[00:00:00] Speaker 02:
9-2, Miller versus Opiak.

[00:01:00] Speaker 00:
May it please the court, Deputy Augustino for Petitioner Richard Miller.

[00:01:04] Speaker 00:
The error made by the board in this case stems from its fundamental misunderstanding of the concept of double credit.

[00:01:12] Speaker 00:
5 USC, Section 8332 allows, when there is concurrent military and civilian service, for a federal employee like Mr. Miller to earn one day of civil service credit and one day of military credit.

[00:01:30] Speaker 02:
I appreciate that, but it's a hard struggle.

[00:01:34] Speaker 02:
Subsection 2, you're looking at 8332 subsection 2.

[00:01:37] Speaker 02:
Can you turn to that?

[00:01:40] Speaker 02:
Because the question is, what does this apply to?

[00:01:43] Speaker 02:
I think your position is that this prohibition does not apply to the concurrent service issues that you've raised here.

[00:01:55] Speaker 02:
Is that right?

[00:01:57] Speaker 00:
That is correct.

[00:01:59] Speaker 00:
We would argue that the prohibition is, in a scenario like occurred in Seltzer, like occurred in the Forsyth Cape, where the employee tried to get military credit applied to civil service.

[00:02:12] Speaker 00:
So in other words, instead of one day of military credit and one day of civilian credit, two days of civilian credit.

[00:02:20] Speaker 00:
That has been disallowed by this court.

[00:02:21] Speaker 00:
That has been disallowed.

[00:02:23] Speaker 02:
Well, can you help me out here, because I understand what you're saying, but I'd like to keep Seltzer separate for a change, because that was such a strange factual scenario.

[00:02:32] Speaker 02:
Just look at subsection two and tell us generally what that applies to.

[00:02:40] Speaker 02:
If an employee is awarded retired pay based on any period of military service,

[00:02:45] Speaker 02:
the service of the employee may not include credit for such a period of military service.

[00:02:50] Speaker 00:
Of military service.

[00:02:51] Speaker 00:
And that's the issue.

[00:02:53] Speaker 00:
The military service should not be applied.

[00:02:57] Speaker 00:
But there's no denial of the civilian service.

[00:03:00] Speaker 00:
So in this case, Mr. Miller was denied civilian service for the periods in question.

[00:03:05] Speaker 00:
And he's not seeking to have double credit.

[00:03:08] Speaker 00:
He's not seeking to have his military service time applied to the civilian service time.

[00:03:13] Speaker 04:
He has just been- I guess the concern is there's one way to read C2 as suggesting that for any days of your civilian service that you want credit for, that you've already gotten credit for military service for those days, then you can't get credits towards your civilian service for those same days.

[00:03:40] Speaker 04:
And so that's what-

[00:03:42] Speaker 04:
I think is one way of reading this.

[00:03:44] Speaker 00:
Yeah, and that's not, I mean, the statute does refer to the period of military service.

[00:03:49] Speaker 00:
And so the statute does apply in situations where, for example, a federal employee had 22 years of military service, chose to take a 20-year retirement from the military, and then had these two extra years.

[00:04:02] Speaker 00:
There are provisions where that service member could essentially put down a deposit to buy those two years and apply it to civilian credit.

[00:04:10] Speaker 00:
That's just not what the issue in this case is.

[00:04:14] Speaker 00:
This is about Mr. Miller's civilian credit.

[00:04:16] Speaker 02:
But you're saying this provision would foreclose him from doing that?

[00:04:20] Speaker 00:
No.

[00:04:21] Speaker 00:
This provision, that's the point of this.

[00:04:25] Speaker 00:
There are times when it's appropriate.

[00:04:30] Speaker 00:
I guess the difference is when there's concurrent service versus when there's not concurrent service.

[00:04:35] Speaker 00:
When there's not concurrent service, time can be bought back.

[00:04:39] Speaker 00:
Time cannot.

[00:04:39] Speaker 02:
And you're saying this exclusively deals with circumstances in which there's not concurrent service.

[00:04:45] Speaker 02:
They're dealing with something else.

[00:04:46] Speaker 02:
They're talking about using military service to buy or get to civilian.

[00:04:52] Speaker 00:
Right.

[00:04:53] Speaker 00:
Right.

[00:04:53] Speaker 00:
So I would argue that the waiver issue only comes up in cases where you're looking to apply military service credit to civilian credit.

[00:05:04] Speaker 00:
Which, again, is just not the issue in this case.

[00:05:07] Speaker 02:
Well, let me ask you.

[00:05:08] Speaker 02:
I mean, there are different scenarios in this case.

[00:05:10] Speaker 02:
You've got different time periods, and things apply.

[00:05:12] Speaker 02:
Let me just ask you about one aspect of that, which is, do I understand your argument to be that you're not disputing your client's entitlement when we're dealing with leave without pay?

[00:05:26] Speaker 02:
It's only when he was on annual leave from civil service.

[00:05:30] Speaker 02:
That's what all of this is about, but not when it's leave without pay.

[00:05:35] Speaker 00:
Correct.

[00:05:36] Speaker 00:
So I guess, first of all, there is a factual dispute.

[00:05:40] Speaker 00:
I understand that.

[00:05:40] Speaker 00:
Right.

[00:05:41] Speaker 02:
I want to know what the principle is.

[00:05:43] Speaker 00:
So I do think in the case, well, the handbook in the case of leave without pay says that there needs to be a deposit.

[00:05:52] Speaker 00:
That is different than the case of annual leave, which is paid leave.

[00:05:55] Speaker 02:
So let me see if I understand that.

[00:05:57] Speaker 02:
I'm not

[00:05:58] Speaker 02:
taking sides here.

[00:05:59] Speaker 02:
I just want to make sure we're all understanding the way the system works.

[00:06:02] Speaker 02:
So if I'm a civil servant and I take a year's leave without pay and I spend it doing something in the military, your view is not that I could be accruing civil service retirement during that period.

[00:06:18] Speaker 02:
But aren't there circumstances in which you're on leave without pay

[00:06:21] Speaker 02:
you get back and then you buy back the time?

[00:06:24] Speaker 00:
Well, so you'd be on a military furlough if you were called up on LWOP.

[00:06:30] Speaker 00:
And in that case, that's not then viewed as concurrent service.

[00:06:35] Speaker 00:
I think that's a bit dishonest because under Title V you are allowed to accrue some up to six months of leave without pay toward

[00:06:44] Speaker 00:
a civil service retirement.

[00:06:45] Speaker 00:
So in my view, the handbook's a little bit off in that analysis.

[00:06:50] Speaker 00:
But that's what it says.

[00:06:51] Speaker 00:
If you're unpaid, then you need to put down the deposit.

[00:06:55] Speaker 00:
That's essentially not concurrent service.

[00:06:57] Speaker 00:
But if you're being paid by the government and by the military, that is concurrent service.

[00:07:02] Speaker 00:
And that's when this unique situation does arise.

[00:07:05] Speaker 02:
In the real world, is there any limit to the amount of time?

[00:07:09] Speaker 02:
I mean, it's a practical matter.

[00:07:10] Speaker 02:
Reservists usually get called up for two weeks a year.

[00:07:13] Speaker 00:
Well, from a practical matter, the military furlough is what avoids the conflict.

[00:07:20] Speaker 02:
And so... And when does that military furlough come into play?

[00:07:25] Speaker 00:
So that does put the person in an unpaid status.

[00:07:29] Speaker 00:
So there are very few times when this concurrent issue really arises.

[00:07:33] Speaker 00:
And so one of those times is in this case with the BCMR decision where there was time reconstructively restored

[00:07:42] Speaker 00:
that created concurrent service.

[00:07:45] Speaker 00:
The BCMR, to try to make everything easier, sort of backfired, but did not allow Mr. Miller to get credit for that concurrent service.

[00:07:56] Speaker 03:
So essentially there's... Why is it concurrent service?

[00:07:59] Speaker 03:
Because if it's his government service is deemed to be wiped off, his civil service is deemed to be wiped off, so it's just

[00:08:07] Speaker 03:
the military service.

[00:08:08] Speaker 00:
Right.

[00:08:08] Speaker 00:
Well, that's not what the board did.

[00:08:12] Speaker 03:
But isn't that what's supposed to happen?

[00:08:14] Speaker 00:
I would believe so.

[00:08:15] Speaker 00:
But in the back pay analysis, the board found it easier because Mr. Miller had retired both from the military and the government.

[00:08:23] Speaker 00:
They found it easier to just take this 15 months and call it non-pay status.

[00:08:27] Speaker 00:
Those were the 15 months of concurrent service.

[00:08:30] Speaker 00:
As it stands right now, there's 15 months when Mr. Miller has neither received civil service credit nor military service credit.

[00:08:36] Speaker 02:
So you're not seeking concurrent service credit.

[00:08:39] Speaker 02:
You're seeking civil service credit.

[00:08:40] Speaker 02:
Just civil service credit.

[00:08:42] Speaker 00:
Correct.

[00:08:42] Speaker 02:
So that's not implicating this concurrent argument.

[00:08:46] Speaker 04:
OK.

[00:08:47] Speaker 04:
He didn't get military service credit for those months.

[00:08:52] Speaker 04:
15 months.

[00:08:54] Speaker 04:
Where he was retroactively promoted.

