Miller v. Opm , 903 F.3d 1274 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
RICHARD L. MILLER,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2017-1792
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0831-14-0340-I-1.
______________________
Decided: September 10, 2018
______________________
DEBRA D’AGOSTINO, The Federal Practice Group
Worldwide Service, Washington, DC, argued for petition-
er.
IGOR HELMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
______________________
Before PROST, Chief Judge, SCHALL and CHEN, Circuit
Judges.
2 MILLER v. OPM
SCHALL, Circuit Judge.
Appellant Richard L. Miller is retired. Prior to his re-
tirement, he served in both the military and civilian
sectors of the U.S. government. On appeal, he challenges
the December 20, 2016 final decision of the Merit Systems
Protection Board (“Board”) that affirmed the March 28,
2014 reconsideration decision of the Office of Personnel
Management (“OPM”). Miller v. Office of Pers. Mgmt., No.
DE-0831-14-0340-I-1, 2016 WL 7659226 (M.S.P.B. Dec.
20, 2016), (“Final Decision”). In its reconsideration deci-
sion, OPM determined the periods of Mr. Miller’s govern-
ment service that were “creditable” for purposes of
calculating his civil service retirement annuity. Joint
Appendix (“J.A.”) 24. 1
On appeal, Mr. Miller contends that the Board erred
in affirming OPM’s determination that he was not enti-
tled to civilian service credit for three discrete time peri-
ods of his government service: June 21, 1982, to June 30,
1982 (“Period One”); August 27, 1990, to October 25, 1990
(“Period Two”); and August 22, 1994, to December 22,
1995 (“Period Three”). For the reasons set forth below, we
hold that the Board erred in its decision with respect to
Periods One and Two, but that it did not err in its deci-
sion with respect to Period Three. We therefore affirm-in-
part, reverse-in-part, and remand.
1 As relevant to this appeal, creditable service is the
total period of civil employment of an employee from the
date of original employment to the date of separation on
which title to an annuity is based in the civilian service of
the government. 5 U.S.C. § 8332(a)–(b).
MILLER v. OPM 3
BACKGROUND
I. Statutory Framework
As the Board noted, Mr. Miller “has a complicated his-
tory of civilian and military service that began in 1970
and concluded in 2012.” Final Decision at 1. That history
implicates a particular statutory scheme.
The starting point is 5 U.S.C. § 8332. Section
8332(c)(1)(A) provides that “the service of an individual
who first becomes an employee . . . before October 1, 1982,
shall include credit for each period of military service
performed before the date of the separation on which the
entitlement to an annuity . . . is based . . . .” 2 This section,
which covers Mr. Miller because he became an “employee”
before October 1, 1982, thus allows credit for military
service to count towards the calculation of a civil service
retirement annuity. However, there are provisos to that
allowance. They are spelled out in 5 U.S.C. § 8332(c)(2).
Section 8332(c)(2) is the critical statute in this case.
In relevant part, it provides as follows:
If an employee . . . is awarded retired pay based
on any period of military service, the service of the
employee . . . may not include credit for such peri-
od of military service unless the retired pay is
awarded—
(A) based on a service-connected disability—
(i) incurred in combat with an enemy of
the United States; or
2 As relevant to this appeal, an “employee” is an in-
dividual who is appointed in the civil service, engaged in
the performance of a Federal function, and subject to the
supervision of an appointed individual. 5 U.S.C.
§§ 8331(1), 2105.
4 MILLER v. OPM
(ii) caused by an instrumentality of war
and incurred in line of duty during a peri-
od of war as defined by section 1101 of ti-
tle 38; or
(B) under chapter 1223 of title 10 (or under chap-
ter 67 of that title as in effect before the effective
date of the Reserve Officer Personnel Manage-
ment Act).
(emphasis added). It is undisputed that the provisions of
§ 8332(c)(2)(A)–(B) do not apply to Mr. Miller.
