Kelly Jay Smith v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KELLY JAY SMITH, DOCKET NUMBER

Appellant, AT-0842-15-0046-I-1

v.

DEPARTMENT OF THE ARMY, DATE: January 20, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Vicki L. Fuller, Redstone Arsenal, Alabama, for the appellant.

Kathryn R. Shelton, Redstone Arsenal, Alabama, 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

denied his request for law enforcement officer retirement credit. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the facts of the case; the administrative 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, 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 On November 27, 2005, the appellant transferred to the agency as a

GS-1812-09 Game Warden, a position designated for Law Enforcement Officer

(LEO) special retirement coverage under 5 U.S.C. § 8401(17). Initial Appeal File

(IAF), Tab 11 at 44, Tab 15 at 9. In March 2009, the Office of Personnel

Management (OPM) issued the Job Family Position Classification Standard for

Administrative Work in the Inspection, Investigation, Enforcement, and

Compliance Group, 1800, which, among other things, canceled the 1812 series

and directed agencies to classify criminal investigation work previously covered

by the 1812 series to the Criminal Investigation Series, 1811, and inspection work

previously covered by the 1812 series to the General Inspection, Investigation,

Enforcement, and Compliance Series, 1801. IAF, Tab 11 at 40. 2 After an audit,

2

Effective December 10, 2009, while the appellant was still a Game Warden, the

agency terminated his Law Enforcement Availability Pay (LEAP). On appeal of that

action, a Board administrative judge reversed it, in part, because the agency failed to

provide the appellant with due process. Smith v. Department of the Army, MSPB

Docket No. AT-3443-10-0393-I-1, Initial Decision at 1, 3-4 & n.3 (June 4, 2010). That

decision became the Board’s final decision when neither party filed a petition for

review. Subsequently the agency issued a proposal notice and a decision terminating

the appellant’s LEAP. On appeal, an administrative judge reversed the action, finding

that the agency did not terminate the appellant’s LEAP for a reason authorized under

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the agency determined that the appellant’s Game Warden position had been

incorrectly coded as LEO special retirement coverage because his duties were not

primarily concerned with criminal investigation. Id. at 23. Effective January 6,

2011, the agency reclassified the appellant’s GS-9 Game Warden position as a

Game Conservation Enforcement Officer, GS-1801-9, resulting in a change in his

retirement from LEO special retirement coverage to regular retirement. 3 Id. at 17.

For reasons unclear, the agency did not notify the appellant officially of this

change at that time. On September 12, 2014, the agency issued him a

memorandum entitled Notification of Erroneous Retirement Coverage Correction.

IAF, Tab 6 at 2. The agency acknowledged that it had not timely applied the new

standard to the appellant’s position but that the change in his retirement was

effective on January 6, 2011, that the memorandum was his formal notice of that

change, and that he could challenge it by filing an appeal with the Board, id.,

which he did, IAF, Tab 1. He requested a hearing. Id. at 2.

¶3 Thereafter, the administrative judge issued an initial decision affirming the

agency’s decision that the appellant is not entitled to LEO retirement credit under

the Federal Employees Retirement System (FERS) for the period from January 6,

2011, to the present. IAF, Tab 21, Initial Decision (ID) at 1, 6. The

administrative judge found that the primary duties of the appellant’s position

specifically are excluded from 5 C.F.R. § 842.802, the regulatory definition of

“law enforcement officer.” ID at 5-6.

OPM’s regulations, and the full Board affirmed that decision as modified, still reversing

the action. Smith v. Department of the Army, 117 M.S.P.R. 628, ¶¶ 1, 12 (2012).

3

The appellant filed an appeal over his reassignment, challenging the action and

claiming that it constituted an appealable reduction in pay. The administrative judge

dismissed the appeal for lack of jurisdiction, and the full Board denied the appellant’s

petition for review of that decision, rendering it the Board’s final decision. Smith v.

Department of the Army, MSPB Docket No. AT-0752-11-04140-I-1, Final Order at 3

(Mar. 2, 2012).

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¶4 The appellant has filed a petition for review challenging the initial decision.

Petition for Review (PFR) File, Tab 1 at 5-6. The agency did not file a response

to the appellant’s petition for review.

¶5 To be eligible for LEO retirement credit under FERS, the employee’s duties

must be primarily the investigation, apprehension, or detention of individuals

suspected or convicted of Federal offenses and must be sufficiently rigorous that

employment opportunities should be limited to young and physically vigorous

individuals. 5 U.S.C. § 8401(17)(A)(i), (ii). An employee whose primary duties

involve maintaining order, protecting life and property, guarding against or

inspecting for violations of law, or investigating persons other than those who are

suspected or convicted of offenses against the criminal laws of the United States

are not considered law enforcement officers. “Primary duties” are those that are

paramount in influence or weight; that is, constitute the basic reasons for the

existence of the position, occupy a substantial portion of the individual’s working

time over a typical work cycle, and are assigned on a regular and recurring basis.

