John D. Maiers v. Department of Health and Human Services

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN D. MAIERS,
Petitioner,
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent.
______________________
2012-3184
______________________
Petition for review of the Merit Systems Protection
Board in No. DC4324110851-I-1.
______________________
Decided: April 8, 2013
______________________
J OHN D. MAIERS , of Silver Spring, Maryland, pro se.
K. ELIZABETH WITWER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were STUART F. D ELERY , Principal Deputy
Assistant Attorney General, J EANNE E. D AVIDSON, Direc-
tor, and REGINALD T. BLADES , J R., Assistant Director. Of
counsel on the brief was T RENTON B OWEN, Attorney,

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JOHN MAIERS v. HHS 2
United States Department of Health and Human Ser-
vices, of Washington, DC.
______________________
Before RADER, Chief Judge, L OURIE, and O’MALLEY ,
Circuit Judges.
P ER CURIAM .
Mr. John D. Maiers (“Maiers”) appeals from a decision
of the Merit Systems Protection Board (“the Board”)
denying his claim under 38 U.S.C. § 4311, a provision of
the Uniform Services Employment and Reemployment
Rights Act (“USERRA”). The Board held that the De-
partment of Health and Human Services (“HHS”) did not
violate § 4311—which prohibits the denial of employment
benefits on the basis of an employee’s military service—
when HHS enrolled Maiers in the Federal Employees
Retirement System (“FERS”) rather than the Civil Service
Retirement System (“CSRS”). Because the Board correct-
ly determined that Maiers did not qualify for enrollment
in CSRS and, thus, did not establish the elements of his
USERRA claim, we affirm.
BACKGROUND
Maiers served in the United States Army from Sep-
tember 1969 to June 1971, totaling one year and nine
months of military service. Between 1971 and 1979,
Maiers held a variety of positions in federal civilian
service, accumulating four years and nine months of
civilian service. In September 2010, Maiers returned to
government service and obtained his current position with
the Food and Drug Administration (“FDA”), a division of
HHS. When hired, FDA enrolled Maiers in FERS.
Soon after his enrollment, Maiers emailed the FDA
human resources office, arguing that he should have been
enrolled in the CSRS offset program (“CSRS Offset”)
instead of FERS. An FDA human resources employee

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JOHN MAIERS v. HHS 3
contacted him by letter and explained that he was not
eligible for CSRS Offset because he did not have the five
years of civilian civil service required for CSRS eligibility.
Unhappy with this determination, Maiers filed a com-
plaint with the Department of Labor (“Labor”) alleging
that HHS, by enrolling him in FERS instead of CSRS
Offset, violated USERRA because HHS discriminated
against his military service by discounting it for CSRS
eligibility. In a January 28, 2011 letter, Labor explained
to Maiers that CSRS eligibility required five years of
creditable civilian service prior to December 31, 1986.
Labor denied Maiers’ complaint in a subsequent letter
dated January 31, 2011.
Maiers next requested that his USERRA complaint be
referred to the Office of Special Counsel. The Office of
Special Counsel declined to represent Maiers before the
Board. Nevertheless, Maiers filed an appeal with the
Board on August 5, 2011, alleging, among other things,
that HHS violated USERRA when it enrolled him in
FERS.
A. The Board’s Initial Decision
Before the Board, Maiers argued that HHS had vio-
lated USERRA when it enrolled him in FERS instead of
CSRS because, by doing so, HHS discriminated against
his military service. The Board found that Maiers failed
to establish a USERRA violation. To show such a viola-
tion, the Board reasoned, Maiers had to make non-
frivolous allegations that: (1) he lost a benefit of employ-
ment or some other right protected by USERRA, and (2)
his military service was a substantial motivating factor in
the loss of that right or benefit. To establish that his
military service was a substantial motivating factor,
Maiers had to establish first that HHS violated the law,
according to the Board. Interpreting 5 U.S.C.
§ 8402(b)(2)(A), the pertinent provision of FERS detailing
CSRS eligibility, the Board concluded that HHS was

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JOHN MAIERS v. HHS 4
legally required to enroll Maiers in FERS (not CSRS)
because Maiers did not meet the statutory criteria for
enrollment in CSRS. Accordingly, since there was no
violation of the statute, Maiers’ military service could not
be a substantial motivating factor in HHS’ decision.
Having dismissed Maiers’ USERRA claim, the Board
determined that it lacked jurisdiction over the remaining
claims because Maiers had not filed them with the Office
of Personnel Management (“OPM”) and OPM had ren-
dered no decision for the Board to review. Furthermore,
the Board determined that Maiers could not yet submit a
claim under the Federal Erroneous Retirement Coverage
Corrections Act because he had not been employed by
HHS for three years. The Board accordingly dismissed
Maiers’ remaining claims.
B. The Board’s Final Decision
Maiers filed a request for the full Board to review the
Board’s initial decision. In his request, Maiers argued
that: (1) the initial decision’s interpretation of FERS
violates USERRA; (2) the initial decision suffered from
numerous procedural problems, including improper
dismissal for lack of jurisdiction, improper reliance on
Labor’s findings, and failure by the administrative judge
to clearly articulate his findings; and (3) the administra-
tive judge failed to apply this court’s holding in Butter-
baugh v. Department of Justice, 336 F.3d 1332, 1336 (Fed.
Cir. 2003) (holding that the correct inquiry under 38
U.S.C. § 4311 is whether employees were denied a benefit
of employment, not whether the military service was a
substantial motivating factor, for cases in which the
benefits at issue are only available to the military).
The Board affirmed the initial decision because the
administrative judge correctly found that Maiers did not
meet the statutory requirements for CSRS eligibility and
failed to demonstrate that HHS incorrectly applied the
law. The Board also concluded that the administrative

