Appendix — Watson v. Department of the Navy

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FEDERAL CIRCUIT

DATED AND DECIDED AUGUST 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

00-3387

JAMES A. WATSON, PAMELA D. SEAY, ANTHONY A.

WILLIAMS, DONALD L. PENNINGTON, BARRY

EATON, CHRIS M. NECHODOM, LUTHER G.

ROWLAND, III, CHARLES A. STREAT, KARVIN T.

RODGERS, FRANK MORALES, DOUGLAS P. ACRES,

CORNELL J. JEFFERSON and CLIFTON E. CARNEY,

Petitioners,

v.

DEPARTMENT OF THE NAVY,

Respondent.

DECIDED: August 17, 2001

Before MICHEL, Circuit Judge, FRIEDMAN, Senior Circuit

Judge, and CLEVENGER, Circuit Judge.

Opinion for the court filed by Circuit Judge MICHEL.

Dissenting opinion filed by Senior Circuit Judge

FRIEDMAN.

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MICHEL, Circuit Judge.

James A. Watson et al. petition for review of the July

17, 2000 final decision of the Merit Systems Protection Board

(“Board”), sustaining the Department of the Navy’s (“Navy”

or “agency”) determination that petitioners did not satisfy

the statutory and regulatory criteria for early retirement

coverage as law enforcement officers (“LEO”) under the Civil

Service Retirement System (“CSRS”), 5 U.S.C. § 8336(c)

(1994), or the Federal Employees’ Retirement System

(“FERS”), 5 U.S.C. § 8412(d) (1994). Watson v. Dep t of the

Navy, 86 M.S.P.R. 318 (2000). The petitioners are thirteen

current or former police officers employed by the Navy at

the Norfolk Naval Base in Norfolk, Virginia. In upholding

the Navy’s denial of the officers’ applications for LEO

retirement credit, the Board employed a new approach that

more affirmatively considered the reasons for the creation

and existence of the positions than it had used in its prior

LEO decisions, which emphasized the officers’ actual, even

if incidental or occasional, duties. Jd. at 321. In this case,

after reviewing the Office of Personnel Management

(“OPM”) classification standards for the GS-083 Occupation

Series to which the officers belonged, a December 1997

“Grade Evaluation Guide for Police and Security Guard

Positions GS-0083/GS-0085” (“the Guide”) published by

OPM, the Position Description for the officers’ positions,

and the duties actually performed by the officers on a regular

and recurring basis, the Board concluded that the officers’

positions did not exist primarily for the purpose of

investigating, apprehending, or detaining individuals

suspected or convicted of federal offenses. Jd. at 328;

see also 5 U.S.C. §§ 8331(20), 8401(17) (1994). We hold

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that the approach used by the Board is consistent with the

statutes and regulations of the LEO retirement coverage

program, and that it does not conflict with our decision in

Bingaman v. Department of the Treasury, 127 F.3d 1431 (Fed.

Cir. 1997), or with its own decision in the same case. We

also hold that under this approach, the Board’s determination

that these Norfolk Naval Base police officers did not satisfy

the definition of a LEO was free of legal error and supported

by at least substantial evidence. Therefore, we affirm.

Background

Congress established a special retirement system in order

for federal employees in certain positions to retire at an

unusually early age. Either of two statutes governs entitlement

to such special retirement coverage. Under both the CSRS

and FERS, an employee who qualifies for LEO retirement

credit is eligible to retire upon attaining the age of 50

and after completing 20 years of eligible LEO service.

See 5 U.S.C. §§ 8336(c), 8412(d)(2). Additionally, under the

FERS, a LEO can retire at any age after completing 25 years

of service. 5 U.S.C. § 8412(d)(1). This is far earlier than the

age at which most civil service employees are eligible to

retire, and is based on shorter service. 5 U.S.C. § 8336(c)

(1994). An employee qualifying for LEO retirement receives

a larger annuity than ordinary civil service employees, but is

subject to larger salary deductions during his or her

employment. A LEO may also be subject to mandatory early

retirement. See 5 U.S.C. §§ 8335, 8425 (1994). An employee

can qualify for LEO retirement credit either by serving in a

position that has been approved as such, or by applying for

LEO credit and satisfying the employing agency that he or

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she is entitled to LEO retirement credit because his or her

actual duties primarily involve pursuing or detaining

criminals. See 5 C.F.R. §§ 831.903-.906, 831.910(a),

842.803-804, 842.807(a) (1994).

