitions set forth in §§ 2101,

2105(a) and 2109(1) which limit creditable years to those

accumulated in a civilian position.

Analogous early retirement benefits are sretbed for fire-

fighters and law enforcement officers in subsection (c)(1) of

the same section that we are construing here, § 8336.4 A person

retiring from a civilian position of “law enforcement officer,”

who previously served in the military police, has a claim equally

as valid as those of air traffic controllers. Again, the legislative

history for this provision, and that of its predecessor, gives no

indication that years in the military count as time in service

towards early retirement. In the Federal Personnel Manual

Supplement 831-1, subch. S9-3 at 28.02 (September 30, 1975),

the following explanation was given with respect to crediting

military service under § 8336(c)(1):

f. Crediting of military service under the special

provision. (1) The law contemplates 20 years of civilian

service in a law enforcement Officer or firefighter position.

Military service, even though it may have been law enforce-

ment officer or firefighter work, may not be counted in

determining the 20-year period. However, after the min-

imum perod has been established, military service is

creditable in computing the annuity rate. [Emphasis

added. }

(2) Periods of military service during which the

employee is on furlough from a civilian position may be

counted as civilian service. Therefore, an employee

serving in a law enforcement officer or firefighter position

who goes on military furlough will be credited with the

military furlough period in computing the 20-year min-

imum.

45 US.C. § 8336(c)(1) (1982) reads:

(c){1) An employee who is separated from the

service after becoming 50 years of age and completing 20

years of service as a law enforcement officer or firefighter,

or any combination of such service totaling at least 20

years, is entitled to an annuity.

8-a

The same explanation has continued to date, FPM Supp. 831-1,

subch. $9-3 at 36 ( Feb. 29, 1980), but with an emphasis added

to the word “civilian” in the first sentence of f.(1). This

interpretation was upheld by the MSPB in Bell v. Office of

Personnel Management, 22 M.S.P.R. 43, 44-45 (1984):

The record supports the agency’s position that the

appellant’s military service as a law enforcement officer

may not be credited toward the minimum service require-

ments of 5 U.S.C. § 8336(c){1), and that 20 years of

civilian service in that capacity are required.... 5 U.S.C.

§ 2101(1) excludes the “uniformed service” from that

title’s definition of the “civil service.” Although a broader

interpretation of the term “law enforcement officer” in 5

U.S.C. § 8336(c)(1) undoubtedly would increase the

number of older employees entitled to retire under that

provision, the plain language of the statutory provision

cited above indicates that the Congress did not intend to

extend early-retirement benefits to all law enforcement

Officers over the age of 50, or even to extend them to all of

those employees whose military and civilian service as law

enforcement officers totalled 20 years of service.

Military service by air traffic controllers, firefighters, and

law enforcement officers is not unrewarded, however. Under

§ 8339(a), such service may increase the financial benefits that

those with the requisite years of civilian service will receive

upon early retirement. Also, such service will count as time

towards regular retirement, ¢.g., as part of the 30 years of

service generally required for government employees in 5

U.S.C. § 8336(a). Moreover, no special kind of military service

is necessary for either benefit.

Conclusion

In sum, the statutory interpretation of § 8336(e) given by

OPM has been consistent since enactment in 1972 and is also

consistent with its interpretation of the parallel provision in

§ 8336(c). In view of the absence of conflicting or ambiguous

provisions in the statuce or at least some indication that

9-a

Congress intended another interpretation, this court may not

depart from a literal reading of the statute. Accordingly, we

affirm the decision of the Merit Systems Protection Board

upholding OPM’s denial of each petitioner’s claim to early

retirement benefits.

AFFIRMED

DAVIS and SMITH, Circuit Judges, dissent.

cc: Mr. Max G. Brittain, Jr.

Mr. David M. Cohen

10-a

WILLARD A. BRONGER, Petitioner,

OFFICE OF PERSONNEL MANAGEMENT, Respondent.

FRANK E. KACPROWICZ, Petitioner,

OFFICE OF PERSONNEL MANAGEMENT, Respondent.

ALBERT J. VEVERKA, Petitioner,

OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Appeal Nos. 83-1349, 83-1350

and 83-1376.

United States Court of Appeals,

Federal Circuit.

July 26, 1984.

Air traffic controllers who each had more than 25 years

combined civilian/military experience in their jobs made

request for immediate retirement annuity. The Office of

Personnel Management denied requests, which denials were

upheld by Merit Syst-uas Protection Board, and controllers

sought judicial review. The Court of Appeals, Edward S.

Smith, Circuit Judge, held that: (1) Court had jurisdiction to

review controllers’ appeals from Board’s decision affirming

denial of their immediate retirement annuity applications, and

(2) controllers’ initial service as controllers in military capacity

counted as creditable service toward civil service retirement,

and thus, controllers were eligible to apply for immediate

retirement annuities.

Reversed.

Nies, Circuit Judge, dissented and filed opinion.

ll-a

1. Officers and Public Employees

Court of Appeals had jurisdiction to review air traffic

controllers’ appeal from Merit Systems Protection Board’s

decisions affirming Office of Personnel Management’s denial

of their applications for immediate retirement annuities.

5 U.S.C.A. § 8347(c), (d)(1).

2. Officers and Public Employees

Federal Aviation Administration air traffic controllers’

initial service as controllers in military capacity for Department

of Defense was to be counted in computing their total credit-

able service toward civil service retirement, and thus, con-

trollers who each had more than 25 years’ combined civilian/

military experience were entitled to apply for immediate retire-

ment annuities. 5 U.S.C.A. §§ 2109(1), 8336(e).

Carl H. DeBroux, North Aurora, Ill., for petitioners.

Helene M. Goldberg, Washington, D.C., for respondent;

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen,

Director, Mary Mitchelson and Thomas W. Petersen, Washing-

ton, D.C., on the brief.

Before DAVIS, SMITH and NIES, Circuit Judges.

EDWARD S. SMITH, Circuit Judge.

