United States Department of State v. Picur

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES DEPARTMENT OF
STATE, et al.,
Case No. 1:18-cv-00041 (JMC)
Plaintiffs,
v.
GREGORY PICUR,
Defendant.
MEMORANDUM OPINION
Defendant Gregory Picur is a former Foreign Service criminal investigator for the Office
of Inspector General of the United States Agency for International Development (USAID OIG). 1
For more than a decade, Picur and Plaintiffs—the United States Department of State (the
Department) and the United States Agency for International Development (USAID)—have been
embroiled in a dispute over the Department’s calculation of Picur’s retirement annuity. This is the
Parties’ second time before this Court. The Court last saw them in Picur v. Kerry (Picur I), 128 F.
Supp. 3d 302 (D.D.C. 2015), where it vacated the Foreign Service Grievance Board (FSGB)’s
decision limiting Picur’s retirement annuity and remanded the case for further consideration. The
dispute returns to this Court on Plaintiffs’ challenge to a subsequent FSGB decision.
Plaintiffs ask this Court to review the FSGB’s decision and set it aside as arbitrary,
capricious, and not in accordance with law under the Administrative Procedure Act (APA),
1
Unless otherwise indicated, the formatting of quoted materials has been modified throughout this opinion, for
example, by omitting internal quotation marks and citations, and by incorporating emphases, changes to capitalization,
and other bracketed alterations therein. All pincites to documents filed on the docket are to the automatically generated
ECF Page ID number that appears at the top of each page.
1
5 U.S.C. §§ 701–706. They argue that the FSGB misinterpreted the relevant retirement annuity
statute, 22 U.S.C. § 4046, and inflated Picur’s annuity in two respects. First, Plaintiffs argue, the
FSGB’s decision applied an erroneously high multiplier to the income Picur received during his
USAID OIG employment when calculating Picur’s annuity payments. Second, Plaintiffs contend
that the income to which that multiplier was applied was itself too high because it included
additional income that Picur received beyond his base salary, in violation of statutory
requirements. The Court agrees with Plaintiffs on both fronts and thus GRANTS Plaintiffs’ cross-
motion for summary judgment, VACATES the challenged FSGB decision, and REMANDS the
matter for further consideration consistent with this opinion. Picur’s motion for summary judgment
is accordingly DENIED.
I. BACKGROUND
Gregory Picur is a retiree with an extensive career in the federal government. This case
turns on the particular retirement systems in which Picur was enrolled during his 25-year tenure
as a federal employee and the retirement annuity benefit to which he is entitled by statute as a
result. To understand Picur’s predicament requires disentangling four distinct—though, at times
over the decades, interrelated—retirement systems available to employees like Picur.
First is the Civil Service Retirement System (CSRS). The CSRS, created in 1920, provides
a defined-benefit retirement compensation scheme for certain federal employees. U.S. Office of
Personnel Management, CSRS Information, https://perma.cc/P4FU-54DD. The CSRS’s retirement
annuity plan provides payments in retirement, and requires employee contributions during their
working years, pursuant to the provisions of 5 U.S.C. §§ 8301 et seq. In November of 1983, Picur
entered federal employment as an accounting clerk with the Internal Revenue Service (IRS) and
enrolled in the CSRS. ECF 8-19 at 26.
2
In 1986, Congress established a new retirement system, the Federal Employees’ Retirement
System (FERS), for the classes of employees originally covered by the CSRS. See Federal
Employees’ Retirement System Act of 1986, Pub. L. 99-335, 100 Stat. 514. FERS’s retirement
benefits are governed by the provisions of 5 U.S.C. §§ 8401 et seq. One of the central purposes of
the legislation was to better integrate federal retirees’ benefits with the Social Security system,
since federal retirees had originally been excluded from Social Security benefits. See Wilmer L.
Kerns, Federal Employees’ Retirement System Act of 1986, 49 Soc. Sec. Bulletin Vol. 11, at 6
(1986). Whereas the CSRS provided one main retirement benefit, the retirement annuity, FERS
provided for three complementary benefits: Social Security benefits, a supplemental annuity
similar to the CSRS’s, and a thrift savings plan (a tax-deferred, matched savings vehicle). Id. In
short, although the CSRS and FERS required comparable employee contributions and sought to
provide broadly comparable benefits, see id., they differed in meaningful ways. For example, the
size of the typical annuity payment under the CSRS is calculated as 1.5% to 2% of the employee’s
average annual base pay multiplied by the number of years of federal service. See 5 U.S.C.
§ 8339(a). By contrast, payments under the FERS basic annuity begin at 1% of the employee’s
average annual pay multiplied by the total years of service—a significantly lower baseline
payment. See 5 U.S.C. § 8415(a).
Though FERS went into effect on January 1, 1987, it generally applied to employees who
began a covered federal service position on January 1, 1984, or later. ECF 8-19 at 26. Certain
employees who entered federal service prior to January 1, 1984—and were enrolled in the old
CSRS system—could elect to stay enrolled in the CSRS, with its distinct retirement benefit and
contribution provisions, rather than switching to FERS. Id.; see Federal Employees’ Retirement
System Act of 1986 § 301, 100 Stat. 599.
3
On July 8, 1984, Picur was appointed to a law enforcement position within the IRS, where
he continued to be covered by the CSRS. ECF 8-19 at 27. Because he began his IRS employment
prior to January 1, 1984, he had the right under the 1986 Act to remain in the CSRS rather than
switch to FERS. He elected to remain in the CSRS. Id. He continued in an IRS law-enforcement
role for ten years and participated in CSRS throughout that period. Id. Then, in August 1994, Picur
left the IRS and joined the USAID OIG as a Civil Service criminal investigator. Id. In that role,
too, he continued to be covered under the CSRS. Id. In 1998, however, Picur converted to the
Foreign Service and was appointed to a Foreign Service criminal investigator position within
USAID OIG. Id. When Picur joined the Foreign Service, his retirement was converted from the
CSRS to its Foreign Service equivalent, the Foreign Service Retirement and Disability System
(FSRDS)—the third federal retirement benefit system at issue here. Id.The FSRDS, established in the Foreign Service Act of 1980, Pub. L. 96-465, 94 Stat. 2071,
provided broadly similar retirement annuity benefits and contribution requirements to the CSRS,
but for Foreign Service employees. The FSRDS’s features are governed by the distinct statutory
provisions of 22 U.S.C. §§ 4041 et seq. In 1986, Congress established a replacement for the
FSRDS as part of the same omnibus legislation in which it created FERS, the replacement for the
CSRS on the Civil Service side. See Foreign Service Pension System Act of 1986, Pub. L. 99-335,
100 Stat. 609. Congress’s new retirement system for members of the Foreign Service, the Foreign
Service Pension System (FSPS)—the fourth and final retirement system at play in this case—
provides for benefits and contributions pursuant to 22 U.S.C. §§ 4071 et seq. Like FERS, its Civil
Service counterpart, the Foreign Service’s new FSPS retirement system restructured employees’
retirement benefits to incorporate Social Security benefits, a supplemental annuity, and a thrift
savings plan. See 22 U.S.C. § 4071.