The CSRS and the FERS prescribe somewhat different

standards for determining whether an employee may be

eligible for LEO retirement credit. In order to be eligible

under the CSRS, the duties of the employee’s position must

be “primarily the investigation, apprehension, or detention

of individuals suspected or convicted of [federal] offenses.”

5 U.S.C. §§ 8331(20), 8401(17)(A)(ii). The standard for LEO

eligibility under the FERS adds the further requirement that

the duties of the position be “sufficiently rigorous that

employment opportunities are required to be limited to young

and physically vigorous individuals.” 5 U.S.C. § 8401(17).

All petitioners, with the exception of Mr. Rowland, were

assigned to the patrol division; Mr. Rowland was assigned

to the traffic division. The parties had stipulated that the

officers were authorized to carry firearms, had arrest

authority, were required to maintain a level of physical fitness

by passing an annual physical fitness test if hired after March

1991, had interrogated witnesses and suspects, and had given

Miranda warnings, and in the case of military suspects,

warnings under Article 31 of the Uniform Code of Military

Justice.

The Navy denied the officers LEO early retirement credit.

The officers filed two separate appeals to the Board, since

two of the officers were covered under the CSRS, and the

remaining eleven officers were covered under the FERS. On

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July 12-16, and August 2-3, 1999, the Administrative Judge

(“AJ”) conducted a consolidated hearing. In initial decisions

dated September 3 and 17, 1999, the AJ reversed the final

decision of the Navy, and held that the officers were entitled

to LEO retirement credit. See Watson v. Dept of the Navy,

DC-0842-99-0483-I-1 (Sept. 3, 1999) (discussing FERS);

Jefferson v. Dep't of the Navy, DC-0831-99-0482-I-1

(Sept. 17, 1999) (discussing CSRS). The full Board

consolidated the Watson and Jefferson appeals, and granted

the agency’s petition for review.

On July 17, 2000, the Board reversed the AJ’s initial

decisions, and held that the officers were not entitled to LEO

retirement credit. The Board noted that in its prior cases, it

had placed too much emphasis on the duties performed by a

particular applicant over a limited period of time, with too

little emphasis on the purpose of the applicant’s position.

Watson, 86 M.S.P.R. at 320-21. Using that approach, the

Board previously held that Norfolk Naval Base police officers

in the same series as petitioners here (the 083 series) were

entitled to LEO retirement credit. Jd. (citing Bremby v. Dep t

of Navy, 81 M.S.P.R. 450 (1999); Hamilton v. Dept of

Defense, 85 M.S.P.R. 409 (2000)).' In order to be more

faithful to the language of the statutes and the regulations,

1. The Board also notes that in others cases involving police

officers in the GS-083 series, it did not hold that the GS-083 police

officers were entitled to LEO credit. Watson, 86 M.S.P.R. at 323 n.3

(noting that appeals at different times, in different legal postures,

and with different evidentiary records . . . “to potentially inconsistent

results”); see also Fitzgerald v. Dep't of Defense, 80 M.S.P.R. 1

(1998), aff'd, 230 F.3d 1373 (Fed. Cir. 1999) (holding that officers

in the GS-083 series were not entitled to LEO credit).

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the Board expressly adopted a new “position-oriented

approach” that would “more affirmatively” assess the “basic

reasons for the existence of the position,” as required by OPM

regulations, 5 C.F.R. §§ 831.902, 842.802 (1994).? Jd. at 321.

Under this new approach, the Board stated that “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.” Jd. In

determining the reasons for the existence of the position, the

Board considered all available evidence, including OPM

classification standards, the OPM Guide, the Position

Description, and the duties actually performed by the officers

on a near daily basis. Jd. at 328. After reviewing that evidence,

the Board concluded that the petitioners’ positions did not

exist primarily for the purpose of investigating, apprehending,

or detaining those suspected or convicted of federal offenses.

Id. On the contrary, it held that the officers’ primary duties

were maintaining law and order, protecting life and property,

and guarding against potential violations of law. Jd. at 329.

It therefore sustained the agency’s decision that the officers

were not entitled to LEO credit. Jd.