[00:08:57] Speaker 02:
Correct.

[00:08:57] Speaker 02:
So there's a... So what should he have gotten in your view?

[00:09:01] Speaker 00:
Milled the cherry service credit for his annuity, or your argument is not that... Well, I think if BCMR could do it all over again, that probably, given where we are right now, would have been the easier way to deal with it.

[00:09:14] Speaker 00:
But BCMR saw that Mr. Miller had been paid for those 15 months by the government.

[00:09:20] Speaker 00:
He had put in about $18,000 toward retirement.

[00:09:24] Speaker 00:
And so instead of...

[00:09:28] Speaker 00:
And so that's essentially what happened.

[00:09:29] Speaker 00:
They took that 15 months and said, well, this is clearly your civilian service.

[00:09:36] Speaker 03:
Who said that?

[00:09:37] Speaker 00:
The BCMR.

[00:09:38] Speaker 00:
The problem is that DIA, the federal agency Mr. Miller was working for, at the same time said, well, no, since that's military service, you don't get civilian service credit for it.

[00:09:49] Speaker 00:
And so again, that's left Mr. Miller with this 15-month period of time with no credit.

[00:09:55] Speaker 00:
on either side.

[00:09:56] Speaker 02:
What is your position as to what credit should have been awarded on the military side or on the civilian side?

[00:10:01] Speaker 00:
I do believe in the scenario with him not receiving any military credit for that time that civilian credit does make sense.

[00:10:08] Speaker 00:
He did work for the government for those 15 months.

[00:10:10] Speaker 04:
It sounds like if he was retroactively promoted and declared to have been deemed to be doing military service and wiping out the civilian service

[00:10:21] Speaker 04:
then one would say, although it's a fiction, he really was part of the military at that time, he wasn't part of the civilian service at that time, and so he should have been getting military pay and military retirement credits for that entire period of time, and then no civilian pay and no civilian

[00:10:42] Speaker 04:
retirement credits for that time.

[00:10:44] Speaker 00:
But that's not what happened.

[00:10:45] Speaker 00:
They didn't wipe out the civilian service.

[00:10:47] Speaker 04:
I'm just trying to logically think through what I think should have happened.

[00:10:51] Speaker 00:
I agree that's probably what should have happened.

[00:10:56] Speaker 00:
I do think that's probably what should have happened.

[00:10:58] Speaker 04:
It should have been all credit on the military side.

[00:11:02] Speaker 00:
Right.

[00:11:03] Speaker 04:
And so you're not arguing that you should get both

[00:11:08] Speaker 04:
military retirement credits and civilian retirement credits for that entire period.

[00:11:13] Speaker 00:
No, he in fact did not get military retirement credit.

[00:11:16] Speaker 04:
But you're here seeking the civilian retirement credit for that time.

[00:11:19] Speaker 04:
Correct.

[00:11:20] Speaker 04:
Given that for whatever reason he hasn't been able to get military retirement credit for that time.

[00:11:27] Speaker 00:
Correct.

[00:11:27] Speaker 00:
The military has deemed that time civilian service time.

[00:11:30] Speaker 00:
And so that's what the record is reflecting.

[00:11:33] Speaker 04:
Oh, gosh.

[00:11:34] Speaker 00:
This is going to take a while.

[00:11:35] Speaker 04:
I'm sorry.

[00:11:37] Speaker 04:
Why did the military deem that to be civilian time?

[00:11:44] Speaker 00:
Well, part of the issue was that he had retired at that point, both from the military and the Civil Service.

[00:11:49] Speaker 00:
And so those retirements had to be undone, and back pay for active duty was awarded.

[00:11:55] Speaker 00:
And in figuring out how to apportion the back pay,

[00:12:02] Speaker 00:
You know, what was done was to place 15 months of the constructive service credit into a non-pay military status.

[00:12:11] Speaker 00:
And that was because they didn't ask him to pay back the salary the IA paid for those 15 months.

[00:12:18] Speaker 00:
You know, he didn't get back the $18,000 he put in for retirement.

[00:12:23] Speaker 00:
They thought it would be cleaner that way.

[00:12:25] Speaker 00:
Obviously, it's not.

[00:12:28] Speaker 03:
Could it be fixed now?

[00:12:33] Speaker 03:
I mean, in other words, couldn't it go back and have all of this sorted out?

[00:12:37] Speaker 03:
I mean, it just seems like it'd be so simple if you just had the OPM, the military, sit down and say, OK, here's the way it should have worked.

[00:12:44] Speaker 03:
Set it up that way.

[00:12:48] Speaker 00:
Potentially.

[00:12:48] Speaker 00:
I can't say I'm an expert in Board of Military Corrections law.

[00:12:54] Speaker 00:
This sounds like a candidate for mediation.

[00:13:03] Speaker 00:
I actually think that wouldn't be an unreasonable outcome in this situation.

[00:13:09] Speaker 00:
It seems like we're dealing with a very unusual circumstance, obviously, given this BCMR decision.

[00:13:18] Speaker 00:
Even the handbook recognizes this is a very unusual circumstance.

[00:13:23] Speaker 00:
Had the parties tried to mediate and resolve this?

[00:13:29] Speaker 02:
The parties have not.

[00:13:31] Speaker 02:
Because, as I said, this is

[00:13:33] Speaker 02:
a situation as I think is clear from just our questions where I guess the implications of what we might say could affect millions of people.

[00:13:44] Speaker 02:
But it seems like we're driven by circumstances here that are entirely unique.

[00:13:51] Speaker 00:
And that's kind of- I would disagree that they're all that unique.

[00:13:55] Speaker 00:
I mean, again,

[00:13:58] Speaker 00:
Going back to the Seltzer decision, it was undisputed in that case that the appellant was given civil service credit.

[00:14:05] Speaker 00:
Nobody challenged that.

[00:14:06] Speaker 03:
But Seltzer fit within, he didn't in his decision, he fitted within one of the exceptions in 8332.

[00:14:13] Speaker 00:
No.

[00:14:13] Speaker 00:
So in that case, he received 71 months of civil service credit.

[00:14:19] Speaker 00:
He was seeking double civilian credit.

[00:14:21] Speaker 00:
He was seeking to have his military time

[00:14:24] Speaker 00:
applied, so basically a doubling of a civilian credit.

[00:14:27] Speaker 03:
He was retired under one of the exception provisions in 8332C.

[00:14:31] Speaker 00:
Well, what the court held is that there cannot ever be this doubling.

[00:14:38] Speaker 02:
So fundamentally, it wasn't a frivolous argument.

[00:14:42] Speaker 02:
Technically, you could see how he got to the place that he did, making the argument.

[00:14:47] Speaker 00:
I certainly see why he was claiming this double service.

[00:14:50] Speaker 00:
And I actually think that the Forsyth decision that the board made is almost even more telling.

[00:14:56] Speaker 00:
In that case, the appellant actually did what the board in this case is telling Mr. Miller to do.

[00:15:01] Speaker 00:
And the board said, that's not going to get you where you want to go.

[00:15:04] Speaker 00:
So in Forsyth, he actually waived the military retirement for the military time and said, since I waived it, I should be now entitled to the double credit.

[00:15:17] Speaker 00:
And the board said, no, you can never get more than one day of civil service credit for civil service time.

[00:15:25] Speaker 00:
And so they said, even where the military time is waived, you cannot get this double credit.

[00:15:31] Speaker 00:
And so that's fundamentally at odds with what the board said here, where the board said, if there was this waiver, then this credit would be allowed.

[00:15:39] Speaker 00:
And that just doesn't comport with either Seltzer or its own decision and foresight.

[00:15:44] Speaker 04:
Can you follow up on?

[00:15:46] Speaker 04:
Judge Schall's question, I wasn't sure if I heard an answer to whether we should read Seltzer as saying the reason why Seltzer got 71 days of credit for civil service in addition to the 71 days for military retirement is because

[00:16:11] Speaker 04:
he satisfied the exception set forth in 8332C2B.

[00:16:18] Speaker 04:
And that's one way of reading this opinion.

[00:16:22] Speaker 04:
And I'm wondering if you can somehow explain something to me to show why that's not the right reading.

[00:16:32] Speaker 00:
Well, it was actually the case that it's my reading of this decision.

[00:16:38] Speaker 00:
And it's right on the first page that the reason

[00:16:41] Speaker 00:
on this appellant was given civil service credit is because he was on paid leave from the government.

[00:16:46] Speaker 00:
And so that was the fact that was undisputed.

[00:16:50] Speaker 00:
He was saying, because of this exception I fall under, I should get double credit.

[00:16:54] Speaker 00:
And the court said, no, we cannot ever allow this double credit.

[00:16:59] Speaker 00:
In this concurrent situation, you can't get two days of civil service credit and zero days of military time.

[00:17:06] Speaker 04:
So then is your reading that he

[00:17:09] Speaker 04:
Regardless of whether he qualified under 8332C2B, he would have gotten the 71 days of civil service retirement and 71 days of military retirement.

[00:17:24] Speaker 04:
But then he tried to invoke the exception under

[00:17:28] Speaker 04:
C2B, and then the court here said, no.

[00:17:33] Speaker 04:
I mean, maybe on the face of it, you have an argument why you could get more credit towards your civil service retirement.

