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),

(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,

, 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

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,

Stat. 514. FERS’s retirement

benefits are governed by the provisions of

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).

In

short, although the CSRS and FERS required comparable employee contributions and sought to

provide broadly comparable benefits, see

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

(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

(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,

.

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.

He continued in an IRS law-enforcement

role for ten years and participated in CSRS throughout that period.

Then, in August 1994, Picur

left the IRS and joined the USAID OIG as a Civil Service criminal investigator.

In that role,

too, he continued to be covered under the CSRS.

In 1998, however, Picur converted to the

Foreign Service and was appointed to a Foreign Service criminal investigator position within

USAID OIG.

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.

The FSRDS, established in the Foreign Service Act of 1980,

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

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,

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

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

.

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.

(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.

§ 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

(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

5 retirement annuities for participants in the FSRDS (the older system). See

Stat. 2055 (1990).

The first six paragraphs in that amended subsection, codified at

, 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.

(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

§ 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 [

(20)], prior to January 1, 1984, and would have been eligible to retire pursuant to [

(c)], after attaining 50 years of age and completing 20 years as a law enforcement officer had the employee remained in the civil service[.]

(a)(2)(A). Note that

(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 [

(d)],” another CSRS

provision.

(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.

(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 [

(17)] on or after January 1, 1984, and who would have been eligible to retire pursuant to [

(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 [

(e)]”

(a)(2)(B). Note here that

(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.

(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.

§ 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

, 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

, 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.”

(a).

That distinction matters for purposes of Picur’s retirement annuity because the annuity

calculation formulas under

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,

(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.

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.

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

9 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

(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.

10 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,

; 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,

. 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.

11 capricious for failing to consult the statutes at issue at all.

(“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.

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

(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.”

(a)(2)(A); see

§ 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

12 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

(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,

. 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.

. 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.”

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.

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.

15 II. LEGAL STANDARD

As relevant here, FSGB decisions are subject to judicial review “in accordance with the

standards set forth in [the APA.]”

(a). Under the APA, “[s]ummary judgment is

the appropriate procedural mechanism for resolving challenges to final agency actions.” Picur I,

(citing Stuttering Found. Of Am. v. Springer,

(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,

. 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.”

(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,

, 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,”

at 2262 (quoting, in part, Skidmore v. Swift & Co.,

(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,

(D.C. Cir. 1990)

(quoting Consumer Prod. Safety Comm’n v. GTE Sylvania,

(1980)). Before

addressing anything else, a court must “determine whether the statutory text is plain and

unambiguous.” Carcieri v. Salazar,

(2009). If the text is unambiguous, the

inquiry is over and the court “must apply the statute according to its terms.”

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.

(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

(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.

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.”

(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,

(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,

(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.”

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.”

(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).”

(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.”

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.

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.”

.

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.”

(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.,

(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.”

(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

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

(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

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.”

.

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

, which permits the President to promulgate

regulations applying to FSRDS participants changes made by Congress to the CSRS system.

. Yet, the 1990 congressional amendments at issue here were made to the FSRDS, not the CSRS.

See

(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.

. 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.

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.,

, 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,

, 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.,

(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,

, 808–09 n.3

(1989) (“Legislative history is irrelevant to the interpretation of an unambiguous statute.”); Eagle

Pharms., Inc. v. Azar,

(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,

, 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,

(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

, 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,

.

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,

(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,

(D.C.

Cir. 2010) (quoting United States v. R.L.C.,

, 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,

. 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,

, 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,

(D.C. Cir. 2009); see also Barnhart v. Thomas,

(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.,

(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,

.

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.

(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.”

(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.,

(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,

, 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,

, because the Department’s and Plaintiffs’ reading of the statute here is correct under any deference or non-deference regime. 9 See, e.g.,

(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.”).

29 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.,

(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.”

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,

. 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,

(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

30 agencies shall be included in the computation of time for purposes of this paragraph.”

(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).

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

(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.

31 * * *

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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