4
Indeed, certain parallels between the Civil Service and Foreign Service systems were
explicitly built into Congress’s statutes. When Congress established the FSRDS as the Foreign
Service counterpart to CSRS in 1980, it included a provision authorizing (if not requiring) the
President to prescribe regulations to “maintain existing conformity between” the CSRS and
FSRDS. 22 U.S.C. § 4067(a)-(b) (providing that the President “shall by Executive order prescribe”
such regulations). Specifically, under that provision, whenever Congress passes a “law of general
applicability” that “affects the treatment of current or former” CSRS participants and affects
treatment that had been, “immediately prior to the enactment of” that law of general applicability,
“substantially identical to the treatment accorded to” FSRDS participants, the law “shall be
extended” by regulation to apply in the same manner to FSRDS participants. Id. § 4067(a). In
1986, when it established FSPS for Foreign Service employees, Congress added a paragraph to
§ 4067 providing for the same degree of similarity, on the same terms, between the two new
retirement systems (FERS and FSPS) as had already been in place for the two older systems (CSRS
and FSRDS) since 1980. See 22 U.S.C. §§ 4067(c). Put more simply, whenever a law modifies
features of the two older systems that those systems previously shared with their respective newer
systems, the President can by regulation apply those same modifications to the newer systems such
that participants in the latter enjoy the same benefits as those in the former. In addition, the statute
creating the FSPS states that the statutory provisions applicable to the FSRDS also apply to FSPS
participants except as explicitly stated otherwise, creating a tight overlap between the two systems.
Still, the Foreign Service systems continued to differ from their Civil Service counterparts
in ways ultimately decisive here. Among such differences was a 1990 amendment to the statutory
provisions that revised (and, for many annuitants, enhanced) the calculation formulas for
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retirement annuities for participants in the FSRDS (the older system). See Pub. L. 101-513, 104Stat. 2055 (1990).
The first six paragraphs in that amended subsection, codified at 22 U.S.C. § 4046, establish
distinct calculation formulas for annuity payments, each applicable to a distinct set of FSRDS
participants. § 4046(a)(1) applies to “any participant” except those encompassed by the subsequent
paragraphs. It provides for most of those participants (all except certain presidential appointees)
an annuity payment equal to “2 percent of [the participant’s] average basic salary for the highest
3 consecutive years of service multiplied by the number of years” in service, up to 35 years.
22 U.S.C. § 4046(a)(1). Those highest three consecutive years of service are colloquially known,
and referred to throughout relevant documents, as the employee’s “high three.” See, e.g., ECF 8-
19 at 27.
The next paragraphs provide two alternative payment formulas that depart from the
FSRDS’s standard 2% annuity multiplier, each applicable to a set of Foreign Service criminal
investigators/inspectors in USAID OIG who were appointed to law enforcement positions. See Id.§ 4046(a)(2). First, § 4046(a)(2)(A) applies to USAID OIG Foreign Service criminal
investigators/inspectors who were
appointed to a law enforcement position, as defined in [5 U.S.C. § 8331(20)], prior
to January 1, 1984, and would have been eligible to retire pursuant to [5 U.S.C.
§ 8336(c)], after attaining 50 years of age and completing 20 years as a law
enforcement officer had the employee remained in the civil service[.]
22 U.S.C. § 4046(a)(2)(A). Note that 5 U.S.C. §§ 8331(20) and 8336(c) are part of the Title that
governs the CSRS, the older Civil Service system. Section 8336(c) sets out the requirements for a
law enforcement officer to receive an annuity under the CSRS and, as relevant here, requires that
an officer reach 50 years of age and complete 20 years of service in a law enforcement position.
The annuity payment for that class of annuitants, under the FSRDS, “shall be computed in the
6
same manner as that of a law enforcement officer pursuant to [5 U.S.C. § 8339(d)],” another CSRS
provision. 22 U.S.C. § 4046(a)(2)(A). That CSRS provision awards an annuity multiplier of 2.5%
of the participant’s average pay for each of the first 20 years of that employee’s creditable
employment, and 2% for each year thereafter. 5 U.S.C. § 8339(d)(1)(A).
The second such paragraph, § 4046(a)(2)(B), governs a different set of annuitants. It reads,
in relevant part:
“[T]he annuity of a Foreign Service criminal investigator of [USAID OIG], who
was appointed to a law enforcement position as defined in [5 U.S.C. § 8401(17)]
on or after January 1, 1984, and who would have been eligible to retire pursuant to
[5 U.S.C. § 8412(d)], after attaining 50 years of age and completing 20 years of
service as such a law enforcement officer, had the employee remained in the civil
service, shall be computed in the same manner as that of a law enforcement officer
pursuant to [5 U.S.C. § 8415(e)]”
28 U.S.C. § 4046(a)(2)(B). Note here that 5 U.S.C. §§ 8401(17), 8412(d), and 8415(e) are all part
of the U.S. Code chapter governing the newer FERS system (and are also incorporated by reference
into the FSPS system). See 5 U.S. Code Chapter 84. That chapter provides that law enforcement
officers are entitled to an annuity if they reach 50 years of age and complete 20 years of service in
a law enforcement service. 5 U.S.C. § 8412(d). Such officers are entitled to an annuity that is 1.7%
of their “average pay” for first 20 years of service, and 1% for every year thereafter. Id. § 8415(e).
Throughout his career in federal service, Picur participated only in the two older systems.
First, he participated in CSRS and stayed in it after FERS emerged, as discussed above. Then, after
entering the Foreign Service, he converted to the FSRDS. There, too, he never elected to switch to
its newer replacement, the FSPS. ECF 8-19 at 39. Thus, from 1998 until his retirement in May
2010, Picur was a participant in the FSRDS and contributed to his retirement pursuant to the
statutory provisions applicable to FSDRS members, including the 1990 amendment. ECF 8-19 at
7
27. One of the two disputes in this case concerns which of those provisions’ annuity multipliers
applies to him based on the facts of his career in federal service.
The second, interrelated dispute before the Court concerns the other component of the
annuity calculation: the amount of Picur’s pay that should be multiplied by whatever the applicable
statutory multiplier is to calculate Picur’s retirement annuity. As a Foreign Service criminal
investigator, Picur was paid in accordance with the Foreign Service pay scale. See 22 U.S.C.
§§ 3963, 3966. During the last ten years of his employment—from 2000 to 2010—Picur received
an annual salary comprised of both base pay and a “special differential.” ECF 8-19 at 27. Base pay
is the set figure corresponding with a Foreign Service employee’s Class and Step within the
Foreign Service salary system. See 22 U.S.C. §§ 3963, 3966. A “special differential” is an
additional payment, calculated as a percentage of that employee’s base salary, for Foreign Service
officers “who are required because of the nature of their assignments to perform additional work
on a regular basis in substantial excess of normal requirements.” 22 U.S.C. § 3972(a).
That distinction matters for purposes of Picur’s retirement annuity because the annuity
calculation formulas under 22 U.S.C. § 4046 differ in whether they include special differentials as
part of the employee’s “high three” average salary. According to § 4046(a)(8), annuities calculated
under § 4046(a)(1) do not include special differential pay as part of the average salary, whereas
annuities calculated under § 4046(a)(2)(A) and § 4046(a)(2)(B) do. Thus, if Picur were subject to
the formulas in § 4046(a)(2)(A) or § 4046(a)(2)(B), the amount of his special differential would
matter a great deal to his annuity payment; if, on the other hand, he were subject to § 4046(a)(1)’s
formula, the amount of his special differential pay would make no difference in the amount of his
retirement payments.
8
Picur’s special differential pay has been the subject of ongoing dispute. In March of 2006,
USAID Inspector General Donald A. Gambatesa issued a memo authorizing special differential
pay for USAID OIG Foreign Service criminal investigators at the rate of 18% of their base pay.
See ECF 8-1 at 34–35; see also Picur I, 128 F. Supp. 3d at 305 (discussing the memo). The
Gambatesa memo also provided that OIG would “implement a bi-weekly pay cap for all [Foreign
Service] officers” that was equivalent to the GS-15 step 10 salary level. Id. at 305–06. The memo
included a grandfather clause permitting Foreign Service criminal investigators whose salary
exceeded that of the GS-15 step 10 level at the time the memorandum was issued to maintain their
current total compensation. Id. at 305–06; see also AR ECF 8-19 at 59. The total compensation,
including special differential, of all other employees subject to the memo would be capped at the
GS-15 step 10 level.