In this consolidated appeal from the Merit Systems Protec-

tion Board (board) petitioners, air traffic controllers each with

civilian/ military experience in their jobs exceeding 25 years,

request reversal of board decisions sustaining, in each case,

denial by the Office of Personnel Management (OPM) of each

of their requests for an immediate retirement annuity. We first

address and reject OPM’s contention that this court lacks

jurisdiction over this appeal, and then reverse the board’s

decisions for the reason stated below.

12-a

Background

Each of these three petitioners has worked more than 25

years as an air traffic controller. In each case, however, less

than 25 of these years (approximately 23) were in a civilian

capacity as an employee of the Department of Transportation’s

Federal Aviation Administration (FAA). Approximately 3

additional years (at the beginning of each petitioner’s career)

were in a military capacity, as controllers licensed by the FAA’s

predecessor agency, and employed by the Department of

Defense.

The Professional Air Traffic Controllers Organization

called an illegal’ nationwide strike on August 3, 1981. The

FAA proposed removal of nearly all of those controllers,

including petitioners, absent from their jobs between August 3

and 5, 1981, on the basis of absence without leave and strike

participation. Shortly after this time the FAA cailed in

petitioners to discuss whether they were eligible for immediate

retirement in lieu of removal. The FAA and OPM advised

petitioners, all of whom were under age 50, that they were not

eligible for immediate retirement annuities because they each

lacked 25 years of creditable service as required by 5 U.S.C.

§ 8336(e) (1982).2 The FAA/OPM position was that petition-

1 Section 7311(3) of 5 U.S.C. (1982) prohibits participa-

tion in a strike against the Government. See Schapansky v.

Department of Transp., 735 F.2d 477 (Fed.Cir.1984), and

companion air controller cases decided by this court on the

same day.

2 All section references are to title 5, U.S.C., except where

otherwise indicated. Section 8336(e) states:

“(e) An employee who is voluntarily or involuntarily

separated from the service, except by removal for cause on

charges of misconduct or delinquency, after completing 25

years of service as an air traffic controller or after becoming

50 years of age and completing 20 years of service as an air

traffic controller, is entitled to an annuity.”

i i i a

13-a

ers’ time as military air traffic controllers did not count as

service creditable toward civil service retirement. Accordingly,

petitioners exercised another option; they requested and re-

ceived from OPM |-time lump-sum distributions of their retire-

ment contributions, totaling about $30,000 in each case.

Receipt of this cash would normally result, under section

8342(a), in petitioners forfeiting any right to a retirement

annuity.

After being removed and receiving their retirement re-

funds, petitioners realized that other air controllers whose

service included over 25 years’ time as civilian controllers, had

successfully opted for immediate retirement. Petitioners de-

cided to file for such retirement, despite their cash refund

requests. OPM denied their requests, both initially and upon

reconsideration, on the grounds that their receipt of the lump-

sum refunds terminated their rights in the civil service retire-

ment system pursuant to section 834Z(a). OPM also took the

position that, in any event, petitioners would not have been

eligible for immediate retirement annuities because they were

involuntarily separated from the FAA “for cause”—i.e., ab-

sence without leave and strike participation—and hence in-

eligible under section 8336(e) for immediate retirement.

Petitioners appealed the OPM denials to the board, which,

by separate opinions dated May 31, i983, affirmed on the

grounds that petitioners were ineligibie because they were

removed “for cause” under section 8336(e). On appeal to this

court, OPM has abandoned the rationale for which the board

affirmed and instead presses only the argument, aside from the

initial issue of our jurisdiction, that petitioners’ military time

does not count in determining their creditable service for

immediate retirement.2 We therefore address only these two

issues.

3 OPM has conceded that, if this court takes jurisdiction

and finds that the military time constitutes creditable service,

(Footnote continued on following page.)

14-a

Opinion

l. This Court’s Jurisdiction

[1] In Lindahl v. OPM,‘ this court decided in the negative

a very specific jurisdictional issue:5

We decide here only the question of our jurisdiction to

hear the type of appeal before us, i.e., an appeal from an

MSPB decision affirming the denial of a claim for annuity

following a voluntary physical disability retirement, a deci-

sion reached by MSPB under the authority provided it in

§ 8347(d)(i). In such cases, the initial decision is that of

the employee who has elected to retire, and who has

asserted disability as the reason, and who has then sought

an annuity. [Emphasis supplied. }

In the case before us, while petitioners have elected to

retire and are seeking an annuity, they have not asserted as

their reason a physical disability. This case therefore differs

from, and is not controlled by, Lindahl. In particular, we note

that the statutory lynchpin of Lindahl, the section 8347(c)

“finality clause” which we held to bar judicial review in that

case, applies only to “questions of disability and dependency

arising under this subchapter [civil service retirement ].”

(Footnote continued from preceding page.)

then petitioners are entitled to apply to OPM for immediate

reurement. Such an application, to be successful, would require

petitioners to refund their lump-sum distributions. The issue

concerning military time was raised before the board, but the

presiding official based her decision on the § 8336(e) “for

cause” exception.

4 Lindahl v. OPM, 718 F.2d 391 (Fed.Cir.1983), cert.

granted, _.__. U.S. ___,, 104 S.Ct. 3533, 82 L.Ed.2d 838

(1984).

5 Id. at 393.

6 Section 8347(c). See also Lindahl, 718 F.2d at 392-95,

beginning with heading, “Judicial Review is Precluded by 5

U.S.C. § 8347(c),” for detailed discussion of the “finality

clause.” We note also that the finality words of

§ 8347(c)—“final and conciusive and * * * not subject to re-

( Footnote continued on following page.)

1S-a

Recognizing that the Lindahl rationale does not expressly

govern jurisdiction here, OPM advances an alternative argu-

ment which the court in Lindah/ found unnecessary to address.’

OPM contends that this court may not review petitioners’

appeals because none of petitioners is an “employee or appli-

cant for employment” as required by section 7703(a), provid-

ing for judicial review of board decisions. OPM points out that

section 7701(a), providing for appeals to the board, is likewise

limited to an “employee, or applicant for employment.” By

contrast, OPM argues that section 8347(d)(1), providing for

civil service retirement appeals to the board, covers “individ-

ual[s],” a class of people broader than “employee[s].” Peti-

tioners fall outside the “employee” class, according to OPM,

since they were former employees when they applied for

retirement. Moreover, OPM cites the lack of mention in the

legislative history of the Civil Service Reform Act (CSRA)§ of

judicial review of civil service retirement cases. Instead, the

CSRA focuses on judicial review of adverse, disciplinary action

taken by an agency against an employee.