In general, if any employee spends an average of at least 50% of his time

performing a duty or group of duties, they are his primary duties. 5 C.F.R

§ 842.802; see Watson v. Department of the Navy, 262 F.3d 1292, 1299 (Fed.

Cir. 2001) (approving the Board’s position-oriented approach to determining

entitlement to LEO special retirement coverage).

¶6 On review, the appellant argues that his duties are rigorous in that they

include “a lot of walking” and apprehending violators who commit misdemeanors

and felonies and that these duties involve more than 50% of his time. PFR File,

Tab 1 at 5. He also challenges the contrary testimony of his former second-line

supervisor, arguing that he lacked firsthand knowledge of the appellant’s duties.

Id. And, the appellant points to his own testimony that 65% of his duties are

investigatory in nature because he is required to notice irregularities in the area,

such as tracks in the dirt, and follow them to see if a crime is occurring, has

occurred, or might occur. Id. at 6.

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¶7 In affirming the agency’s decision to deny the appellant LEO retirement,

the administrative judge considered both his position documentation and its actual

duties. ID at 4-6. The administrative judge carefully examined the position

description, which states that 60% of the incumbent’s duties include: proactive

patrol duties on Redstone Arsenal encompassing the enforcement of laws, the

protection of life and property, and the management of resources and related

practices and programs; citing offenders; monitoring and surveying the security

of sites and reporting disturbances; checking the perimeter for unauthorized

access and damage; conducting routine security checks; monitoring traffic

movements; conducting compliance inspections; providing nuisance wildlife and

predator control; and assisting in search and rescue efforts for unaccounted-for

recreationists. ID at 4; IAF, Tab 16 at 6-11. These duties, which constitute the

appellant’s primary duties, are in the nature of maintaining law and order,

protecting life and property, and guarding against and inspecting for violations of

law, which are not those of an LEO officer. See Fagergren v. Department of the

Interior, 98 M.S.P.R. 649, ¶ 14 (2005), aff’d, 166 F. App’x 483 (Fed. Cir. 2006);

Street v. Department of the Navy, 90 M.S.P.R. 652, ¶ 17, aff’d, 53 F. App’x 90

(Fed. Cir.), and aff’d sub nom. Satterfield v. Department of the Navy, 53 F. App’x

88 (Fed. Cir. 2002). They do not reflect that the position exists or is designated

as an LEO position. Street, 90 M.S.P.R. 652, ¶ 11. Nor does the position

description include a maximum age for entry into the position, Watson, 262 F.3d

at 1302; Street, 90 M.S.P.R. 652, ¶ 14, evidence highly probative of the fact that

the position is not sufficiently rigorous so as to limit employment opportunities to

young and physically rigorous individuals, 4 Street, 90 M.S.P.R. 652, ¶ 31.

¶8 The administrative judge duly considered the appellant’s hearing testimony

regarding his view of his primary duties and his perception that 65% of his duties

4

This is so notwithstanding the fact that, as a condition of employment, the incumbent

must be able to pass physical and mental examinations prior to hiring, and undergo an

annual physical examination to ensure fitness for duty. IAF, Tab 16 at 7.

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are investigative in nature. ID at 4-5. The administrative judge also considered

the testimony of the appellant’s former second-line supervisor to the effect that

30% of the appellant’s duties involve the investigation of criminal offenses. The

administrative judge found that, even if the appellant conducted four

investigations over a 3-year period, as he described, and even if, in connection

therewith, he apprehended suspects, he did not show that these investigations

occupied a substantial portion of his working time over a typical work cycle on a

regular or recurring basis, or that they otherwise constituted his primary duties.

ID at 5; 5 C.F.R. § 842.802.

¶9 The appellant has not shown error in the administrative judge’s findings

that, while the appellant’s position involves the investigation of suspected crimes,

the primary duties of his position are not the investigation, apprehension, or

detention of individuals suspected or convicted of violating the criminal laws, but

rather maintaining order, protecting life and property, guarding against or

inspecting for violations of law, or investigating persons other than those who are

suspected or convicted of offenses against the criminal laws of the United States.

5 C.F.R. § 842.802. The administrative judge properly found, therefore, that the

agency correctly determined that the appellant is not entitled to LEO special

retirement coverage.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. You must submit your request to the

court at the following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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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 U.S. 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 U.S. 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 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

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.