Susan FitzGerald v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SUSAN FITZGERALD, DOCKET NUMBER

Appellant, AT-0831-14-0684-I-1

v.

DEPARTMENT OF HOMELAND DATE: April 2, 2015

SECURITY,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Susan FitzGerald, Hortense, Georgia, pro se.

Virginia Clay, Esquire, Glynco, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, 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 decision denying her request for secondary Customs and

Border Protection Officer (CBPO) retirement credit for her service in various

Instructor positions at the Federal Law Enforcement Training Center (FLETC).

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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

Generally, we grant petitions such as this one only when: the initial decision

contains erroneous 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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 The appellant has asked the Board to review the agency’s decision to deny

her request for secondary CBPO retirement credit under the Federal Employees’

Retirement System (FERS). Initial Appeal File (IAF), Tab 1. She served as an

Immigration Inspector (GS-1816 series) from August 2, 1987, through July 2,

1988, in the Immigration and Naturalization Service, Department of Justice, and

as a Customs Inspector (GS-1890 series) with the Customs Service, Department

of the Treasury, from July 3, 1988, through May 6, 2000. IAF, Tab 3, Subtab D

at 19, 40-43, 48-50. Since May 7, 2000, she has served in various Law

Enforcement Specialist (Instructor) positions (GS-1801 series) at

FLETC. Id. at 1-19. The appellant requested coverage for any benefits to which

she might be entitled under the Consolidated Appropriations Act of 2008. Id.,

Subtab C; see Consolidated Appropriations Act of 2008, Pub. L. No. 110-161,

§ 535(b)(1)(C), 121 Stat. 1844, 2076 (2007) (codified at 5 U.S.C. § 8401(36))

(hereinafter “Consolidated Appropriations Act”). C.C., Executive Director,

Human Resources Operations, Programs, and Policy Division, responded to the

3

appellant’s request, stating that the agency was unable to grant it. IAF, Tab 3,

Subtab B. C.C. explained that the agency denied her claims for CBPO-related

service performed before July 6, 2008, as well as any related request to

retroactively adjust her retirement contributions. Id. After the appellant received

the agency decision, she sent an email message to D.C., Director of Positions

Management and Classifications, Office of Human Resources Management,

asserting that the agency had failed to address her request for coverage for service

from July 6, 2008, forward. Id., Subtab I. C.C. reiterated the agency’s denial of

the appellant’s request and advised her that she had Board appeal rights. Id.,

Subtab J. The appellant filed this appeal, IAF, Tab 1, and after a hearing, the

administrative judge issued an initial decision affirming the agency’s decision,

IAF, Tab 14, Initial Decision (ID). On review, the appellant generally asserts that

the appeal was wrongly decided. Petition for Review (PFR) File, Tab 1.

¶3 Federal civil service retirement laws extend enhanced benefits to persons,

such as law enforcement officers and firefighters, who have served in physically

rigorous positions. Section 535 of the Consolidated Appropriations Act extends

these benefits to CBPOs. Because enhanced benefits are more costly and may

result in the untimely retirement of valuable employees, the eligibility rules

governing coverage for the benefits are strictly construed. See Kroll v.

Department of Homeland Security, 121 M.S.P.R. 526, ¶ 6 (2014). An employee

seeking enhanced retirement benefits bears the burden of proving her entitlement

thereto by preponderant evidence. Id. (citing Olszak v. Department of Homeland

Security, 117 M.S.P.R. 75, ¶ 5 (2011), aff’d, 475 F. App’x 757 (Fed. Cir. 2012)).

¶4 Under the eligibility rules, primary covered positions are those in the

GS-1895 job series or in any 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.” 5 U.S.C. § 8401(36); see 5 C.F.R. § 842.1002.

4

¶5 Employees who transfer from primary covered 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)). Under the regulations

promulgated by the Office of Personnel Management (OPM) covering FERS, a

secondary covered position is a position within the Department of Homeland

Security that 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. In order to qualify for credit for service in a primary

covered position after transferring into a secondary covered position, the

employee’s service in the secondary covered position must meet the following

criteria:

(1) The employee, while covered under the provisions of 5 U.S.C.