[00:17:40] Speaker 04:
But we're not going to, because there's a larger backdrop principle, and that's double counting.

[00:17:46] Speaker 04:
And there's just no chance you're going to ever be able to double count days of civil service that you were on the books for.

[00:17:56] Speaker 04:
get an extra day on top of every day that civil service books.

[00:18:01] Speaker 00:
Right.

[00:18:01] Speaker 00:
And so at no point was there a dispute that he was entitled to that first 71 days.

[00:18:06] Speaker 04:
I'm just trying to understand.

[00:18:07] Speaker 04:
Do you think Seltzer is saying, well, even though there's an exception to C2B, there's an exception to that exception?

[00:18:15] Speaker 04:
No, I believe that the statute... And that exception to the exception is the double counting principle.

[00:18:19] Speaker 04:
I'm trying to help you.

[00:18:20] Speaker 00:
I do believe the statute, and this Court has held, that the double counting is always going to be impermissible where there's concurrent service.

[00:18:28] Speaker 00:
And again, that's not what Mr. Miller is seeking.

[00:18:30] Speaker 00:
He's not seeking double credit.

[00:18:32] Speaker 00:
He's seeking the first 71 days in this case, and that's what he's been denied.

[00:18:38] Speaker 00:
So I agree the statute bars this doubling of credit.

[00:18:41] Speaker 00:
It seems that every appellant who's tried to get it hasn't been able to, regardless of whatever exception.

[00:18:47] Speaker 04:
Is that the case there's been a long-standing practice to always have an either-or outcome?

[00:18:54] Speaker 04:
If you get military retirement for those days of concurrent service, then OPM never, ever gives those people credits towards their concurrent civilian retirement?

[00:19:09] Speaker 00:
I don't believe so.

[00:19:10] Speaker 00:
It seems that there aren't any cases where the basic civil service has been denied.

[00:19:19] Speaker 02:
There were so many negatives in both of the answers.

[00:19:22] Speaker 02:
I lost it because I think it's a very important question.

[00:19:25] Speaker 02:
Is it your understanding that the current longstanding practice with the government

[00:19:30] Speaker 02:
is in cases where I was in the military for whatever number of years and in the civil service, I take two weeks of reserve every year and go work in the military on an annual leave.

[00:19:42] Speaker 02:
Is it your understanding that consistently the government has always allowed the person to get credit, military and civil service for that period?

[00:19:52] Speaker 00:
Yes, that's always been the rule, and that's exactly what... So if we... And you're saying they deviated from that rule in this case?

[00:20:01] Speaker 00:
I do believe that.

[00:20:03] Speaker 00:
I do believe that's why we're here.

[00:20:04] Speaker 02:
So if we were to agree hypothetically with that principle and state... No, no, no.

[00:20:09] Speaker 02:
Two, and what's not allowed here does not displace... It's not about this concurrent thing.

[00:20:17] Speaker 02:
What happens to your case?

[00:20:19] Speaker 02:
It seems like there's still so many other issues, subsidiary issues, that go towards resolving the issues that you've raised.

[00:20:28] Speaker 00:
Well, I suppose there are still the factual disputes, if that's what you mean.

[00:20:33] Speaker 00:
But I mean, we believe the record's clear.

[00:20:35] Speaker 00:
He was on annual leave, for example, for that one period.

[00:20:39] Speaker 03:
Which period were you talking about?

[00:20:40] Speaker 00:
for the period from August 27, 1990 to October 25, 1990.

[00:20:45] Speaker 03:
That's the question.

[00:20:48] Speaker 03:
You say annual leave.

[00:20:50] Speaker 03:
The government says leave without pay.

[00:20:52] Speaker 03:
Right.

[00:20:53] Speaker 03:
Now, does that implicate the provision in J2, 8332CJ2, that says you're OK to get the county from military service if

[00:21:09] Speaker 03:
You're on annual leave.

[00:21:11] Speaker 03:
Right.

[00:21:12] Speaker 03:
I think that's right.

[00:21:13] Speaker 03:
You answered the chief's question.

[00:21:14] Speaker 03:
You said, yes, he was on annual leave.

[00:21:18] Speaker 03:
They go on the reserves.

[00:21:19] Speaker 03:
They go on annual leave.

[00:21:20] Speaker 03:
OK?

[00:21:21] Speaker 03:
Right?

[00:21:22] Speaker 03:
Correct.

[00:21:22] Speaker 03:
That's what you said.

[00:21:23] Speaker 03:
But here, and that may well be the case, but here it says he was on leave without pay.

[00:21:29] Speaker 03:
What is the difference?

[00:21:30] Speaker 00:
Well, so, and we pointed to the documents in the appendix, but I mean,

[00:21:36] Speaker 00:
Statement of Mr. Miller's federal service clearly states that he exhausted his accrued annual leave and then went on a period of LWAP starting on October 26th.

[00:21:46] Speaker 03:
So let's leave aside for a moment, because that's a cultural issue.

[00:21:50] Speaker 03:
But let's assume for the moment.

[00:21:52] Speaker 03:
Assume for the moment he's on annual leave.

[00:21:55] Speaker 03:
That would give you the result you want.

[00:21:58] Speaker 00:
Correct.

[00:21:58] Speaker 03:
OK.

[00:21:59] Speaker 03:
And I think that may be the case under 8332C2J.

[00:22:06] Speaker 03:
What is the answer, though, if he's on leave without pay?

[00:22:11] Speaker 03:
We have these competing factual scenarios here.

[00:22:14] Speaker 03:
The government says leave without pay.

[00:22:15] Speaker 03:
The board said leave without pay.

[00:22:17] Speaker 03:
You just said, and I think you say in the brief, annual leave.

[00:22:20] Speaker 03:
What if it's leave without pay?

[00:22:22] Speaker 03:
What's the answer?

[00:22:22] Speaker 00:
I do think if it's leave without pay, then the guidance is that he would have to pay the deposit to get that credit.

[00:22:32] Speaker 02:
So he's not entitled under this record as it stands now.

[00:22:35] Speaker 02:
I thought that's what you had said at the beginning of this.

[00:22:38] Speaker 02:
Correct.

[00:22:38] Speaker 03:
Right.

[00:22:39] Speaker 03:
On the period two.

[00:22:41] Speaker 00:
I'm sorry.

[00:22:41] Speaker 03:
On the second period, August 70 through October.

[00:22:45] Speaker 00:
Right.

[00:22:45] Speaker 00:
Exactly.

[00:22:46] Speaker 00:
I do think, and that's what the administrative judge held initially, that that is what the handbook provides.

[00:22:55] Speaker 00:
So I do think that it's pretty clear, if it's paid leave, then that

[00:23:02] Speaker 00:
that concurrent credit is allowed.

[00:23:04] Speaker 00:
If it's unpaid leave, the deposit is required because it's then deemed not, you're not getting paid by two entities at once.

[00:23:14] Speaker 02:
Can I just, just to follow up on what Judge Schall is saying, we've got three different periods, right?

[00:23:19] Speaker 02:
Correct.

[00:23:20] Speaker 02:
Well, it seems to me if we, if we

[00:23:23] Speaker 02:
Even if we accept or agree with your read of concurrent service not being foreclosed by subsection two, you've got the first period of terminal leave.

[00:23:35] Speaker 02:
I can understand how that proposition may affect that.

[00:23:38] Speaker 02:
But the second one, if it's leave without pay, you agree there's no entitlement here.

[00:23:45] Speaker 02:
And then the third issue seems to be a different issue altogether, which is he got nothing for this period, so it's not a matter of

[00:23:53] Speaker 02:
how we interpret this concurrent service thing.

[00:23:55] Speaker 02:
It's just a matter of whether or not he should have gotten something.

[00:23:58] Speaker 02:
You're not asking for both retirements.

[00:24:00] Speaker 00:
But I think at this point, with regard to that 15-month period... Is that the wait without pay period we're talking about?

[00:24:09] Speaker 00:
No, that would be the correction by the BCMR.

[00:24:14] Speaker 00:
His record shows that for 15 months,

[00:24:19] Speaker 00:
From August 22, 1994 to December 22, 1995, he had civilian service.

[00:24:26] Speaker 00:
And on paper, anyway, it's actually not paid military service.

[00:24:35] Speaker 00:
So there would be no basis to deny civil service credit and nothing to waive.

[00:24:40] Speaker 02:
Right.

[00:24:41] Speaker 02:
That's a different issue, right?

[00:24:42] Speaker 02:
That's not the statutory question of whether concurrent service is allowed.

[00:24:47] Speaker 02:
You're not asking for concurrent service there.

[00:24:49] Speaker 00:
You're asking for any service.

[00:24:52] Speaker 00:
For one service.

[00:24:53] Speaker 00:
Right.

[00:24:54] Speaker 00:
Right.

[00:24:54] Speaker 00:
I do think if it's constructive, there is a section in the handbook that actually deals particularly with this.

[00:25:03] Speaker 00:
I don't view it as conflicting at all with the statute.

[00:25:07] Speaker 00:
I view it as basically being the general rule.

[00:25:09] Speaker 03:
It says that when... Normally, hopefully the way it would work in this period three scenario is the correction board says he was given the choice of staying in the civilian side or going back to the military.

