OPM had argued on appeal that its interpretation was due deference, but the MSPB cited the high court’s Loper Bright ruling overruling the principle of “Chevron deference.” Image: DCStockPhotography/Shutterstock.com
By: FEDweek StaffIn one of the early rulings showing the impact of the U.S. Supreme Court’s ruling last year lowering the deference that adjudicators are to give to agency interpretations of the law, the MSPB has overturned an OPM policy regarding eligibility for special retirement provisions.
Case No. 2025 MSPB 4 involved a Customs and Border Protection officer who initially worked in positions covered by standard retirement benefits but who then transferred into one designated as a “primary law enforcement officer.” While the employee was in that position, Congress passed a law making certain CBP officer positions eligible for special retirement benefits applying to federal law enforcement officers in general.
The employee later was promoted and the CBP informed her that she would not be eligible for the special benefits based on an OPM interpretation that a position must involve certain duties more than half the time for eligibility. Before the MSPB was whether OPM correctly interpreted the law as imposing that requirement.
Both a hearing officer and now the board found that the law contained no such requirement, adding that “there is no clearly expressed legislative intent that the statute was intended” to include one. While the general law governing LEO retirement imposes such a requirement, by not including one for CBP officers, “it is presumed that Congress acted intentionally,” the decision said.
OPM also argued on appeal that its interpretation was due deference, but the MSPB cited the high court’s Loper Bright ruling overruling the principle of “Chevron deference.” That principle, named for an earlier case, had directed courts to defer to an agency’s reasonable interpretation of an ambiguity in a law that the agency enforces. Under Loper Bright, an agency’s interpretation only “provides guidance upon which courts may resort,” depending on the validity of its reasoning and other considerations, the MSPB said.
OPM’s position “would not be entitled to controlling deference, even if the statutory language were ambiguous on the topic of how much time an employee must spend on the listed duties, which it is not,” the MSPB said.
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