8412(d) as a customs and border protection officer, is transferred

directly (i.e., without a break in service exceeding 3 days) from a

primary position to a secondary position; and

(2) The employee has completed 3 years of service in a primary

position, including service for which no FERS deductions were

withheld; and

(3) If applicable, the employee has been continuously employed in

secondary positions since transferring from a primary position

without a break in service exceeding 3 days, except that a break in

employment in secondary positions which begins with an involuntary

separation (not for cause), within the meaning of 8414(b)(1)(A), is

not considered in determining whether the service in secondary

positions is continuous for this purpose.

5

5 C.F.R. § 842.1003(b).

¶6 The amendments to the federal retirement statutes enacted under the

Consolidated Appropriations Act took effect on July 6, 2008. § 535(e)(1).

Regarding CBPO service performed before the effective date, the Act provides:

(i) GENERAL RULE.—Except as provided in clause (ii), nothing in

this section or any amendment made by this section shall be

considered to apply with respect to any service performed as a

customs and border protection officer before the effective date under

paragraph (1).

(ii) EXCEPTION.—Service described in section 8331(31) or

8401(36) of title 5, United States Code (as amended by this section)

rendered before the effective date under paragraph (1) may be taken

into account to determine if an individual who is serving on or after

such effective date then qualifies as a customs and border protection

officer by virtue of holding a supervisory or administrative position

in the Department of Homeland Security.

§ 535(e)(2)(B). If an individual was serving as a CBPO on July 6, 2008, pursuant

to an appointment made before that date, his FERS annuity for service performed

on or after that date must be at least equal to the amount that would be payable by

applying 5 U.S.C. § 8415(d). 2 § 535(e)(2)(C).

¶7 For periods of service before September 1, 2007, OPM’s regulations define

a primary covered position as:

(i) A position whose duties included the performance of work

directly connected with activities relating to the arrival and departure

of persons, conveyances, and merchandise at ports of entry that was

classified within the Immigration Inspector Series (GS-1816),

Customs Inspector Series (GS-1890), Canine Enforcement Officer

Series (GS-1801), or any other series which the agency head

determines were predecessor series to the Customs and Border

Protection Series (GS-1895), and that would have been classified

under the GS-1895 series had it then existed; and

(ii) A position within the Customs and Border Protection Series

(GS-1895) whose duties included the performance of work directly

2

Section 8415(d) governs annuity computation for employees retiring under the

enhanced retirement provisions of FERS.

6

connected with activities relating to the arrival and departure of

persons, conveyances, and merchandise at ports of entry.

5 C.F.R. § 842.1003(c)(1). The regulations define a secondary position as:

(i) A first-level supervisor of an employee in a position described at

paragraph (c)(1)(i) or (c)(1)(ii) of this section; or

(ii) A[n] executive, managerial, technical, semiprofessional, or

professional position for which experience in a position described at

paragraph (c)(1)(i) or (c)(1)(ii) of this section is a mandatory

prerequisite.

5 C.F.R. § 842.1003(c)(2).

¶8 Based on the rules set forth above, the administrative judge found that the

appellant’s service as an Immigration Inspector in the GS-1816 series from

August 2, 1987, through July 2, 1988, and as a Customs Inspector in the GS-1890

series, from July 3, 1988, through May 6, 2000, would comprise the requisite

3 years of service in a primary covered position that she would have needed to

accrue prior to transfer to a secondary covered position. ID at 6; see IAF, Tab 3,

Subtab D at 19; see also 5 C.F.R. § 842.1003(b)(2). She transferred to the

instructor position in May 2000 without a break in service. See IAF, Tab 3,

Subtab D at 19; see also 5 C.F.R. § 842.1003(b)(1).

¶9 The preponderance of the evidence, however, does not establish that the

appellant’s May 2000 transfer was to a position that met the definition of a

secondary covered position set forth in 5 C.F.R. § 842.1003(c)(2). The appellant

was not a first-level supervisor pursuant to the definition. See 5 C.F.R.