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JOHN MAIERS v. HHS 5
judge’s failure to cite Butterbaugh did not render the
decision any less correct. Finally, the Board dismissed
Maiers’ procedural arguments because, in its view, they
lacked merit.
Maiers appeals the Board’s decision to this court. On
appeal, Maiers argues that: (1) the Board incorrectly
interpreted 5 U.S.C. § 8402(b)(2)(A), which provides the
pertinent CSRS eligibility requirements, to require five
years of civilian service; (2) USERRA trumps prior federal
law to the extent that law conflicts with USERRA; and (3)
under Butterbaugh, the Board erred in requiring Maiers
to show that his military service was a substantial moti-
vating factor for HHS’s decision.
L EGAL STANDARD
The court “shall review the record and hold unlawful
and set aside any agency action, findings, or conclusions
found to be (1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c). The Board’s interpretation
of a statute is a determination of law that we review de
novo on appeal. See Marano v. Dep’t of Justice, 2 F.3d
1137, 1141 (Fed. Cir. 1993).
D ISCUSSION
As this case largely turns on the correct interpretation
5 U.S.C. § 8402(b)(2)(A), we begin with a discussion of the
statutory scheme. In 1920, Congress established CSRS as
a retirement system for certain federal employees. CSRS
was subsequently replaced by FERS in 1986 for federal
employees, effective on January 1, 1987. See FERS Act of
1986, Pub. L. No. 99-335, 100 Stat. 514 (1986). Certain
employees in service prior to that date could opt out of
FERS, however, and seek to remain covered under CSRS.
See 5 U.S.C. § 8331(1)(L)(x); Conner v. Office of Pers.

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JOHN MAIERS v. HHS 6
Mgmt, 104 F.3d 1344, 1346 (Fed. Cir. 1997). FERS explic-
itly outlines the employees that are so eligible in a section
specifying the employees to which FERS “shall not apply.”
5 U.S.C. § 8402(b). Thus, a federal employee must meet
one of these exceptions to FERS coverage to seek coverage
under CSRS.
The exception in dispute here is found in
§ 8402(b)(2)(A). It can be satisfied, among other ways, by
an employee “having been subject to subchapter III of
chapter 83 of this title” and “having completed at least 5
years of civilian service creditable under subchapter III of
chapter 83 of this title.” 5 U.S.C. § 8402(b)(2)(A).
“[S]ubchapter III of chapter 83 of this title” contains
provisions detailing the CSRS system. See 5 U.S.C.
§§ 8331-51. Accordingly, for an employee to be eligible for
CSRS after the institution of FERS, he or she must have
previously been subject to CSRS and have had at least
five years of creditable civilian service under CSRS. See
Conner, 104 F.3d at 1348.
Turning to Maiers’ claim, we agree with the Board
that he is ineligible for CSRS coverage because he lacks
five years of creditable “civilian service.” Maiers argues
that creditable “civilian service” should include prior
military service because § 8332 allows military service
sometimes to be creditable under CSRS. Allowing mili-
tary service to be creditable in some situations but not
others, he contends, would be inconsistent. We are not
persuaded.
In cases involving the construction of a statutory pro-
vision, the starting point is always the language of the
statute itself. See Ernst & Ernst v. Hochfelder, 425 U.S.
185, 197 (1976). The pertinent provision here requires
five years of “civilian service.” 5 U.S.C.
§ 8402(b)(2)(A)(ii)(I). The plain meaning of the word
“civilian” is “of or relating to civilians; not in or of the
armed forces; non-military.” civilian, O XFORD E NGLISH