OPM’s position borders on the frivolous when analyzed

from either of two perspectives. First, beginning from the

“bottom up,” as we did in Lindahl, we set out the precise

language of section 8347(d)(1):

(d){ 1) Subject to paragraph (2) [concerning mental

disability] of this subsection, an administrative action or

order affecting the rights or interests of an individuai or of

the United States under this subchapter [concerning civil

service retirement] may be appealed to the Merit Systems

Protection Board under procedures prescribed by the

Board.

(Footnote continued from preceding page.)

view”—concern only “these matters,” ihe antecedent for which

is “questions of disability and dependency.”

7 Lindahl, 718 F.2d at 392.

8 Pub.L. No. 95-454, 91 Stat. L111. See 1978 U.S.CODE

CONG. & AD.NEWS 2723 et seq. for legislative history.

16-a

This provision makes it clear that an individual such as any

of petitioners whose rights or interests have been affected by an

OPM action or order concerning retirement, may appeal at least

to the board. Subsection (d) of section 8347 also includes

(d)(2) concerning mental! disability, which provision explicitly

authorizes an “individual” to appeal to the board under section

7701 and to the court under section 7703. The fact that

Congress took extra pains to clarify the avenue of review in the

sensitive area of mental disability when it added subsection

(d){2) only bolsters the conclusion that Congress intended

such review as -vell for the subsection (d)(1) nonphysical-

disability retirement cases (i.e., those not precluded from

review by section 8347(c)). We as much stated in Lindahl:®

In § 8347(d)(2) Congress not only allowed but legiti-

mized judicial review in the type of case in which our

predecessor court had said it was appropriate, while simul-

taneously reenacting the express review preclusion in

§ 8347(c) and making plain that §§ 8347(d)(1) and

(d)(2) were exceptions to that preclusion. {Emphasis

supplied. ]

If any doubt remained whether a nonphysical-disability

retirement claim appealable to the board under section

8347(d)(1) were in turn appealable to this court, that doubt

should be resolved in favor of the presumption of judicial

review over agency action.'9 The express preclusion to judicial

review set forth in section 8347(c) applies only, as we have

discussed above, to “questions of disability and dependency.”

9 Tindahl, 718 F.2d at 399. See also id. at 399-400

discussing the subsection (d)(2) “1980 Amendment,” and note

6 supra concerning the finality clause.

10 See Lindahl, 718 F.2d at 396-97 and Supreme Court

cases cited therein. See also Lindahi at 399 wherein we again

noted the narrowness of our holding: “We need not, and hence

do not, decide in this case whether ail decisions of MSPB under

§ 8347(d)(1) are denied judicial review by § 8347(c).” (Em-

phasis supplied. )

17-a

Since our “bottom up” analysis leads us to conclude, with

the help of Lindahl, that jurisdiction attaches here, we engage

in a “top down” analysis to see if the same conclusion holds.

Congress has granted this court “exclusive jurisdiction” over

“an appeal from a final order or final decision” of the board

pursuant to section 7703(b)(1).11 Section 7703(b)(1) pro-

vides that “a petition to review a final order or final decision of

the Board shall be filed” in this court. Section 7703(a)(1)

states who may file such a petition: “[a]ny employee or

applicant for employment adversely affected or aggrieved by a

final order or decision” of the board.12 We now address OPM’s

argument that petitioners are not “employee[s] or applicant{s ]

for employment” eligible to appeal here.

As OPM admits, “employee” as used in section 7703 is not

defined there or in chapter 77 of title 5. The subchapter on civil

service retirement includes a definition for purposes of that

subchapter at section 8331(1)(A), which refers to the general

“employee” definition at section 2105. The relevant part of

that definition, section 2105(a)(1)(D), covers “an individual

who is—(1) appointed in the civil service by *** (D) an

individual who is an employee under this section.” The records

before us show that the FAA removed petitioners in September

1981, and that in each case petitioners applied for their lump-

sum retirement distributions shortly thereafter, '3 in accordance

with the then-applicable provisions of section 8342(a). It

would be illogical to conclude that, because petitioners had

been effectively removed in September 1981, they immediately

1128 U.S.C. § 1295(a)(9) (1982).

12 Section 7701(a), providing for appeals to the board,

also refers to “[a]n employee, or applicant for employment.”

However, as our “bottom up” analysis makes clear, a person

appealing a nonphysical-disability, non-mental-disability retire-

ment claim to the board does so under § 8347(d)(1).

13 The records show the effective dates of Bronger’s,

Kacprowicz’s, and Veverka’s removals to have been, respective-

ly, September 15, 2, and 9, 1981, while the dates on which they

filed for lump-sum distributions were September 22, October 5,

and October 13, 1981.

18-a

entered a “nonempioyee” twilight zone. If this interpretation

were to prevail, then no employee who was separated from the

service would be eligible to apply for lump-sum benefits under

section 8342(a), since that provision specifically refers to an

“employee”.'4 Even more absurdly OPM’s position would

deprive this court of jurisdiction under section 7703 of the many

civil service removal petitions brought by terminated federal

employees, which we review every day.

In short, OPM’s restrictive “employee” argument would

likely strip this court of jurisdiction over most board decisions in

the civil service retirement area. Not only in this position

contrary to our suggestion in Lindahl, as discussed in our

“bottom up” analysis supra, but it is contrary to OPM’s

legislative history argument when applied to the facts of this

case. OPM contends that the CSRA legislative history is devoid

of reference to retirement appeals, while replete with reference

to taking disciplinary or adverse actions against federal employ-

ees. If so, the records before us clearly demonstrate an adverse

or disciplinary action against each of petitioners: both OPM and

the board relied at least in part on petitioners having been

involuntarily removed “for cause” —i.e., disciplined for absence

without leave and strike participation—as a basis for denying

14 Indeed § 8342(a)(1)(A) as currently in force requires

that an employee be “separated from the service for at least

thirty-one consecutive days” before becoming entitled to be

paid the lump-sum credit. Pub.L. No. 97-253, 96 Stat. 794,

Sept. 8, 1982. Section 8342{a) as in effect when petitioners

applied for the lump-sum refunds similarly referred to an

“employee * * * who is separated from the service.” In Ellis v.