To the extent that an annuitant who does not satisfy
the requirements of § 8332(c)(2)(A)–(B) wishes to count
military service towards civil service retirement, the
annuitant must waive his or her military retired pay for
that period and, in some circumstances, pay a deposit. 5
C.F.R. § 831.301(c). OPM’s regulation at 5 C.F.R.
§ 831.301(a) tracks the statutory scheme.
With this statutory background in hand, we can turn
to the facts of the case.
II. Mr. Miller’s Military and Civilian Service
As noted above, there are three periods of time at is-
sue in this case.
Period One (June 21, 1982–June 30, 1982)
During this period, the Department of Navy employed
Mr. Miller as a civilian while he was on terminal leave
from the U.S. Army. J.A. 108. Terminal leave is leave
taken prior to discharge from the military and is statuto-
rily defined as active duty service. See 10 U.S.C. § 701(e).
It is undisputed that, as far as Period One is concerned,
Mr. Miller was fully employed as a civilian. It also is
undisputed that Mr. Miller received military retirement
service credit for this period.
MILLER v. OPM 5
Period Two (August 27, 1990–October 25, 1990)
During this period, Mr. Miller was on leave from his
civilian employment at the Defense Intelligence Agency
(“DIA”) because he had been called up as a reservist to
active duty with the U.S. Air Force. 3 It is undisputed that
Mr. Miller received military retirement service credit for
this period.
Period Three (August 22, 1994–December 22, 1995)
During this period, Mr. Miller worked at DIA in a ci-
vilian position. However, in response to his request, the
Air Force Board for Correction of Military Records
(“AFBCMR”) retroactively returned him to active military
service for the period. J.A. 94. As a result, DIA voided
his civilian service retroactively, placing him in military
leave-without-pay status for this period. J.A. 106. As in
the case of Periods One and Two above, Mr. Miller re-
ceived military retirement service credit for this period.
See J.A. 58. Mr. Miller does not assert that he made a
deposit to OPM for this period or that he waived his
military retirement pay for the period.
III. OPM’s Reconsideration Decision and Mr. Miller’s
Appeal to the Board
As noted, in its reconsideration decision, OPM deter-
mined that Periods One, Two, and Three did not consti-
tute creditable service for purposes of calculating Mr.
Miller’s civil service retirement annuity. Mr. Miller
timely appealed to the Board.
3 Throughout the proceedings in this matter, there
has been a question as to whether, during this period, Mr.
Miller was on annual leave or leave without pay from his
position with DIA. The issue is addressed below in the
section of Part IV of the DISCUSSION section of this
opinion that covers Period Two.
6 MILLER v. OPM
In an initial decision, the administrative judge (“AJ”)
to whom the appeal was assigned reversed-in-part and
remanded. J.A. 25. The AJ concluded first that, although
Mr. Miller asserted that he had made a post-1956 deposit
for Period One, Mr. Miller was not entitled to civilian
service credit for the period because he had not estab-
lished by a preponderance of the evidence that he had
waived his military retirement pay for the period. Accord-
ing to the AJ, § 8332(c)(2) thus barred Mr. Miller from
receiving civilian service credit for the overlapping peri-
ods of military and civilian service involved in Period
One. 4 J.A. 30.
Regarding Period Two, the AJ found that Mr. Miller
was in leave-without-pay status during this period. J.A.
31. Since Mr. Miller failed to establish by preponderant
evidence that he was on annual leave during the period,
the AJ determined that Mr. Miller had failed to establish
that he was in civilian pay status. Id. Thus, the AJ
concluded, Mr. Miller had failed to establish that Period
Two constituted creditable civilian service pursuant to
§ 22A5.1-3(C) of OPM’s CSRS and FERS Handbook for
Personnel and Payroll Offices (1998) (“Handbook”). J.A.
