The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA AVEITIA, DOCKET NUMBER
Appellant, DA-0842-13-0254-I-1
v.
DEPARTMENT OF HOMELAND DATE: September 25, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leticia Dominguez, Esquire, El Paso, Texas, for the appellant.
Peter Arcuri, El Paso, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s reconsideration decision to deny her Customs and Border
Patrol Officer (CBPO) enhanced retirement coverage. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review. Except as expressly MODIFIED by this Final
Order to apply the appropriate regulations, we AFFIRM the initial decision.
¶2 The appellant appealed from the agency’s decision to deny her enhanced
retirement coverage under the Federal Employees’ Retirement System. Initial
Appeal File (IAF), Tab 1 at 1. She is currently employed by the agency as an
Assistant Director, GS-0340-15, in the Office of Field Operations, U.S. Customs
and Border Protection, in El Paso, Texas. Id., Subtab 36. The agency determined
that the appellant’s service between 1999 and 2004 did not constitute service in a
secondary covered position. Instead, the agency determined that it represented a
break in service before she later served in positions that are otherwise secondary
covered positions. Id., Attachment 1. The agency thus found that she was
ineligible for CPBO enhanced retirement coverage. Id. The appellant filed a
Board appeal after the agency issued its reconsideration decision, and, following
a hearing, the administrative judge affirmed the agency’s decision. IAF, Tab 19,
Initial Decision (ID). The appellant filed a petition for review asserting that the
initial decision was incorrectly decided. Petition for Review (PFR) File, Tab 1.
¶3 The federal civil service retirement laws extend special retirement benefits
to persons who serve in physically rigorous positions, such as law enforcement
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officers and firefighters. Employees who transfer from these positions to
supervisory or administrative positions in the same occupations are also eligible
for enhanced retirement coverage. Such supervisory and administrative positions
are deemed covered secondary positions. Fritts v. Department of Homeland
Security, 102 M.S.P.R. 265, ¶ 6 (2006) (citing Morgan v. Office of Personnel
Management, 773 F.2d 282, 283 (Fed. Cir. 1985)); 5 C.F.R. § 842.1002. 2
Eligibility rules for enhanced retirement coverage are strictly construed. See
Kroll v. Department of Homeland Security, 2014 MSPB 69, ¶ 6 (2014).
¶4 To remain eligible for CBPO enhanced retirement benefits, an employee
who is in a secondary covered position must have transferred to that position
from a primary covered position with no break in service after at least 3 years in a
primary covered position. Primary covered positions are those in the GS-1895
job series or predecessor positions “whose duties include activities relating to the
arrival and departure of persons, conveyances, and merchandise at ports of entry,
including any such employee who is transferred directly to a supervisory or
administrative position in the Department of Homeland Security after performing
such duties . . . in 1 or more positions.” 5 U.S.C. § 8401(36); see also 5 C.F.R.
§ 842.1002. An employee seeking enhanced retirement coverage bears the burden
of proving her entitlement thereto by preponderant evidence. Kroll, 2014 MSPB
69, ¶ 6 (citing Olszak v. Department of Homeland Security, 117 M.S.P.R. 75, ¶ 8
(2011), aff’d, 475 F. App’x 757 (Fed. Cir. 2012)).
2
The initial decision erroneously cites subpart 842H of Title 5 of the Code of Federal
Regulations as the applicable regulation in this appeal. See, e.g., ID at 5. In July 2011,
however, a regulation specific to CBPO enhanced retirement coverage was issued.
Customs and Border Protection Officer Retirement, 76 Fed. Reg. 41,993 (July 18, 2011)
(codified at 5 C.F.R. subpart 842J). We considered this appeal under the regulation
specific to CBPO positions. Although the plain language of the regulation differs
considerably from the generally applicable regulation in subpart 842H, the underlying
principles do not differ, and we reach the same result. We note that cases decided
under subpart 842H are applicable when addressing those basic principles.
4
¶5 The appellant was a Customs Inspector and Supervisory Customs Inspector,
positions in the GS-1890 occupational series, from June 22, 1987, through
October 23, 1999. See IAF, Tab 1, Subtabs 1, 4-5. From October 24, 1999, until
September 18, 2004, she served as an Investigative Program Officer (IPO),
GS-1801-13, within the Office of Internal Affairs (OIA), and later, within the
Office of Professional Responsibility (OPR). Id., Subtabs 5-6. She was
promoted to the position of Customs Inspector (Program Officer), GS-1890-14,
effective September 19, 2004. Id., Subtab 6. It is undisputed that she had the
requisite primary covered service. Id., Subtab 1. It is likewise undisputed that
the position to which she was promoted in 2004 is a secondary covered
position. Id. The appellant’s burden of proof was to establish that the IPO
position in which she served between 1999 and 2004 was a covered secondary
position and thus did not constitute a break in service.
¶6 A secondary covered position within the agency is either:
(1) Supervisory; i.e., a position whose primary duties are as a
first-level supervisor of customs and border protection officers in
primary positions; or
(2) Administrative; i.e., an executive, managerial, technical,
semiprofessional, or professional position for which experience in a
primary customs and border protection officer position is a
prerequisite.
