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Banasick v. Office of Personnel Management

U.S. Court of Appeals, Federal Circuit


February 09, 1999

JOHN A. BANASICK, PETITIONER,
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.

Before Plager, Schall, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

Mr. John A. Banasick appeals from the July 24, 1998, final decision, Docket No. SE-0831-97-0485-I-1, of the Merit Systems Protection Board ("Board") affirming the reconsideration decision of the Office of Personnel Management ("OPM") that his service with the States of New Jersey and Pennsylvania in their Departments of Education is not creditable for civil service retirement purposes. Because the Board did not err in concluding that his employment with the States of New Jersey and Pennsylvania is not creditable, we affirm.

Mr. Banasick retired from a teaching position with the Department of Defense Dependent Schools ("DODDS") in Panama on January 14, 1981, and began receiving an annuity under the Civil Service Retirement System ("CSRS"). He attempted to purchase service credit for purposes of his CSRS annuity for his years of service as a teacher with the Departments of Education in New Jersey and Pennsylvania. In an initial decision, OPM denied his request on the basis that only service with an agency of the Federal Government can be used in the computation of the CSRS annuity. On reconsideration, OPM affirmed its initial decision, finding that Mr. Banasick was not an employee within the meaning of 5 U.S.C. § 2105(a) (1994) when employed as a teacher in New Jersey and Pennsylvania.

Mr. Banasick appealed OPM's decision to the Board. He argued that a 1920 law, providing that retiring teachers in the District of Columbia may receive credit for their service in the District, and that bills, proposed to amend the retirement provisions of the United States Code to include as creditable service certain periods of public school service outside of the Canal Zone by Canal Zone teachers, support his benefit request.

Rejecting Mr. Banasick's arguments, the Board concluded that 5 U.S.C. § 2105(a) does not include a teacher in New Jersey or Pennsylvania within the definition of employee. The Board held that the 1920 law upon which Mr. Banasick relied was inapplicable to Mr. Banasick's case because the law only pertained to teachers in the District of Columbia. The Board also concluded that bills that proposed to amend the retirement provisions of the United States Code but were never enacted into law did not support Mr. Banasick's benefit request.

We may reverse a decision of the Board only if it is arbitrary, capricious, an abuse of discretion, or unlawful; procedurally deficient; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986).

In order for an individual to qualify for CSRS retirement credit, he or she must be a federal "employee" as defined in 5 U.S.C. § 2105(a). See 5 U.S.C. § 8332 (1994); Watts v. Office of Personnel Management, 814 F.2d 1576, 1579 (Fed. Cir. 1987). § 2105(a) provides:

For the purpose of this title, "employee", . . . means an officer and an individual who is -

(1) appointed in the civil service by one of the following acting in an official capacity -

(A) the President;

(B) a Member or Members of Congress, or the Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or

(F) an adjutant general designated by the Secretary concerned under section 709(c) of title 32;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.

5 U.S.C. § 2105(a). For Mr. Banasick to be considered a federal "employee" during the periods he was employed by New Jersey and Pennsylvania, his employment in those States must satisfy all three tests of this statutory definition, i.e., federal appointment, federal supervision, and federal function. See Baker v. United States, 614 F.2d 263, 266 (Ct. Cl. 1980). Even with his arguments concerning bills that were never enacted and the 1920 law regarding teachers in the District of Columbia, Mr. Banasick failed to establish that his employment with the States of New Jersey or Pennsylvania met any of the three tests. Thus, we find no error in the Board's decision that he was not an "employee" entitled to CSRS retirement credit for his employment with the States of New Jersey or Pennsylvania.

The decision of the Board is affirmed.

COSTS

Parties to bear their own costs.

19990209


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