Opinion

Bert LaCroix v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jul 18, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

explaining that “significant change in position” means a significant change in the type of work or duties of a position

How later courts described this case

explaining that “significant change in position” means a significant change in the type of work or duties of a position
explaining that the time limit set forth in section 842.804(c) serves a significant 7 policy goal by preventing employees from postponing their appeals for many years thereby creating fiscal uncertainties for agencies

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BERT I. LACROIX, DOCKET NUMBER

Appellant, NY-0842-19-0090-I-1

DEPARTMENT OF THE ARMY, DATE: July 18, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.

Gedety Serralta-Aldrich , Esquire, and Katherine Clark , Washington, D.C.,

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The agency has filed a petition for review of the initial decision, which

reversed the agency’s denial of the appellant’s request for law enforcement

officer (LEO) retirement coverage under the Federal Employees’ Retirement

System (FERS). For the reasons discussed below, we GRANT the agency’s

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

petition for review, we REVERSE the initial decision insofar as the

administrative judge found the appellant’s request for a determination regarding

LEO retirement coverage timely, and we VACATE the administrative judge’s

analysis of whether the appellant met the definition of an LEO.

BACKGROUND

The appellant was employed by the agency as a GG-0132-13 Intelligence

Specialist (Operations) from 2004 to 2016. Initial Appeal File (IAF), Tab 10

at 4-29, Tab 18 at 26, Tab 34 at 9. During his employment with the agency, from

approximately March 18, 2007, through approximately August 19, 2015, the

appellant was assigned to a detail with the Joint Terrorism Task Force (JTTF) of

the Federal Bureau of Investigation (FBI). IAF, Tab 18 at 26, Tab 55 at 3-4,

Tab 57 at 4. On August 20, 2016, approximately 1 year after the conclusion of

his detail with the FBI, the appellant resigned from his position with the agency.

IAF, Tab 10 at 29, Tab 55 at 4.

In October 2016, the appellant emailed various agency personnel

requesting LEO retirement coverage for the duration of his JTTF detail, i.e., from

March 18, 2007, through August 19, 2015. IAF, Tab 33 at 7-9, Tab 60 at 61-63.

Thereafter, on July 24, 2017, the appellant submitted an additional request for

LEO retirement coverage. IAF, Tab 18 at 4-7, Tab 55 at 3. On February 5, 2019,

the agency denied the appellant’s request, finding that (1) his request was

untimely and (2) he failed to show that he met the definition of an LEO under

5 C.F.R. § 842.802 during the relevant timeframe. IAF, Tab 12 at 4-5.

The appellant filed a Board appeal challenging the agency’s denial of his

request for LEO retirement coverage under FERS, and he asserted that the agency

had “failed to advise [him] of his right to file an MSPB appeal after he inquired

regarding his status.” IAF, Tab 1 at 4. The appellant requested a hearing on the

matter. Id. at 2. Thereafter, the administrative judge clarified that the issues

before the Board were (1) whether the appellant’s request for a determination

regarding LEO retirement coverage was timely pursuant to regulation 2 and

(2) whether the appellant could show by preponderant evidence that he was

entitled to LEO retirement coverage under FERS from March 18, 2007, 3 through

August 19, 2015. IAF, Tab 55 at 2, Tab 57 at 4.

Following a hearing on the matter, the administrative judge issued an initial

decision reversing the agency’s determination and finding that the appellant

showed by preponderant evidence that he qualified for LEO retirement coverage

under FERS from March 18, 2007, through August 19, 2015. IAF, Tab 67, Initial

Decision (ID) at 1, 15-16. In so finding, the administrative judge concluded that

the appellant had timely filed his request under 5 C.F.R. § 842.804(c). ID

at 8-10. She also concluded that the appellant proved by preponderant evidence

that he met the definition of an LEO under 5 U.S.C. § 8401(17)(A) and 5 C.F.R.

§ 842.802. ID at 10-15.