United States, 610 F.2d 760, 761 (Ct.Cl1.1979), our predecessor

court rejected a somewhat similar “cart before the horse”

argument by the Government in determining whether Ellis was

a statutory “firefighter” for purposes of retirement benefits. See

also Baker v. United States, 614 F.2d 263, 271 (Ct.Cl.1980), in

which our predecessor court held that a person who was still a

Government employee would have no claim for annuity retire-

ment credits until he retired from Government service.

19-a

them immediate retirement under section 8336(e). Thus the

adverse action is, by the terms of section 8336(e), inextricably

bound up with each of the retirement claims before us.'5 We

hold that this court possesses jurisdiction to review petitioners’

appeal from the board decisions affirming OPM’s denial of

their applications for immediate retirement annuities.

2. The Military Service

[2] Petitioners contend that the FAA and OPM wrongly

advised them that their military time as air traffic controllers did

not count toward the 25 years of air controller service required

under section 8336(e) for immediate retirement. In support of

their argument that the military time does count, petitioners cite

the definition of “air traffic controller” in section 2109( 1):

For the purpose of this title [title 5] —

(1) “air traffic controller” or “controller” means an

evaployee of the Department of Transportation or the

“epartment of Defense * * *[.]

OPM counters that this definition, which on its face

supports petitioners’ position, does not mean what it says.

OPM cites the legislative history of this provision, wherein

Congress repeatedly stated its intent that the controllers in the

Department of Defense which it meant that section 2109( 1)

would cover were civilian controllers only—a very small subg-

roup.'§ Since petitioners’ early service was, in each case, as a

15 As mentioned in note 3, supra, however, OPM concedes

this point if we hold adversely to OPM on the two issues

appealed to us. In other words, OPM is admitting that, if

indeed the military time counts, then petitioners should have

been permitted to apply for immediate retirement in lieu of

removal.

16In 1980 Congress amended §2109(1) to add the

Department of the Defense. Pub.L. No. 96-347, 94 Stat. 1150.

(Footnote continued on following page.)

20-a

military controller, this would seem to exclude petitioners’

military time. OPM also cross-references the definition of

“employee” set forth in section 2105(a)(1) as one who is

“appointed in the civil service.” (Emphasis supplied. )

While OPM’s contentions are weil taken, they are not

dispositive. In addition to examining closely the definition of

“air traffic controller,” as we have just done, it is equally if not

more important that we focus on the meaning of “service.” The

issue of what counts as creditable service is, after all, what is

disputed here. We know that petitioners were civilian “air

traffic controllers” eligible for some type of civil service retire-

ment benefits when they so applied in 1981.

At the beginning of the subchapter dealing with civil

service retirement, section 8331(12) defines “service” as ““em-

ployment creditable under section 8332 of this title.” That

section, entitled “Creditable service,” states in pertinent part:

(c)(1)***

(A) the service of an individual who first becomes an

employee * * * before October |, 1982, shall include credit

for each period of military service performed before the

date of the separation on which the entitlement io an

annuity under this subchapter is based * * *[.]

( Footnote continued from preceding page.)

The purpose of the amendment was to extend early retirement

benefits “to civilian air traffic controllers working for the

Department of Defense,” a small group of some 320 con-

trollers, as opposed to the 20,000 working for the Department

of Transportation. S.REP. NO. 902, 96th Cong., 2d Sess. 1-2,

reprinted in 1980 U.S.CODE CONG. & AD.NEWS 2714

(emphasis supplied). See also the legislative history of the

original 1972 law providing early retirement benefits for con-

trollers, wherein Congress stated that it considered including

civilian Department of Defense controllers, but decided not to.

Pub.L. No. 92-297, 86 Stat. 141, S.REP. NO. 774, 92d Cong.,

2d Sess., at 3-4, reprinted in 1972 US.CODE CONG. &

AD.NEWS 2287 at 2289-91.

2l-a

If the employee is awarded retirement pay based on his military

service, however, section 8332(c)(2) provides that this military

service may not be, in effect, counted twice by applying to civil

service retirement as well. This does not apply to petitioners,

who have not applied separately for military retirement pay

based on their few years of military service. We note also that

section 8331(13) defines “military service” as “honorable

active service,” about which there is no dispute as regards

petitioners.

Taking these statutory provisions together, we have, on the

one hand, a definition of “air traffic controller” which appears

to exclude military controllers, and, on the other hand, a

definition of “creditable service” which includes military service

in computation of civil service retiremeat benefits. The latter

definition applies to the service of an “employee” which, in

each of petitioners’ cases, is specifically modified by the defini-

tion for “air traffic controller.”

Though seemingly circular, the relationships of these pro-

visions do not, in our view, conflict. Rather, they harmonize.

One first asks, who, under section 8336(e), is eligible for

immediate retirement? Answer: an “employee,” specifically

modified here to encompass only an “air traffic controller,” as

provided in sections 8331(1)(A), 2105(a), and 2109(1).

Second, one asks, how, under section 8336(e), is the “service”

of an air traffic controller to be computed? Answer: by reference

to the definitions of “service” in sections 8331(12) and

8332(c), which credit military service. This statutory analysis

compels us to hold, on the facts of each of petitioners’ cases,

that their military service as controllers counts in computing

their total creditable service, such that each petitioner’s credit-

able service exceeds 25 years. Accordingly, each petitioner,

having been wrongly advised by the FAA and OPM initially, is

eligible, as OPM has conceded, to apply for immediate retire-

22-a

ment benefits.'”7 The decision of the board is reversed. We do

not need to reach petitioners’ secondary argument of disparate

treatment.

REVERSED.

NIES, Circuit Judge, dissenting.