30. Section 22A5.1-3(C) of the Handbook states, “If an
employee first employed subject to CSRS before October
1, 1982, is on leave with pay (military leave), the period is
creditable as civilian service. No military service deposit
is payable.” The AJ ruled that Mr. Miller was entitled to
service credit towards his civil service retirement annuity
if he was required to make, and did make, a deposit, as
4 n view of our disposition of this appeal, it is not
necessary for us to decide the question of whether the
statute and OPM’s attendant regulation require both the
payment of a deposit and an affirmative waiver of mili-
tary retirement pay, or whether payment of a deposit in
and of itself necessarily satisfies any waiver requirement.
MILLER v. OPM 7
provided by § 22A6.1-2(A) of the Handbook. J.A. 31. He
ordered OPM to determine whether Mr. Miller was re-
quired to make a deposit and, if so, whether he did make
such a deposit. Id.
Addressing Period Three and relying on § 22A6.1-
4(A)–(B) of the Handbook (relating to retroactive rein-
statement into military service with back pay and allow-
ances), the AJ found that Mr. Miller was entitled to
civilian service credit for this period because he should
have been deemed on military leave with pay. Thus,
reasoned the AJ, Mr. Miller should have received civilian
instead of military service credit for the period. J.A. 32.
OPM timely petitioned for review of the AJ’s initial deci-
sion.
In its final decision, the Board let stand the AJ’s rul-
ing that Mr. Miller was not entitled to any civilian service
retirement credit for Period One. Final Decision at 3 n.1.
However, it reversed the AJ’s decision with respect to
Periods Two and Three. Id. at 5–10. It thus affirmed
OPM’s reconsideration decision.
Regarding Period Two, the Board did not disturb the
AJ’s finding that Mr. Miller was in leave-without-pay
status during this period. However, it reversed the AJ’s
decision on the ground that the AJ’s interpretation of the
Handbook was contrary to the plain language of
§ 8332(c)(2), which the Board found “precludes the award
of double credit for overlapping periods of civilian and
military service, except under circumstances that do not
appear to apply in this case.” Final Decision at 6. The
Board stated, “[T]he Handbook does not explain why the
general prohibition against an individual receiving both
civilian and military service credit for the same period,
delineated in . . . the statute[,] . . . would not apply in a
8 MILLER v. OPM
situation like this.” Id. at 6–7. 5 The Board found that
only if Mr. Miller had waived his military retirement
service credit for the period could he have received civil-
ian service credit for the period. Id.
Turning to Period Three, the Board found that Mr.
Miller’s military records had been corrected to reflect
continuous military service. Final Decision at 7–8. In
addition, the Board found no proof that Mr. Miller had
waived his military retirement credit for the period.
Instead, it found that the evidence indicated that Mr.
Miller had, in fact, received military retirement credit for
the period. Id. at 9–10. The Board thus held that Mr.
Miller had not met his burden of proving entitlement to
civil service retirement credit for Period Three. Id.
Mr. Miller has timely appealed the Board’s final deci-
sion. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
I. Standard of Review
We review the Board’s decision to determine whether
it is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
5 In Eldredge v. Dep’t of Interior, 451 F.3d 1337,
1342 (Fed. Cir. 2006), involving a different statutory
provision, we declined to accord the Handbook either
Chevron or Skidmore deference. See Chevron, U.S.A., Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43
(1984); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
Because the Handbook plays no part in our decision, it is
not necessary for us to address the question of deference
with respect to the Handbook provisions considered by the
AJ and the Board in this case.
MILLER v. OPM 9
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2012); Miller v. Fed. Deposit
Ins. Corp., 818 F.3d 1361, 1365 (Fed. Cir. 2016). “Under
the substantial evidence standard, this court reverses the
Board’s decision only if it is not supported by such rele-
vant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Shapiro v. Soc. Sec.