In Picur’s case, however, the National Finance Center, which processed the pay cap on
special differential until 2013, did not code special differentials correctly in Picur’s personnel
records. ECF 8-2 at 53–56; ECF 8-6 at 17–29. As a result, Picur’s salary was never capped pursuant
to the bi-weekly salary cap even though he did not qualify for the grandfather clause because his
salary was, at the time of the 2006 memo, below the grandfather clause’s minimum threshold of
the GS-15 step 10 pay level. Picur I, 128 F. Supp. 3d at 306–07. When he was later paid above the
GS-15 step 10 pay scale, including special differential—for example, in the first pay period in
2009, when the GS-15 step 10 biweekly pay was $5,872.80 and his total pay (base pay plus special
differential) for that period was $6,923.20—such pay appeared to erroneously exceed the cap. See
ECF 8-7 at 93.
These issues came to a head after Picur retired in May 2010, at the age of 50 after 25 years
in federal law enforcement. ECF 8-19 at 27. Upon retirement, Picur “was eligible to receive
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annuity payments as a participant in the [FSRDS].” Picur I, 128 F.3d at 304. As discussed above,
the retirement annuity of a Foreign Service criminal investigator is calculated in accordance with
the Foreign Service Act of 1980, as amended. Id. (citing 22 U.S.C. §§ 4041–4069c-1). As an
FSRDS participant, Picur was entitled to an annuity amount pegged to a calculation of his “high
three”—his average annual salary during his highest three consecutive years of service. See 22
U.S.C. § 4046(a)(1).
Yet, when Picur received his annuity payment based on his high three, both were much
lower than he expected based upon the pay he had received while employed and what he thought
was the applicable annuity calculation formula. Picur I, 128 F.3d at 305; ECF 9-1 at 7. He
contacted the State Department about the discrepancy and discovered that the Department had
calculated his high three by retroactively applying the Gambatesa memo’s bi-weekly pay cap, even
though Picur’s salary was never subject to the cap while he was working. Picur I, 128 F.3d at 305–
06. The Department maintained that Picur’s special differentials should have been capped at the
GS-15 step 10 level from 2006 onward and that his receipt of special differentials above that cap
erroneously boosted his basic pay in the last four years of his employment. Id. at 306. (According
to the Department’s later calculation, Picur was overpaid by a total of $35,298.55 from the period
after the Gambatesa memo went into effect in 2006 to his retirement in 2010. ECF 8-7 at 94.) The
Department argued that capping Picur’s special differential when calculating his high three was
necessary to avoid perpetuating those overpayments into Picur’s retirement. Picur I, 128 F.3d
at 306.
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A. First Grievance, FSGB Case No. 2013-031/2013-031R 2
Picur tried and failed to rectify the perceived error concerning his high three through
informal emails and letters to the Department’s Bureau of Human Resources, and he then filed a
formal grievance with the State Department. ECF 8-1 at 30–32, 63–64, 66–67; ECF 8-19 at 27–
28. Picur contended that the Department was required to calculate his annuity based on “the
amount of pay that Picur actually had received, including the full amount of the special
differential,” not the amount he should have received under the pay cap that the agency never
applied to him. Picur I, 128 F. Supp. 3d at 306; see ECF 8-1 at 17–18. The State Department
denied Picur’s grievance in a five-page written order, finding that it had properly calculated Picur’s
high three by using “Picur’s salary during his last four years of service, including special
differential that he received, but only up to the bi-weekly pay cap” prescribed by the Gambatesa
memo. ECF 8-1 at 52–56. Picur appealed the State Department’s decision to the FSGB, but the
FSGB affirmed the State Department’s decision, finding that the Department had calculated
Picur’s annuity “consistent with existing OIG policy, and compliant with the Gambatesa
memorandum that established the policy.” ECF 8-2 at 33–34.
Picur sought review of the FSGB’s ruling in federal court. He argued that the FSGB’s
decision was arbitrary and capricious under the APA because it failed to consider that “Foreign
Service officers are exempt from pay caps of the type that the Gambatesa memo purportedly
imposed” and “in any event, Picur qualified for the Gambatesa memo’s grandfather provision.”
Picur I, 128 F. Supp. 3d at 308. The Court did not fully resolve how the relevant statutes should
be applied in Picur’s case, but agreed with Picur that the FSGB’s decision was arbitrary and
2
Picur’s first grievance is referred to as No. 2013-031 prior to its remand from this Court and No. 2013-031R following
the remand from this Court.
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capricious for failing to consult the statutes at issue at all. Id. at 310 (“Whatever the appropriate
statutory analysis, the administrative record in this case makes crystal clear that the FSGB failed
to consult any of the statutory provisions that specifically prescribe how an annuity is properly
calculated in this context, and it appears to have merely assumed that the State Department has the
power to decide that an annuitant’s actual high three salary average is too high for the purpose of
an annuity calculation.”). On remand, the FSGB reversed its earlier decision. ECF 8-19 at 28–29.
It held that the Department erred by calculating Picur’s annuity based on a theoretical salary, rather
than the actual salary he received, and ordered the Department to re-calculate Picur’s annuity based
on his actual basic salary plus all special differentials he received as a Foreign Service criminal
investigator for USAID OIG. Id.The Department moved for reconsideration based on information it claimed to have learned
while recalculating Picur’s annuity. Id. at 29. Before the remand decision, both Parties interpreted
the Foreign Service Act to mean that Picur was entitled to have special differential included in his
“basic pay” as part of his annuity calculation, in accordance with 22 U.S.C. § 4046(a)(2)(8), and
that the 2.5% annuity multiplier provided for in § 4046(a)(2)(A) applied. ECF 8-19 at 35; ECF 12
at 37 n.24. Recall that those provisions apply, by their text, to USAID OIG criminal
investigators/inspectors who were “appointed to a law enforcement position . . . prior to January
1, 1984.” 22 U.S.C. § 4046(a)(2)(A); see id. § 4046(a)(8) (applying to, inter alia, id. §
4046(a)(2)(A)). After the FSGB remanded to the Department to recalculate Picur’s annuity, the
Department learned (for the first time, it claimed) that Picur’s original position at the IRS was not
a law enforcement position, and that he was not employed in a law enforcement position until July
of 1984—after January 1, 1984, not “prior to” that date. See ECF 8-19 at 31–32. Thus, according
to the Department, Picur did not meet the requirements of § 4046(a)(2)(A), which provides for a
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2.5% multiplier and includes special differentials as part of high three to which the multiplier
applies. Nor did he meet the requirements of § 4046(a)(2)(B), which has a lower multiplier but
still includes special differentials, and which the Department interpreted to apply only to those
who would have been eligible to retire under FERS, which Picur would not. Instead, per the
Department, Picur’s annuity was governed by 22 U.S.C. § 4046(a)(1), which prescribes calculating
annuities using a 2% multiplier and without considering special differentials. ECF 8-19 at 35, 39–
40.