The police officers filed a timely petition for review to

this court under 5 U.S.C. § 7703 (1994). On appeal,

petitioners and amicus, the Fraternal Order of Police, argue

that the Board’s approach represents a “sweeping policy

change” that reverses the approach previously adopted by

this court in Bingaman in analyzing LEO retirement coverage

cases, and that is contrary to the statutes and the regulations

2. Section 831.902 applies to CSRS determinations; section

842.802 applies to FERS determinations. Both regulations are worded

identically.

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governing LEO eligibility. We heard oral argument on June

6, 2001, and have jurisdiction under 28 U.S.C. § 1295(a)(9)

(1994).

Analysis

A. Requirements for LEO Retirement Credit

Federal police officers are only eligible for early

retirement credit under the CSRS or FERS if they meet the

statutory definition of a LEO. Both statutes define an LEO

as one who holds a position, the “primary duties” of which

involve the “investigation, apprehension, or detention” of

those suspected or convicted of federal offenses. 5 U.S.C.

§§ 8331(20), 8401(17). By regulation, OPM has defined

“primary duties” in a three-part test. “Primary duties” are

those duties that:

i. Are paramount in influence or weight, that is

constitute the basic reasons for the existence

of the position; 5

ii. Occupy a substantial portion of the

individual’s working time over a typical work

cycle; and

iii. Are assigned on a regular and recurring basis.

5 C.F.R. §§ 831.902, 842.802 (emphasis added). In general,

if an employee spends at least fifty percent of his or her time

performing certain duties, those duties are his or her primary

duties. Jd. Under the regulations, “[dJuties that are of an

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emergency, incidental, or temporary nature cannot be

considered ‘primary’ even if they meet the substantial portion

of time criterion.” Jd. Further, the regulations state that the

definition of a LEO “does not include 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.” Jd. (emphasis added). The police officers

seeking LEO retirement coverage bear the burden of

proving entitlement by preponderant evidence. 5 C.F.R.

§ 1201.56(a)(2). Eligibility for LEO retirement coverage must

be “strictly construed,” because the LEO retirement program

is “ ‘more costly to the government than more traditional

retirement plans and often results in the retirement of

important people at a time when they would otherwise have

continued to work for a number of years.’ ” Bingaman, 127

F.3d at 1435 (quoting Morgan v. Office of Pers. Mgmt., 773

F.2d 282, 286-87 (Fed. Cir. 1985)).

B. The Board’s Approach

Petitioners and amicus argue that the approach used by

the Board places too much reliance on the reason why the

position was initially created. In its prior cases, petitioners

note, the Board and this court in Bingaman had undertaken a

fact-specific inquiry into the daily or frequent duties actually

performed by the officer seeking LEO coverage, even if those

duties were not listed in the Position Description as primary

duties. Petitioners argue that the new “position-oriented”

approach relies excessively on broad and unclear OPM

classification standards and the Position Description in order

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to determine why the position was originally created many

years ago, without sufficient examination of the regular duties

actually performed by the particular employee. This approach,

petitioners contend, is contrary to the plain language of the

statutes creating the LEO retirement program, and conflicts

with our decision in Bingaman.

The government argues that the approach used by the

Board is permissible, and is more faithful to the statutes and

the regulations than its earlier approach. As noted by the

Board in this case, the approach formerly used by the Board

in cases such as Bremby permitted an employee to be deemed

eligible for LEO retirement credit so long as he or she could

show that to some unspecified degree his or her primary

duties “involve” the investigation, apprehension, or detention

of those suspected or convicted of federal offenses, even if

the employee’s primary duties consist of non-LEO duties,

such as maintaining law and order or protecting life and

property. The Bremby approach, the government argues,

ignored the first criterion of 5 C.E.R. §§ 831.902, 842.802,

which defined the term “primary duties” to require an

assessment of the “basic reasons for the existence of the

position.” 5 C.F.R §§ 831.902, 842.802.

1. Consistency with Statutes and Regulations

_ We hold that the approach used by the Board in this case

is indeed consistent with the statutory and regulatory criteria

for LEO retirement credit. The express language of the

regulations promulgated under the CSRS and FERS statutes

provides support for considering the reason for the position’s

“existence” as part of the LEO-eligibility analysis. A LEO is

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defined in both the CSRS and the FERS statutes as one “the

duties of whose position” are “primarily” the “investigation,

apprehension, or detention” of those suspected or convicted

of federal offenses. 5 U.S.C. §§ 8331(20), 8401(17)

(emphasis added). Thus, under the statutes, an employee may

only receive LEO retirement credit if the position he or she

occupies primarily involves certain specified duties.