Admin., 800 F.3d 1332, 1336 (Fed. Cir. 2015) (internal
quotation marks omitted). Before the Board, Mr. Miller
bore the burden of establishing by a preponderance of the
evidence that he is entitled to have Periods One, Two, and
Three credited as civilian service for purposes of calculat-
ing his civil service retirement annuity. 5 C.F.R.
§ 1201.56(b)(2)(ii); see also Muwwakkil v. Office of Pers.
Mgmt., 18 F.3d 921, 927 (Fed. Cir. 1994) (Archer, J.,
dissenting).
II. Contentions of the Parties
On appeal, Mr. Miller argues the Board erred in its
reading of § 8332(c)(2). He contends that, by its terms,
the statute does not prohibit him from receiving civilian
service credit for civilian retirement purposes and mili-
tary service credit for military retirement purposes for the
same period of concurrent service. Instead, according to
Mr. Miller, the statute “limits the application of military
service credit to a civilian service credit computation.”
Miller Corrected Opening Br. at 11 (hereinafter cited as
“Miller Br.”). Mr. Miller states that he “is not seeking to
apply his military service credit to his civilian service
credit.” Id. Instead, he claims he “seeks to be given
proper credit for his civilian service time.” Id. In other
words, Mr. Miller interprets § 8332(c)(2) as prohibiting a
civil service retiree from receiving double civilian service
credit (i.e., for a period of concurrent service, receiving, in
the calculation of a civil service retirement annuity, credit
for both military and civilian service). Mr. Miller con-
tends and reiterates throughout his briefing that he is
claiming entitlement only to civilian credit for his civilian
10 MILLER v. OPM
service. See Miller Br. at 18 (“Mr. Miller is not attempt-
ing to count his military service credit toward his civilian
service credit . . . . This does not present the double
civilian service credit § 8332 prohibits.”).
For its part, the government argues that the Board
did not err in affirming OPM’s reconsideration decision.
According to the government, the Board’s decision correct-
ly “rests upon the unambiguous language of 5 U.S.C.
§ 8332.” Gov. Br. at 12. Thus, the government agrees
with the Board that § 8332(c)(2) “requires that an annui-
tant who receives military retired pay for a given period of
time must both waive that pay and make a military
service deposit to receive credit for that same period of
time in his or her civil service annuity calculation.” Id.
Alternatively, the government contends that if we con-
clude that § 8332(c)(2) is ambiguous as to how credit for
active duty military service while under civilian employ-
ment should be allocated, OPM’s “reasonable construc-
tion” that prevents the double counting of such credit is
entitled to deference under Chevron. Id. at 22.
Following oral argument, we asked the parties to re-
spond to certain specific questions. In response to that
request, Mr. Miller and the government each submitted
supplemental submissions. Those submissions are refer-
enced, respectively, as “Miller Suppl. Submission” and
“Gov. Suppl. Submission.”
III. 5 U.S.C. § 8332(c)(2)
Before addressing each of the three time periods at is-
sue, we must determine the correct construction of 5
U.S.C. § 8332(c)(2). The pertinent rules of statutory
construction are well-settled. “Our review of questions of
statutory interpretation is de novo, except to the extent
deference to an agency’s construction of a statute it ad-
ministers is required under the two-step analysis set forth
in Chevron . . . .” NSK Ltd. v. United States, 390 F.3d
1352, 1354 (Fed. Cir. 2004) (citing Chevron, U.S.A., Inc. v.
MILLER v. OPM 11
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984));
see also Vassallo v. Dep’t of Def., 797 F.3d 1327, 1330
(Fed. Cir. 2015) (explaining that we generally review an
agency’s statutory interpretation using the two-pronged
framework established by Chevron). The first prong of
Chevron requires us to assess “whether Congress has
directly spoken to the precise question at issue”; if so, we
“must give effect to the unambiguously expressed intent
of Congress.” Chevron, 467 U.S. at 842–43. If the statute
does not answer the specific question at issue, however,
meaning that it is “silent or ambiguous,” then, under
prong two of Chevron, we must determine whether the
agency provided “a permissible construction of the stat-
ute.” Id. at 843; Hymas v. United States, 810 F.3d 1312,
1318 (Fed. Cir. 2016). In a statutory construction analy-
sis, the starting point is the plain language of the statute.
See Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215, 1218
(Fed. Cir. 2011) (quoting Santa Fe Indus., Inc. v. Green,
430 U.S. 462, 472 (1977)). We agree with the parties that,
in this case, the issue before us—the reach of 5 U.S.C.
§ 8332(c)(2)—is properly resolved based on the statutory
language. Thus, it is not necessary for us to proceed to
step two of the Chevron analysis.
As seen, in pertinent part § 8332(c)(2) provides as fol-
lows: “If an employee . . . is awarded retired pay based on
any period of military service, the service of the employee
. . . may not include credit for such period of military
service . . . .” (Emphasis added.) In our view, by its plain
terms, the bar of § 8332(c)(2) is directed to the situation in
which a retired federal employee seeks to have his or her
creditable civilian service “include credit for [a] period of
military service” for purposes of the calculation of his or
her civil service retirement annuity. In other words, the
bar comes into play when a civil service annuitant seeks
to increase his or her annuity by adding to his or her
creditable civilian service military service time for which
the annuitant is receiving military retirement pay. The
12 MILLER v. OPM
bar does not come into play when a civil service annuitant
does not seek to “include credit for [a] period of military
service” but, rather, only seeks credit for a period of
civilian service for purposes of his or her annuity. We
arrive at this conclusion based upon the words “the ser-
vice of the employee . . . may not include credit for such
period of military service.” (Emphasis added.) These
words direct that it is military, not civilian, service that
may not be included for purposes of the calculation of a
civil service retirement annuity. See Collins v. Office of
Pers. Mgmt., 45 F.3d 1569, 1571 (Fed. Cir. 1995) (explain-
ing that an annuitant is entitled to credit for active duty
military service under both the CSRS and the Social
Security System, but only if the annuitant makes a depos-
it with the Civil Service Retirement Fund); see also Selt-
zer v. Office of Pers. Mgmt., 833 F.2d 975, 976 (Fed. Cir
1987) (noting that § 8332(c)(2) “precludes recipients of
military retired pay from receiving civilian service credit
for periods already credited toward their military retire-
ment”).
The Board’s final decision reflects a different view of
§ 8332(c)(2). Addressing Period Two, the Board stated,
“Section 8332(c)(2) precludes the award of double credit
for overlapping periods of civilian and military service,”
except when the provisions of § 8332(c)(2)(A)–(B) apply.
Final Decision at 6. In addition, in rejecting the AJ’s
reliance on the Handbook in connection with Period Two,
the Board stated that “the Handbook does not explain
why the general prohibition against an individual receiv-
ing both civilian and military service credit for the same
period, delineated in . . . the statute[,] . . . would not apply
in a situation like this.” Id. at 6–7. As seen, however, we
have concluded that the statute does not contain a “gen-
eral prohibition against an individual receiving both
civilian and military service credit for the same period,” at
least not in the situation where a person seeks civilian
service credit for purposes of calculating his or her civil
MILLER v. OPM 13
service annuity based only on his or her civil service
during that period. We thus hold that the Board ap-
proached Mr. Miller’s appeal with an incorrect and overly
broad view of the prohibition set forth in § 8332(c)(2). We
turn now to the question of how the correct reading of the
statute bears upon each of the three periods of time that
are at issue in this case.
