 United States Court of Appeals for the Federal Circuit

                                       05-3291



                                BRIAN J. ELDREDGE,

                                                                 Petitioner,

                                           v.


                         DEPARTMENT OF THE INTERIOR,

                                                                Respondent.



      W. Craig James, Mauk & Burgoyne, of Boise, Idaho, argued for petitioner.

       Douglas K. Mickle, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent. With him on
the brief were Peter Keisler, Assistant Attorney General; David M. Cohen, Director; and
Bryant G. Snee, Assistant Director.


Appealed from: United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit
                                         05-3291


                                 BRIAN J. ELDREDGE,

                                                               Petitioner,

                                            v.

                          DEPARTMENT OF THE INTERIOR,

                                                               Respondent.


                            __________________________

                               DECIDED: June 16, 2006
                            __________________________



Before MICHEL, Chief Judge, SCHALL, and DYK, Circuit Judges.

DYK, Circuit Judge.

       Brian J. Eldredge (“Eldredge”) appeals the decision of the Merit Systems

Protection Board (the “Board”) denying his request for firefighter retirement credit under

the Federal Employees’ Retirement System (“FERS”). Eldredge v. Dep’t of the Interior,

No. SE-0841-04-0127-I-1 (M.S.P.B. May 20, 2005). We vacate and remand.

                                     BACKGROUND

       FERS provides enhanced retirement benefits for firefighters.          See 5 U.S.C.

§§ 8412(d) (2000) (early retirement); 8415(d) (2000) (increased annuity); 8425(b)

(2000) (early retirement). Service in both “rigorous” and “secondary” firefighter positions
is creditable toward enhanced firefighter retirement.        5 U.S.C. § 8401(14) (2000).1

Service in secondary positions is not creditable if there is “a break in service exceeding

3 days,” unless it is a “break in employment in secondary positions that begins with an

involuntary separation.”    5 C.F.R. § 842.803(b)(1)(iii) (2005).      The question here is

whether two breaks in secondary-position service of more than three days were the

result of “involuntary separations.”

       Eldredge has been employed in firefighting positions by the Department of the

Interior (“Interior”) since 1977. He began his career as a rigorous firefighter in Mountain

Home, Idaho. His last appointment to a rigorous position ended on November 20, 1987.

On April 10, 1988, he took a career conditional appointment as a Supervisory Range

Technician (Firefighter), GS-455-06, in Bakersfield, California. On April 21, 1991, he

voluntarily transferred to a temporary position as a Range Technician, GS-455-07, in

Boise, Idaho. The appointment was not to extend beyond December 1, 1991, but was

terminated on September 20, 1991. On October 17, 1991, Eldredge was temporarily

reappointed to the same position because of an “emergency need due to fire situation.”

J.A. at 21. This appointment was not to extend beyond November 15, 1991, but was

terminated on November 4, 1991.            The SF-50s described both terminations as

“termination involuntary” due to “lack of work/funds.” J.A. at 22. On April 19, 1992,

Eldredge was reappointed to the Range Technician position on a career conditional



       1
                 A “rigorous” firefighter position is defined as a position the duties of which
“are primarily to perform work directly connected with the control and extinguishment of
fires; and . . . are sufficiently rigorous that employment opportunities should be limited to
young and physically vigorous individuals . . . .” A “secondary” firefighter is “an
employee who is transferred directly to a supervisory or administrative position after
performing [rigorous firefighter] duties . . . for at least 3 years.” 5 U.S.C. § 8401(14)
(2000); 5 C.F.R. § 842.802 (2005).


05-3291                                       2
basis.    Eldredge’s positions since his April 10, 1988, appointment all have been

“secondary” firefighter positions under FERS. 5 U.S.C. § 8401(14)(B).