B. Second Grievance, FSGB Case No. 2016-030
Around the same time as it moved for reconsideration, the Department revised Picur’s
personnel records to reflect “what he would have been paid had the pay cap been implemented
during his employment.” ECF 8-19 at 29. 3 The Department then recalculated Picur’s annuity using
the amended salary amount and § 4046(a)(1)’s 2% multiplier. Id. at 30. After determining that
Picur’s actual salary and annuity exceeded the recalculated amounts, the Department issued Picur
two bills of collection for these overpayments: $35,298.55 for the overpayment of his salary when
he was employed, which should have been capped pursuant to the Gambatesa memo but
erroneously was not; and another $90,830.69 for overpayment of annuity since his retirement,
based on the erroneously large statutory annuity multiplier applied. Id at 30 n.5. While the
3
In Picur I, the Court held that the Department was “not [] authorized to base an annuity calculation on its own
freestanding determination about unexecuted limitations on the participant’s prior salary, much less to make a
unilateral decision that resolves a dispute about whether the participant was previously overpaid.” Picur I, 128 F.
Supp. 3d at 309. However, it left open the possibility that the Department possessed the authority to use other
mechanisms to correct alleged salary overpayments and recalculate an annuity amount based on the annuitant’s
adjusted salary. Id. at 310. For example, it held that “there is nothing in the annuity statute that prohibits the agency
from revisiting its initial annuity determination if a corrected basic salary determination is made pursuant such other
proceedings.” Id. This time around, the Department employed the Court’s proposed method by correcting Picur’s
actual salary in his personnel records before recalculating his annuity. The FSGB held that doing so fell within the
Department’s statutory authority, ECF 8-19 at 56–58, and Picur does not contest that determination.
13
Department has since waived collection of the former, the salary overpayment, it maintains that
the bill of collection for the latter, overpayment of Picur’s annuity, is still enforceable. Id.Picur filed a second grievance with the Department and USAID, arguing that the
Department could not (a) retroactively apply a cap on his earnings; (b) revise his pay records to
reflect that cap; (c) use the revised pay records to calculate his annuity; (d) calculate his annuity
with a 2%, rather than a 2.5%, multiplier; or (e) issue the bills of collection for any alleged
overpayments. Id. at 30. The Department denied the second grievance, and Picur appealed to the
FSGB in Case No. 2016-30. Id. The FSGB consolidated Picur’s two cases, Nos. 2013-013R and
2016-030, and joined USAID as a party to the consolidated appeal. Id.
C. FSGB Decision in the Consolidated Case
On July 11, 2017, the FSGB issued a decision on the merits denying the Department’s
motion for reconsideration of its remand decision. ECF 8-19 at 24–61. 4 It held that Picur’s annuity
was not governed by § 4046(a)(1), as the Department argued, but instead by § 4046(a)(2)(A)—the
paragraph providing a 2.5% multiplier, applied to pay that includes special differential, for law
enforcement officers appointed before January 1, 1984, who would have been eligible for the
CSRS had they remained in the civil service.
The FSGB embraced two “independent,” alternative arguments to reach that conclusion.
ECF 8-19 at 41. First, it reasoned that the language of § 4046(a)(2)(B) is ambiguous and could be
read to include Picur because “[i]t is also possible” not to read that section to require eligibility for
FERS/FSPS, as the text appears to command. ECF 8-19 at 42–43. “[M]ore likely,” they argue,
“the drafters of 22 [] U.S.C. [§] 4046 assumed – erroneously – that all employees appointed to law
enforcement positions after January 1, 1984, would be participating in FERS/FSPS, which in most
4
The FSGB’s July 11, 2016 decision was “corrected” on August 16, 2027 to remove a case citation. AR 1824.
14
cases would be true” and “may have overlooked” people like Picur who started in CSRS and never
elected to transfer to the newer systems. Id. Due to that so-called “ambiguity,” the FSGB found, it
should depart from a “strict reading” of the statute’s text and look instead to prudential and
legislative history considerations to award Picur a 2.5% annuity multiplier. ECF 8-19 at 49–50.
The overriding consideration it relied upon was Congress’s “objective – repeated throughout the
legislation – to effect parity for officers serving in law enforcement systems, across different
personnel systems.” Id. at 40. In an alternative but related argument, the FSGB contended that the
Department’s reading of § 4046 “yields results that are highly anomalous and is totally at odds
with Congress’s intent,” and that the absurdity canon supports applying legislative history over the
plain text. Id. at 43–53. The FSGP also found that USAID was not statutorily authorized to apply
the bi-weekly pay cap to Picur’s salary. Id. at 58–60. Accordingly, it ordered the Department to
calculate Picur’s annuity by applying a 2.5% multiplier and including the full amount of special
differential pay that he received while working. Id. at 61.
The Department and USAID filed a complaint in this Court seeking review of the FSGB’s
decision on the Department’s motion for reconsideration. ECF 1. Both Plaintiffs and Picur have
moved for summary judgment. ECF 9-1; ECF 12. 5
5
After the Parties’ summary judgment motions and all responses were filed, the Court ordered Plaintiffs to provide
supplemental briefing addressing (1) “whether Picur is the appropriate defendant in this case,” (2) “whether and to
what extent [the Court] can solicit the views of the FSGB regarding the issues in dispute,” and (3) “whether FSGB
can, and should, be joined as a party.” ECF 22 at 3. Plaintiffs responded that (1) Picur is the appropriate defendant,
(2) Plaintiffs “do not believe there is a procedural mechanism through which the Court may seek the views of the
FSGB regarding its decision in the circumstances of this litigation,” and (3) the FSGB neither can nor should be joined
as a party in this action. ECF 23 at 6–7. Picur did not respond to this briefing or otherwise indicate disagreement on
any of Plaintiffs’ positions. Because the Parties have no dispute on any of the three questions raised in the Court’s
order, ECF 22, and because the Court does not find the FSGB to be a compulsory party under Fed. R. Civ. P. 19
(assuming it even could be joined here), the Court declines to address these questions further and proceeds to decide
the merits of this action.
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II. LEGAL STANDARD
As relevant here, FSGB decisions are subject to judicial review “in accordance with the
standards set forth in [the APA.]” 22 U.S.C. § 4140(a). Under the APA, “[s]ummary judgment is
the appropriate procedural mechanism for resolving challenges to final agency actions.” Picur I,
128 F. Supp. 3d at 308 (citing Stuttering Found. Of Am. v. Springer, 498 F. Supp. 2d 203, 207
(D.D.C. 2007), aff’d, 208 Fed Appx. 383 (D.C. Cir. 2010)). In most civil cases, courts grant
summary judgment when the pleadings and evidence demonstrate “there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). But this standard does not apply in APA cases “because of the limited role of a court in
reviewing [an] administrative record.” Picur I, 498 F. Supp. 2d at 207. Instead, courts review final
agency actions under § 706 of the APA, which empowers them to “hold unlawful and set aside
agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
When reviewing agency action under the APA, courts “must exercise independent
judgment in determining the meaning of statutory provisions.” Loper Bright Enters. v. Raimondo,
144 S. Ct. 2244, 2262 (2024). In so doing, courts may “seek aid from the interpretations of those
responsible for implementing particular statutes” based on those agencies’ “body of experience
and informed judgment,” Id. at 2262 (quoting, in part, Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)).
III. ANALYSIS
The Court reviews the FSGB’s decision with respect to two issues. First, the Court
determines whether the FSGB ordered the Department to calculate Picur’s annuity under the
correct section of 22 U.S.C § 4046, or if it misinterpreted the statute and erred in affording Picur
a 2.5% annuity multiplier. Second, it addresses whether the FSGB correctly held that Picur is
16
entitled to include special differentials in his basic salary for purposes of calculating his annuity.
The Court finds in favor of Plaintiffs on both questions and vacates the FSGB’s decision.