[00:25:21] Speaker 03:
He chose the military.

[00:25:23] Speaker 03:
Normally in that situation, hopefully the way it would work out is it would be all military, everything would be taken care of, and there'd be nothing on the civil side for that period.

[00:25:33] Speaker 00:
I think that would be the typical way that that's handled.

[00:25:36] Speaker 00:
I mean, that's the way it should work.

[00:25:39] Speaker 00:
That's what we would typically see, yeah.

[00:25:41] Speaker 00:
And so, you know, maybe the situation was artificially created, but the situation still

[00:25:48] Speaker 04:
exists and... I guess do we have the authority, I mean even if you were right on your interpretation of 8332C, do we have the authority to grant essentially civilian retirement credits during that period when, at least when we look at the books, that period has been wiped off of his civilian service?

[00:26:13] Speaker 00:
It hasn't been, I mean he was paid

[00:26:15] Speaker 00:
as a civilian during that time and he paid into the retirement system at that time and that all still stands.

[00:26:22] Speaker 00:
So there's sort of an artificial notion of concurrent service but in reality he was a civilian.

[00:26:28] Speaker 04:
I'm trying to understand the effect of that retroactive

[00:26:33] Speaker 00:
Yeah, I think on paper it creates concurrent service, but in reality he was a government employee working for the government.

[00:26:41] Speaker 04:
Does it create concurrent service or does it displace one service?

[00:26:49] Speaker 00:
I think it creates concurrent service.

[00:26:51] Speaker 00:
The problem is part of it is paid concurrent service, part of it is unpaid by the military.

[00:26:58] Speaker 00:
sort of doubly complicated.

[00:26:59] Speaker 00:
So it does create concurrent service.

[00:27:02] Speaker 00:
The problem is that part of the concurrent service was paid by the military, part was not.

[00:27:06] Speaker 00:
So the part that was not.

[00:27:08] Speaker 04:
Your version of concurrent service here, ultimately he didn't get paid two salaries for that 15 months, right?

[00:27:15] Speaker 04:
One from the military and then one from the civilian for working as a full-time employee in both places.

[00:27:22] Speaker 00:
Right, the military did not pay him for that 15 months.

[00:27:25] Speaker 00:
So only the federal government did.

[00:27:28] Speaker 03:
Stan, what is this story about this refund for the first period?

[00:27:32] Speaker 03:
I mean, I know we can't maybe delve into all these tracks, but it seems to me you say he made a refund for what I'll call the June 82 period.

[00:27:44] Speaker 03:
Deposit.

[00:27:45] Speaker 03:
Deposit, yeah.

[00:27:47] Speaker 03:
And there's a reference in the governance briefing to say it's been refunded.

[00:27:53] Speaker 00:
So I actually view this one week as the most complicated

[00:27:57] Speaker 00:
time period involved in the case.

[00:27:59] Speaker 03:
Has it or not been refunded?

[00:28:03] Speaker 00:
Honestly, the one record or the one document in the record is incredibly unclear.

[00:28:10] Speaker 00:
There was an amount refunded.

[00:28:12] Speaker 00:
It's unclear for what and it's unclear if it covered this week.

[00:28:17] Speaker 00:
It's quite frankly a really unresolved fact and

[00:28:23] Speaker 00:
So again, I view this one week as the most complicated because 5 USC 5534A allows service members on terminal leave to be in an annual leave status, and so presumably to accrue that dual credit, one week of military, one week of civilian.

[00:28:44] Speaker 00:
The handbook, however, says that that's not to be the case, and that time is to be military time.

[00:28:51] Speaker 00:
and thus there's to be a deposit.

[00:28:54] Speaker 04:
So, whereas... But that could be based on a misinterpretation of 8332.

[00:29:00] Speaker 00:
I believe it is because, again, I believe the statute, section 5534A, it does deal directly with this terminal leave scenario and it's squirreling on points.

[00:29:15] Speaker 00:
So, it's our reading that because of the statute, the deposit shouldn't have to be paid.

[00:29:21] Speaker 00:
However, under OPM's handbook, it says it does need to be paid.

[00:29:27] Speaker 00:
So I do think that week is the week where there's actually a statute conflicting with the handbook.

[00:29:34] Speaker 00:
Obviously, I would argue the statute is the real authority here.

[00:29:41] Speaker 00:
But again, the issue of the refund is also not entirely clear based on the record as it stands.

[00:29:51] Speaker 02:
Okay, well, we'll give you back some Republican one.

[00:29:55] Speaker 02:
We hear from the government.

[00:29:56] Speaker 02:
Thank you very much for cooperating.

[00:30:33] Speaker 01:
Good morning.

[00:30:34] Speaker 05:
Good afternoon, Your Honors, and may it please the Court.

[00:30:36] Speaker 05:
I'd like to first follow up on Judge Schultz's point about Seltzer and the Court's reading of Seltzer is correct.

[00:30:43] Speaker 05:
Seltzer fit into the narrow exception under 5 U.S.C.

[00:30:49] Speaker 05:
8332C2B, and it's been renumbered slightly since Seltzer.

[00:30:55] Speaker 05:
But he retired and he was receiving retiree pay, but that is because under that

[00:31:03] Speaker 05:
second exception in Seltzer, he, he retired under Chapter 67 of that title.

[00:31:10] Speaker 05:
And this is on 833F, second, 977.

[00:31:14] Speaker 05:
It says Petitioner argues that because he was retired under Chapter 67 of Title 10, he is entitled to double credit.

[00:31:21] Speaker 05:
So in Seltzer, that was one of the, the two rare occasions when you're entitled to get both civilian credit and

[00:31:29] Speaker 05:
military credit for one period of service.

[00:31:32] Speaker 02:
Well, Seltzer didn't involve just civilian and military.

[00:31:36] Speaker 02:
It doubled the issue before the court, as I understood at the time, if I'm wrong.

[00:31:41] Speaker 02:
It was whether or not just he's entitled to credit military and civilian.

[00:31:45] Speaker 02:
I think he got that.

[00:31:46] Speaker 02:
71 days on each count.

[00:31:49] Speaker 02:
He was trying to double down on the civil service time, right?

[00:31:54] Speaker 05:
You're correct, Your Honor, but the only reason he got

[00:31:57] Speaker 05:
that first double of civilian and military is because he fit under this retired under Chapter 67 of Title X. And that's not Mr. Miller.

[00:32:04] Speaker 05:
So Seltzer is different because he does fit into that exception.

[00:32:09] Speaker 02:
Let me ask you, just hypothetically, if you're a civil servant and you're in the military and you take annual leave for two weeks a year or whether you get military leave, I don't know, and you go to the reservice for two weeks a year,

[00:32:22] Speaker 02:
During that period of time, and you receive a salary from the federal government and from the military, are you not able to accrue concurrent service credit for your retirements in both systems?

[00:32:36] Speaker 05:
If you're a reservist, that's the exception in Seltzer.

[00:32:40] Speaker 05:
You are.

[00:32:40] Speaker 05:
If you take military, if you're on military leave.

[00:32:44] Speaker 02:
I don't understand the exception in Celsius for reservists.

[00:32:47] Speaker 02:
I mean, the exception in C2, is that Chapter 67 of the service?

[00:32:51] Speaker 05:
Yes, that's retirement under, that's the reservist chapter, Title 10, retirement under that system.

[00:32:58] Speaker 05:
You are able to get double credit.

[00:33:02] Speaker 05:
But in the general sense, if you're, if you take leave from the agency and you go serve, you get military retirement credit for that.

[00:33:09] Speaker 05:
Now, you can choose to have that counted in the civilian system if you waive the military retired pay.

[00:33:16] Speaker 05:
What you can't do, with, again, two very narrow exceptions, is have both.

[00:33:20] Speaker 02:
But what are the circumstances?

[00:33:21] Speaker 02:
You said you leave the civil service and you go to the military.

[00:33:24] Speaker 02:
OK, we're not talking about reservists.

[00:33:27] Speaker 02:
You said they're entitled to pay.

[00:33:29] Speaker 02:
So you get called up to pay?

[00:33:33] Speaker 05:
Yes, Your Honor.

[00:33:34] Speaker 05:
You get called up, but you leave without pay from your agency.

[00:33:37] Speaker 02:
OK, so we're talking about leave without pay.

[00:33:40] Speaker 02:
And I think your friend conceded.

[00:33:42] Speaker 02:
If you're on leave without pay from the agency, that's a different situation.

[00:33:46] Speaker 02:
Are there any circumstances in reality where someone would take annually from the federal government and go do military service other than the reservists covered under B?

[00:33:57] Speaker 05:
Not that I'm aware of, Your Honor.

[00:33:59] Speaker 02:
And what about the terminal time there?

[00:34:03] Speaker 02:
Because that's kind of a different thing, right?

[00:34:05] Speaker 05:
The terminal time is a unique circumstance.

[00:34:08] Speaker 05:
You can't be employed in a civilian position if you're active duty.

[00:34:12] Speaker 05:
And so this terminal week was to transition Mr. Miller from active duty military to civilian time.

[00:34:18] Speaker 05:
Again, he gets military credit for that.

[00:34:20] Speaker 05:
And if he chooses to waive that military retired pay, he can get civilian credit.

[00:34:24] Speaker 05:
What he can't do is have both.