Moreover, the Board’s approach is consistent with OPM

regulations. The inclusion of the conjunctive “and” in

sections 831.902 and 842.802 clearly indicates that all three

criteria must be demonstrated in order for a position to be

LEO-eligible. The 6 factor Bingaman test only considered

prongs (ii) and (iii) to determine whether the officers’ duties

occupied a “substantial portion” of their working time (prong

(ii)), and were assigned on a “regular and recurring basis

(prong (iii)).”> The approach used by the Board here

affirmatively involves consideration of prong (i) of sections

831.902 and 842.802 so as to ensure that in addition to

consisting of duties that occupy a substantial portion, if not

50 percent or more, of the officer’s working time and that

occurred on a regular and recurring basis, the position exists

currently as a LEO position.

3. Under the six Bingaman factors, an LEO “commonly 1) has

frequent direct contact with criminal suspects; 2) is authorized to

carry a firearm; 3) interrogates witnesses and suspects, giving

Miranda warnings when appropriate; 4) works for long periods

without a break; 5) is on call 24 hours a day; and 6) is required to

maintain a level of physical fitness.” Bingaman, 127 F.3d at 1436

(citing Hobbs v. Office of Pers. Mgmt., 58 M.S.P.R. 628 (1993)).

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Placing emphasis on why the position exists is also

consistent with the legislative intent in providing for the LEO

retirement program: to limit LEO-eligibility to rigorous

positions that retirement at an unusually early age is

appropriate. A Senate Report stated that LEO positions should

be “composed, insofar as possible of young men and women

physically capable of meeting the vigorous demands of

occupations which are far more taxing physically than most

in the federal service.” S. Rep. No. 93-948, at 2 (1974),

reprinted in 1974 U.S.C.C.A.N. 3698, 3699. Accordingly,

Congress established maximum retirement ages for LEO

employees such as FBI Special Agents and for employees

serving in other positions which are statutorily entitled to

LEO retirement coverage. See 5 U.S.C. §§ 8335, 8425. LEO

employees, for instance, are often required to retire no later

than between 55 and 57 years of age, or when they have

accrued twenty years of creditable service if they are beyond

those ages when they completed the twenty years. See id.

Congress further has authorized an agency head to determine

and fix minimum and maximum limits of age within which

an original appointment may be made to a LEO position.

See 5 U.S.C. § 3307(e) (1994). For instance, all Department

of Justice LEO positions have a maximum entry age of 37,

which may be waived for applicants up to 40 years of age. In

assessing why the position exists, factors such as an early

mandatory retirement age and a maximum entry age should

be considered in determining whether the “basic reasons for

the existence of the position” consists of duties that will make

the employee LEO-eligible. Examination of such factors will

be quite probative in determining whether the position really

exists as a LEO position, that is, its job description and actual

duties consist of tasks that only a young and physically fit

individual could perform.

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The dissent concludes that the Board improperly “treated

the purpose of the ‘existence’ of the position . . . as turning

on the basic reasons for the position’s ‘creation.’ * Although

in several places, including the concluding paragraph, the

Board’s opinion misstates the law as requiring that the

position be “created” primarily for the performance of LEO

duties, the Board’s examination of the duties actually

performed by the officers demonstrates that it knew it had to

determine the reasons why the position existed at the time of

application for LEO credit, not merely when it was originally

created. As noted by the dissent, early in its opinion, the Board

stated that under its new, position-oriented approach, “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.” Watson, 86

M.S.P.R. at 321. Significantly, however, the Board did not

stop there. It went on to state in the very next sentence:

This is not to say that the Board will not consider

evidence of what duties the appellants performed

from day-to-day in the GS-083 Police Officer

position. Rather, the Board will consider that

evidence, along with all of the other evidence of

record, to ascertain whether the appellant is

entitled to LEO retirement coverage.

4. The dissent believes that the Board looked exclusively at

why the position was created. The dissent states, “the reasons for the

existence of the position cannot be based solely upon the historical

reasons for the creation.” This premise is crucial to the dissent’s

conclusion that the Board applied the wrong legal standard.

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Id. This statement indicates that the Board knew that even if

the official documentation of the position’s creation did not

support an applicant’s LEO eligibility, the Board still needed

to inquire into the applicant’s actual duties as alleged.