A. The FSGB Misinterpreted Section 4046, and Picur is Not Entitled to a 2.5% Annuity
Multiplier
“When it comes to statutory interpretation, it is a familiar canon that the starting point is
the language of the statute itself.” Env’t Def. Fund v. Reilly, 909 F.2d 1497, 1502 (D.C. Cir. 1990)
(quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108 (1980)). Before
addressing anything else, a court must “determine whether the statutory text is plain and
unambiguous.” Carcieri v. Salazar, 555 U.S. 379, 387 (2009). If the text is unambiguous, the
inquiry is over and the court “must apply the statute according to its terms.” Id.Here, the relevant statutory text is unambiguous. Of the three annuity calculation
provisions that the parties float as applicable to Picur, only § 4046(a)(1) encompasses, by its text,
all the relevant facts of Picur’s employment. That paragraph applies generally to “Foreign Service
investigators/inspectors” who are not presidential appointees and do not meet one of the other
special categories laid out in the subsequent paragraphs. 22 U.S.C. § 4046(a)(1). The next
paragraph, § 4046(a)(2)(A), applies only to such investigators/inspectors who (a) are USAID OIG
investigators/inspectors, (b) were appointed to a law enforcement position prior to January 1, 1984,
and (c) would be eligible to retire under the CSRS had they remained in the civil service. Picur
satisfies (a) and (c) but not (b), because he did not obtain a law enforcement position until July of
1984. The third paragraph in that subsection, § 4046(a)(2)(A), applies only to
investigators/inspectors who (a) are USAID OIG investigators/inspectors, (b) were appointed to a
law enforcement position on or after January 1, 1984, and (c) would be eligible to retire under the
newer FERS system if they had stayed in the civil service. Of those requirements, Picur satisfies
(a) and (b) but not (c), because he never elected to switch from CSRS to FERS. Notably, neither
17
Party here argues that § 4046(a)(2)(B) applies; that paragraph offers a lower annuity multiplier
(1.7%) than either § 4046(a)(1) (2%, the Department’s position) or § 4046(a)(2)(A) (2.5%, Picur’s
position).
The FSGB and Picur rely on sparse legislative history, comparisons to disparate statutes,
and the inapplicable absurdity canon to find that “[t]here is no indication” Congress “inten[ded] to
deny law enforcement annuity benefits for [a] small group of officers” like Picur and leave them
with the standard 2% annuity formula for Foreign Service investigators generally. 6 ECF 8-19 at
53. Yet, there is a very strong indicator of Congress’s intent to do just that—the text of the statue.
Based on that text, interpreted under ordinary principles of statutory interpretation, the Court finds
the Department’s reading to be correct and the FSGB’s and Picur arguments wanting.
First, the Court finds, consistent with the Department’s reading, that § 4046(a)(1) applies
to Picur. Second, the Court rejects the FSGB and Picur’s arguments that § 4046(a)(2)(B) is
ambiguous or could be read to apply to Picur, or that any ambiguity in that paragraph could justify
the FSGB’s conclusion as to Picur’s annuity. Third, the Court rejects the FSGB’s atextual
conclusion that § 4046(a)(2)(A), with its 2.5% multiplier, applies to Picur.
1. § 4046(a)(1) Applies to Picur
The Department is correct: by its plain terms, § 4046(a)(1)’s 2% annuity multiplier applies
to Picur. That is because Picur satisfies the only requirement for an annuity under § 4046(a)(1): he
is “a participant” in FSRDS. See 22 U.S.C. § 4046(a)(1). Thus, even if no other section applies,
Picur is entitled to receive an annuity that is 2% of his high three multiplied by his years of service,
not exceeding 35 years. Id.6
Picur’s motion for summary judgment “adopt[s] . . . as a correct statement of the law” the FSGB’s “analysis, holding
and rationales” as to its interpretation of the statute, so arguments attributed in the remainder of this opinion to the
FSGB can also be attributed to Picur. ECF 9-1 at 16.
18
Notably, Picur does not dispute that § 4046(a)(1) can be read to encompass him. See, e.g.,
ECF 8-19 at 40 (“[Picur] agrees that, on its face, the Department’s reading of [§ 4046] appears to
be correct.”). Rather, he argues—and the FSGB agreed—that § 4046(a)(2) can also be read to
cover him, and that there are prudential and legislative history reasons to find that Congress
intended to include him in this later provision. See ECF 9-1 at 16–18; ECF 15 at 20–22; ECF 8-19
at 40–53. As the following sections will explain, that conclusion is without merit.
2. § 4046 is Not Ambiguous, and § 4046(a)(2)(B) Does Not Apply to Picur
The first basis that Picur and the FSGB put forward for departing from the statute’s plain
text is their argument that § 4046 is ambiguous. ECF 8-19 at 42–43. Despite its apparent textual
applicability only to annuitants who would be eligible to retire under the FERS system had they
remained in the civil service, the FSGB held that § 4046(a)(2)(B) was “not so ‘clear-cut’” and
could be read to include Picur. ECF 8-19 at 42, 53. Not so.
Section 4046(a)(2)(B) sets the annuity multiplier for USAID OIG criminal investigators
who (1) “[were] appointed to a law enforcement position . . . on or after January 1, 1984,” and (2)
“would have been eligible to retire pursuant to [5 U.S.C. §] 8412(d), after attaining 50 years of age
and completing 20 years of service as such law enforcement officer, had the employee remained
in the civil service.” As relevant here, § 8412(d) establishes that FERS/FSPS participants are
“entitled to an annuity . . . after becoming 50 years of age and completing 20 years of service as a
law enforcement officer.” 5 U.S.C. § 8412(d)(1)(B). Picur satisfies only one of § 4046(a)(2)(B)’s
two requirements. While he started in a law enforcement position after January 1, 1984, ECF 8-19
at 27, he never elected to participate in FERS, id. at 26, 39, and so could not have been “eligible
to retire” under that system, 5 U.S.C. § 8412(d). Section 4046(a)(2)(B) presents little, if any,
ambiguity and on its face does not apply to Picur.
19
The FSGB circumvented this outcome by holding that it is “not necessary” to read
§ 4046(a)(2)(B) as requiring “that the employee must also be a participant in the FERS/FSPS
system of which 8412(d) is a part.” ECF 8-19 at 42. It put forth an alternative reading:
§ 4046(a)(2)(B)’s reference to § 8412(d) only requires that an annuitant comply with the eligibility
criteria specified in § 8412(d) itself, rather than to “other eligibility criteria that may be applicable
to retirements under 8412(d) but are found in separate provisions.” ECF 8-19 at 42. Thus, an
employee could satisfy § 4046(a)(2)(B)’s “eligible to retire pursuant to § 8412(d)” requirement by
reaching the age of 50 and serving for at least 20 years, even if they did not actually qualify to
retire under FERS/FSPS. The FSGB’s interpretation would cover Picur, but it begs too much.
First, the Court must follow the “cardinal rule that statutory language must be read in
context.” Hibbs v. Winn, 542 U.S. 88, 101 (2004). Part and parcel of this principle is the “rule
against superfluities,” which instructs this Court to interpret a statute “so that effect is given to all
its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Id. Picur
asks this Court to read § 4046(a)(2)(B)’s reference to § 8412(d) as a mere adoption of that latter
section’s age and term of service requirements. But § 4046(a)(2)(B) includes its own age and term
of service requirements. It expressly provides that an annuitant only qualifies for an annuity “after
attaining 50 years of age and completing 20 years of service as such a law enforcement officer.”
22 U.S.C. § 4046(a)(2)(B). If Picur were correct and § 4046(a)(2)(B) only meant to incorporate
§ 8412(d)’s age and term of services requirements—which are also 50 and 20 years, respectively—
one of the two clauses would be duplicative. To give effect to the full statute, then, the reference
to § 8412(d) must incorporate more than that statute’s age and term of service requirements.
Rather, § 4046(a)(2)(B) means what it says: the annuitant must have been eligible to retire under
the FERS/FSPC system.