[00:34:26] Speaker 05:
And that's certainly the Seltzer case, the Bailey case that we cite as well, goes

[00:34:32] Speaker 05:
goes through that very analysis and says it asks whether a Federal employee can receive double credit for his military service for reasons other than those specifically listed in C-1 and C-2.

[00:34:47] Speaker 05:
And those are the reserve retirement exception and then the service connection because of an injury incurred in combat.

[00:34:55] Speaker 05:
Those are two narrow special circumstances.

[00:34:58] Speaker 02:
Maybe I don't understand what the terminal leave is, but you're continuing to be on the military record.

[00:35:04] Speaker 02:
It's just like annual leave in the federal government, right?

[00:35:07] Speaker 02:
You're on the record and you're using your annual leave and you're not there.

[00:35:10] Speaker 02:
A lot of people who retired from the federal government stay the extra two months and exhaust their annual leave, right?

[00:35:16] Speaker 02:
Is that what terminal leave is like?

[00:35:18] Speaker 05:
I'm not sure that that's what terminal leave is.

[00:35:21] Speaker 05:
Terminal leave allows an active duty military person to transition to

[00:35:25] Speaker 05:
civilian service without running afoul of this bar on being employed by a civilian agency while being active duty.

[00:35:32] Speaker 02:
But on the terminal leave period, does that person remain on the payroll?

[00:35:39] Speaker 02:
Is he getting paid for that time, he or she?

[00:35:45] Speaker 05:
He or she would certainly be getting paid.

[00:35:47] Speaker 05:
I'm not sure which agency it would be.

[00:35:50] Speaker 02:
Well, I'm wondering if they are getting paid

[00:35:52] Speaker 02:
by both, as is the case of reservists, right?

[00:35:55] Speaker 02:
Reservists are getting paid by both.

[00:35:58] Speaker 02:
In terminal leave, are you getting paid by both?

[00:36:00] Speaker 05:
And I don't know the answer to that question.

[00:36:03] Speaker 05:
But in the case of reservists, the statute permits them to count both the period of service for both civilian and military retirement system.

[00:36:14] Speaker 05:
There's no such provision for terminal leave.

[00:36:16] Speaker 05:
So even if the person is getting paid by both,

[00:36:20] Speaker 05:
agencies that doesn't mean that they can count that one week or however long period for retirement credit for both the military retirement and the civilian retirement.

[00:36:31] Speaker 03:
This gentleman would suggest that somebody thought here that he was getting paid during the military part of the term of leave because a deposit was paid, right?

[00:36:43] Speaker 03:
In other words, that he was being paid on the military side during the terminal leave because he made a deposit.

[00:36:52] Speaker 03:
So that suggests he was getting military pay during this, quote, terminal leave period, right?

[00:36:59] Speaker 05:
That may be the case, Your Honor, because he did pay the deposit, which was then a fund.

[00:37:04] Speaker 03:
So that would suggest that during that period, he was receiving both civilian and military pay, right?

[00:37:12] Speaker 05:
Well, I'm not sure that he was receiving civilian pay during that time.

[00:37:17] Speaker 03:
But why would he make a deposit then?

[00:37:20] Speaker 05:
If he's trying to convert his military leave to civilian leave, he has to do two things.

[00:37:25] Speaker 05:
He has to waive the military retire pay, and he has to make a deposit.

[00:37:29] Speaker 05:
And maybe Mr. Miller thought that that's what he was trying to do.

[00:37:32] Speaker 03:
Let me ask you.

[00:37:32] Speaker 03:
What is the significance of this provision in 8332C?

[00:37:35] Speaker 03:
I'm sorry, 8332C.

[00:37:42] Speaker 03:
C2, I guess it's J1, does not withstanding any other provision of the section, military service, except military service covered by military leave with pay from a civilian position.

[00:37:59] Speaker 03:
You can't get credit for it.

[00:38:01] Speaker 03:
What is, what are we talking about?

[00:38:02] Speaker 03:
What is that exception for military service covered by military leave with pay from a civilian position?

[00:38:09] Speaker 05:
So that subsection,

[00:38:11] Speaker 05:
Judge Schall deals with the computation of monthly old age or survivor benefit accrued under Section 402 of Title 42.

[00:38:22] Speaker 05:
That's Social Security.

[00:38:23] Speaker 05:
So if at a certain point, and the provision says, as you quoted, notwithstanding any other provision of the section, military service except military service covered by military leave with pay from a civilian position, and then it goes on to say, shall be excluded in determining the aggregate period of service.

[00:38:42] Speaker 05:
for which an annuity payable under this sub-chapter to the individual is based.

[00:38:57] Speaker 05:
But then it goes on to say if the individual is entitled or would be entitled to monthly old age or survivor benefits.

[00:39:05] Speaker 05:
So there's another calculation that takes place when someone is eligible for social security benefits.

[00:39:12] Speaker 05:
to, again, to recalculate the annuity.

[00:39:14] Speaker 05:
The government covers people, but they don't double.

[00:39:21] Speaker 05:
The congressional intent is to not to have double coverage.

[00:39:23] Speaker 05:
So if you're getting credit for that under the Social Security, then J-1 excludes that aggregate period from... So you're saying J-1 doesn't apply at all in this case?

[00:39:35] Speaker 03:
certainly not the way it's been briefed runner but and i don't believe mister miller's making the argument that uh... seattle when misdemeanors said if it was if the second period was leave without then you're out of luck unless you make a deposit uh... but she said it's annually he's entitled do you agree or disagree with that

[00:40:04] Speaker 03:
I realize you say it's leave without pay.

[00:40:06] Speaker 05:
Right, Your Honor.

[00:40:07] Speaker 03:
And she says, OK, if it's leave without pay, I agree I lose.

[00:40:12] Speaker 03:
But she said, if it's leave with pay, or maybe we'll leave, I don't lose.

[00:40:18] Speaker 03:
Do you agree with that general proposition, leaving aside what the facts may tell us here?

[00:40:35] Speaker 05:
I want to make sure I understand.

[00:40:39] Speaker 03:
She said on the second period, the August to October 70 period, she said if Mr. Miller was on leave without pay from the federal government, I lose unless I make a deposit.

[00:40:54] Speaker 03:
You heard her say that.

[00:40:56] Speaker 03:
Right.

[00:40:57] Speaker 03:
She said, though, I win.

[00:40:59] Speaker 03:
I think that's what she was getting to.

[00:41:02] Speaker 03:
I win though, excuse me, I win though, if it's not leave without pay, but some other kind of leave, annual leave, leave with pay.

[00:41:15] Speaker 03:
Again, leaving aside these facts, do you agree with her proposition that she loses under one, but wins under the other?

[00:41:24] Speaker 03:
You can't say that.

[00:41:26] Speaker 05:
I believe that she loses under both under the reading of

[00:41:29] Speaker 05:
There's only two exceptions that it provides, and that's if you're getting military retired pay for a period of time.

[00:41:39] Speaker 05:
So if you were on leave with pay and you count that towards your military leave and you're getting military retired pay, then unless it's for a service-connected disability incurred in combat or reservist retirement, you can't count that same period of time towards your civilian retirement.

[00:41:57] Speaker 03:
So you're saying, in your view, even if it's leave with pay instead of leave without pay, she loses.

[00:42:05] Speaker 05:
Under the statute, yes.

[00:42:07] Speaker 04:
Unless the statute C-2 is really about under what circumstances do you add your military service credits into your civil service retirement time.

[00:42:26] Speaker 04:
And then it's not about situations where the context is concurrent service and then figuring out whether to deprive someone of their civil service concurrent time just because they are also accumulating military service time.

[00:42:48] Speaker 05:
That reading of the statute runs contrary to Miller.

[00:42:52] Speaker 05:
That's what they argued in

[00:42:53] Speaker 05:
In Seltzer.

[00:42:54] Speaker 05:
That's what they argued in Seltzer.

[00:42:55] Speaker 05:
And the court said no.

[00:42:56] Speaker 02:
Well, Seltzer was a bit different, though.

[00:42:59] Speaker 02:
He was seeking double counting on the civilians in addition to having gotten the military.

[00:43:06] Speaker 02:
I think some of this is fairly called concurrent service.

[00:43:11] Speaker 02:
He's actually operating under both.

[00:43:14] Speaker 02:
He's on annual leave.

[00:43:15] Speaker 02:
So he's using his annual leave.

[00:43:18] Speaker 02:
And he's getting military credit for retirement.

[00:43:21] Speaker 02:
That's not Seltzer.

[00:43:23] Speaker 02:
Seltzer wanted double counting for civil service.

[00:43:25] Speaker 05:
Seltzer, Your Honor, essentially wanted triple counting.

[00:43:28] Speaker 05:
Because he fit into the exception, he was getting both military and civilian leave.

[00:43:32] Speaker 05:
And then he was trying, as Judge Shent pointed out, to then take the military leave and double that up on the civilian side.

[00:43:40] Speaker 05:
But in Seltzer, he only served one period of time.

[00:43:44] Speaker 05:
And same thing here.

[00:43:45] Speaker 05:
Seltzer is different, I agree, because he fit into the narrow exception for reservist service.

[00:43:50] Speaker 05:
You don't have that here.

[00:43:51] Speaker 05:
This case, I think, is controlled by Bailey.