Moreover, in describing why it was departing from the

Bremby approach, the Board specifically noted that its new

approach would “more affirmatively take into account the

basic reasons for the existence of the position.” Jd. (emphases

added).

The Board’s approach included consideration of both the

position documentation and actual duties. First, the Board

determined the purpose for the creation of the officers’

position in the GS-083 series. Jd. This is an altogether logical

and proper place to begin. In doing so, it considered the OPM

Classification Standards, the OPM Guide, and the Position

Description. /d. at 323-26. It found that, as created, the

position was not LEO-eligible. Jd. at 326. The Board next

determined whether the purpose for the position changed,

i.e., whether the purpose for the position’s existence was

different than the purpose for its creation. Jd. at 321. In doing

so, it considered — in equivalent detail and at an equivalent

length of its treatment of position documents — the testimony

regarding the officers’ actual, day-to-day duties. Jd. It found

that the basic reasons for the position’s existence were not

different from those for its creation, and thus, that the officers

were not LEO-eligible. /d. at 328. This second step was also

proper and necessary, as the Board clearly understood. In

concluding its analysis, the Board stated: “While an

incumbent’s actual duties are relevant ... the evidence of

the actual duties performed in these cases does not persuade

us that — contrary to the official documentation of the

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position — ‘the basic reasons for the existence of the position’

was [sic] actually investigatio:, apprehension, or detention.”

Id. If the Board believed that eligibility for LEO retirement

credit is determined solely by the reasons for the position’s

creation, it would not need to consider, much less devote

equivalent treatment to, the testimony regarding the officers’

day-to-day duties. Nor did it consider actual duties only as

an alternative ground for decision. Indeed, the Board

specifically noted that its new position-oriented approach did

not foreclose other officers in the GS-083 series from

showing that the basic reasons for the existence of their

positions had shifted from peace-keeping to the investigation,

apprehension, or detention of criminals or suspects. /d. at

330 n.7.

We note that footnote 7 of the Board’s opinion, like the

concluding paragraph, incorrectly states the law as requiring

that applicants “must show that the position was created as

an LEO-position.” Jd. However, the portion of the Board’s

opinion explaining its analysis reflects that it correctly

understood that the reasons for the position’s existence, not

merely its creation, are determinative. Such reasons could

be shown by proof that the duties an employee performs day-

to-day differ from those of the OPM classification standards,

the OPM Guide, or the Position Description. Jd. at 321;

see also Ellis v. United States, 610 F.2d 760 (Ct. Cl. 1979)

(finding that the duties actually performed by the officer were

not properly set forth in their position description, and thus

granting a retirement annuity under 5 U.S.C. § 8331(21)).

By providing this alternative way to show entitlement to LEO

credit, the Board necessarily concluded that the reasons for

the existence of the position can be established not only by

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the position papers but also by actual duties performed. Thus,

contrary to the dissent’s suggestion, we conclude that the

Board applied the correct legal standard. The Board’s analysis

properly included the reasons for the position’s existence,

and not merely its creation.

2. Consistency with Bingaman

The Board’s approach is also wholly consistent with the

approach taken by this court in Bingaman. Petitioners seem

to read Bingaman to require a rigid, bright-line test based on

the six factors of the Board’s decision. Petitioners also argue

that other factors-such as whether the officers’ duties are

commensurate with Norfolk City police officers — should

be considered as well. This court, however, has never adopted

the Bingaman factors; nor has the court held that federal

employees are always entitled to LEO coverage so long as

they satisfy the Bingaman factors. Indeed, as noted in

Bingaman and Hannon v. Department of Justice, 234 F.3d

674 (Fed. Cir. 2000), the Bingaman factors were developed

by the Board, not by this court as “captur[ing] the essence of

what Congress intended.” Bingaman, 127 F.3d at 1436;

Hannon, 234 F.3d at 677-78 (noting that in Bingaman, this

court “merely recognized and applied the [Bingaman]

factors,” factors which had been “developed” by “the Board,

not this court”). In examining the duties performed by these

petitioners, the Bingaman court only addressed prongs (ii)

and (iii) of 5 C.F.R. §§ 831.902, 842.802. Bingaman, 127

F.3d at 1436 (“Applying [the Bingaman factors], the [AJ]

properly found that Bingaman failed to establish that he is

eligible for LEO retirement credit.”). The court did not need

to consider prong (i) of the test — examining the basic

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reasons for the existence of the position — because the court

found that the petitioners had failed to meet their burden of

proof regarding the second and third prongs of 5 C.F.R.

