Thomas Hammett v. Janet Yellen ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 21-5158 September Term, 2022
FILED ON: SEPTEMBER 23, 2022
THOMAS C. HAMMETT,
APPELLANT
v.
JANET L. YELLEN, SECRETARY, US DEPT OF THE TREASURY, OFFICE OF DC PENSIONS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00481)
Before: PILLARD and WALKER, Circuit Judges, and SENTELLE, Senior Circuit Judge
JUDGMENT
This appeal was considered on the record from the United States District Court for the
District of Columbia and on the briefs of the parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. R.
34(j). The court has afforded the issues full consideration and has determined that they do not
warrant a published opinion. See D.C. Cir. R. 36(d). For the following reasons, it is
ORDERED AND ADJUDGED that the judgment of the district court be AFFIRMED.
Thomas Hammett, a retired police officer, challenges a prospective reduction in his
retirement benefits by the Office of D.C. Pensions (D.C. Pensions) under the District of Columbia
Police Officers and Firefighters’ Retirement Plan (the Retirement Plan).
Police officers who retire from the District of Columbia’s Metropolitan Police Department
(MPD) receive monthly benefits under the Retirement Plan. See generally D.C. Code § 5-701 et
seq. Since 1997, the Secretary of the Treasury has been responsible for funding and administering
the Retirement Plan. See District of Columbia Retirement Protection Act of 1997, Pub. L. No. 105-
33, 111 Stat. 715 (codified as amended at D.C. Code § 1-801.01 et seq.); see also D.C. Code §§ 1-
1
801.02(16), 1-803.01, 1-807.05. Under the 1997 version of the Retirement Plan, which governs
here, retired police officers receive pension credit for “[c]reditable service,” which includes their
service with the MPD. See D.C. Code § 4-610 (1997). Officers also “shall be allowed credit” for
“periods of military service” and “government service performed prior to appointment” to the
MPD, subject to certain statutorily enumerated conditions. Id. § 4-610 (b)(1), (e)(1).
Hammett disputes D.C. Pensions’ decision to reduce his monthly retirement benefit based
on its determination that the D.C. Retirement Board had incorrectly calculated it from the outset.
Hammett was first appointed as a civilian police cadet with the MPD in 1965. Before he
completed his first year on the job, Hammett was drafted into the U.S. Army and placed on unpaid
military furlough from his police cadet position from December 1965 until December 1967. After
his discharge from the Army, Hammett returned to the MPD, was promoted from cadet to officer,
and served with the MPD until his retirement. When Hammett’s retirement benefits were
originally calculated in 1994, he was credited twice for his time in the U.S. Army: once as prior
“government service” with the police department as a civilian cadet, from which he was on unpaid
furlough during his time in the military, D.C. Code § 4-610(e)(1) (1997), and again as “military
service” during that same period, id. § 4-610(b)(1). In 2015, however, D.C. Pensions determined
that Hammett’s benefits had been miscalculated because the Retirement Plan does not permit
double counting the same period of service. D.C. Pensions prospectively reduced Hammett’s
monthly retirement benefit by $317. D.C. Pensions also initially claimed entitlement to recover
the past overpayment amount of $60,402, but has since waived collection and insists only on the
prospective correction.
Hammett challenges the district court’s grant of summary judgment to D.C. Pensions on
four main grounds: (1) that D.C. Pensions did not have the legal authority to reduce his benefits,
(2) that he is statutorily entitled under the Retirement Plan to two separate credits for his service
in the U.S. Army, such that he would receive one “military service” credit and another credit for
prior “government service,” (3) that D.C. Pensions’ benefit adjustment violated the Selective
Service Act, and (4) that D.C. Pensions should have accorded a “presumption of regularity” to his
original benefit calculation. We have jurisdiction under D.C. Code § 1-815.02(b) and our review
of the district court’s grant of summary judgment is de novo. See New LifeCare Hosps. of N.C.,
LLC v. Becerra, 7 F.4th 1215, 1222 (D.C. Cir. 2021). None of Hammett’s arguments holds merit.
First, D.C. Pensions has legal authority to determine Hammett’s benefit amount, including
the ability to correct errors in benefit calculations. Since 1997, the Secretary of Treasury has been
responsible for funding and administering the Retirement Plan. See District of Columbia
Retirement Protection Act of 1997, Pub. L. No. 105-33, 111 Stat. 715 (codified as amended at
D.C. Code § 1-801.01 et seq.); see also D.C. Code §§ 1-801.02(16), 1-803.01, 1-807.05. The
2
Secretary of the Treasury has delegated her authority for administering the Retirement Plan to D.C.
Pensions. D.C. Pensions Br. 30-31; see also U.S. DEP’T OF TREASURY, TREASURY DIRECTIVE 13-
20 (reaffirmed Oct. 16, 2019), https://perma.cc/Z2PA-26TU. In administering the Retirement
Plan, the Secretary has broad authority to “determine whether an individual is eligible to receive a
Federal benefit payment” and to “determine the amount and form” of those payments. D.C. Code
§ 1-805.01(1)-(2). D.C. Pensions exercised that authority in adjusting Hammett’s benefit to
correct an error in the original calculation.
Second, D.C. Pensions reasonably interpreted the Retirement Plan to preclude double
counting the same period of military service. The statute itself specifies that we owe “great
deference” to D.C. Pensions’ statutory interpretation. Id. § 1-805.02(b). We see nothing
unreasonable in the interpretation challenged here. The statute plainly assumes that retirement
benefits reflect the length of a retiree’s service: “The total service of a member shall be the full
years and 12th parts thereof.” D.C. Code § 4-610(g) (1997).
