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Bell v. Office of Personnel Management

March 31, 1999

MARITZA C. BELL, NELSON GARCIA, WINSTON CHAM, NARCISO CORPAS, RIGOBERTO GOMEZ, MARIO ALBERTO RIOS GUEVARA, CARLOS ANGEL RODGERS, CESAR RAMON VIQUES, VINCENTE URRIOLA, JR., HUBERT ROY WILSON, MIQUEL BATISTA MURILLO, CARLOS ERNESTO BRENES, ANA DEL C. DE CANO AND MONICA CECELIA ARCIA, PETITIONERS,
v.
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.



Before Mayer, Chief Judge, Newman and Gajarsa, Circuit Judges.

The opinion of the court was delivered by: Mayer, Chief Judge.

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

Petitioners Maritza C. Bell et al. appeal the decision of the Merit Systems Protection Board, Bell v. Office of Personnel Management, 79 M.S.P.R. 1 (1998), affirming the final decision of the Office of Personnel Management ("OPM"), that the petitioners were not eligible for coverage under the Civil Service Retirement System of the United States ("CSRS"). Because the board misinterpreted 22 U.S.C. § 3649 (Supp. 1998), we reverse and remand.

Background

Petitioners are Panamanian citizens who worked for the Panama Canal Commission ("Commission"). The Commission is the United States agency in charge of running the Panama Canal ("Canal") and was created pursuant to the Panama Canal Treaty, Sept. 7, 1977, U.S.-Panama, 33 U.S.T. 39 ("Treaty"). The Treaty, which became effective on October 1, 1979, transferred sovereignty of the Canal to Panama, but left the United States in charge of its operation until December 31, 1999. See 22 U.S.C. § 3611 (1994); O'Connor v. United States, 479 U.S. 27, 28 (1986). The Commission was established as a means to maintain United States control and to allow for increased Panamanian participation in operating the Canal. See O'Connor, 479 U.S. at 28. Prior to the Treaty, the Canal was run by the Panama Canal Company and the Canal Zone Government.

Petitioners began working as temporary employees between June 1961 and August 1979 for either the Panama Canal Company or the Canal Zone Government. They continued working at the Canal as temporary employees until their conversion to permanent positions with the Commission during 1980 and 1981. Since October 1, 1979, contributions have been made on their behalf to the Panamanian social security system.

Petitioners sought a determination from OPM about their entitlement to an annuity under the CSRS. OPM decided, in a January 13, 1997 final decision, that they were not covered by the CSRS either when they were temporary employees, or when they became permanent employees and wage deductions were made on their behalf to the Panamanian social security system. The board affirmed, holding that the Panama Canal Act, 22 U.S.C. § 3649 (Supp. 1998), read in light of the Treaty, excludes application of the CSRS to Panamanian citizens whose initial appointment occurred after October 1, 1979, and who are covered by the Panamanian social security system. Because the petitioners were not covered by the CSRS prior to the effective date of the Treaty, the board ruled that they were excluded from future coverage. Petitioners appeal.

Discussion

All federal employment begins by appointment. See Horner v Acosta, 803 F.2d 687, 692 (Fed. Cir. 1986). The basis for petitioners' claim that they are entitled to an annuity under the CSRS is 22 U.S.C. § 3649 (Supp. 1998), which states:

"[C]hapters 83 and 84 of such Title 5, relating to retirement . . . are applicable to Commission employees, except any individual-(1) who is not a citizen of the United States; (2) whose initial appointment by the Commission occurs after October 1, 1979; and (3) who is covered by the Social Security System of the Republic of Panama pursuant to any provision of the Panama Canal Treaty of 1977 and related agreements."

At issue here is whether petitioners were "initially appointed" by the Commission before October 1, 1979. "This is an issue of statutory interpretation, over which we exercise plenary review." Ed A. Wilson, Inc. v. General Servs. Admin., 126 F.3d 1406, 1408 (Fed. Cir. 1997).

Without examining the plain meaning of "initial appointment," the board used the legislative history of section 3649 and the Treaty's implementation agreements to find that CSRS coverage is available only for non-citizen workers that were employed by the Commission and were covered by the CSRS prior to October 1, 1979. Therefore, it limited "initial appointment" to covered-non-temporary-appointments.

The first step, which the board appears to have skipped, in interpreting a statute is to examine its plain language. See Ed A. Wilson, 126 F.3d at 1408-09. The meaning of "initial appointment" includes temporary appointments. The regulation permitting the employment of temporary workers at the Canal specifically refers to their "appointment." See 35 C.F.R. § 253.43 (1998). The plain meaning of "initial appointment," therefore, may refer to a temporary employee's initial hiring.

This interpretation is buttressed by the federal civil service regulations, which are replete with examples of "initial appointment" referring to non-covered, temporary employees. See, e.g., 5 C.F.R. § 213.104(b)(3)(i) (1998) ("initial appointment" of temporary excepted service employees); id. § 213.3102(x) ("initial appointment" of inmates that may not exceed one year); id. § 304.103(c)(1) (basing reappointment of temporary expert consultants on their "initial appointment"); id. § 316.401(d)(1)(ii) (limiting extensions of temporary appointments based on date of employee's "initial appointment"). Other courts have understood "initial appointment" the same way. See Woods v. Milner, 955 F.2d 436, 438 (6th Cir. 1992) ("Appellants do not dispute that at the time of their initial appointments . . . they received notice that they were temporary full-time appointees . . . ...


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