[00:00:01] Speaker 03:
The next case is Stewart versus the Office of Personnel Management.

[00:00:06] Speaker 03:
The number is 24-1024.

[00:00:09] Speaker 03:
Mr. Yancey, when you're ready.

[00:00:12] Speaker 03:
All right, I'm ready.

[00:00:13] Speaker 04:
Your Honor, I want to thank you for taking the time to meet with, to hear Anthony Stewart's case.

[00:00:18] Speaker 04:
He feels very strongly about this issue.

[00:00:20] Speaker 04:
The issue is whether the Merit Systems Protection Board correctly affirmed the determination of the Office of Personnel Management at 5 USC 84.

[00:00:30] Speaker 04:
Stewart is entitled to include periods of military service that he performed before entering civil service in the computation of his federal employee's retirement system annuity.

[00:00:42] Speaker 04:
As he's receiving military retire pay, the court should reverse the final order of the American Citizens Protection Board's decision or remand it to develop the facts of the case, specifically for 5 USC Section 8411C2.

[00:00:59] Speaker 04:
The petitioner performed active duty military service with the U.S.

[00:01:02] Speaker 04:
Navy during the following time periods, March 25, 1974 through March 22, 1979, March 18, 1981 through March 16, 1984, and July 23, 1985 through April 23, 1991.

[00:01:19] Speaker 04:
During this time, the

[00:01:20] Speaker 04:
petitioner worked in the grade of chief machinist mate while in the US military.

[00:01:24] Speaker 03:
So we're familiar with the facts.

[00:01:27] Speaker 03:
Can you just get to the legal issue?

[00:01:29] Speaker 03:
It seems to me that the board found, based upon the plain language of the statute, that he couldn't use his military service as a credit for civil service because he was receiving military disability pay based on that period of military service.

[00:01:50] Speaker 03:
Yes, Your Honor.

[00:01:50] Speaker 03:
Is that correct, what the board found?

[00:01:52] Speaker 04:
That is correct, that the board found.

[00:01:54] Speaker 03:
I mean, what's wrong with that?

[00:01:55] Speaker 03:
The statute says if an employee or member is awarded retired pay based upon a period of military service, that's not credible.

[00:02:04] Speaker 04:
I understand that, Your Honor.

[00:02:05] Speaker 04:
And it really just depends on Anthony Stewart's interpretation of it.

[00:02:10] Speaker 04:
He is still convinced that because it was based on the percentage of his disability, or at least communicated that way to him,

[00:02:19] Speaker 03:
But that doesn't matter, because this section right below it recognizes that you can get an exemption if it's a service-connected disability.

[00:02:28] Speaker 03:
So the statute itself understands that military disability pay is based upon

[00:02:35] Speaker 03:
military service.

[00:02:37] Speaker 03:
2A has that exception.

[00:02:39] Speaker 03:
How can we read this any other way than to say you don't get civil service credit if you're getting a pension based upon military service, except if it's service-connected disability.

[00:02:53] Speaker 03:
This is not service-connected disability, right?

[00:02:55] Speaker 03:
It's just a military disability.

[00:02:59] Speaker 04:
No, it's a service-connected disability.

[00:03:02] Speaker 00:
But it has to be service-connected and

[00:03:04] Speaker 00:
in connection with certain events such as incurred in combat or caused by an instrumentality of war and so forth, which he doesn't, I take it, qualify for.

[00:03:15] Speaker 04:
Well, he did actually.

[00:03:16] Speaker 04:
The petitioner lived on various instrumentalities of war throughout his active duty service in the US.

[00:03:20] Speaker 03:
This case is not about whether the board properly found the exception in aid, though, is it?

[00:03:25] Speaker 03:
I didn't see that in any of the briefs or the board's decision.

[00:03:28] Speaker 03:
That's a different argument that

[00:03:31] Speaker 03:
he's getting a military disability pay, but he can still credit it because it meets one of these conditions in subsection A. I understood, Your Honor.

[00:03:43] Speaker 04:
He didn't necessarily make that argument because he didn't have the records, but he did.

[00:03:49] Speaker 04:
assert that he did work and he did become injured while working on an instrumentality of war, and he received armed forces expeditionary medal and the U.S.

[00:03:59] Speaker 04:
Navy expeditionary medal for Lebanon in 1983.

[00:04:03] Speaker 04:
But I understand the point that you are making.

[00:04:13] Speaker 02:
of how his specific military disability retirement was calculated, this statute doesn't apply.

[00:04:23] Speaker 02:
Because you say since they didn't do a formula where the input was the years of service, they did a formula where the input was the percentage of disability, the statute doesn't apply.

[00:04:34] Speaker 02:
But that just doesn't seem to me to be what the statute's about.

[00:04:37] Speaker 02:
I mean, what if the way the calculation was done

[00:04:41] Speaker 02:
with something just absurd, like flipping a coin or something.