[00:43:55] Speaker 04:
Let's just say for a moment, we're not precisely sure what was the roadmap of thinking in Seltzerich.

[00:44:05] Speaker 04:
It could have been that because he qualified under C2B, that's why he got 71 days civilian, 71 days military.

[00:44:14] Speaker 04:
It could be that he was getting that anyway,

[00:44:18] Speaker 04:
But he wanted to use C2B to, instead of having 71 days civilian, wanted 142 days of civilian.

[00:44:26] Speaker 04:
And then the court said, no, that's not a proper invocation of C2B.

[00:44:33] Speaker 04:
Those are just two possibilities of reading Seltzer.

[00:44:35] Speaker 04:
I'm trying to now think about this case outside of Seltzer.

[00:44:40] Speaker 04:
And we know this person was being paid

[00:44:45] Speaker 04:
for both the military time and the civilian time outside of A Leave Without Paying.

[00:44:52] Speaker 04:
For all those different periods where he was getting paid by both, why wouldn't it just naturally follow that you would get the benefit?

[00:45:05] Speaker 05:
Your Honor, I'm not sure which periods you're referring to where he was being paid by both.

[00:45:10] Speaker 02:
Terminal leave, military terminal leave.

[00:45:13] Speaker 02:
But let's assume hypothetically that it's annual leave for some portion of that period in the second category.

[00:45:20] Speaker 02:
Let's assume it's annual leave and not leave without pay.

[00:45:24] Speaker 05:
That would still allow him to accrue more than 12 months worth of leave for only 12 months that he was on leave, because he would be getting leave in both systems.

[00:45:33] Speaker 05:
And that runs contrary to

[00:45:35] Speaker 05:
the congressional intent and to the cases.

[00:45:38] Speaker 04:
There are the too narrow carve-outs, but if those don't apply, OPM's position is... You can get salary from the two different sources, military and civilian, but you can't get the retirement days.

[00:45:53] Speaker 04:
And I'm just, what is it that

[00:45:56] Speaker 04:
that reflects Congress's intent that it wanted to carve away the ability to get annuity days accumulated in both places when Congress clearly wanted them to get paid for both places.

[00:46:16] Speaker 04:
Why separate the two?

[00:46:18] Speaker 04:
Why don't they just get treated the same?

[00:46:24] Speaker 05:
When Congress wanted

[00:46:26] Speaker 05:
individuals to a crew leave in both systems simultaneously, Congress made that explicit in the exceptions in C2.

[00:46:35] Speaker 05:
So it said, if you're getting retirement pay from the military, you can waive that and then just get pay in the civilian retirement system.

[00:46:48] Speaker 05:
That's fine.

[00:46:48] Speaker 05:
You have either or choice.

[00:46:50] Speaker 05:
Or for certain instances, if you were injured in combat,

[00:46:54] Speaker 05:
That's a sympathetic case, and we are going to allow you to accrue retirement in both systems, in part, and the Bailey case talks about this, because you don't necessarily, if you're injured in combat, have the ability to come back to the agency and resume your position with them.

[00:47:14] Speaker 02:
Just following up on that, so not only is somebody getting paid, if you're on annual leave, you're getting paid for one period and you're also getting paid for the military, my understanding would be if you're on annual leave, they continue to deduct amounts for retirement and then you're on military and you're getting paid by the military and they're continuing to deduct.

[00:47:36] Speaker 02:
portions of your salary for retirement.

[00:47:39] Speaker 02:
So for the same period of time, you're not only getting the checks for both of what you're doing, but you're also getting your retirement deducted.

[00:47:51] Speaker 02:
That may be a difference between leave without pay and annual leave.

[00:47:54] Speaker 02:
And you still say that you still can only get once because it comes under your double counting theory?

[00:48:04] Speaker 05:
I think that the typical scenario is that when you're on military leave, you are on leave without pay, unless you're a reservist and you're doing the two weeks a year.

[00:48:13] Speaker 05:
So this is not a situation where you're getting paid by both agencies.

[00:48:18] Speaker 02:
I think Judge Chen was talking about a circumstance where you're on annual leave for the government, and then you're working for the military, and you're deriving a salary from the military for the work that you're doing, and annual leave because you've earned the annual leave, and you're entitled to a salary when you're on annual leave.

[00:48:37] Speaker 02:
I don't know.

[00:48:37] Speaker 05:
And I'm not sure when that comes up because you're not, there's a prohibition on being active duty military and working as a civilian with the exception of being a reservist.

[00:48:46] Speaker 05:
So I don't, I mean, this may be a hypothetical, but it's.

[00:48:49] Speaker 02:
Well, how, what was happening with Mr. Miller in this circumstance?

[00:48:53] Speaker 05:
Well, Mr. Miller, there are three circumstances here.

[00:48:56] Speaker 05:
When one, he was on terminal leave.

[00:48:57] Speaker 05:
The second, he was, our position is the record is supports, there's substantial support in the record that he was on leave without pay.

[00:49:05] Speaker 01:
To do what?

[00:49:07] Speaker 05:
to be called up for Operation Desperado.

[00:49:11] Speaker 02:
But if you're called up, isn't it conceivable?

[00:49:13] Speaker 02:
I mean, even if he wasn't leave without pay, are you saying he would have been, if he had had enough accrued annually, he could not take annually?

[00:49:22] Speaker 02:
If you go out and serve during war and you leave your civilian capacity, are you not allowed to use your annual leave so that you'll retain your salary for that period?

[00:49:39] Speaker 05:
I mean, in that instance, you would be getting paid by both the civilian and by the military.

[00:49:45] Speaker 05:
I mean, I think that's a different case than this one.

[00:49:47] Speaker 05:
I think the record here says that Mr. Miller was... Well, that's what we're trying to differentiate.

[00:49:55] Speaker 02:
The fact-finding on leave without pay and annual leave is not going there at this time.

[00:49:59] Speaker 02:
I'm just trying to find out if your friend says a different rule applies.

[00:50:03] Speaker 02:
If it's leave without pay, she gives it up.

[00:50:06] Speaker 02:
But if it indeed was annual leave, she says she's entitled.

[00:50:09] Speaker 02:
I'm not hearing you push back on that.

[00:50:13] Speaker 02:
If, hypothetically, he were on annual leave and we're receiving military pay in time, we're having his civil service credit, his retirement money taken out of his paycheck,

[00:50:24] Speaker 02:
would he be allowed to get retirement credit?

[00:50:30] Speaker 05:
Your Honor, again, the language of the statute, the way it's written, does not make that distinction.

[00:50:37] Speaker 02:
Well, the language of the statute, why does that apply?

[00:50:38] Speaker 02:
Why don't we look at the language of the statute?

[00:50:40] Speaker 02:
Because it says, if you're an employee and you're getting retirement pay for military service, then the service, I think we're trying to hear about the civilian service, the civilian service

[00:50:53] Speaker 02:
may not include credit for such period of military service.

[00:51:01] Speaker 02:
So that's almost like the different situation, the situation in Seltzer, where you're trying to buy in, saying, I served six months in the military.

[00:51:12] Speaker 02:
I want to buy credit for my civil service retirement.

[00:51:15] Speaker 02:
And you're not allowed to buy in under certain circumstances.

[00:51:19] Speaker 02:
Why isn't that a correct reading of the statute?

[00:51:21] Speaker 02:
And not that the direct reading of the statute doesn't apply to this concurrent service at all when somebody is actually serving in both capacities or getting paid for both.

[00:51:36] Speaker 05:
Because you're still only serving one period.

[00:51:39] Speaker 05:
You're not literally in two places at once.

[00:51:43] Speaker 05:
You're either with the military, say, overseas, and you're not in your civilian

[00:51:49] Speaker 05:
even though if you've accrued leave, you get paid for it.

[00:51:53] Speaker 02:
Well, that's what leave is.

[00:51:54] Speaker 02:
If you've got paid leave, you're paid leave by definition.

[00:51:58] Speaker 02:
You not only get your pay, it's as if you're serving.

[00:52:01] Speaker 02:
You get your retirement taken out, you get credit for civil service retirement.

[00:52:05] Speaker 05:
So in that case, I think that would be more akin to when, you know, if you have accrued leave remaining when you leave an agency, you can get paid because that's leave that you accrued.

[00:52:18] Speaker 05:
I think that's

[00:52:21] Speaker 05:
that's different than this case, certainly.

[00:52:25] Speaker 05:
But there is a provision that allows you to get, I believe, unused sick leave to count towards your... So that maybe that's more akin to annual leave rather than the leave without pay where you are sort of suspending your role as a civilian and you're going into the military and getting paid there as by the military.

[00:52:46] Speaker 05:
You're no longer being paid as a civilian.

[00:52:48] Speaker 05:
You're not getting benefits as a civilian.

[00:52:50] Speaker 05:
So you should not get the retirement in that system.

[00:52:52] Speaker 05:
You should only get it in the military system.

[00:52:58] Speaker 02:
Well, are you confident that normally the only situations in which employees, civil servants, are getting annual leave and performing military service is really the reservists?

[00:53:14] Speaker 02:
And they're covered by this exception anyway.

[00:53:17] Speaker 02:
they can double dip or whatever it is we want to call it.