IV. The Three Time Periods For Which Mr. Miller Seeks
Civilian Service Credit
Period One (June 21, 1982–June 30, 1982)
As noted, during this period, the Department of Navy
employed Mr. Miller as a civilian while he was on termi-
nal leave from the Army. J.A. 108. The general rule is
that a federal agency may not employ an active duty
member of the military in a civilian capacity. See 5
U.S.C. § 5536. However, pursuant to 5 U.S.C. § 5534a, a
service member on terminal leave pending retirement
from active duty service may accept civilian employment
and receive both civilian and military pay. Section 5534a
provides in pertinent part as follows:
A member of a uniformed service who has per-
formed active service and who is on terminal leave
pending separation from, or release from active
duty in, that service under honorable conditions
may accept a civilian office or position in the Gov-
ernment of the United States, its territories or
possessions, or the government of the District of
Columbia, and he is entitled to receive the pay of
that office or position in addition to pay and al-
lowances from the uniformed service for the unex-
pired portion of the terminal leave. Such a
member also is entitled to accrue annual leave
with pay in the manner specified in section
6303(a) of this title for a retired member of a uni-
formed service.
14 MILLER v. OPM
It is undisputed that, as far as Period One is con-
cerned, Mr. Miller was fully employed as a civilian. On
that basis, Mr. Miller contends that he “is entitled to
these seven days of civilian service credit regardless of
any concurrent military service.” Miller Br. at 25. In
making that argument, he points to the language of
§ 5534a stating that a member of a uniformed service on
terminal leave who accepts a civil office or position “is
entitled to receive the pay of that office or position in
addition to pay and allowances from the uniformed ser-
vice for the unexpired portion of the terminal leave [and]
also is entitled to accrue annual leave with pay in the
manner specified in section 6303(a) of this title . . . .” Id.
With regard to this period of concurrent service, Mr.
Miller argues that he is not seeking to apply his military
service credit to his civilian service credit. Rather, he
urges, he is seeking credit only for his civilian service
time. Thus the bar of § 8332(c)(2) is not applicable to him.
Miller Br. at 11; Miller Reply Br. at 1. The government
argues that because Mr. Miller failed to waive the mili-
tary retired pay he received for this period of time,
§ 8332(c)(2) bars his claim. Gov. Br. at 30.
We agree with Mr. Miller that the bar of § 8332(c)(2)
does not apply to his claim with regard to Period One.
First, § 5534a, by expressly permitting a member of the
military to receive pay for civilian service, suggests, by
implication, that a member of the military is entitled to
all benefits accruing from civilian service, including credit
towards a civil service retirement annuity, when there is
concurrent civilian service during a period of terminal
leave. Second, § 8332(c)(2) is not directed to the situation
of concurrent service, which is what we have in Period
One. As concluded above, § 8332(c)(2) is directed to the
situation in which an individual seeks to have military
service time credited (or added) to existing civil service
time in order to increase the period of civilian service for
purposes of calculating a civil service retirement annuity.
MILLER v. OPM 15
It is not directed to the situation here, where Mr. Miller
seeks credit only for civilian service during concurrent
periods of civilian and military service under 5 U.S.C.
§ 5534a.
This result is consistent with Seltzer v. Office of Per-
sonnel Management. That case involved a claim by peti-
tioner Richard L. Seltzer with respect to his civil service
retirement. Seltzer earned civil service annuity credit for
time spent as a civilian employee from January 30, 1964,
until his retirement on August 30, 1974. 833 F.2d at 975.
During that period of civilian employment, Seltzer spent a
total of 71 days on annual leave while serving on active
duty training as a reserve officer in the Army. Those 71
days were credited towards his civil service retirement.
Id. Those 71 days also were credited towards his military
retirement. Id. at 977.
On appeal, Seltzer argued that, under 5 U.S.C.