         On September 28, 1994, Interior advised Eldredge that his service in secondary

firefighter service (the Range Technician positions) since April 10, 1988, had been

approved for enhanced firefighter retirement credit under FERS. On October 20, 1995,

Eldredge applied for enhanced retirement credit for his service in rigorous firefighter

positions from May 31, 1977, to November 20, 1987. In a June 9, 2003, letter to the

Office of Personnel Management (“OPM”), Interior stated that it was reviewing

Eldredge’s records and requested OPM’s opinion as to whether Eldredge’s terminations

on September 20, 1991, and November 4, 1991, satisfied the definition of “involuntary

separation” in 5 C.F.R. § 842.803(b)(1)(iii).   On July 28, 2003, OPM rendered an

advisory opinion concluding that Eldredge’s terminations were not involuntary

separations because Eldredge “should have been aware at the beginning of the

appointment that the appointment was of limited duration.” J.A. at 33. On January 20,

2004, apparently in response to Eldredge’s request for clarification of his retirement

status, Interior issued a final decision approving firefighter retirement credit for

Eldredge’s rigorous and secondary service from May 31, 1977, to September 20, 1991.

Interior concluded that Eldredge was not eligible for enhanced retirement benefits for his

service after September 20, 1991, because his separation from his temporary position

on September 20, 1991, was not “involuntary” under the regulation.

         Eldredge appealed to the Board.     The Administrative Judge affirmed OPM’s

decision, relying on § 44A2.1-8A of the Civil Service Retirement System (“CSRS”) and

FERS Handbook for Personnel and Payroll Offices (the “Handbook”). Section 44A2.1-




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8A provides that a separation is not “involuntary” if an employee “voluntarily leaves

regular long term (career) employment to accept a short term appointment with full

knowledge of its early termination.” The Administrative Judge concluded that because

Eldredge knew that the appointments were temporary when he accepted them, his

terminations on September 20, 1991, and November 4, 1991, were not involuntary;

thus, under the regulation, he was not entitled to firefighter credit for service after

September 20, 1991. The Administrative Judge’s decision became final on June 23,

2005.

        Eldredge timely appealed to this court.     We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).

                                      DISCUSSION

                                             I

        Firefighters are eligible to retire with an annuity after “completing 25 years of

service as a [firefighter]” or “after becoming 50 years of age and completing 20 years of

service as a [firefighter] . . . .” 5 U.S.C. § 8412(d). Under 5 C.F.R. § 842.803(b)(1), an

employee’s service in a secondary firefighter position qualifies for firefighter retirement

credit if:

        (i) The employee, while covered under the provisions of 5 U.S.C.
        [§] 8412(d), moves directly (that is, without a break in service exceeding 3
        days) from a rigorous position to a secondary position;
        (ii) The employee has completed 3 years of service in a rigorous position,
        including any such service during which no FERS deductions were
        withheld; and
        (iii) The employee has been continuously employed in a secondary
        position or positions since moving from a rigorous position without a break
        in service exceeding 3 days, except that a break in employment in
        secondary positions that begins with an involuntary separation (not for
        cause), within the meaning of 5 U.S.C. [§] 8414(b)(1)(A), is not




05-3291                                      4
      considered in determining whether the service in secondary positions is
      continuous for this purpose.

(emphases added).

      It is undisputed that Eldredge satisfies subsections (i) and (ii) of the regulation.

Subsection   (iii)   defines   “involuntary   separation”   by   reference    to   5   U.S.C.

§ 8414(b)(1)(A). That provision of the statute is not concerned with the early retirement

rights of firefighters, but rather defines the circumstances under which federal

employees generally subject to FERS may receive an annuity after early retirement.

See 5 U.S.C. §§ 8414(b)(1) & (2) (2000). Section 8414(b) states, in pertinent part:

      [A]n employee who . . . is separated from the service involuntarily, except
      by removal for cause on charges of misconduct or delinquency . . . is not
      entitled to an annuity under this subsection if the employee has declined a
      reasonable offer of another position in the employee's agency for which
      the employee is qualified, and the offered position is not lower than 2
      grades (or pay levels) below the employee’s grade (or pay level) and is
      within the employee's commuting area.

5 U.S.C. §§ 8414(b)(1)(A) & (b)(2) (2000) (emphasis added).

      Eldredge argues that under the plain language of the statute and regulation, the

determination as to whether a separation was involuntary must be made based on the

reason for termination. Because his temporary appointments were terminated before

they expired, Eldredge insists, the terminations were involuntary.           The government

argues that OPM’s advisory opinion and the Handbook constitute agency interpretations

of the term “involuntary separation” in the regulation, and that under OPM’s

interpretation, Eldredge’s knowledge that the appointments were temporary renders the

terminations voluntary.

