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      United States Court of Appeals for the Federal Circuit



                                         04-3040

                                 EDWARD J. DOWLING,

                                                        Petitioner,

                                             v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                        Respondent.




      William Lafferty, Lafferty & Lafferty, of Burlington, Massachusetts for petitioner.

       David A. Harrington, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, and William F. Ryan, Assistant Director. Of counsel were Franklin E. White Jr.,
Assistant Director; John S. Groat and Gerald M. Alexander, Attorneys. Also of counsel
was Wade Plunkett, Attorney, Office of the General Counsel, Office of Personnel
Management, of Washington, DC.

Appealed from:   United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit
                                       04-3040

                               EDWARD J. DOWLING,

                                                      Petitioner,

                                           v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                      Respondent.

                          __________________________

                          DECIDED: December 22, 2004
                          __________________________

Before RADER, DYK, and PROST, Circuit Judges.

PROST, Circuit Judge.

      The petitioner, Edward Dowling, asks this court to review the final decision of the

Merit Systems Protection Board (“the Board”) granting the appeal of the Office of

Personnel Management (“OPM”) and rejecting his request that his active duty military

service be counted towards his Civil Service Retirement System (“CSRS”) retirement

annuity. Dowling v. Office of Pers. Mgmt., Docket No. BN831M020061-I-1 (M.S.P.B.

Sept. 8, 2003). Because the Board’s decision was not arbitrary, capricious, an abuse of

discretion, otherwise not in accordance with the law, or unsupported by substantial

evidence, we affirm.

                                   BACKGROUND

      The petitioner served on active duty in the U.S. Army between March 4, 1962

and September 1, 1962. Four years later, on May 2, 1966, he was appointed to a

civilian position in the Army that required him, as a condition of his employment, to
maintain his membership in the National Guard. He continued in this position until July

31, 1987. Mr. Dowling then began service in the Massachusetts Army National Guard

(“MAANG”) and entered active guard reserve (“AGR”) duty on August 1. On September

29 of that same year, he was separated from his position civilian position with the Army.

He continued his AGR service until September 6, 1999 and was reappointed to his

civilian position with the Army effective July 18, 1999.      On February 16, 2001, Mr.

Dowling lost his National Guard membership on account of his having reached sixty

years of age. That same month, he applied for a CSRS annuity. The Army separated

him from his civilian position for a second time on March 10, 2001, because of his loss

of National Guard membership.

       After receiving Mr. Dowling’s CSRS annuity application, OPM began paying him

CSRS retirement annuity payments, assuming that he was entitled to CSRS credit for

his twelve years of AGR service. Eventually, however, OPM determined that he was

not entitled to a CSRS credit for his twelve years of AGR service and informed him that

he had received annuity payments that were in excess of what he was entitled to

receive.     After Mr. Dowling’s request for reconsideration, OPM affirmed its initial

decision.1

       Mr. Dowling appealed OPM’s decision to the Board. After a hearing, the Board’s

administrative judge issued an initial decision reversing OPM’s decision. Dowling v.

Office of Pers. Mgmt., Docket No. BN831M020061-I-1 (M.S.P.B. July 2, 2002). OPM

filed a petition for review with the full Board and won a grant of its petition for review of



       1
             In this case, the government is not seeking to recover the entire annuity
paid to Mr. Dowling. Instead, it seeks recovery only of the excess annuity paid to Mr.
Dowling.


04-3040                                      2
the administrative judge’s initial decision. Dowling v. Office of Pers. Mgmt., Docket No.

BN831M020061-I-1 (M.S.P.B. Sept. 8, 2003) (“Final Decision”). The Board found that

the petitioner waived his reemployment rights when he left his civilian position to enter

AGR service. Accordingly, the Board determined that he was not entitled to a full CSRS

annuity and reversed the administrative judge’s initial decision. Id.

       Mr. Dowling timely appealed the Board’s decision to this court.          We have

jurisdiction to hear this appeal under 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

We must set aside any Board decisions that are:

                (1) arbitrary, capricious, an abuse of discretion, or
                    otherwise not in accordance with law;

                (2) obtained without procedures required by law, rule, or
                    regulation having been followed; or

                (3) unsupported by substantial evidence.

5 U.S.C. § 7703(c) (2004).      Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

       Mr. Dowling alleges that the Board wrongly reversed the administrative judge’s

initial order and improperly discounted his twelve years of AGR service in calculating his

CSRS retirement annuity. The crux of his argument is that when he left his civilian

position with the Army in 1987, he still retained reemployment rights with the Army. In

his view, he exercised those rights when he returned to the Army in 1999 and, as a

result, was entitled to have his twelve years of AGR duty counted towards his civilian

CSRS retirement annuity.




04-3040                                      3
       Mr. Dowling does not dispute that his reemployment rights are governed by the

Uniformed Services Employment and Reemployment Rights Act (“USERRA”). See 38

U.S.C. § 4301-33 (2004). Instead, he argues that our precedent in Woodman v. Office

of Personnel Management, 258 F.3d 1372 (Fed. Cir. 2001) is distinguishable from this

case. He asserts that his case is different from Woodman’s because, unlike Woodman,

when he began his AGR service he could not have completed the twenty years of

service prior to his sixtieth birthday required to receive full military retirement benefits.

He also notes that he was reemployed by the Army whereas Woodman was refused

reemployment by his civilian employer.       Even if we accept Mr. Dowling’s points of

distinction as true, we nonetheless find his arguments unpersuasive.

       As we noted in Moravec v. Office of Personnel Management, Docket. No. 04-

3061, slip op. at 5-6 (Fed. Cir. Dec. 22, 2004), decided concurrently with this case, the

key inquiry in USERRA cases under Woodman is whether or not a civilian employee

intended to abandon his civilian career and commence career service within the military.

The holding in Moravec is applicable here and also dispositive of the issue presented in

this case.

       The Board relied on several findings of fact in determining that Mr. Dowling

intended to abandon his civilian career with the Army and to begin a military career.

First, the Board noted that the AGR service for which Mr. Dowling was denied CSRS

credit was almost as long the military service that voided Woodman’s reemployment

rights in Woodman. Moreover, that service was followed by only twenty months of

civilian service. Those facts, along with the fact that the petitioner applied for CSRS

retirement benefits before even being officially separated from his civilian position for




04-3040                                      4
the second time, led the Board to conclude that the petitioner resumed his civilian

employment with the Army in order to qualify for a CSRS retirement annuity and not in

order to pursue a civilian career. Final Decision, slip op. at 9. Second, the Board found

that instead of requesting a leave of absence from his civilian position in order to begin

his AGR service, Mr. Dowling accepted a separation from his civilian position.             Id.

Third, the petitioner withdrew all of his civilian retirement contributions before leaving his

civilian employment and entering AGR service. Id. The Board found that the totality of

these facts and circumstances led to the conclusion that Mr. Dowling had intended to

abandon his civilian career and begin a military career.

       The Board’s findings are well supported in the record and, taken as a whole,

amount to the substantial evidence necessary to support the finding that Mr. Dowling

intended to abandon his civilian career. In addition, as in Moravec, the factors that the

Board considered in this case were appropriate and relevant to the determination that it

was being asked to make (namely, whether Mr. Dowling intended to abandon his civilian

career).   Accordingly, we affirm the Board’s determination that Mr. Dowling’s AGR

service should not have been credited towards his CSRS retirement annuity.

                                      CONCLUSION

       For the aforementioned reasons, the Board’s decision is affirmed.

                                        AFFIRMED




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