20
Second, (a)(2)(B) uses a formula to calculate annuities that applies to retirement systems
other than FSRDS. It provides that annuities “shall be computed in the same manner as that of a
law enforcement officer pursuant to [5 U.S.C.] section 8415(e).” 22 U.S.C. § 4046(a)(2)(B).
Section 8415(e) applies to FERS/FSPS participants, rather than FSRDS participants like Picur.
ECF 8-19 at 42. Per the FSGB’s opinion, these systems “differ in ways that would make it
inappropriate to calculate the annuity of an FSRDS participant like [Picur] by applying the FSPS
formula.” Id. In the Court’s view, this mismatch is a strong indicator that (a)(2)(B) was never
meant to apply to a FSRDS annuitant like Picur. The FSGB, on the other hand, interpreted this
incongruence as a mistake by Congress, which “more likely than not . . . assumed—erroneously—
that all employees appointed to law enforcement positions after January 1, 1984, would be
participating in FERS/FSPS” and thus inadvertently excluded Picur by setting a “date of
appointment” rather than “date of initial hire” deadline. Id. at 42–43. Inventing ambiguity from
this alleged mistake, the FSGB found that (a)(2)(B) was inconsistent and ambiguous because it
described “eligibility for the relevant annuity in terms that could apply to [Picur], but provided that
the amount of the annuity will be determined by a formula that is inappropriate.” Id. at 43.
The FSGB’s reasoning is flawed. For one, the FSGB cannot pick and choose which
portions of a statute it applies. If Picur’s annuity is governed by § 4046(a)(2)(B), then his annuity
must be calculated in accordance with § 8415(d). The multiplier set out in § 8415(e) is not the
2.5% the FSGB ordered. Rather, it is “[1.7] percent of [an employee’s] average pay” for the first
“20 years” of service, and “1 percent” of that average for every year of service “as exceeds 20
years.” 5 U.S.C. § 8415(e). Picur and the FSGB offer no reason why these rates would be
inappropriate, were he “eligible” to retire pursuant to § 8412. Instead, they effectively ask the
21
Court to read out and render inoperative the entire last clause of the statutory paragraph, violating
once again the rule against superfluities. See ECF 12 at 29 n.18.
Further, (a)(2)(B)’s eligibility requirements and § 8415(d)’s annuity formula are not
inconsistent. Ambiguity only arises if one adopts the FSGB’s interpretation that an annuitant can
meet (a)(2)(B)’s eligibility requirement without being able to retire under FERS/FSPS—an
interpretation the Court declines, as explained above. Finally, and most importantly, the FSGB
may not render clear text ambiguous by guessing at Congress’s intent, as it does here. See ECF 8-
19 at 43. The FSGB could be right; Congress could have made a mistake. But it is not for a court
or a board to rewrite an otherwise clear statute, or even to guess if a mistake might have been
made. “It is beyond our province to rescue Congress from its drafting errors, and to provide for
what we might think is the preferred result.” Lamie v. U.S. Tr., 540 U.S. 526, 542 (2004).
For these reasons, the Court concludes that the FSGB’s interpretation of § 4046(a)(2)(B)
was contrary to law and that the provision does not apply to Picur.
3. § 4046(a)(2)(A) Does Not Apply to Picur
Just as Picur cannot wring a 2.5% annuity payment out of § 4046(a)(2)(B), neither is he
eligible for the 2.5% multiplier provided by § 4046(a)(2)(A). Section 4046(a)(2)(A) is clear as to
what it requires, and Picur does not meet its requirements.
For a USAID OIG criminal investigator to qualify for an annuity under (a)(2)(A), they
must have: (1) been “appointed to a law enforcement position …prior to January 1, 1984,” and (2)
“been eligible to retire pursuant to section 8836(c) of [title 5], after attaining 50 years of age and
completing 20 years a law enforcement officer had the employee remained in the civil service.”
22 U.S.C. § 4046(a)(2)(A). Again, Picur cannot satisfy one of the prerequisites. Both sides
acknowledge that, while Picur joined the IRS in 1983, he was not appointed a law enforcement
position until July of 1984, well past the January 1 cut-off. See ECF 1 ¶ 13; ECF 15 at 20; ECF 8-
22
19 at 32; see also id. at 26–27 (outlining Picur’s relevant employment history). There is no way to
bridge the gap between § 4046(a)(2)(A)’s “must-start by” requirement and Picur’s start date. This
requirement is not flexible: an employee either “was appointed to a law enforcement
position . . . prior to January 1, 1984” or was not, and the answer to that question is dispositive.
See 22 U.S.C. § 4046(a)(2)(A).
Picur, in line with the FSGB’s decision, asks this Court to adopt a reading of
§ 4046(a)(2)(A) that ignores the “must-start-by” requirement. ECF 8-19 at 45–53. The thrust of
his argument is that § 4046(a)(2)(A) applies to Picur not because the text of the statute supports
that conclusion, but because reading statute literally renders “highly anomalous results.” ECF 8-
19 at 49, 1843–53; ECF15 at 23. “[Picur] would be subject,” the FSGB continued, “to an
anomalous outcome – one unintended by the Congress – if the result relied on a literal reading of
22 U.S.C. § 4046 with respect to the date of his entry into a law enforcement position.” ECF 8-19
at 49. That unintended anomaly, according to the FSGB, is Picur’s eligibility for only a 2% annuity
multiplier, whereas both (a) Civil Service employees who started in federal service before January
1, 1984 but never transferred, as Picur did, to the Foreign Service, and (b) USAID OIG Foreign
Service investigator/inspectors who started in a law enforcement position, as opposed to Picur’s
original non-law enforcement position, prior to January 1, 1984, qualify under the statutes for a
2.5% multiplier. Congress did not intend, according to the FSGB, “to single out a select – and
seemingly random – few for deprivation of these benefits.” Id. at 50.
The FSGB relied on various indicators of congressional intent—including statutes
governing retirement systems other than the one Picur participated in, internal USAID documents,
and provisions of the Foreign Affairs Manual—to support its conclusion that Congress could not
possibly have intended to exclude Picur from § 4046(a)(2)(a) based solely on the date he was
23
appointed to a law enforcement position and the type of service he was in. See id. at 44, 50–54.
For example, the FSGB pointed to 22 U.S.C. § 4067, which permits the President to promulgate
regulations applying to FSRDS participants changes made by Congress to the CSRS system. Id. at
54. Yet, the 1990 congressional amendments at issue here were made to the FSRDS, not the CSRS.
See id. (acknowledging, “technically this law does not apply to [Picur’s] situation, because there
was no change in the CSRS that was not carried over to the FSRDS” but nonetheless arguing that
the statute broadly “demonstrates Congress’ desire to maintain conformity between the benefits
provided under the two systems.”). The FSGB also found “no legislative history or evidence” to
suggest that Congress intended to create a unique, appointment-date requirement for USAID OIG
criminal investigators that required them to be hired specifically into a law enforcement position,
rather than any federal position, by a certain date. Id. at 53. From this, the FSGB concluded that
Congress must have erred and assumed all USAID-OIG Foreign Service criminal investigators’
first appointments were to law enforcement positions. Id. Its true intent, therefore, was to include
Picur and those in his situation in § 4046(a)(2)(a) despite Picur’s late appointment. Id. at 52.