§ 842.1003(c)(2)(i). As the administrative judge noted, see ID at 6-7, the record

is unclear regarding which position description in the record applied to the

position to which she transferred. 3 The two position descriptions in the record are

3

The appellant asserted that the position fell under position description # 13544, IAF,

Tab 4 at 4; see id., Subtab 1, whereas the agency stated that position description

# 13742 was instead applicable, IAF, Tab 3 at 6; see id., Subtab F. Entries in the

Standard Form 50s documenting her May 2000 transfer from the Customs Service to

FLETC, and her subsequent reassignment to a different position there in

December 2001, identify the position description as # 13742. IAF, Tab 3, Subtab D

7

not identical, though both descriptions required the incumbent to possess general

law enforcement experience. See IAF, Tab 3, Subtab F at 3-6, Tab 4, Subtab 1

at 1c-1f. Neither description required law enforcement experience specific to

positions “that would have been classified under the GS-1895 series had it then

existed,” or CBPO positions in that series “whose duties included the

performance of work directly connected with activities relating to the arrival and

departure of persons, conveyances, and merchandise at ports of entry.” IAF,

Tab 3, Subtab F at 3-6, Tab 4, Subtab 1 at 1c-1f ; see 5 C.F.R. § 842.1003(c)(1).

Position description #13544 states only that the incumbent “must have acquired a

thorough knowledge of criminal laws and Federal rules and/or regulations, which

apply to cases involving crimes against the United States,” and that “[e]xperience

in a primary Federal law enforcement position [was] a prerequisite for this

position.” IAF, Tab 4, Subtab 1 at 1c-1d. Although the appellant clearly

acquired relevant knowledge and experience during her prior service, she could

have acquired that knowledge and experience in a federal law enforcement

position that was not “directly connected with activities relating to the arrival and

departure of persons, conveyances, and merchandise at ports of entry.”

See 5 C.F.R. § 842.1003(c)(1). Thus, the position to which she was transferred in

May 2000, did not meet the definition of a secondary administrative CBPO

position. See 5 C.F.R. § 842.1003(c)(2).

¶10 Accordingly, the appellant has failed to establish that she transferred

directly from a primary covered CBPO position to a secondary covered CBPO

position in May 2000, and that she has been continuously employed in secondary

at 19. The agency stated in its prehearing submission that it did not dispute that

position description # 13544 may be the correct one. IAF, Tab 7 at 2 n.1. Even if, as

the appellant claims, the agency’s statement is a stipulation that the administrative

judge failed to honor, see PFR File, Tab 1 at 4; see also ID at 6-7, neither position

description supports the appellant’s argument. Any adjudicatory error here is harmless.

See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an

adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis

for reversal of an initial decision).

8

covered positions without a break in service exceeding 3 days. See 5 C.F.R.

§ 842.1003(b)(3). Even if the instructor positions to which the agency later

assigned her met the definition of a secondary covered CBPO position, she is not

entitled to CBPO coverage for her service in these positions, including service

that she performed on or after July 6, 2008.

¶11 On review, the appellant reiterates her contention that OPM’s regulations

are inconsistent with the changes to the statute under the Consolidated

Appropriations Act and, further, that the instructor positions at FLETC were

designated as secondary covered positions after the Department of Homeland

Security absorbed the law enforcement functions of several agencies. See PFR

File, Tab 1 at 2-5; see also IAF, Tab 4, Subtab 2 at 2a, Subtab 3 at 3c. She argues

that OPM’s interpretation of the phrase “supervisory or administrative position in

the Department of Homeland Security” in section 535(b)(1)(C) of the

Consolidated Appropriations Act, as set forth in 5 C.F.R. § 842.1002, is too

restrictive. PFR File, Tab 1 at 2-4; see § 535(b)(1)(C) (codified at 5 U.S.C.

§ 8401(36)). She asserts that a more inclusive interpretation would allow her and

similarly-situated colleagues secondary coverage for service after July 6, 2008.

PFR File, Tab 1 at 2-4. OPM’s interpretation of statutory language, however, is

entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 837, 843 (1984) (when Congress has not directly addressed the

precise question at issue in an adjudicatory proceeding, an administrative

interpretation of a statutory provision by the agency charged with implementing

the statute may be entitled to deference). Accordingly, for the reasons set forth

above, we conclude that the appellant failed to establish by a preponderance of

the evidence that she is entitled to coverage under the enhanced retirement

provisions applicable to CBPOs.

9

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit. 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.

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

10

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.