5 C.F.R. § 842.1002 (emphasis added). The agency’s position description for an
IPO states:
The position is located in the Office of the Special Agent-in-Charge
(SAC), Office of Internal Affairs (OIA). As an advisor to the SAC,
the incumbent may formulate, plan, develop and review major IA
programs and projects; develop and review valuative data, including
internal and external evaluations, statistical and management
information reports, and other measurement tools; review and
research employee integrity lapses; evaluate investigations for
improvement indicators and participate in selected projects designed
to identify and target areas of concern requiring improvement.
5
IAF, Tab 9, Subtab C at 2. It is undisputed that, while serving as an IPO, the
appellant did not supervise or manage any employees in primary covered
positions, and, indeed, no such employees were assigned to her worksite. See ID
at 8; see also IAF, Tab 18, Hearing Compact Disc (HCD). She thus would not
have qualified under the “supervisory” prong of the definition. See
Olszak, 117 M.S.P.R. 75, ¶ 8; 5 C.F.R. § 842.1002. Accordingly, she was
required to prove that she qualified under the “administrative” prong; that is,
experience as a Customs Inspector or in an equivalent position was a prerequisite
for the IPO position. See Kroll, 2014 MSPB 69, ¶ 11 (citing Olszak, 117
M.S.P.R. 75, ¶¶ 8-9).
¶7 The appellant asserted that she would not have been able to perform her
duties as an IPO without prior experience as a Customs Inspector. See HCD. For
example, she believed her prior experience was valuable when she was charged
with investigating whether inspectors failed to follow agency procedures or
violated the law. Id. One of her witnesses, a retired Investigative Intelligence
Officer who worked with her when she was an IPO, testified that she would have
been able to work as an IPO without prior experience as a Customs
Inspector. Id. Nevertheless, he explained, her job would have been “difficult”
because the operational experience and technical knowledge she gained as a
Customs Inspector helped her perform at a higher level. Id.
¶8 The appellant admitted, however, that she did not have the same duties or
job functions as a Customs Inspector. Id. She indicated that she did not inspect
vehicles, persons, or merchandise. Id. She did not carry a gun, wear a uniform,
or have to maintain firearms proficiency. Id. The appellant related that her main
duties included review of various files and tapes and sometimes of time and
attendance records. Id. She handled several types of in-house investigations,
most of which were not related to law enforcement, e.g., time and attendance
issues regarding employees who were not in law enforcement. Id. She also
6
assembled and tracked compilations of investigative reports (known as “red
books”) for use in the field. Id.
¶9 The OPR SAC in El Paso testified, stating his belief that prior experience as
a CBPO had never been required for appointment as an IPO. Id. He also stated
that the current IPO in that office had not served as a Customs Inspector or in any
other CBPO position prior to appointment. Id. The Assistant SAC in El Paso,
who worked with the appellant while she was an IPO, testified that she held “a
support position” in OIA and, to the best of his knowledge, IPOs were support
personnel and CBPOs. Id. One of the appellant’s former colleagues in OIA
testified that there are no mandatory experience requirements for the IPO
position. Id. She explained that two persons have performed IPO functions in El
Paso since the appellant’s promotion from that position, and neither person had
prior experience as a CBPO or Customs Inspector. Id.
¶10 The agency also provided testimony from its trainer to the field offices
regarding CBPO enhanced retirement coverage. This employee makes
recommendations as to which positions would qualify for secondary retirement
coverage. Id.; see IAF, Tab 5 at 105. She testified that, when she reviewed the
agency’s documentation regarding the IPO position, she did not find any
requirement that an appointee have prior CBPO experience. See HCD. She
further testified that her review of the appellant’s reconsideration request
included evaluating the qualifications of other IPOs, the official position
description, and the appellant’s own account of her duties. Id.; see IAF, Tab 5
at 106-11, Tab 9, Subtab C. She concluded that the IPO position did not meet the
definition of a secondary covered position. See HCD; see also IAF, Tab 5 at 105.
¶11 An agency employee who served on the CBPO Enhanced Retirement
Program Management Team testified that she helped review position descriptions
and duties for approximately 21,000 cases in order to develop a list of primary
and secondary covered positions. She said that the IPO position does not appear
on that list. Id.; see IAF, Tab 12 at 18-22. She further testified that only four of
7
nine people who have been appointed as IPOs had prior experience as CBPOs.
See HCD. Four of the appointees had no prior agency experience, and the records
for the remaining appointee were not available. 3 Id.
¶12 As a result, the administrative judge determined that the preponderant
evidence showed that the appellant’s prior experience as a Customs Inspector
likely contributed to her success as an IPO, but it was not a mandatory
prerequisite for appointment to that position. The administrative judge also
concluded that the position did not meet the definition of a secondary covered
position. See 5 C.F.R. § 842.1002; ID at 13.