[00:53:21] Speaker 02:
Is that the only circumstance that you know of?

[00:53:26] Speaker 05:
I have not seen other circumstances and given the bar on being active duty military and being in the civilian service generally, you can't do that.

[00:53:37] Speaker 05:
It suggests that this is limited to reservists.

[00:53:40] Speaker 02:
Tell me about that.

[00:53:41] Speaker 02:
What is the prohibition there and where does it exist?

[00:53:45] Speaker 05:
Don't have the

[00:53:47] Speaker 05:
I believe the board mentioned

[00:54:18] Speaker 05:
And maybe one of the cases that we cite in our brief, Your Honor.

[00:54:21] Speaker 02:
Well, OK.

[00:54:22] Speaker 02:
I won't belabor it.

[00:54:23] Speaker 02:
Can I just?

[00:54:24] Speaker 03:
I want to ask one question.

[00:54:28] Speaker 03:
There are references in both of the board decision, I think in your briefing, saying that true deposit was made, but there was no waiver.

[00:54:39] Speaker 03:
Can you call that?

[00:54:40] Speaker 05:
Yes, Your Honor.

[00:54:40] Speaker 03:
Where is it?

[00:54:42] Speaker 03:
Are you talking about a written waiver?

[00:54:45] Speaker 05:
Yes.

[00:54:46] Speaker 03:
Where is that requirement set forth?

[00:54:48] Speaker 03:
I'm not saying you're wrong, but I couldn't see it.

[00:54:53] Speaker 03:
It wasn't cited.

[00:54:53] Speaker 03:
There were all these references to a waiver not having been made, but there was no citation as to where the statute or the regulation is that requires the waiver.

[00:55:03] Speaker 03:
Where is that requirement set forth?

[00:55:05] Speaker 05:
So that requirement, Your Honor, is set forth in the regulation of 5 CFR 831301C.

[00:55:14] Speaker 03:
It's 5CFR 831.301C.

[00:55:23] Speaker 05:
It says, an employer member applying for an annuity who otherwise meets all the conditions of receiving credit for military service, but who is in receipt of retired or retainer pay.

[00:55:33] Speaker 05:
So if he falls under the bar of 8332C, that says if you're getting military retired pay, you can't get civilian retired pay.

[00:55:43] Speaker 05:
So if he falls within that bar, that individual may elect to waive the retired or retainer pay and have the military service added to civilian service for annuity calculation.

[00:55:53] Speaker 05:
And they have to take a deposit?

[00:55:55] Speaker 05:
The section does not speak about the deposit, but there are other sections of it.

[00:55:59] Speaker 03:
So there has to be a deposit.

[00:56:01] Speaker 03:
Yes.

[00:56:01] Speaker 03:
But where does it say a waiver has to be in writing?

[00:56:04] Speaker 03:
Isn't it someone makes the deposit?

[00:56:06] Speaker 03:
Aren't they necessarily waiving the military credit?

[00:56:13] Speaker 03:
I mean, why would you make the deposit if you weren't intending to give up the military side and get the civilian side?

[00:56:20] Speaker 05:
So in this case, there's a form that Mr. Miller filled out and that's, I believe, at... This is relevant, I guess, in that first period.

[00:56:30] Speaker 03:
where he made a deposit.

[00:56:33] Speaker 03:
Now, you know, Ms.

[00:56:35] Speaker 03:
D'Agostino says in her brief he didn't have to, but he made a deposit, okay, but it was, but he didn't get the benefit of it because there was no waiver.

[00:56:45] Speaker 05:
Right.

[00:56:45] Speaker 03:
And why, that just seems odd.

[00:56:48] Speaker 03:
I mean, why is he making the deposit if he isn't waiving?

[00:56:52] Speaker 05:
I think that's a question better posed to Mr. Miller, but in his form.

[00:56:56] Speaker 03:
Well, so the form that

[00:57:12] Speaker 05:
Mr. Miller is required to fill out, it has a simple checkbox, yes or no, are you waiving your military retired pay?

[00:57:17] Speaker 05:
He checked no.

[00:57:18] Speaker 03:
For this first period?

[00:57:20] Speaker 05:
I believe for, this is what you fill out.

[00:57:23] Speaker 03:
He didn't sign it in connection with the very short June of 82 period.

[00:57:30] Speaker 05:
He didn't make a distinction as to which period he was declining to waive.

[00:57:35] Speaker 05:
As far as the record shows, he did not want to make an unconditional waiver, and he tried to make a conditional waiver.

[00:57:41] Speaker 05:
The question asks, at Appendix 69, are you waiving your military retired pay in order to receive credit for military service?

[00:57:49] Speaker 05:
He says no.

[00:57:50] Speaker 03:
And I suppose maybe if he wants... Are you saying this is the only waiver document in the record?

[00:57:56] Speaker 05:
Yes.

[00:57:57] Speaker 05:
This is the conclusive one.

[00:57:58] Speaker 05:
There's a conditional waiver that he tried to submit, but then he, you know, OPM found that that was insufficient.

[00:58:06] Speaker 05:
I think what your honor is asking about is maybe some sort of presumption that if you make a deposit that constitutes waiver and that hasn't been, that was not the argument made here.

[00:58:15] Speaker 05:
I don't think they're arguing.

[00:58:17] Speaker 02:
Can I ask about the third period where he got nothing?

[00:58:21] Speaker 05:
I would dispute that, your honor, based on the record and I realize it's a factual, it's a fact finding, but there's, at appendix 58 in the

[00:58:33] Speaker 05:
The record, there's a letter from OPM that it says it reached out to the military retired pay center to verify that the period of time in 1994 for which Mr. Miller was retroactively put back on active duty that he was getting military retired pay for that period.

[00:58:50] Speaker 05:
And the military retired pay center verified that all of this time is now awarded as military service credit and included in your military retired pay computation.

[00:59:02] Speaker 05:
OPM was told by the Military Retired Pay Center that this was indeed counted.

[00:59:08] Speaker 05:
I'm not sure where Mr. Miller is saying that it wasn't.

[00:59:14] Speaker 05:
If there's no further questions, I realize I'm over my time.

[00:59:20] Speaker 05:
Thank you.

[00:59:27] Speaker 00:
I do want to respond with the government's argument concerning Seltzer.

[00:59:33] Speaker 02:
So when we start with Seltzer, were you able to hear what we were saying with your friend?

[00:59:40] Speaker 02:
We were talking about the last period, 1958 to 59.

[00:59:43] Speaker 02:
Then he says it shows that he was getting military support.

[00:59:48] Speaker 00:
So if you look in the appendix at page 182,

[00:59:57] Speaker 00:
And 207, on page 182, it shows that active service for retirement and service per ten USC 1405 are 15 months different.

[01:00:13] Speaker 00:
So he was given 15 months less credit toward his military retirement than toward his general service credit.

[01:00:23] Speaker 00:
So, and then if you look on page 207 in the appendix, it shows that from 1994, and this is under C, from 1994 through 1996, 15 months of constructive service credit non-pay.

[01:00:39] Speaker 03:
Where's this exactly?

[01:00:40] Speaker 03:
Where's, say, 15 months?

[01:00:43] Speaker 00:
So, on page 207 of the joint appendix, under C,

[01:00:48] Speaker 00:
It distinguishes that a total of 63 months of constructive service credit was approved.

[01:00:54] Speaker 00:
15 months of that was non-pay.

[01:00:58] Speaker 00:
The rest was pay.

[01:01:00] Speaker 00:
And that comports with his record on page 182 that shows his service credit for his military retirement was 15 months less than his overall service credit.

[01:01:12] Speaker 01:
So can you look at 58, 59?

[01:01:15] Speaker 01:
Which is what your friend was signaling us to and tell us.

[01:01:28] Speaker 00:
Well, I think that this is inaccurate based on the records.

[01:01:33] Speaker 00:
I do think there was a confusion because there's essentially three different service credit calculations in the military.

[01:01:43] Speaker 00:
And all the records themselves actually do show that while he was awarded full service credit, he was not awarded full credit toward his retirement.

[01:01:54] Speaker 02:
Can I just ask that at some point you all talk to each other?

[01:02:00] Speaker 00:
Absolutely.

[01:02:00] Speaker 02:
I mean, we're an appellate court, and we can't do fact finding anyway.

[01:02:03] Speaker 02:
And when there's a discrepancy, I mean, this is either true or it's not true.

[01:02:08] Speaker 02:
And so it seems to me that reasonable people ought to be able to resolve what the facts are.

[01:02:15] Speaker 02:
So if you would be amenable towards discussing this, and maybe you could either send a joint letter to us or individual letters, I don't want no new briefing, no new argument, just hopefully indicating that you've resolved the discrepancy in what you're saying or giving us some, is that all right with you?

[01:02:37] Speaker ?:
Yeah.

[01:02:38] Speaker 04:
government documents that are Janice-based.

[01:02:43] Speaker 04:
We can't tell what's going on.

[01:02:48] Speaker 02:
Well, why don't you assume that we want to do that?

[01:02:51] Speaker 02:
My colleague just mentioned that there might be other questions we have that we think are really kind of factual issues that you want to resolve.

[01:02:58] Speaker 02:
And we might send a letter in the next couple of days asking for that.

[01:03:02] Speaker 02:
But in the interim, I'm sorry, did you add anything?