The FSGB put the cart before the horse. Setting aside the quality of the FSGB’s sources of
legislative history, which is at times questionable, 7 the FSGB may not turn to “[e]xtrinsic
7
The FSGB argued that the relevant legislative history supported its finding that § 4046(a)(2)(A) must have been
meant to cover Picur. See, e.g., ECF 8-19 at 49, 33–34. And yet, its main legislative history citation is a single sentence
from the 1990 Senate Report cataloguing an amendment to the statute: “Sec. 588 is a new provision which provides
equitable treatment of the [USAID] Inspector General’s foreign service criminal investigators/inspectors with their
civil service counterparts.” Id. at 50. The FSGB relied on other materials to pad what it itself called “scant legislative
history,” id., turning to documents much further down the list of valuable indications of intent, like a memorandum
from the Inspector General of USAID from before the 1990 amendment. Id. at 51. While courts may give some weight
to pre-enactment interpretations of statutory terms by executive departments when they participated in the drafting of
the statute—which neither side indicates was the case with respect to the USAID memorandum—the FSGB offered
no evidence that USAID even provided this memorandum to Congress when legislators were drafting the amendment.
See, e.g., United States v. Vogel Fertilizer Co., 455 U.S. 16, 27–30 (1982) (crediting a statutory definition offered in
a pre-enactment Treasury Department memorandum because the department proposed and drafted the statute and
transmitted it to Congress); see also Ernst & Ernst v. Hochfelder, 425 U.S. 185, 203 n.24 (1976) (explaining that
statements “made in the course of legislative debate or hearings other than by persons responsible for the preparation
or the drafting of a bill” are “entitled to little weight”). These vague materials of limited reliability cannot possibly
24
materials” to evade clear text. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568
(2005) (“Extrinsic materials [like legislative history] have a role in statutory interpretation only to
the extent they shed a reliable light on the enacting Legislature’s understanding of otherwise
ambiguous terms.”); see also Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 808–09 n.3
(1989) (“Legislative history is irrelevant to the interpretation of an unambiguous statute.”); Eagle
Pharms., Inc. v. Azar, 952 F.3d 323, 339 (D.C. Cir. 2020) (“[W]e do not resort to legislative history
to cloud a statutory text that is clear.”).
Certainly, the FGSB cannot make a negative inference from a lack of legislative history
that Congress must have meant something other than what the text says. In statutory interpretation,
we presume that Congress “says in a statute what it means and means in a statute what it says
there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–254 (1992). There is little clearer
than a date certain. The Court will not, and the FSGB may not, dispense of such a clear-cut
requirement merely because it cannot discern why “the Congress might have intended that
employees like [Picur], who dedicated a career to law enforcement, would not receive law
enforcement benefits” or because it “do[es] not believe that the drafters of this provision, or
Congress, intended this outcome.” ECF 8-19 at 46. When the text is clear, what an interpreter
believes Congress wanted or thought is of no concern—the interpreter must enforce the statute by
its terms, even if the outcome seems unfair. See Dodd v. United States, 545 U.S. 353, 359 (2005)
(“Although we recognize the potential for harsh results in some cases, we are not free to rewrite
the statute that Congress has enacted.”). And, “[i]f Congress enacted into law something different
overcome the clear dictate of the statutory text at hand. Neither can 3 Federal Affairs Manual 6115.5, post-enactment
policy guidance issued by USAID that merely references 22 U.S.C. § 4046, as amended, in its entirety and fails to
support the FSGB’s strident claim that the amendment’s purpose was to “equalize benefits between Civil Service and
Foreign Service employees” beyond what § 4046’s plain text provides. ECF 8-19 at 51–52.
25
from what it intended, then it should amend the statute to conform it to its intent.” Lamie, 540 U.S.
at 542.
The FSGB and Picur try to turn those cardinal rules of statutory interpretation on their head
by relying on the absurdity canon. ECF 8-19 at 46 (“[C]ourts should not interpret a statute literally
if it leads to an ‘absurd’ or anomalous result, and is not consistent with the overall statutory
scheme.”) (citing United States v. Am. Trucking Ass’ns, 310 U.S. 534 (1940)). But it is not
anomalous, much less “absurd,” that § 4046(a)(1) applies to Picur. The absurdity canon “is a canon
of last resort where there is statutory ambiguity.” United States v. Cook, 594 F.3d 883, 890 (D.C.
Cir. 2010) (quoting United States v. R.L.C., 503 U.S. 291, 305–06 (1992)). § 4046 is not
ambiguous, and so the absurdity canon has no role in interpreting it.
And even if the statute were ambiguous, reading § 4046 literally does not satisfy
absurdity’s high threshold. Cook, 594 F.3d at 890. The Department’s interpretation does not
“def[y] rationality” by “rendering a statute nonsensical or superfluous” or create “an outcome so
contrary to perceived social values Congress could not have intended it.” Id.; see also United States
v. Long, 997 F.3d 342, 356 (D.C. Cir. 2021) (“[C]ourts may not use the absurdity canon to set
aside plain text unless the absurdity and injustice of applying the provision to the case would be
so monstruous that all mankind would, without hesitation, unite in rejecting the application.”). It
may be “debatable policy” to exclude Picur from the classes of criminal investigators who receive
a 2.5% annuity, “but it is hardly irrational.” Landstar Express Am., Inc. v. Fed. Maritime Comm’n,
569 F.3d 493, 499 (D.C. Cir. 2009); see also Barnhart v. Thomas, 540 U.S. 20, 28 (2003) (agency’s
statutory interpretation did not create “absurd results” because there was a “plausible reason why
Congress” might have intended those results).
26
At different times and for different reasons, Congress has differentiated between federal
retirement systems. See ECF 12 at 35–36 (describing contrasting annuity calculation provisions
across retirement systems). Indeed, recall that the new FERS and FSPS systems that Congress
created in its 1986 reforms significantly departed from the old CSRS and FSRDS systems by
coordinating those benefits more closely with the Social Security system and adding a new thrift
savings program on top of the older retirement annuity model. See Kerns, Federal Employees’
Retirement System Act of 1986, at 5. It stands to reason that such reforms would have resulted in
differential treatment between participants in the old systems and those who elected to switch to
the new ones—an option Picur had but never pursued. The Court may not rewrite Congress’s
statute as written when it dictates such a plausible, non-absurd result.
Moreover, Picur’s and the FSGB’s argument inverts yet another canon of statutory
interpretation: “[W]hen Congress includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Barnhart v. Sigmon Coal Co., 534 U.S. 438,
452 (2002). The fact that § 4046(a), according to the FGSB, “is the only statute of which the Board
is aware that adds a specific ‘must-start-by’ date in a law enforcement position to the standard
minimum age and years of service requirement, in order for an annuitant to be eligible to receive
law enforcement benefits,” ECF 8-19 at 45, is more of a reason to strictly adhere to that
requirement, particularly where the statutory language is as “clear and unambiguous” as it is here,
Sigmon Coal, 534 U.S. at 460.
Further, the cases the FSGB and Picur cite in support of the FSGB’s absurdity finding are
inapposite. See ECF 8-19 at 47–49; ECF 15 at 19. In Wassenarr v. Office of Personal Management,
both parties agreed that the statutory provisions in question rendered “an illogical result” and the
27
court held that the state was ambiguous. 21 F.3d 1090, 1094 (1994). Here, the parties disagree,
and § 4046 is unambiguous. Wassenarr also dealt with a very different situation, wherein multiple
provisions of the CSRS survivor statute interacted and rendered one provision “a nullity under
which no survivor annuity would ever arise.” Id. at 1093. None of the § 4046 provisions discussed
in this opinion renders another null; Picur just falls under a different paragraph than most Foreign
Service criminal investigators. Meanwhile, American Trucking simply stands for the proposition
that, when a statute’s plain meaning leads to absurd results, courts may look beyond a statute’s
text to “the purpose of the act.” 310 U.S. at 543–44. It does not support a finding of absurdity in
this case.