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JOHN MAIERS v. HHS 7
D ICTIONARY , http://www.oed.com/view/Entry/33577?
redirected%20From=civilian#eid (last visited Mar. 27,
2013). Plainly, Maiers’ military service is insufficient to
make him eligible for CSRS coverage.
Our case law fully supports this interpretation of
CSRS and, in analogous circumstances, explicitly rejects
Maier’s argument. In Tirado v. Dep’t of Treasury, 757
F.2d 263 (Fed. Circ. 1985), we analyzed § 8337(a), a
provision of CSRS that requires five years of civilian
service for disability retirement eligibility. See 757 F.2d
at 264-65. We rejected the argument that military service
creditable under § 8332 for the purpose of calculating the
proper annuity should also count as civilian service to
meet the eligibility requirements of § 8337(a). Id. at 265.
We explained that the five-year civilian service require-
ment is a “threshold standard of eligibility” and only if
this threshold standard is met could military service be
counted to determine the appropriate annuity. Id. “Con-
gress obviously wanted only those individuals with a
minimum of federal civilian service to be entitled to a
federal civil service annuity.” Id.; see also Tizo v. Office of
Pers. Mgmt, 325 F.3d 1378, 1380 (Fed. Cir. 2003) (holding
that, under the 1948 version of CSRS, “civil servants were
required to meet the five-year service requirement ‘exclu-
sive of’ military service.’”) (citing Pub. L. No. 80-426, § 5,
62 Stat. 48, 50-51); Villanueva v. Office of Pers. Mgmt, 980
F.2d 1431, 1432-33 (“[The] contention that . . . military
and civilian service should be combined is . . . expressly
precluded by the [Civil Service Retirement Act of 1948].”).
Maiers attempts to distinguish our case law by argu-
ing that, in those cases, we interpreted sections of CSRS
itself, not the section of FERS that currently governs
CSRS eligibility. This distinction is of no moment. Our
prior case law interpreted the requirements for CSRS
eligibility, which at that time were outlined in provisions
of CSRS. We are again analyzing similar requirements
for CSRS eligibility, but those requirements are now

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JOHN MAIERS v. HHS 8
housed in FERS, among other places. We can appropri-
ately take guidance from this precedent.1
Maiers next argues that USERRA supersedes federal
retirement law and requires that he be allowed to count
his military service toward CSRS’s five-year requirement.
It is a “cardinal principle of statutory construction that
repeals by implication are not favored.” U.S. v. United
Cont’l Tuna Corp., 425 U.S. 164, 168 (1976). The relevant
section of USERRA, 38 U.S.C. § 4302, expressly states
that USERRA supersedes state law, but makes no men-
tion of federal law. See 38 U.S.C. § 4302(b). We see no
reason to find that USERRA implicitly supersedes all
federal retirement law. See Butterbaugh, 336 F.3d at
1336 n.3 (“We find no indication that Congress intended
to blot out the military leave statutes when it passed
USERRA.”).2
1 Maiers also argues that HHS should wait to de-
termine his CSRS eligibility because, in just a few more
months, he would have the required five years of civilian
service. But § 8402(b)(2)(A) requires that the five years of
service be completed prior to the employee’s reemploy-
ment into government service. See Connor, 104 F.3d at
1348 (“Subsection (b)(2)(A) requires employees who have
returned to government service after an absence to have
had five years of creditable service . . . .”) (emphasis
added).
2 Somewhat relatedly, Maiers also argues for the
first time in his reply brief that the Equal Protection
Clause of the Fifth Amendment requires that his military
service count towards CSRS’s five year requirement. We
refuse to consider this argument, however, as “[i]t is well
settled that an appellant is not permitted to make new
arguments that it did not make in its opening brief.”
Pieczenik v. Dyax Corp., 265 F.3d 1329, 1332-33 (Fed.

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JOHN MAIERS v. HHS 9
Having determined that Maiers is not eligible for
CSRS, his USERRA claim falls apart. A claim under 38
U.S.C. § 4311 of USERRA requires the claimant to show
that he was (1) denied a benefit of employment and (2) his
military service was a substantial motivating factor for
the denial. See Sheehan v. Dep’t of Navy, 240 F.3d 1009,
1013 (Fed. Cir. 2001). The administrative judge deter-
mined that Maiers’ military service was not a substantial
motivating factor in HHS’s decision to enroll him in CSRS
because HHS was required by federal law to do so. As
discussed above, we agree that HHS was so required.
But, Maiers argues that the administrative judge erred by
failing to apply this court’s holding in Butterbaugh, which
he argues obviates the motivation requirement.
In Butterbaugh, we determined that claimants need
not show that their military service was a substantial
motivating factor when the benefits at issue were only
available to those in military service. See Butterbaugh,
336 F.3d at 1336. Instead, in those situations, we take up
just the first inquiry of the USERRA analysis; namely,
whether the claimant was “denied a benefit of employ-
ment.” Id. But, we noted that claimants “cannot claim
they were denied a benefit of employment” if they were
given the full benefits that the relevant statutes demands.
Id.
Here, under the relevant statute, Maiers is not eligi-
ble for CSRS coverage. So even under this court’s holding
in Butterbaugh, Maiers’ USERRA claim fails. Further-
more, the Board did not err by conducting its analysis
under Sheehan instead of Butterbaugh. Butterbaugh only
eliminates the substantial motivating factor requirement
when the benefits at issue are available only to those in
military service. CSRS is available to civilian government
Circ. 2001) (refusing to consider arguments made by pro
se appellant at oral argument).

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JOHN MAIERS v. HHS 10
employees as well as military service personnel. Accord-
ingly, the Board correctly applied Sheehan to resolve
Maiers’ claim by finding that he failed to show that his
military service was a substantial motivating factor in the
denial of a benefit.
CONCLUSION
The Board correctly determined that Maiers was not
eligible for CSRS coverage and that Maiers, thus, failed to
establish the elements of a successful USERRA claim.
The Board’s dismissal of the present appeal is therefore
affirmed.
AFFIRMED

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