¶13 On review, the appellant reiterates her assertion that a December 5, 2010
Standard Form 50, which shows that her service computation date for CBPO
retirement coverage as July 6, 2008, proves that she qualifies for enhanced
retirement coverage. PFR File, Tab 1 at 6; see IAF, Tab 1, Subtab 36. The
witness from the agency’s CBPO Enhanced Retirement Program Management
Team, however, testified that the form is incorrect and was created by off-site
personnel unfamiliar with the IPO position. See HCD.
¶14 The appellant also argues that members of the agency’s CBPO Enhanced
Retirement Program Management Team were inexperienced in Customs field
operations, relied too heavily on official position descriptions in making their
assessments and, in her case, used the wrong position description. PFR File,
Tab 1 at 5. She argues that her duties became more rigorous after the agency was
3
On review, the appellant argues that the agency failed to show that the five appointees
without CBPO experience lacked any sort of law enforcement experience. She asserts
that “it is unreasonable to expect that a person would be hired to conduct investigations,
apprehensions or detention of individuals suspected or convicted of offenses against the
criminal laws of the United States without some sort of law enforcement experience.”
PFR File, Tab 1 at 6. Here, the appellant seeks to recharacterize the IPO’s duties as
rigorous law enforcement work. She adduced no evidence to support her claim,
whereas the agency’s evidence showed that experience in a primary customs or border
patrol position was not a prerequisite for the IPO position. See Kroll, 2014 MSPB 69,
¶ 11 (the dispositive issue in determining if a position is secondary is whether CBPO
experience was a prerequisite for the position).
8
created and the Customs and Immigration functions were merged, requiring her to
draw on her field experience. Id. at 6. The agency witness who served on the
CBPO Enhanced Retirement Program Management Team, however, testified that
the appellant’s personal narrative regarding her job duties was a primary source
of information for the team. See HCD; see also IAF, Tab 5 at 106-12. Moreover,
the appellant’s own witnesses testified that her primary role as an IPO was to
provide administrative support to investigators rather than to serve as a field
investigator. See HCD.
¶15 Finally, the appellant argues that the administrative judge did not use the
correct position description, PD#A03556, because the agency could not locate it
at the time and instead submitted the position description for Investigative
Program Specialist (IPS). PFR File, Tab 1 at 4. She alleges that she only
obtained the correct position description after the record closed. Id. She seeks to
submit the document with her petition for review, and, in a subsequent motion to
supplement her petition, she offers the vacancy announcement under which she
applied for the IPO job. PFR File, Tab 1 at 8-11, Tab 5 at 1-5.
¶16 The Board will not consider evidence submitted for the first time with the
petition for review absent a showing that it was unavailable before the record was
closed despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). The appellant asserts that she received the
position description after “a third party” employed by OPR conducted “extensive
research through archived data” after the record closed. PFR File, Tab 1 at 4.
She does not explain, however, why she did not serve any discovery requests on
the agency or otherwise request a search of OPR’s archival records while the
appeal was pending below.
¶17 Even if the appellant could show that she diligently sought to obtain the
position description, she has not shown that it is of sufficient weight to warrant
an outcome different from that of the initial decision. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980). The appellant asserted that the
9
cover page of the position description in the record listed the IPO position, but
the subsequent pages describe the IPS position. See ID at 7 n.3; see also HCD.
However, she admitted during her testimony that IPS duties did not differ from
IPO duties in El Paso, where she was assigned. See HCD. Additionally, we note
that the differences between the two documents are changes in nomenclature
arising from the creation of the agency. Compare PFR File, Tab 1 at 8-11, with
IAF, Tab 5 at 128-31. The appellant’s version of the position description is the
newer, post-merger version. Nothing in that document, however, would support a
finding that agency law enforcement experience was required for the IPO
position, that the IPO duties were law enforcement duties, or that the appellant
supervised any law enforcement personnel.
¶18 Likewise, in her motion for leave to supplement the petition for review, the
appellant asserts that she recently discovered the vacancy announcement under
which she applied for the IPO position, and that announcement shows that the
position required law enforcement experience. PFR File, Tab 5. She explains
that she found the announcement in a box of materials she left at her sister’s
house when she moved to another residence in 2007. Id. at 3. Recently, she
explains, her sister reminded her about the stored items and she retrieved them,
discovering the vacancy announcement. Id. The Board’s regulations, however,
do not provide for pleadings other than a petition for review, cross-petition for
review, response to a petition or cross-petition, and a reply to the response.
See 5 C.F.R. § 1201.114(a). Parties may request permission to submit new and
material evidence that was not readily available before the record closed after the
closing date. See 5 C.F.R. § 1201.114(k). The appellant here has not shown that
the vacancy announcement was unavailable to her before the record closed. It
cannot be considered, but in any event, the provisions she cites would not affect
the outcome of this appeal. See Avansino, 3 M.S.P.R. at 214.
¶19 Based on all of the evidence, the administrative judge correctly found that
the appellant failed to show that the IPO position was a secondary covered
10
position. Instead, her break in service precludes her from eligibility for CBPO
enhanced retirement coverage. Accordingly, we affirm the initial decision as
modified.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
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If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.