§ 8332(c)(1)(A), he was entitled to an additional 71 days of
civilian service credit as “double credit . . . for concurrent
periods of military and civilian service.” Id. at 976. In
support of this argument, Seltzer urged that, because he
was retired under chapter 67 of title 10, he was entitled to
this “double credit.” Id. at 977. 6 The court rejected this
argument. The court noted that retirement under chapter
67 would, “at most,” entitle Seltzer to “71 days’ credit
toward his military retirement as well as 71 days’ credit
toward his civil service retirement.” Id. It would not
6
As noted above, 5 U.S.C. § 8332(c)(2)(B) provides
that if an employee is awarded retired pay based on any
period of military service, the civil service of the employee
may not include credit for such period of military service
unless the retired pay is awarded under chapter 1223 of
title 10 (or under chapter 67 of that title as in effect before
the effective date of the Reserve Officer Personnel Man-
agement Act).
16 MILLER v. OPM
entitle him to the “142 days of civil service credit for 71
calendar days of [civilian] service” that he was seeking,
the court stated. Id. The court further stated: “It should
be emphasized that [Seltzer] has received credit toward
his military retirement and credit toward his civil service
retirement for the calendar periods involved.” Id.Thus, the fact that the court rejected Seltzer’s chapter
67 argument did not disturb the fact that Seltzer already
had been awarded credit towards his military retirement,
as well as credit towards his civilian retirement, for 71
days of concurrent service. In other words, for concurrent
military and civilian service, Seltzer received credit
towards both his military and civilian retirement, which
is what we hold Mr. Miller is entitled to receive for Period
One.
Period Two (August 27, 1990–October 25, 1990)
As noted, during this period, Mr. Miller was on leave
from his civilian employment at DIA because he had been
called up as a reservist on active duty with the Air Force.
In the initial briefing on appeal, Mr. Miller asserted
that he was on annual leave during this period, that he
received pay and benefits from DIA during this period,
and that he paid civilian service credit contributions
during this period. See Miller Br. at 18 (citing J.A. 100,
208–210). Mr. Miller asserted also that he received
military retirement credit for this period. On that basis,
he argued that he was entitled to 41 days of military
retirement credit and 41 days of civil service retirement
credit for Period Two. Id. In making this argument, he
contended that § 8332(c)(2) does not bar his claim. See
Miller Br. at 18–19, 21–24. As in the case of Period One,
Mr. Miller argued that he is not attempting to count his
military service towards his civilian service credit. Ra-
ther, he stated that he “seeks civilian service credit from
this period of his civilian service when he was on annual
leave. This does not present the double civilian service
MILLER v. OPM 17
credit § 8332 prohibits.” Miller Br. at 18. For its part, the
government, in its initial briefing, took the position that
Mr. Miller was in leave-without-pay status during this
period and thus made no civil service contributions, as
found by the AJ and the Board. Gov. Br. at 31 & n.4, 27
& n.3. According to the government, Mr. Miller was not
entitled to civilian service credit for Period Two because
he failed to waive his military retired pay for this period
or make a deposit pursuant to 5 U.S.C. §§ 8332(j) and
8334(j). Gov. Br. at 31.
In his supplemental submission, Mr. Miller points to a
leave and earnings statement showing that he used, and
DIA paid him for, 72 hours of annual leave during the pay
period ending on September 8, 1990. See J.A. 210. He
also points to a form titled “CERTIFIED SUMMARY OF
FEDERAL SERVICE,” certified by DIA, which contains
the notation “Employee’s military service began
08/27/1990; Employee’s [leave without pay] began
10/26/90.” J.A. 70. In its supplemental submission, the
government does not challenge these records. See Gov.
Suppl. Submission at 3.
As discussed in our analysis of § 8332(c)(2) and in
connection with Period One, we do not think that the bar
of 5 U.S.C. § 8332(c)(2) applies when there is concurrent
military and civilian service, and the claimant only seeks
civilian service credit for civilian service. The question of
Period Two thus turns on whether there was concurrent
service during the period. If there was concurrent service,
for the reasons stated in our analysis of the statute and in
the case of Period One, Mr. Miller is entitled to have
Period Two credited in the calculation of his civil service
retirement annuity. That brings us to a fact issue. If Mr.