While not absurd, the Court recognizes that this outcome seems unfair. The Court is
sympathetic to the FSGB’s and Picur’s objection that this outcome denies a small group of
people—each of whom served this country for more than 20 years—a higher annuity simply
because of the timing of their appointment and choice of retirement program. See ECF 8-19 at45.
These individuals may, like Picur, be subject to bills of collection for overpayment of salary and
annuity since retirement. Id. at 30. That is unfortunate, but it is consistent with the statute’s text
and not so absurd as to justify disregarding the statute’s clear requirements. Further, while Picur
may be prejudiced because he paid into FSRDS at contribution levels consistent with a 2.5%
multiplier, he has remedies other than an annuity he does not qualify for. For example, he may
seek refunds for excess contributions. See ECF 12 at 37.
28
Accordingly, by failing to comport with the plain meaning of § 4046 and relying on
extrinsic materials despite the statute’s clear text, the FSGP acted contrary to law in determining
that § 4046(a)(2)(A) and/or (a)(2)(B) governed Picur’s annuity calculation. 8
B. Section 4046 Precludes Including Special Differential Payments in Picur’s Basic
Salary for the Purpose of Annuity Calculations
Having found that the 2% multiplier of § 4046(a)(1), as opposed to any other multiplier in
that subsection, applies to Picur, the Court next considers whether the Department must include
special differentials in its calculation of Picur’s annuity. The Department argues that § 4046 only
permits a few categories of Foreign Service criminal investigators to include special differentials
in the calculation of their annuity—and that Picur does not fall into any of these categories because
his annuity is governed by § 4046(a)(1). ECF 12 at 37–39. As explained above, § 4046(a)(1)
provides that a participant’s annuity is calculated as 2% of the participant’s high-three, which is
“his or her average basic salary for the highest 3 consecutive years of service, multiplied by the
number of years, not exceeding 35.” 22 U.S.C. § 4046(a)(1). Here, the key phrase is “average basic
salary,” which is used interchangeably with “basic pay” in § 4046. 9 The question before the Court
8
Because the Court finds § 4046’s text to be unambiguous, the Court does not resolve the parties’ arguments about
the degree of deference owed to the Department in its interpretation of the statute at issue. Plaintiffs argue at length
that the FSGB erred in not deferring to the Department’s interpretation of § 4046 pursuant to the now-overruled
framework of Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). ECF 12 at 20–23; ECF 16 at
3–7. And even if Chevron deference were not owed, Plaintiffs argue, the less deferential rule of Skidmore, 323 U.S.
134, which is still good law, would apply instead. ECF 12 at 23; see Loper Bright, 144 S. Ct. at 2262, 2267 (affirming
courts’ use of agencies’ “body of experience and informed judgment, among other information” when “resolv[ing]
statutory ambiguities”). Picur, meanwhile, argues that the Department’s statutory interpretation was owed no
deference because “Plaintiffs do not administer the pension calculating statutes – the Office of Personnel Management
does” and that, either way, the FSGB properly applied Chevron. ECF 15 at 17–19. The Court declines to decide what
degree of deference is owed to the Department’s interpretation of § 4046 after Loper Bright, 144 S. Ct. 2244, because
the Department’s and Plaintiffs’ reading of the statute here is correct under any deference or non-deference regime.
9
See, e.g., 22 U.S.C. § 4046(a)(9) (“For purposes of any annuity computation under this subsection, the basic salary
or basic pay of any member of the Service whose official duty station is outside the continental United States shall be
considered to be the salary or pay that would have been paid to the member had the member’s official duty station
been Washington, D.C.”).
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is to determine which employees include special differentials in their basic pay, and whether Picur
is among them.
The answer follows directly from the Court’s conclusion above that only § 4046(a)(1)
applies to Picur. Section 4046(a)(8) limits the number of employees for whom special differentials
are included in basic pay. It provides that “basic pay” includes special differentials for purposes of
paragraphs (a)(2), (a)(3), (a)(4), and (a)(6). Id. § 4046(a)(8). Congress’s choice to enumerate four
specific paragraphs is significant. The well-established interpretive canon expressio unius est
exclusio alterius instructs that “expressing one item of an associated group or series excludes
another left unmentioned.” N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 302 (2017). Here, the
reference to (a)(2), (a)(3), (a)(4), and (a)(6) in (a)(8) creates a sensible, negative inference that “the
term[s] left out must have been meant to be excluded.” Id. Indeed, if other sections of § 4046
included special differentials in basic pay, § 4046(a)(8) would lack purpose or meaning,
contravening the rule against superfluities. See Hibbs, 542 U.S. at 101. In keeping with both
canons, the Court must read § 4046(a)(8) as excluding special differentials from basic pay in every
paragraph of the statute other than those it lists. See Nasdaq Stock Mkt. LLC v. Sec. & Exch.
Comm’n, 38 F.4th 1126, 1137 (D.C. Cir. 2022) (“[W]e have observed that the canon against
surplusage and the expressio unius canon are at their zenith when they apply in tandem, as they
appear to do here.”). That includes § 4046(a)(1), which covers Picur and is not listed in (a)(8).
Picur accepts this outcome as to most employees who fall under § 4046(a)(1). ECF 15 at
23–24. However, he argues that some individuals covered by (a)(1)—including law enforcement
officers, like himself—are nevertheless entitled to include special differentials in the calculation
of their annuity. ECF 9-1 at 18–19. His argument rises from subsection (a)(4), which is covered
by (a)(8) and provides that “[a]ll service in law enforcement … in any agency or combination of
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agencies shall be included in the computation of time for purposes of this paragraph.” 22 U.S.C.
§ 4046(a)(4). As a law enforcement officer, Picur falls under (a)(4) for purposes of calculating his
service credits. ECF 9-1 at 18–19. Because (a)(4) is listed in (a)(8), he reasons that the Department
must include special differentials in the basic pay of any law enforcement officers whose service
credit is calculated under (a)(4)—including those that fall under (a)(1). Id.The Court is unpersuaded. Section 4046(a)(4) is unlike the other subsections listed in
(a)(8). Each of (a)(2), (a)(3), and (a)(6) describes a category of annuitant and the formula for
calculating their annuity—including, for example, the annuity multiplier and the years for which
that multiplier applies. See 22 U.S.C. §§ 4046(a)(2), (3), (6). On the other hand, (a)(4) is merely a
time-tracking measure; it establishes how to determine one component of the formula (time) and
makes no reference to the component relevant to Picur’s challenge (basic pay). The Court cannot
apply (a)(8), which defines “basic pay” for a subset of employees, to (a)(4), a provision which
does not mention any kind of compensation. As such, (a)(4) does not provide an independent basis
to include special differentials in Picur’s annuity. Instead, the rule laid out in § 4046(a)(1) applies
to Picur: a 2% annuity multiplier on a high three average pay that does not include any special
differential.
Having determined that § 4046 does not authorize the Department to include special
differentials in Picur’s annuity calculation, the Court need not address the Parties’ arguments
concerning to the Department’s authority to cap Picur’s receipt of special differentials. The
FSGB’s decision contravened law by requiring the Department to include any special differentials,
capped or otherwise, in Picur’s annuity calculation.
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* * *
The FSGB’s decision was not in accordance with law and must be held unlawful and set
aside under the APA. Therefore, it is ORDERED that Plaintiffs’ cross-motion for summary
judgment is GRANTED, the FSGB’s decision is VACATED, and this matter is REMANDED
for further proceedings. Defendant’s motion for summary judgment is accordingly DENIED. A
separate order accompanies this memorandum opinion.
SO ORDERED.
___________________________
JIA M. COBB
United States District Judge
Date: October 16, 2024
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