The agency has filed a petition for review of the initial decision, the

appellant has responded in opposition, and the agency has filed a reply. Petition

for Review (PFR) File, Tabs 1, 3-4. In its petition and reply, the agency contends

that the administrative judge erroneously concluded that the appellant was

entitled to LEO retirement coverage. PFR File, Tab 1 at 4-27, Tab 4 at 4-12. The

agency contends, among other things, that the administrative judge erred in

finding that the appellant’s request LEO retirement coverage was timely filed.

PFR File, Tab 1 at 9-10, Tab 4 at 5-9. In his response, the appellant urges the

In her order memorializing the parties’ prehearing conference, the administrative

judge erroneously summarized this issue as whether “[the appellant’s] appeal was

timely pursuant to regulation.” IAF, Tab 55 at 2 (emphasis added). Neither party has

disputed the timeliness of the appellant’s Board appeal; thus, we find that this was a

misstatement and we have rephrased the issue accordingly.

Although the parties stipulated that the appellant sought LEO retirement coverage for

July 22, 2007, through August 19, 2015, IAF, Tab 55 at 2-4, the appellant subsequently

clarified that he sought coverage for March 18, 2007, through August 19, 2015, IAF,

Tab 57 at 4. Although the agency challenges the administrative judge’s findings

associated therewith, Petition for Review File, Tab 1 at 4 n.1, given our findings herein,

we need not resolve this issue.

Board to affirm the administrative judge’s conclusion that he is entitled to LEO

retirement coverage. PFR File, Tab 3 at 4-9. The appellant contends that his

request was timely because he first reported to the agency that he was

“performing law enforcement officer work shortly after being assigned to the

position in 2007,” he requested “LEO coverage on a number of other occasions as

it was a frequent topic at conferences,” and he emailed agency managers about

LEO credit on April 4, 2016. Id. at 4-5.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board has jurisdiction over a claim for FERS LEO retirement coverage

under 5 U.S.C. § 8461(e)(1), which provides that “an administrative action or

order affecting the rights or interests of an individual or of the United States

under the provisions of this chapter administered by the Office [of Personnel

Management] may be appealed to the Merit Systems Protection Board under

procedures prescribed by the Board.” See Streeter v. Department of Defense,

80 M.S.P.R. 481, ¶¶ 2, 5 (1998); 5 C.F.R. § 842.807(a). A Federal employee

seeking LEO retirement coverage under FERS bears the burden of proving

entitlement thereto by a preponderance of the evidence. Watson v. Department of

the Navy, 262 F.3d 1292, 1298 (Fed. Cir. 2001); Fritts v. Department of

Homeland Security, 102 M.S.P.R. 265, ¶ 6 (2006). To be eligible for LEO

retirement coverage under FERS, an appellant must meet the statutory definition

of an LEO under 5 U.S.C. § 8401(17). Watson, 262 F.3d at 1297-98.

An employee who qualifies for LEO retirement coverage receives a larger

annuity than other FERS retirees; however, an LEO is subject to larger salary

deductions, i.e., a one-half percent higher withholding rate, during his

employment. 4 See 5 U.S.C. § 8422(a); Bingaman v. Department of the Treasury ,

127 F.3d 1431, 1433-34 (Fed. Cir. 1997). Implementing regulations promulgated

Additionally, an employee who qualifies for LEO retirement coverage under FERS can

retire at age 50 after completing 20 years of service or at any age after completing

25 years of service. See 5 U.S.C. § 8412(d)(1)-(2).

by the Office of Personnel Management provide that, if an employee occupies a

position that is not subject to the one-half percent higher withholding rate (i.e., a

non-LEO position), and the employee does not, within 6 months after entering the

position or any significant change in the position, formally and in writing seek a

determination from his employing agency that his position is properly covered by

the higher withholding rate (i.e., that the position is properly classified as an LEO

position), then the agency head’s determination that the service does not qualify

for LEO retirement coverage is presumed to be correct. 5 C.F.R. § 842.804(c).