No provision affirmatively guarantees retirees two credits for any one period of service.
Rather, the “military service” and “government service” provisions are worded differently,
reflecting a one-credit-per-period approach. The statute gives members credit “for government
service” prior to joining the MPD but—tacitly recognizing that governmental employers often
grant leave for military service—the statute credits only “periods of” military service. D.C. Code
§ 4-610(b)(1), (e)(1) (1997). The text thus calls for credit for government service as such, but
accepts any type of credit covering the period spanning the retiree’s military service, even if the
credit is not denominated as “for” military service.
The Retirement Plan manifests the same one-credit-for-one-period approach in additional
ways. For instance, members cannot receive retirement benefits from both the MPD and a military
pension plan for the same period of military service, id. § 4-610(b)(1), or from the MPD for prior
government service unless they withdraw any prior contributions to a government retirement plan
and deposit them into the Police Officers and Firefighters’ Retirement Plan, id. § 4-610(e)(1).
D.C. Pensions’ own guidance is not to the contrary. Hammett points to the Summary Plan
Description, an agency guidance document, which explains that if a retiree receives credit for prior
civilian government service that includes a period when the individual was on active military
service covered by leave with pay from the civilian job, then he or she will not receive a separate
military service credit. Summary Plan Description 2012 (J.A. 17). In Hammett’s view, the
Summary Plan Description thus impliedly allows—because it does not explicitly prohibit—a
double credit for retirees like him who, during their active military service, were placed on military
leave without pay from their civilian job. The Summary Plan Description, however, does not
purport to be an exhaustive restatement of the Retirement Plan itself. It does not address how D.C.
3
Pensions awards credit for a period of military service during unpaid leave from a civilian position.
At most, the example in the Summary Plan Description—noting that additional military service
credit is barred for retirees who were covered by military leave with pay from a civilian position
(and thus receive a prior government service credit)—reinforces the Retirement Plan’s general
disfavor of double credits for the same period of service.
Hammett also contends that D.C. Pensions’ reading of the Retirement Plan renders the
“military service” credit provision superfluous because the Selective Service Act already
guarantees the preservation of civilian employment benefits for veterans like Hammett. D.C.
Pensions’ reading does, however, give effect to the “military service” provision. As the district
court noted, by including provisions for both prior government and military service, Congress
ensured that officers who previously worked for the government from time A to B and then served
in the military from time C to D—or for that matter, who never worked in a civilian government
position—still get credit for their military service. Transcript of Status Conference at 32-33,
Hammett v. Yellen, No. 17-cv-481 (D.D.C. May 14, 2021), ECF No. 33 (opinion delivered from
the bench).
Third, D.C. Pensions’ benefit adjustment does not amount to discrimination against
veterans or otherwise violate the Selective Service Act. 1 As the district court noted, there is no
evidence in the record that D.C. Pensions engaged in discrimination against veterans or penalized
Hammett for his military service. Transcript of Status Conference at 35-36. The Selective Service
Act requires only that individuals who leave other employment to serve in the military will be
restored to their prior positions at the conclusion of their military service without any loss of the
seniority they would have accrued. See 38 U.S.C. § 4316. As the Supreme Court explained in
Alabama Power Co. v. Davis, 431 U.S. 581 (1977), a veteran “step[s] back on the seniority
escalator . . . at the precise point he would have occupied had he kept his position continuously
during the war.” Id. at 584 (citation omitted). Put otherwise, for civilian seniority purposes, the
Selective Service Act treats a period of military service as if it were unbroken civilian employment,
id. at 585 n.8, but it does not confer a right to additional benefits beyond such assured continuity.
Hammett was given similarly seamless pension-accrual treatment: He returned to the MPD with
the same amount of pension credit he would have accrued had he remained a cadet and never left
for the Army.
1
Hammett alleges a violation of the Military Selective Service Act of 1967. Congress has since enacted the
Uniformed Services Employment and Reemployment Rights Act (USERRA), which retains the Selective Service
Act’s relevant protections regarding veterans’ reemployment. See Pub L. No. 103-353, 108 Stat. 3149 (codified as
amended at 38 U.S.C. § 4301 et seq.); see, e.g., 38 U.S.C. § 4316. In enacting USERRA, Congress emphasized that
USERRA’s predecessor statutes had been successful, and that the “large body” of pre-USERRA caselaw “remained
in full force and effect, to the extent it is consistent with USERRA.” 20 C.F.R. § 1002.2. We here refer to the
Selective Service Act—as the parties and district court have done—rather than USERRA.
4
Fourth, the district court correctly concluded that the “presumption of regularity” did not
apply. The presumption generally applies where, for instance, the parties question the accuracy
of the government’s records, or contend that the government made a technical error in its
calculation. See, e.g., Riggs Nat’l Corp. & Subsidiaries v. Comm’r Internal Revenue, 295 F.3d
16, 20-22 (D.C. Cir. 2002). The presumption does not insulate an initial governmental
determination against an agency’s later conclusion that the statute, correctly understood, requires
a different determination.
For those reasons we affirm the district court’s grant of summary judgment for D.C.
Pensions.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate herein until seven days after resolution of any
timely petition for rehearing or rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R.
41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
5