[00:04:46] Speaker 02:
Just because they calculate the amount that's actually paid doesn't mean that the fact that they're calculating and trying to give him the benefit is not, quote, based on his service, does it?

[00:05:00] Speaker 04:
No, it doesn't.

[00:05:01] Speaker 04:
And I believe part of it is just the way that it was confusing to Mr. Stewart.

[00:05:05] Speaker 04:
He understands it legally that

[00:05:10] Speaker 04:
there may be flaws to his argument.

[00:05:12] Speaker 04:
However, it was presented to him differently when he was applying for retirement.

[00:05:17] Speaker 04:
And that is the heart of his case, as far as in the joint appendix.

[00:05:24] Speaker 04:
The communications that were sent to him made it appear as though that it was based off of his disability rating and not necessarily that they did not necessarily use all of the periods of service for his

[00:05:39] Speaker 04:
statement and then the case that was referred to, Babakaitis, the court concluded that receiving USRS credit for his earlier period of service was not double counting those years because the calculation of Babakaitis' disability annuity was based on, one, a disability which occurred during his final period of military service and, two, the extent of his disability not on the total length of his military service.

[00:06:07] Speaker 04:
and that the court concluded that the annuity must actually be based on the period of service and not just based on the period.

[00:06:20] Speaker 04:
The idea of it is that the way that it was communicated to him confused him and he thought that his

[00:06:31] Speaker 04:
period of service should not be counted and that he should be allowed to buy back his military time while keeping his military retired pay.

[00:06:45] Speaker 03:
Do you have anything further?

[00:06:46] Speaker 03:
No, sir.

[00:06:48] Speaker 03:
Okay.

[00:06:48] Speaker 03:
Thanks.

[00:06:49] Speaker 03:
We'll save you time for rebuttal.

[00:06:50] Speaker 03:
Let's hear from MacArthur right now.

[00:07:01] Speaker 01:
Good morning, may it please the court.

[00:07:03] Speaker 01:
The court should affirm the board's decision because Mr. Stewart does not meet any of the exceptions to section 8411C2.

[00:07:09] Speaker 01:
8411C2 prohibits the double counting of military service for both purposes of military retired pay and civil service annuity.

[00:07:20] Speaker 01:
Reading the statute the way Mr. Stewart proposes would read the exceptions in C-2A right out of the statute.

[00:07:28] Speaker 00:
So it seems to me that the hardest question in this case is how you would deal with babakitis.

[00:07:37] Speaker 00:
And could you give us a succinct distinction of babakitis without going into great length of the particular circumstances and so forth?

[00:07:50] Speaker 00:
What is the core distinction between this case and Babakitis, in your view?

[00:07:55] Speaker 01:
In Babakitis, the question was whether a subsequent period of service could nullify the employee's entitlement to credit for the military service served before he entered his civilian service, his civilian employment.

[00:08:13] Speaker 01:
So it was about whether that second period could nullify

[00:08:16] Speaker 01:
the entitlement, the payments that he was getting based on that first 10-year period of time.

[00:08:23] Speaker 01:
What Babichitis was not about is the facts in this case.

[00:08:26] Speaker 01:
In fact, the court in Babichitis said that Mr. Babichitis, quote, accepts the statute would exclude his initial 10-year period of military service

[00:08:37] Speaker 01:
from his CSRA annuity, if the disability pay he received by reason of military service was based on that initial period of service.

[00:08:45] Speaker 01:
And that's at page 695 of the opinion.

[00:08:47] Speaker 01:
That's exactly the situation that we have here.

[00:08:50] Speaker 01:
And so Babichitis was not addressing the facts of this case.

[00:08:55] Speaker 01:
It was addressing a very narrow set of circumstances where the government was attempting to rely on post-civil service.

[00:09:03] Speaker 01:
Sorry, this is a tongue twister.

[00:09:06] Speaker 01:
was attempting to rely on military service that post-dated the civil employment to nullify an earlier period of time.

[00:09:13] Speaker 01:
And that earlier period of time, the government admitted, was not being double counted.

[00:09:18] Speaker 01:
And then going to- Wait, can I see if I understand this?

[00:09:20] Speaker 01:
Yes.

[00:09:20] Speaker 03:
Yes.

[00:09:20] Speaker 03:
I'm not, honestly, familiar with that.

[00:09:23] Speaker 03:
In Bab Qaeda, he served for a certain number of years in the military.

[00:09:26] Speaker 03:
Then he went to the civil service.

[00:09:29] Speaker 03:
Did he make a deposit and ask for that military?

[00:09:34] Speaker 03:
service to be credited towards a civil service?

[00:09:37] Speaker 01:
I believe so, Your Honor.