This is the first opinion of this court to declare that this

court has jurisdiction over decisions of the MSPB under 5

U.S.C. § 8347(d)(1). I dissent. I also urge that the govern-

ment request review of this decision by the Supreme Court in

conjunction with Lindahl v. Office of Personnel Management,

718 F.2d 391 (Fed.Cir.1983), the Supreme Court having

granted a petition for certiorari in the latter case on June 18,

1984.

The jurisdiction of this court over appeals of MSPB

decisions is found in 28 U.S.C. § 1295(a)(9):

(a) The United States Court of Appeals for the

Federal Circuit shall have exclusive jurisdiction—

(9) of an appeal from a final order or final decision of

the Merit Systems Protection Board, pursuant to sections

7703(b)( 1) and 7703(d) of title 5.

In Lindahl, in which both members of the majority of this

panei dissented, this court held in banc that claims uuder

§ 8347(d)(1) did not fall within § 7703. Specifically, the court

held:

To hold that judicial review of all § 8347(d)(1)

decisions had all along been available under § 7703, would

be to render superfluous Congress’ action in § 8347(d)(2),

17 See notes 3 and 15, supra. The “for cause” rationale

upon which the board based its decision is now moot, since

OPM concedes that the immediate retirement would have been

offered in lieu of removal.

23-a

making judicial review available for particular claims

under § 7703.

718 F.2d at 399.

This holding is essential to the case, not merely the court’s

interpretation of § 8347(c) that all judicial review is precluded

with respect to the fact of the claimant’s disability. It was,

however, § 8347(c) which, in Lindahi, gave clear meaning to

the review provisions of § 8347(d). The conclusion stated in

the Lindahl majority opinion is as follows:

This court’s grant of jurisdiction to review MSPB

decisions is broad but not unlimited. Among the limita-

tions on that grant is necessarily a statute expressly ex-

cluding review of certain decisions. Such a statute is

spelled out in 5 U.S.C. § 8347(c) and (d). The govern-

ment’s motion to dismiss must therefore be granted.

718 F.2d at 395.

However, the discussion of § 8347(c) in Lindahl has created a

straw on which the majority here clings to distinguish the

subject appeals.

To return to the statute, 5 U.S.C. § 8347(b) provides:

(b)... The Office [OPM] shall adjudicate all claims

under this subchapter [5 USCS §§ 8331 ef seg. re retire-

ment].

With respect to review of such OPM decisions, 5 U.S.C.

§ 8347(d) provides:

(d)(1) Subject to paragraph (2) of this subsection,

an administrative action or order affecting the rights or

interests of an individual or of the United States under this

subchapter may be appealed to the Merit Systems Protec-

tion Board under procedures prescribed by the Board.

(2) In the case of any individual found by the Office

to be disabled in whole or in part on the basis of the

individual’s mental condition, and that finding was made

pursuant to an application by an agency for purposes of

24-a

disability retirement under section 8337(a) of this title, the

procedures under section 7701 of this title shall apply and

the decision of the Board shall be subject to judicial review

under section 7703 of this title.

The subject claims are ordinary voluntary retirement

claims decided by OPM under 5 U.S.C. § 8347(b). Such

claims are appealable to the board under 5 US.C.

§ 8347(d)(1). No statute specifically grants review of

§ 8347(d)(1) claims and the majority points to none.' The

majority is correct in stating that the court in Lindahi decided

only “a very specific jurisdictional issue” concerning a voluntary

disability retirement claim. That type of claim happened to be

before the court. However, the rationale of the decision with

fepsect to the construction of § 8347(d)(1) and (2) was not so

limited.

In any event, by their nature, voluntary retirement claims

are not appropriately reviewed under § 7703, which spells out a

standard of review tailored to cases where the government is

the initiator of action and bears the burden of proof, i.e.,

adverse action cases. That Congress chose to put involuntary

mental disability cases into the category of adverse actions is

rational, in view of the nature of the claim. The government is

seeking to force the “claimant” out.of service because of an

alleged mental condition; the “claimant” is seeking to avoid

1 Compare 5 U.S.C. § 7121(f) re appeals to this court of

arbitration decisions.

The majority vaguely finds support for its exercise of

jurisdiction because of adverse or disciplinary actions

against appellants but does not assert that appellants’

appeals to the board fall within 5 U.S.C. § 7701. Clearly

they do not under precedent of this court. Williams v.

Office of Personnel Management, 718 F.2d 1553

( Fed.Cir. 1983).

25-a

forced retirement on such grounds. The parallel with an

adverse action is clear.?

This court is not the first to have considered the jurisdictio-

nal grant of § 7703(b)(1). In Lancellotti v. Office of Personnel

Management, 704 F.2d 91 (3rd Cir. 1983), the Third Circuit

came to the conclusion that the section provided no jurisdiction

to review § 8347(d)(1) claims. In the opinion of that court:

The legislative history of the Civil Service Reform Act of

1978, P.L. 95-4154, 92 Stat. 1111, 1143, also suggests that

section 7703 was enacted to provide judicial review of

adverse actions initiated by agencies against employees

engaged in misconduct or performing at an unacceptable

level. Petitioner’s claims do not fall within the scope of

section 7703; we therefore reject the Board’s statement of

jurisdiction. [Footnote omitted. ]

704 F.2d at 95-96.

Thus, the majority has created a conflict between the circuits.

The majority’s focus on the discussion of § 8347(c) in

Lindahl is misplaced. § 8347(c), which says that OPM deci-

sions on “questions” of disability and dependency are not subject

to review, is jurisdictional in the sense that it places a limitation

on the scope of the consent of the sovereign to suit. Cf. Army &

2 While the same is true with respect to any kind of

involuntary retirement case, it is the clear prerogative of

Congress to prescribe the method of and extent of review for

any grant, and we have specifically denied reviewability of

involuntary disability claims. Henderson v. OPM, 724 F.2d 119

( Fed.Cir. 1983).

3 The circuits continue to review appeals of MSPB deci-

sions filed before the transfer of jurisdiction to this court by the

Federal Courts Improvement Act of 1982, Pub.L. No. 97-164,

96 Stat. 25. A similar conflict between circuits was noted by the

Supreme Court in Motron v. United States, ___. U.S. —__.,

—__., 104 S.Ct. 2769, 2772, 81 L.Ed.2d 680 (1984) as a reason

for the grant of the government’s petition in that case.