      OPM’s advisory opinion states:




05-3291                                       5
       The employee should have been aware at the beginning of the
       appointment that the appointment was of limited duration. Therefore, the
       move to a time limited appointment was voluntary, and the subsequent
       termination of the employee on September 20, 1991, was a voluntary
       separation with regard to 5 C.F.R. [§] 842.803(b)(1)(iii). Similarly, the
       termination of the employee on November 4, 1991, was also a voluntary
       separation.

J.A. at 33. Section 44A2.1-8A of the Handbook provides: “A separation is not [an

involuntary separation] qualifying for discontinued service retirement if the employee

voluntarily leaves regular long-term (career) employment to accept a short-term

appointment with full knowledge of its early termination.”

       The government argues that the advisory opinion and the Handbook are entitled

to deference because they contain OPM’s interpretation of its own regulation. Normally,

this would be true. United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 219

(2001); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Am. Express Co.

v. United States, 262 F.3d 1376, 1382 (Fed. Cir. 2001).                Here, however, no

interpretation of the regulation is required.        The regulation defines “involuntary

separation” by reference to section 8414(b)(1)(A), an unrelated statutory provision. This

case raises a question of statutory, not regulatory, interpretation.

       Because we are concerned with statutory interpretation, the issue is whether

Chevron deference is owed to the OPM advisory opinion or the Handbook.              See

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).

We conclude that the advisory opinion does not attract Chevron deference. Here, as in

Christensen v. Harris County, 529 U.S. 576 (2000), “we [are] confront[ed with] an

interpretation contained in an opinion letter, not one arrived at after, for example, a

formal adjudication or notice-and-comment rulemaking.”         Id. at 587.   The Supreme




05-3291                                      6
Court has made clear that “[i]nterpretations such as those in opinion letters—like

interpretations contained in policy statements, agency manuals, and enforcement

guidelines, all of which lack the force of law—do not warrant Chevron-style deference.”

Id.

      The Supreme Court in United States v. Mead Corp., 533 U.S. 218 (2001),

clarified the factors to be considered in determining whether a non-regulatory agency

interpretation attracts Chevron deference. The question in Mead was whether tariff

classification rulings interpreting the Harmonized Tariff Schedule of the United States,

19 U.S.C. § 1202 (2000), issued by the United States Customs Service, warranted

Chevron deference. The Court observed that: (1) the statute did not contemplate that

the rulings would have the force of law; (2) the rulings did not result from notice-and-

comment rulemaking; (3) Customs did not regard a ruling as binding on anyone but the

importer to whom it was issued; and (4) “46 different Customs offices issue 10,000 to

15,000 [classification rulings] each year.” See id. at 231-34. On the basis of these

factors, taken together, the Court held that the rulings did not warrant Chevron

deference because they were not issued in the exercise of Customs’s “delegated

authority . . . to make rules carrying the force of law.” Id. at 226-27. Rather, the Court

concluded that the rulings were “best treated like ‘interpretations contained in policy

statements, agency manuals, and enforcement guidelines[,]’ . . . . [which] are beyond

the Chevron pale.” Id. at 234 (quoting Christensen, 529 U.S. at 587).

      Here, the advisory opinion is essentially no different from the tariff rulings in

Mead. There is no suggestion that it resulted from an exercise of OPM’s “delegated

authority . . . to make rules carrying the force of law,” or that it was binding on other




05-3291                                     7
parties. Mead thus compels the conclusion that the advisory opinion does not warrant

Chevron deference.

        The same result obtains with respect to the Handbook under Christensen and

Mead.     The Supreme Court in Christensen expressly excluded “interpretations

contained in policy statements, agency manuals, and enforcement guidelines . . . which

lack the force of law” from Chevron deference. 529 U.S. at 587. This was reiterated in

Mead. See 533 U.S. at 234. We conclude that the Handbook is not entitled to Chevron

deference.