[00:09:39] Speaker 00:
My understanding was, correct me if this is wrong, but that he actually got, he retired from the civil service and got credit for the military period and his civil service period when he retired.

[00:09:52] Speaker 00:
So he was under CSRS and he got a CSRS pension at that point.

[00:09:57] Speaker 00:
Then he went back to the military.

[00:09:59] Speaker 01:
Yes.

[00:10:00] Speaker 01:
And he went back to the, I think I answered your question.

[00:10:05] Speaker 03:
And so then he went back to the military and he served another period of military service, became disabled and got a military pension based upon that.

[00:10:12] Speaker 01:
Yes.

[00:10:13] Speaker 03:
And when he got that, that's not the scenario here, right?

[00:10:16] Speaker 03:
None of this is he, and I assume in Babichaitis, he actually made a, the deposit for the military service to get a CSRS pension if he was required to.

[00:10:28] Speaker 03:
And none of that was used for a basis for the disability pension, the first period.

[00:10:33] Speaker 01:
That's right.

[00:10:34] Speaker 01:
The government conceded that the first 10-year period of service was not the basis for the military retirement.

[00:10:40] Speaker 01:
And this case is really more like, in fact, is on fours with France.

[00:10:44] Speaker 03:
And in this case, the disability retirement is based upon the military service.

[00:10:48] Speaker 01:
Service, right.

[00:10:49] Speaker 01:
All of Mr. Stewart's military service preceded his civil service, his disability retirement.

[00:10:56] Speaker 01:
can only be based on that first period.

[00:11:00] Speaker 02:
Footnote two, we say that the Navy advised OPM that Babichaitis' disability pension was in its view, that is, in the view of the Navy, based solely on his post-civil service.

[00:11:16] Speaker 02:
Was that actually established on the record?

[00:11:19] Speaker 02:
Because that does seem like a key distinction between that case and this case.

[00:11:23] Speaker 02:
And I'm just wondering, can we rely on that as being the facts there, or is it just the

[00:11:30] Speaker 02:
government didn't contest it.

[00:11:33] Speaker 02:
Does that make a difference?

[00:11:34] Speaker 01:
I don't think it makes a difference, but what I suspect happened, I don't have the record in babichitis, but I suspect that during the communications, for example, when Mr. Babichitis might have first sought reconsideration of OPM's decision, so before it even gets to the board,

[00:11:51] Speaker 01:
opium may have solicited information from the navy about the navy's views and I think that's probably how that information got into the administrative record at the board.

[00:12:03] Speaker 02:
Let me ask you this, because maybe like Mr. Stewart I've been a little bit confused here.

[00:12:08] Speaker 02:
At 695 we wrote in Maticetus, in Maticetus's case, the navy based his annuity on the percentage of disability method

[00:12:19] Speaker 02:
which provided a larger amount, not on length of service.

[00:12:24] Speaker 02:
Now that sentence may be out of context, sure, but doesn't it seem to at least suggest that when you use the percentage of disability method, you are not actually using the length of service, the years of service, and therefore the military disability retirement was not, quote, based on service?

[00:12:45] Speaker 02:
Is there a little bit of ambiguity there?

[00:12:47] Speaker 01:
Your Honor,

[00:12:49] Speaker 01:
I do think the context is important.

[00:12:51] Speaker 01:
And in babichitis, the court first determines that the disability retirement is not based on that first period of service.

[00:13:02] Speaker 01:
And the way I read this was that, sort of out of an abundance of caution then, the court goes on to look to see if the disability

[00:13:11] Speaker 01:
if that first 10-year period of service is somehow some other way being relied upon to give rise to the retired pay.

[00:13:20] Speaker 01:
And so in that context, the court then looks to see if the retired pay is being based on his length of service to include both periods before and after his civil service.

[00:13:32] Speaker 01:
So that statement, I think, really only makes sense in the context of Mr. Babakaitis' very unique situation.

[00:13:39] Speaker 01:
And here, Mr. Stewart's calculation is based on his percentage of disability.

[00:13:46] Speaker 01:
But that disability arises from the one and only period of service that he has predating his employment with the civil.

[00:13:56] Speaker 03:
The entitlement is based upon service.

[00:13:59] Speaker 03:
The calculation is based upon percentage of disability, because it results in a higher amount in terms of service.

[00:14:06] Speaker 03:
That's right.

[00:14:09] Speaker 03:
Anything else?

[00:14:11] Speaker 01:
No.

[00:14:11] Speaker 01:
We respectfully request that the court approve.

[00:14:18] Speaker 03:
Mr. Yancey, you have some time for rebuttal.

[00:14:22] Speaker 03:
Okay.

[00:14:23] Speaker 03:
You don't have anything for rebuttal?

[00:14:25] Speaker 03:
Okay.

[00:14:25] Speaker 03:
The case is submitted.

[00:14:27] Speaker 03:
Thank you.