26-a

Air Force Exchange Service v. Sheehan, 456 U.S. 728, 734-36,

102 S.Ct. 2118, 2122-23, 72 L.Ed.2d 520 (1982); United States

v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114

(1976). Even where jurisdiction over the claim is granted to a

court,‘ the court may n°. review the OPM finding on the fact of

disability or dependency. JLancellotti, 704 F.2d at 96-97;

Lindahl, 718 F.2d at 393-94, 397.

A holding that there is no direct appeal to this court does

not foreclose the possibility of a claim against the government

which might be brought in the U.S. Claims Court under 28

U.S.C. § 1491(a)(1) or in a U.S. District Court under 28

U.S.C. § 1346(2). See United States v. Mitchell, 463 U.S. 206,

103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Whether or not

§ 8347(d)(2) creates an implied preclusion of suit against the

government on claims under § 8347(d)(1) can wait for an

appropriate case. See Erika v. United States, 456 U.S. 201, 102

S.Ct. 1650, 72 L.Ed.2d 12 (1982); Lindahl, 718 F.2d at 403-

405 (Nichols, J., concurring). The Lindahi majority decision

expressly left this issue open. 718 F.2d at 395 n. 1. What

Lindahl held is that § 8347(d)(2) specifies the only type of

§ 8347 MSPB decision which may be taken by direct appeal to

this court—namely, decisions on involuntary mental disability.

To hold that appeals may also be taken from § 8347(d)(1)

decisions would make § 8347(d)(2), which spells out this

procedure, superfluous.

I appreciate that if jurisdiction is found to be in the Claims

Court and district courts under the Tucker Act, this court would

have jurisdiction over the appeal under 28 U.S.C.

§ 1295(a)(2) and (3). See, Heisig v. United States, 719 F.2d

1153 (Fed.Cir.1983). However, in those trial courts, petition-

ers would bear the burden of proof of their claims. Piccone v.

4In Lancellotti, 704 F.2d at 97-98, the Third Circuit found

jurisdiction in 28 U.S.C. § 2342(6) (Supp. IV 1980) (now

repealed ).

27-a

United States, 407 F.2d 866 (Ct.Cl.1969). Thus, substantive

matters are invoived in our decision in this case, not merely the

correct procedural route of review.

The majority errs in essentially treating this court as having

the same jurisdiction as the U.S. Court of Claims to which

Tucker Act claims (28 U.S.C. § 1491) were brought from

MSPB decisions. Prior to the 1982 amendment5, 5 U.S.C.

§ 7703(b)(1) (Supp. III 1979) provided:

Except as provided in paragraph (2) of this subsec-

tion, a petition to review a final order or final decision of

the Board shall be filed in the Court of Claims ... as

provided in chapters 91 ... of title 28.

Whether the Court of Claims reviewed the MSPB decision

directly, i.e., on cross-motions for summary judgment, or after

proceedings in its trial division, was immaterial. All cases were

Chapter 91 Tucker Act cases. That type of jurisdiction has not

been granted to this court. Heisig v. United States, 719 F.2d at

1158. As Judge Smith succinctly stated in Heisig, “The Federal

Circuit is not a renamed Court of Claims” Id. at 1157.

I would, accordingly, dismiss this appeal for lack of

jursidiction and would entertain a motion to transfer the case to

the U.S. Claims Court, which should be the forum to determine

whether it has jurisdiction over the claim in the first instance.®

5 Federal Courts Improvement Act of 1982, Pub.L. No.

97-164, 96 Stat. 25.

6 [I presume that the claims at this time amount to more

than $10,000 so that transfer to a district court is not a viable

alternative.

28-a

UNITED STATES OF AMERICA

Merit Systems Protection Board

Chicago Regional Office

IN THE MATTER OF:

Decision Number:

WILLARD A. BRONGER : CH083i82 10706

Date:

May 31, 1983

Vv.

OFFICE OF PERSONNEL MANAGEMENT

INTRODUCTION

By petition filed August 16, 1982, Willard A. Bronger

appealed from the July 23, 1982 reconsideration decision of the

Office of Personnel Management (OPM), Washington, D.C.,

which sustained its earlier disallowance of the appellant’s

application for early retirement from his position as an air

traffic control specialist with the Department of Transportation,

Federal Aviation Administration (FAA), Aurora, Illinois.

JURISDICTION

Federal employees have the night to appeal to the Merit

Systems Protection Board (Board) from any action which is

appealable to the Board under any law, rule or regulation. 5

U.S.C. 7701(a) (1980). Under 5 U.S.C. 8347(d) (1980), the

Board has jurisdiction to hear appeals from OPM’s adminis-

trative actions or orders affecting civil service retirements.

OPM’s regulations at 5 C.F.R. 831.110(a) (1983), provide for

a direct appeal to the Board from a final OPM reconsideration

decision.

29-a

ANALYSIS AND FINDINGS

Appeliant applied for early retirement from the service

under the provisions of 5 U.S.C. 8336(e) (1980), which states:

An employee who is voluntarily or involuntarily separated

from the service, except by removal for cause on charges of

misconduct or delinquency, after completing 25 years of

service as an air traffic controller or after becoming 50

years of age and completing 20 years of service as an air

traffic controller, is entitled to an annuity. (emphasis

added )

The appellant was involuntarily separated from the service

by removal on September 15, 1981 on charges that he had

participated in a strike against the government and for

unauthorized absence. At the time of his separation, the

appellant was 46 years of age and had completed 23 years, 2

months, 15 days of civilian service as an air traffic controller

with the FAA, and 3 years, 9 months of military service.

On February 3, 1982, OPM disapproved the appellant’s

application for early retirement on the grounds that: (1) he was

ineligible for benefits under 5 U.S.C. 8336(e) because he had

been removed from the service for cause; and (2) he had

forfeited his rights to retirement generally because he had

applied for and received a refund of his retirement deductions.

The disapproval was affirmed in OPM’s July 23, 1982

reconsideration decision.