[01:03:05] Speaker 02:
If you could deal with this issue while it's stretching your minds and tell us what the result is.

[01:03:13] Speaker 00:
If I, I'm sorry, if I could.

[01:03:15] Speaker 02:
If you could talk to your counsel on the other side.

[01:03:18] Speaker 02:
Sure.

[01:03:18] Speaker 02:
And we can try to reconcile what seemed to be, you're each telling us different things and there seems to be some documentation that might support both of you, but some fact has to be correct, right?

[01:03:32] Speaker 02:
Right.

[01:03:35] Speaker 02:
All right, I'm sorry.

[01:03:36] Speaker 02:
Now you can proceed.

[01:03:37] Speaker 00:
No, I agree.

[01:03:38] Speaker 00:
I think there are probably three factual disputes that still seem to exist.

[01:03:45] Speaker 02:
Believe me, if you all want to, in the short term, see if you can resolve that amongst yourselves, that would be very helpful and much appreciated.

[01:03:54] Speaker 03:
What do you see as the factual differences between you now, aside from this one relating to the third period?

[01:04:01] Speaker 00:
Right, so I see the factual disputes as whether or not he was on annual leave or leave without pay for the one period.

[01:04:12] Speaker 03:
That would be the second period.

[01:04:14] Speaker 00:
Correct.

[01:04:15] Speaker 00:
Whether or not he received those 15 months that the BCMR decision constructively awarded, whether he received that toward his military retirement or not,

[01:04:29] Speaker 00:
And then there's the issue of the deposit refund.

[01:04:34] Speaker 00:
There is some documentation that some amount of money was refunded.

[01:04:37] Speaker 00:
It's not clear to me what that represented, but that seems to be the third factual dispute that I see.

[01:04:44] Speaker 02:
Well, if you would be willing to try to discuss those and do whatever you can to resolve it, and if the factual disputes remain, then that's, I guess, our job.

[01:04:57] Speaker 00:
OK, sure, sure.

[01:04:58] Speaker 00:
I guess one last point I did want to make is that in Seltzer, this court referenced 8332C1A as stating that mandates that certain periods of military service be recognized or included in civil service retirement computations.

[01:05:17] Speaker 00:
And that certainly comports with the actual language of that statute, which says the service of an individual

[01:05:23] Speaker 00:
shall include credit for each period of military service performed before the date of separation.

[01:05:31] Speaker 00:
So it appears very clear to us anyway that this statute does mandate that there can be civil service credit and military service credit coexisting.

[01:05:42] Speaker 00:
The exception that the petitioner in Seltzer tried to

[01:05:50] Speaker 00:
argue was, again, to get double credit, to get two-day civilian credit, zero days military credit.

[01:05:57] Speaker 00:
And the court said no, and really that exception.

[01:06:04] Speaker 00:
And I guess another factual dispute is Mr. Miller is a reservist, and we are talking about reserved time.

[01:06:12] Speaker 00:
The reason why that's not relevant is because the exception

[01:06:15] Speaker 00:
deals with when you're trying to get military service credit credited to your civilian account.

[01:06:20] Speaker 00:
And that's, again, not what this case is about.

[01:06:22] Speaker 00:
This case is about Mr. Miller getting civil service credit, getting what Mr. Selzer got as the 71 days.

[01:06:30] Speaker 00:
Mr. Miller has been denied that.

[01:06:33] Speaker 02:
So the- Well, those may be disputes that you- I appreciate what you're saying.

[01:06:38] Speaker 02:
And those may be disputes that are irreconcilable.

[01:06:44] Speaker 02:
Again, I would just appreciate if, I think we would appreciate if the parties, why don't we say by close, I don't want to, you all may have other things scheduled in the interim.

[01:06:53] Speaker 02:
If you could report back to us by close of business February 14th, which is next Wednesday, and just tell us where you are or what you've concluded or what you haven't concluded.

[01:07:07] Speaker 02:
And if you are making,

[01:07:11] Speaker 02:
some progress and need more time, I think that would be in order as well.

[01:07:17] Speaker 02:
So if that's the case, just tell us by next Wednesday close of business.

[01:07:21] Speaker 02:
If you think more time would be productive, feel free to ask for more time.

[01:07:27] Speaker 02:
Sure.

[01:07:28] Speaker 02:
Is that fine with the governor?

[01:07:32] Speaker 02:
Yes, your honor.

[01:07:35] Speaker 02:
And that's with respect to the three questions that I think you raised, or some

[01:07:39] Speaker 02:
variation of that.

[01:07:40] Speaker 02:
Absolutely.

[01:07:41] Speaker 02:
You're comfortable with those three questions?

[01:07:44] Speaker 05:
I want to make sure.

[01:07:44] Speaker 05:
Is the court expecting answers to those three questions?

[01:07:48] Speaker 03:
She mentioned three.

[01:07:50] Speaker 03:
Ms.

[01:07:50] Speaker 03:
D'Agostino said there are three points of disagreement between the parties.

[01:07:54] Speaker 03:
And she just listed them.

[01:07:56] Speaker 03:
And you're going to try and sit down and discuss those.

[01:07:59] Speaker 02:
Yes.

[01:08:00] Speaker 02:
All I want to know is it seems to me that maybe two people sitting down together can reconcile their differences.

[01:08:08] Speaker 02:
and say, yeah, for example, now I see why you think this is leave without pay.

[01:08:13] Speaker 02:
Or you can say, now I see where you're getting this.

[01:08:17] Speaker 02:
And so all I want to do is see if you all can reconcile that.

[01:08:21] Speaker 02:
If you can't, you can't.

[01:08:22] Speaker 02:
And we're left with the record as it is.

[01:08:24] Speaker 02:
You make your representation.

[01:08:25] Speaker 02:
So that's fine.

[01:08:26] Speaker 02:
If you can't reconcile those factual differences that you have, then just tell us.

[01:08:31] Speaker 02:
We remain where we are.

[01:08:33] Speaker 04:
This is it.

[01:08:33] Speaker 04:
I mean, A5859 is a letter from OPM that just states something, right?

[01:08:39] Speaker 04:
But we don't have any evidence to support the assertions in the OPM letter.

[01:08:44] Speaker 04:
It just sort of says what it says.

[01:08:46] Speaker 04:
And so it's not exactly proof of whether or not this person was getting all the military benefits during that 15-month period.

[01:08:55] Speaker 04:
It's a statement that he is, but we can't know for sure.

[01:08:59] Speaker 04:
And that's what we're just trying to figure out.

[01:09:01] Speaker 05:
I want to make sure I understand what the court is expecting, though.

[01:09:05] Speaker 05:
Are you expecting us to provide?

[01:09:08] Speaker 05:
Because the record, presumably, is what it is.

[01:09:10] Speaker 02:
No, the record is what it is.

[01:09:11] Speaker 02:
We are just hopeful, and maybe this is not going to happen, and maybe it's likely not to happen, that once the two of you sit down, that you can maybe see.

[01:09:21] Speaker 02:
And one of you can agree that the other is right or not.

[01:09:25] Speaker 02:
But no, I mean, obviously, the expectation is you might come back at the end of the period and say,

[01:09:32] Speaker 02:
No.

[01:09:33] Speaker 02:
We remain where we are.

[01:09:34] Speaker 02:
You remain where you are.

[01:09:36] Speaker 02:
I'm just wondering if there's some way where one side is not seeing what the other side is seeing, and maybe they can be persuaded otherwise.

[01:09:45] Speaker 02:
No, but we're not asking you to add to the record.

[01:09:48] Speaker 02:
We don't want to hear argument about why you continue to think you're right and you continue to think you're right.

[01:09:53] Speaker 02:
We just want to know whether or not you can reconcile the differences.

[01:09:57] Speaker 02:
Is that OK?

[01:09:58] Speaker 00:
And then essentially enter stipulations that the parties agree

[01:10:02] Speaker 00:
that he was on annual leave, for example, or he was on leave without pay.

[01:10:08] Speaker 05:
Right.

[01:10:09] Speaker 05:
OK, so if the parties.

[01:10:10] Speaker 02:
It doesn't have to be a formal document, necessarily.

[01:10:13] Speaker 02:
It's a joint letter.

[01:10:14] Speaker 02:
Joint letter, yeah.

[01:10:15] Speaker 02:
And Judge Shaw mentioned that because you might be dealing with information from OPM or something, why don't we extend the period to forget the Wednesday close of business next Friday.

[01:10:26] Speaker 02:
Give you a week to do this close of business on Friday.

[01:10:29] Speaker 02:
And if you need more time, as I said,

[01:10:32] Speaker 02:
just come in and ask for more time, and we can do that.

[01:10:35] Speaker 02:
But again, we're not asking you to necessarily change your positions or whatever.

[01:10:39] Speaker 02:
But if there are ways that you all can look at what the documentation is and come to some resolution that one side is right, one side is right, or there's some ground in between, please try to do that.

[01:10:54] Speaker 02:
All right, thank you.

[01:10:54] Speaker 02:
OK, we thank both sides.

[01:10:55] Speaker 02:
The case is submitted.

[01:10:56] Speaker 02:
That concludes our proceedings for today.

[01:11:05] Speaker ?:
The Honorary Court is adjourned until Monday morning at 10 a.m.