        The government argues that in Nebblett v. Office of Personnel Management, 237

F.3d 1353 (Fed. Cir. 2001), we looked to the prior incarnation of the Handbook to

determine whether OPM’s interpretation of “involuntary separation” was “reasonable” for

Chevron purposes. In Nebblett, OPM urged an interpretation of “involuntary separation”

that excluded separations provoked by allegedly unlawful agency action. We held that

OPM’s interpretation was “reasonable” based in part on Handbook provisions. Id. at

1358.    But we do not view Nebblett as having afforded Chevron deference to the

Handbook.

                                          II

        The advisory opinion and Handbook could nevertheless attract deference under

the Supreme Court’s decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944), but only

in proportion to their “power to persuade.” Id. at 140; see Mead, 533 U.S. at 235;

Christensen, 529 U.S. at 587. We conclude that Skidmore deference is not warranted.

        Neither the advisory opinion nor the Handbook cites any authority for the

proposed awareness interpretation of “involuntary separation.” Section 8414(b)(1)(A)




05-3291                                   8
excludes from “involuntary separations” “separat[ions] . . . by removal for cause on

charges of misconduct or delinquency.”            On its face, the statute (by excluding

terminations for cause) shows that the question of whether a separation was involuntary

turns on the reason for the termination, not whether the employee knew of the

possibility of termination at the time he took the job.2

       Moreover, the Handbook itself focuses on the reasons for the termination,

recognizing as involuntary “any separation against the will and without the consent of

the employee other than a separation for cause on charges of misconduct or

delinquency[,] [for example,] . . . Reduction-in-force (RIF); Abolishment of position; Lack

of funds; Expiration of incumbent’s term of office;” and so forth. Handbook § 44A1.1-2

(1998). We and our predecessor court have previously assumed that the Handbook (or

its predecessor) accurately states the general rule as to whether a separation is

involuntary for purposes of the closely related provision 5 U.S.C. § 8336(d), which deals

with CSRS retirement.3

       Appointments, temporary or permanent, may be terminated for a variety of

reasons including, for example, reductions in force.        The government’s argument,

       2
               There is also no suggestion here that Eldredge, in taking the temporary
appointments, was attempting to manipulate the statutory scheme. The Handbook’s
exclusion of temporary appointments is intended to address the situation in which “the
short term employment was arranged solely to create title to an annuity . . . .”
Handbook § 44A2.1-8B (1998).              Here, Eldredge accepted the first temporary
appointment because “the [Bakersfield] District Fire Management Officer had openly
expressed his hostility toward me . . . .” J.A. at 26. He took the second temporary
appointment at the agency’s request. Eldredge intended at all times to “continue[ ] my
career in the firefighting line of work.” Id.
       3
               See, e.g., Yarbrough v. Office of Pers. Mgmt., 770 F.2d 1056, 1059 (Fed.
Cir. 1985); Pauley v. United States, 440 F.2d 426, 428 (Ct. Cl. 1971); Patterson v.
United States, 436 F.2d 438, 439-40 (Ct. Cl. 1971); Browning v. United States, 373 F.2d
915, 918-19 (Ct. Cl. 1967) (addressing section 8336(d)’s predecessor, 5 U.S.C.
§ 2256(d)).


05-3291                                       9
carried to its logical conclusion, would appear to require treating as voluntary a

termination due to reduction in force if the employee knew in advance that such a

termination might occur. We decline to adopt such a counterintuitive reading of the

statute.

       Here, Eldredge’s temporary appointments were terminated before they expired,

and his separations were involuntary.4       Therefore, Eldredge satisfies the regulatory

requirements for firefighter retirement credit for his service since September 20, 1991.

If the government thinks that this result is undesirable as a matter of public policy, the

remedy is an amendment to the regulation, not an interpretation of the regulation and

the statute to which it refers that is contrary to the plain language.

                                       CONCLUSION

       The Board’s decision is

       VACATED and REMANDED for calculation of the appellant’s retirement credit.

                                           COSTS

       No costs.




       4
             We do not decide whether, under the statute and existing precedent, a
separation upon expiration of the term of a temporary appointment is voluntary or
involuntary.


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