On appeal appellant argues that OPM’s decision should be

reversed because: (1) “others” against whom the FAA pro-

posed removal for the same misconduct were permitted to retire

rather than be removed; (2) OPM’s refund of retirement

deductions was erroneous and therefore ineffective to terminate

his retirement rights; and (3) his combined civilian and military

service as an air traffic controller qualifies him for early

retirement under 5 U.S.C. 8336(e). In the alternative, the

appellant argues that the provisions of 5 U.S.C. 8336(e), which

30-a

permit a person of 50 years of age to qualify for early

retirement with only 20 years of service, unconstitutionally

discriminate against him on the basis of age because they

require a person under 50 years of age to accumulate 25 years

of service to qualify for the same early retirement.

In response to appellant’s appeal, OPM maintains that

appellant’s removal for cause on charges of striking and

unauthorized absence specifically precludes early retirement

under 5 U.S.C. 8336(e). OPM concedes, however, that if the

appellant were otherwise entitled to early retirement, its refund

of his retirement deductions would have been erroneous, and

therefore could not defeat his right to an annuity. Furthermore,

OPM states that if the appellant had not been removed for

cause, he still would not qualify for early retirement under 5

U.S.C. 8336(e) because he has less than 25 years of civilian

service as an air traffic controller.

In Schapansky v. Department of Transportation, MSPB

Docket No. DA075281F1130 (October 28, 1982), the Board

characterized striking against the government as “egregious

conduct” which has an adverse effect upon the service and held

that the penalty of removal is not clearly excessive for such

conduct. Consistent with the Board’s characterization and

holding, I find that removal for striking and unauthorized

absence qualifies as “removal for cause on charges of mis-

conduct or delinquency” within the meaning of 5 U.S.C.

8336(e) and, therefore, as a matter of law, constitutes an

absolute bar to early retirement under that statute. Accord-

ingly, I find that OPM properly denied appellant’s application

for early retirement, and the decision is sustained.

Moreover, I find no merit to appellant’s contention that he

is entitled to early retirement, notwithstanding his removal for

cause on charges of misconduct, because “others” who were

charged with the same misconduct allegedly were permitted to

retire instead of being removed from the service. First, the

3l-a

appellant has presented absolutely no evidence in support of

this allegation, since unsworn statements in an appeal petition,

unless they are admissions against interest, constitute mere

statements of position. See Pelham v. Department of the

Treasury, MSPB Docket No. DA075209140 (December 4,

1981). In addition, even assuming that the allegation is true, it

has no bearing on whether this appeilant is entitled to early

retirement since, by appellant’s own statements, the “others” to

whom he refers are not similarly situated since they apparently

were not “remov[ed] for cause on charges of misconduct”

within the meaning of 5 U.S.C. 8336(e). Therefore, the

contention is dismissed.

Accordingly, having found that the appellant is not entitled

to early retirement under 5 U.S.C. 8336(e) as a result of his

removal from service for cause on charges of misconduct, I

need not reach the other issues raised by him on appeal, since I

have found that such removal for cause constitutes an absolute

bar to early retirement under 5 U.S.C. 8336(e), regardless of

an applicant’s age' or his length of creditable service.?

1 Furthermore, the fact that an appellant raises a con-

stitutional issue in connection with his appeal does not neces-

sarily mean that the Board has jurisdiction to decide that issue.

As set forth supra, the Board’s appellate jurisdiction extends

only to those actions made appealable to the Board under any

law, rule, or regulation. Appellant has cited no law, rule, or

regulation which gives this Board or any administrative agency

the jurisdiction to decide the constitutionality of a statute

enacted by Congress. Therefore, I find that, even if the issue of

age discrimination were relevant to the appellant’s claim for

early retirement, the Board would be without ‘urisdiction to

decide the issue of the constitutionality of 5 U.S.C. 8336(e).

Cf. Corbett v. Department of Health and Human Services, 7

MSPB 302 (1981); Smith v. Department of the Navy, 4 MSPB

113 (1980).

21 note parenthetically, however, that the Board pre-

viously has held that service in the armed forces is not

creditable for civil service retirement purposes. See In re:

Manuel T. Borbon, 4 MSPB 230 (1980).

32-a

DECISION

The reconsideration decision is affirmed.

This is an initial decision. It will become a final decision of

the Merit Systems Protection Board on July 5, 1983 unless a

petition for review is filed with the Board or the Board reopens

the case on its own motion.

Any party to the proceeding, the Director of OPM, and the

Special Counsel may file a petition fr review. The Director

may request review only if he is of the opinion that the decision

is erroneous and will have a substantial impact on any civil

service law, rule, or regulation under the jurisdiction of the

Office of Personnel Management. The Board may grant a

petition for review, after providing an opportunity for response

by other parties, when it is established that: |

(1) New and material evidence is available that, despite

due diligence, was not available when the record was

closed; or

(2) The decision of the presiding official is based on an

erroneous interpretation of statute or regulation.

All petitions for review shall set forth objections to the

initial decision, supported by references to applicable laws or

regulations, and with specific reference to the record. The

petition for review must be filed with the Secretary of the Merit

Systems Protection Board, 1120 Vermont Avenue, N. W.,

Washington, D. C. 20419, no later than the date cited above.

Three copies of the petition must be filed with the Secretary.

The appellant has the right to petition the Equal Employ-

ment Opportunity Commission to consider the Board’s final

decision on the issue of discrimination, either when this decision

becomes final on the date set forth above or after final Board

action when appellant has petitioned the Board for review or the

Board has reopened the case on its own motion. The appellant

may file a civil action in court without either petitioning the

33-a

EEOC or the Board or after.either body has rendered a final

administrative decision. Either a petition or a civil action may

be filed, but not both, no later than 30 days after the Board’s

decision has become final. Appellants who choose to file an

action in a district court also have the right to request the court

to appoint a lawyer to represent them, and to request that

prepayment of fees, costs or security be waived.

