Watson v. Department of the Navy

FRIEDMAN, Senior Circuit Judge,

dissenting in part.

I agree with most of what the court says. I part company with it, however, in its analysis and approval of the theory upon which the Board upheld the Navy’s denial of law enforcement officer (LEO) status to these employees.

I agree that the Board justifiably adopted its broader “position-oriented” approach in LEO cases as more accurately reflecting the statutory test for LEO status of whether the “duties of [the employee’s] position (i) are primarily (I) the investigation, apprehension, or detention” of criminals, 5 U.S.C. § 8401 (17)(A), and OPM’s implementing regulations that define “primary duties” as duties that, among other things, “(i) [a]re paramount in influence or weight; that is, constitute the basic reasons for the existence of the position,” 5 C.F.R. § 831.902 . As I read the Board’s opinion, however, the Board treated the purpose of the “existence of the position” in the regulatory definition as turning on the basic reasons for the position’s “creation.”

Early in its opinion the Board stated that under the new “position-oriented” approach it was adopting, “if the position was not created for the purpose of investigation, apprehension, or detention, then the incumbents of the position would not be entitled to LEO credit.” 86 M.S.P.R. at 321. After stating that the OPM regulations require that “the ‘basic reasons’ for the existence of the position must be the performance of LEO duties,” the Board stated that the administrative judge “did not look to see why the agency created the GS-083 Police Officer position, but instead examined whether the appellants’ experiences showed that their duties ‘involved’ some LEO work.” Id. at 323. The Board ruled that “[t]he classification standards and OPM’s Guide for evaluating a GS-083 Police Officer position show that the basic reason for the existence of this position is to maintain order, protect life and property, and guard against or inspect for violations of law.” Id at 325. It stated that the position’s description shows that “the position was created for the primary purpose of maintaining law and order and protecting persons and property by means of community policing and traffic control.” Id. at 326. It pointed out that there was “evidence showing that the GS-083 Police Officer position at the NNB was not created as an LEO position” and stated that “the evidence of the actual duties performed in these cases does not persuade us that — contrary to the official documentation of the position — ‘the basic reasons for the existence of the position’ was actually investigation, apprehension, or detention.” Id. at 328-29.

The penultimate paragraph of the opinion, captioned “ORDER,” stated:

For the reasons stated above, we find that the appellants are not entitled to LEO service credit because the GS-05-083 Police Officer position they occupied at the NNB was not created primarily to perform LEO duties as defined by statute. The initial decisions are REVERSED.... 7

Id. at 330.

The Board reiterated the view that LEO status turned upon the reason for the “creation” of the position in footnote 7, where it stated: “individuals who are not parties to these appeals are not precluded in future cases from attempting to show that the basic reason for the creation for the GS-05-083 Police Officer position at the *1306 NNB was the performance of LEO duties ... any future appellants who encumber or did encumber this position must show that the position was created as a LEO position.” Id.

Although the Board referred three times to the reason for the “existence” of the position, a fair reading of its opinion indicates to me that the critical and controlling factor for the Board in determining LEO status was the reason for the “creation” of the position and not for its “existence,” as the regulation provides. The reasons for the creation of a position are not necessarily the same as those for its existence. A position could have been created for non-LEO purposes, but over time the duties could change sufficiently that it continued to exist for LEO purposes. Of course, the reason for the creation of a position may be a significant factor in determining the reasons for its existence. The two concepts are not the same, however, and the reasons for the existence of a position cannot be based solely upon the historical reasons for its creation.

OPM’s regulation merely defines one element of the statutory standard governing the existence of LEO status- — the meaning of the “primary duties” of the position. The portion of that definition here involved — duties that “constitute the basic reasons for the existence of the position”— is unambiguous. In applying the LEO statute, the Board’s responsibility was to apply that definition to the facts of this case, not to reformulate the definition by substituting the concept of the reasons for “creation” of the position for the reasons for its “existence.”

I would vacate the Board’s decision and remand for the Board to reconsider under the proper standard.