This presumption may be rebutted by a preponderance of the evidence that the

employee was unaware of his non-LEO status or was prevented by cause beyond

his control from timely requesting that his official status be changed. Id. If the

appellant fails to request LEO retirement coverage within 6 months or show good

cause for his failure to do so, the agency’s determination that the appellant does

not qualify for LEO coverage will be deemed conclusive and the Board will not

review the merits of the agency’s determination. Bingaman, 127 F.3d at 1441;

see 5 C.F.R. §§ 842.804(c), 842.807(a).

We reverse the administrative judge’s finding that the appellant timely filed his

request for LEO retirement coverage under 5 C.F.R. § 842.804(c).

The administrative judge misapplied 5 C.F.R. § 842.804(c).

In her initial decision, the administrative judge credited the appellant’s

unrefuted testimony that he resigned from the agency on August 20, 2016, and

that “he emailed several agency officials attaching a written request for LEO

credit on October 5, 2016, less than [2] months later.” ID at 8. As a result, the

administrative judge concluded that the appellant’s request for LEO retirement

coverage for the period of March 18, 2007, through August 19, 2015, i.e., for the

period of time during which he was detailed to the JTTF, was therefore timely.

ID at 8-10. We disagree.

The applicable regulation, 5 C.F.R. § 842.804(c), requires that a request for

an agency determination regarding LEO retirement coverage for a position be

made “within 6 months after entering the position or after any significant change

in the position.” 5 C.F.R. § 842.804(c) (emphasis added). Here, however, the

administrative judge found the appellant’s request timely because he filed it

within 6 months of August 20, 2016, the date on which he resigned from the

agency, which was approximately 1 year after the conclusion of his detail with

the JTTF. ID at 8; IAF, Tab 10 at 29, Tab 55 at 4. Thus, the administrative judge

misapplied section 842.804(c).

The factual record, which is fully developed, indicates that the appellant

entered his position with the agency in 2004. IAF, Tab 34 at 9. Thereafter,

effective March 18, 2007, he was assigned to a detail with the JTTF. IAF, Tab 18

at 26. This assignment, which was reflected on the appellant’s Standard Form 50,

id., altered both his job duties and the type of work that he was performing, IAF,

Tab 11 at 4-7, Tab 60 at 163-78. We therefore find that the assignment

constituted a “significant change in [his] position” for purposes of 5 C.F.R.

§ 842.804(c). See Letz v. Department of the Interior, 474 F.3d 1309, 1313 (Fed.

Cir. 2007) (explaining that “significant change in position” means a significant

change in the type of work or duties of a position). Thus, for his request to have

been timely, the appellant needed to have submitted it within 6 months of

March 18, 2007, not within 6 months of August 20, 2016.

The appellant did not make a formal, written request for LEO retirement

coverage within 6 months of March 18, 2007.

Section 842.804(c) requires that a request for an agency determination

regarding LEO retirement coverage be made “formally and in writing.” Here, the

record is devoid of any indication that the appellant filed a written request for

LEO retirement benefits within 6 months of March 18, 2007. See 5 C.F.R.

§ 842.804(c). Indeed, the appellant’s first written request for LEO retirement

coverage was not until 2016, nine years after the nature of his position changed.

IAF, Tab 18 at 26, Tab 33 at 7-9, Tab 60 at 61-63; see Letz, 474 F.3d at 1312

(explaining that the time limit set forth in section 842.804(c) serves a significant

policy goal by preventing employees from postponing their appeals for many

years thereby creating fiscal uncertainties for agencies). 5

The appellant contends that he informed the agency in 2007 that he and

other agency JTTF assignees “were performing law enforcement officer work”

and that the topic of their potential entitlement to LEO retirement coverage “was

a frequent topic at conferences.” PFR File, Tab 3 at 4-5. However, the appellant

failed to adduce evidence that any of these interactions occurred in writing, much

less constituted a formal request for coverage. See 5 C.F.R. § 842.804(c). Thus,

the agency’s general awareness that its JTTF assignees believed that they should

qualify for LEO retirement benefits does not satisfy the formality requirements of