Except for actions filed under the antidiscrimination laws,

pursuant to 5 U.S.C. Section 7703(b)(1), (as modified by

Section 127 of the Federal Court Improvement Act of 1982, to

be codified at 28 U.S.C. Section 1295 (a)(9)) the appellant

has the right to seek judicial review of the Board’s final decision

on this appeai. A petition requesting such review must be filed

with the U.S. Court of Appeals for the Federal Circuit, 717

Madison Place, N.W., Washington, D.C. 20439, no later than

30 days after appellant’s receipt of the Board’s final order or

decision.

For the Board:

/s/ Mary L. SEBEK

Mary L. Sebek

Presiding Official

34-a

UNITED STATES OF AMERICA

Merit Systems Protection Board

Chicago Regional Office

IN THE MATTER OF: ae

Decision Number:

FRANK E. KACPROWICZ | ; CH0831821071!

Date:

3 May 31, 1983

OFFICE OF PERSONNEL MANAGEMENT ;

INTRODUCTION

By petition filei August 19, 1982, Frank E. Kacprowicz

appealed from the July 29, 1982 reconsideration decision of the

Office of Personnel Management (OPM), Washington, D. C..,

which sustained its earlier disallowance of the appellant’s

application for early retirement from his position as an air

traffic control specialist with the Department of Transportation,

Federal Aviation Administration (FAA), Aurora, Illinois.

- JURISDICTION

Federal employees have the right to appeal to the Merit

Systems Protection Board (Board) from any action which is

appealable to the Board under any law, rule or regulation. 5

U.S.C. 7701(a) (1980). Under 5 U.S.C. 8347(d) (1980), the

Board has jurisdiction to hear appeals from OPM’s adminis-

trative actions or orders affecting civil service retirements.

OPM’s regulations at 5 C.F.R. 831.110(a) (1983), provide for

a direct appeal to the Board from a final OPM reconsideration

decision.

35-a

ANALYSIS AND FINDINGS

By letter dated December 21, 1981, appellant applied for

early retirement from the service under the provisions of 5

U.S.C. 8336(e) (1980), which states:

An employee who is voluntarily or involuntarily separated

from the service, except by removal for cause on charges of

misconduct or delinquency, after completing 25 years of

service as an air traffic controller or after becoming 50

years of age and completing 20 years of service as an air

traffic controller, is entitled to an annuity. (emphasis

added )

The appellant was involuntarily separated from the service

by removal on September 2, 1981 on charges that he had

participated in a strike against the government and for

unauthorized absence. At the time of his separation, the

appellant was 44 years of age and had completed 22 years, 10

months, 25 days of civilian service as an air traffic controiler

with the FAA, and 3 years, 10 months, | day of military service.

Appellant’s December 21, 1981 application for early retirement

stated that his military service included 3 years, 8 months as an

air traffic controller.

On January 11, 1982, OPM disapproved the appellant’s

application for early retirement on the grounds that: (1) he was

ineligible for benefits under 5 U.S.C. 8336(e) because he had

been removed from the service for cause; and (2) he had

forfeited his rights to retirement generally because he had

applied for and received a refund of his retirement deductions.

The disapproval was affirmed in OPM’s July 29, 1982

reconsideration decision.

On appeal appellant argues that OPM’s decision should be

reversed because: (1) “others” against whom the FAA pro-

posed removal for the same misconduct were permitted to retire

rather than be removed; (2) OPM’s refund of retirement

deductions was erroneous and therefore ineffective to terminate

36-a

his retirement rights; and (3) his combined civilian and military

service as an air traffic controller qualifies him for early

retirement under 5 U.S.C. 8336(e). In the alternative, the

appellant argues that the provisions of 5 U.S.C. 8336(e), which

permit a person of 50 years of age to qualify for early

retirement with only 20 years of service, unconstitutionallv

discriminate against him on the basis of age because they

require a person under 50 years of age to accumulate 25 years

of service to qualify for the same early retirement.

In response to appellant’s appeal, OPM maintains that

appellant’s removal for cause on charges of striking and

unauthorized absence specifically precludes early retirement

under 5 U.S.C. 8336(e). OPM concedes, however, that if the

appellant were otherwise entitled to early retirement, its refund

of his retirement deductions would have been erroneous, and

therefore could not defeat his right to an annuity. Furthermore,

OPM states that if the appellant had not been removed for

cause, he still would not qualify for early retirement under 5

U.S.C. 8336(e) because he has less than 25 years of civilian

service as an air traffic controller.

In Schapansky v. Department of Transportation, MSPB

Docket No. DA075281F1130 (October 28, 1982), the Board

characterized striking against the government as “egregious

conduct” which has an adverse effect upon the service and held

that the penalty of removal is not clearly excessive for such

conduct. Consistent with the Board’s characterization and

holding, I find that removal for striking and unauthorized

absence qualifies as “removal for cause on charges of mis-

conduct or delinquency’ within the meaning of 5 U.S.C.

8336(e) and, therefore, as a matter of law, constitutes an

absolute bar to early retirement under that statute. Accord-

ingly, I find that OPM properly denied appellant’s application

for early retirement, and the decision is sustained.

Moreover, I find no merit to appellant’s contention that he

is entitled to early retirement, notwithstanding his removal for

cause, because “others” who were charged with the same

37-a

misconduct allegedly were permitted to retire instead of being

removed from the service. First, the appellant has presented

absolutely no evidence in support of this allegation, since

unsworn statements in an appeal petition, unless they are

admissions against interest, constitute mere statements of posi-

tion. See Pelham v. Department of the Treasury, MSPB Docket

No. DA075209140 (December 4, 1981). In addition, even

assuming that the allegation is true, it has no bearing what-

soever on whether this appellant is entitled to early retirement

since, by appellant’s own statements, the “others” to whom he

refers are not similarly situated since they apparently were

never “remov[{ed] for cause on charges of misconduct” within

the meaning of 5 U.S.C. 8336(e). Therefore, the contention is

dismissed.

Accordingly, having found that the appellant is not entitled

to early retirement under 5 U.S.C. 8336(e) as a result of his

removal from the service for cause on charges of misconduct, I

need not reach the other issues raised by him on appeal, since I

have found that. removal for cause constitutes an absolute bar to

early retirement under 5 U.S.C. 8336(e), regardless of an

applicant’s age’ or his length of creditable service.?