Miller was on annual leave during this period, he was in a
concurrent service situation. If, however, he was in leave-
without-pay status, he was not in a concurrent service
situation. Indeed, at oral argument, counsel for Mr.
Miller conceded that, if he was in leave-without-pay
18 MILLER v. OPM
status during Period Two, he loses as far as this period is
concerned. Oral Arg. at 0:22:10–0:23:13,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
17-1792.mp3.
After considering the record, the parties’ original
briefing, and their supplemental submissions, we con-
clude that substantial evidence does not support the
Board’s finding that Mr. Miller was in leave-without-pay
status during Period Two. Therefore, he was in a concur-
rent service situation, the result being that he is entitled
to have Period Two credited as civilian service in the
computation of his civil service retirement annuity. We
are persuaded that this is the correct result based upon
the evidence of record cited in the parties’ supplemental
submissions. Significantly, all of this evidence points to
Mr. Miller being on annual leave during Period Two,
while none of it supports the proposition that he was in
leave-without-pay status. See Lutz v. U.S. Postal Serv.,
485 F.3d 1377, 1381 & n.3 (Fed. Cir. 2007) (“While the
question . . . is a mixed question of law and fact, where, as
here, the facts are undisputed[,] the determination . . .
necessarily reduces to a question of law. . . . Thus, a
remand . . . is not necessary.”).
Period Three (August 22, 1994–December 22, 1995)
As noted, during this period, Mr. Miller worked for
DIA in a civilian position. However, in response to his
request, the AFBCMR retroactively returned him to
active service for the period. J.A. 94. As a result, DIA
voided his civilian service retroactively, placing him in
military leave-without-pay status for the period. J.A. 106.
Mr. Miller was informed that “[i]nterim civilian earnings
must be offset from pay and allowances due for the period
of reinstatement.” J.A. 170. As in the case of Periods One
and Two, Mr. Miller received military retired pay for this
period, see J.A. 58, and he does not assert that he made a
MILLER v. OPM 19
deposit to OPM for this period or that he waived his
military retired pay for the period.
In his supplemental submission, Mr. Miller states, at
page 2, that “[u]pon further review of the records and
discussion, the parties agree that the military did credit
Mr. Miller with the time, in a day for day manner, for his
constructive active duty from August 22, 1994, to Decem-
ber 22, 1995.” In its supplemental submission, the gov-
ernment points out that Period Three is distinguishable
from Periods One and Two. That is because, unlike
Periods One and Two, Period Three does not involve
periods of overlapping military and civilian service. The
government states: “When the AFBCMR retroactively
reinstated Mr. Miller to active duty to 1994, [DIA], his
civilian employer at the time, voided all civilian service
for this period.” Gov. Suppl. Submission at 4–5. In other
words, Period Three does not involve concurrent service.
Because Mr. Miller is deemed to have had no civilian
service during Period Three and because he has not made
a deposit or waived his military retirement pay for this
period, § 8332(c)(2) bars his claim for the period.
CONCLUSION
In sum, we hold that the Board erred in rejecting Mr.
Miller’s claims with respect to Periods One and Two. We
also hold, however, that the Board did not err in rejecting
his claim with respect to Period Three. We thus affirm-in-
part and reverse-in-part. The case is remanded to the
Board for further proceedings consistent with this opin-
ion. In that regard, the Board is directed to remand the
matter to OPM for calculation of the civil service retire-
ment annuity to which Mr. Miller is entitled based upon
our decision in this case. The Board may retain jurisdic-
tion while OPM makes its calculation. See Erreich v. U.S.
Postal Serv., 28 M.S.P.R. 232, 233 (1985) (“[T]he Board
. . . retains jurisdiction to enforce any final decision.”).
20 MILLER v. OPM
AFFIRMED-IN-PART, REVERSED-IN-PART, AND
REMANDED
COSTS
The parties shall bear their own costs.