5 C.F.R. § 842.804(c). See Bingaman, 127 F.3d at 1441 (explaining that an

agency’s alleged awareness that members of a particular group of employees

would like LEO retirement coverage does not satisfy the formal, written request

requirement under 5 C.F.R. § 842.804(c)). Thus, we conclude that the appellant’s

request was untimely.

The appellant has not shown good cause for his untimely request.

Under 5 C.F.R. § 842.804(c), if an employee does not timely file his

request for LEO retirement coverage, “the agency head’s determination that the

service was not so covered at the time of the service is presumed to be correct.”

However, the provision provides that an appellant may rebut this presumption by

showing by a preponderance of the evidence either that (1) he was unaware of his

non-LEO status or (2) he was prevented by cause beyond his control from timely

requesting that his official status be changed. 5 C.F.R. § 842.804(c). Here, the

appellant has not alleged either that he was unaware of his non -LEO status or that

circumstances beyond his control prevented him from timely requesting an LEO

designation for retirement purposes. See id. Instead, he has contended that the

Indeed, as set forth in the initial decision, it is undisputed that the appellant never

made LEO retirement contributions under FERS during the period of time for which he

seeks LEO retirement coverage. ID at 6; see 5 U.S.C. § 8422(a).

agency “failed to advise [him] of his right to file an MSPB appeal after he

inquired regarding his status.” IAF, Tab 1 at 4. Insofar as both the U.S. Court of

Appeals for the Federal Circuit and the Board have found that an agency has no

affirmative duty to advise employees in this capacity, this assertion is unavailing.

E.g., Bingaman, 127 F.3d at 1442; Doyle v. Department of Veterans Affairs,

80 M.S.P.R. 640, ¶ 8 (1999); Caponio v. Department of the Treasury,

73 M.S.P.R. 671, 678, review dismissed, 124 F.3d 224 (Fed. Cir. 1997). To the

extent the administrative judge found otherwise, ID at 9 n.3, her conclusion is

incorrect.

We vacate the administrative judge’s analysis of whether the appellant met the

definition of an LEO.

In Bingaman, the Federal Circuit analyzed the interplay between

section 842.804(c) and 5 C.F.R. § 842.807(a), which provides that “[t]he final

decision of an agency head denying an individual’s request for approval of a

position as [a rigorous LEO position] made under § 842.804(c) may be appealed

to the Merit Systems Protection Board under procedures prescribed by the

Board.” Bingaman, 127 F.3d at 1441. Reading these provisions together, the

Federal Circuit concluded that, if an appellant fails to request LEO retirement

coverage within 6 months or show good cause for his failure to do so, then the

agency’s determination that his position did not qualify for LEO retirement

coverage will be deemed conclusive and the Board will not review the merits of

that determination. Id.; see 5 C.F.R. §§ 842.804(c), 842.807(a). Because we find

that the appellant’s request was untimely and that he failed to show good cause

for his untimeliness, we lack jurisdiction over the merits of the agency’s

determination; accordingly, we vacate the administrative judge’s analysis of

whether the appellant met the statutory definition of an LEO under 5 U.S.C.

§ 8401(17)(A) and 5 C.F.R. § 842.802. ID at 10-15; see Bingaman, 127 F.3d

at 1441.

The appellant has failed to meet his burden of proving that he is entitled to

receive the benefits he seeks. Accordingly, we reverse the initial decision insofar

as the administrative judge found the appellant’s request for a determination

regarding LEO retirement coverage timely, and we vacate her analysis of whether

the appellant met the definition of an LEO.

ORDER

This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

NOTICE OF APPEAL RIGHTS 6

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 7 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.