§§ 831.902, 842.802.

Moreover, some of the most probative factors are not

even a part of the six-factor Bingaman test. Hannon, 234

F.3d at 678. For instance, in Hannon, this court held that the

Board should consider hazard as a probative factor in

assessing LEO retirement coverage. Jd. at 679 (“The Board

has recognized ... that hazard is a significant element of

law enforcement work.”). Moreover, in light of evident

legislative intent to grant LEO credit only to those who have

jobs requiring physically demanding work, other factors, such

as whether the officer must retire at an early age or whether

there is an early maximum entry age, would also be highly

probative in determining whether the officer is entitled to

LEO retirement credit. Indeed, while all of the Bingaman

factors may always be considered, some are more probative

than others. For example, whether the job requires an annual

physical fitness test may be probative in assessing whether

the position is designed to be limited to young and physically

fit individuals who would be forced to retire at an unusually

- early age, depending on the stringency of the test. Other

Bingaman factors, however, are normally less probative

because they do not always distinguish between officers who

do LEO work and those who do not. For example, guards

mainly protecting life and property and police officers whose

jobs primarily involve pursuing or detaining criminals all

might carry a firearm, be on call 24 hours a day, or have to

work long periods without taking a break. The regulations,

however, specifically exclude guards who mainly protect life

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and property from LEO retirement coverage. See 5 C.F.R.

§§ 831.902, 842.802. Other factors, proposed by petitioners,

have little relevance. For instance, that petitioners’ positions

are equivalent to those of Norfolk City police officers has

little probative vu ue because not all Norfolk City police

officers would be entitled to LEO credit if they were

federal employees. _

C. Determining LEO Eligibility for these Norfolk Naval

Base Police Officers :

In this case, the Board held that petitioners’ applications

for LEO retirement credit were properly denied, because the

relevant evidence of record (including OPM classification

standards, the OPM Guide, the Position Description, and the

testimony detailing the officers’ daily or frequent duties) did

not show that the GS-083 police officer position was “created

for the basic reason” of conducting LEO activities.’ Watson,

86 M.S.P.R. at 328-29. The Board’s review of the “primary

duties” of the officers as detailed in official documentation

and in their testimony before the AJ, and the fact that the

5. Under the FERS statute, the duties of the position must be

“sufficiently rigorous that employment opportunities are required to

be limited to young and physically vigorous individuals.” 5 U.S.C.

§ 8401(17)(A)(ii). The Board noted that because the evidence showed

that the duties of the Norfolk Naval Base police officers were not

primarily the investigation, apprehension, or detention of persons

convicted or suspected of criminal offenses, it need not consider

whether the duties of the Watson petitioners met the “sufficiently

rigorous” requirement under the FERS. Watson, 86 M.S.P.R. at 321

n.2. We see no error in this approach, which, we note, has the virtue

of judicial efficiency.

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officers’ positions were neither limited by an early mandatory

retirement age nor a youthful maximum entry age all support

the Board’s conclusion that these Norfolk Naval Base police

officers are not entitled to LEO retirement credit.

In order to determine that an officer is entitled to LEO

retirement credit, the officer must show that the primary

duties of his or her position, as defined by 5 C.F.R.

§§ 831.902, 842.802, are the investigation, apprehension, and

detention of criminals or suspects. The most probative

factors, we hold, are: 1) whether the officers are merely

guarding life and property or whether the officers are instead

more frequently pursuing or detaining criminals; 2) whether

there is an early mandatory retirement age; 3) whether there

is a youthful maximum entry age; 4) whether the job is

physically demanding so as to require a youthful workforce;

and 5) whether the officer is exposed to hazard or danger.

The six Bingaman factors may also be considered as

necessary and appropriate.

Evaluation of those factors in this case supports the

Board’s conclusion that the petitioners’ positions as Norfolk

Naval Base police officers did not exist primarily for the

purpose of investigating, apprehending, or detaining

criminals or suspects. Individuals applying for a position as

a Norfolk Naval Base police officer, unlike LEO

appointments in many other departments, are not required to

retire at an early age; nor are officers required to satisfy

certain maximum entry age requirements. An officer could

conceivably enter the Norfolk Naval Base police force at age

50, and retire at age 70. This hardly seems to be consistent

with awarding LEO retirement credit only for those positions

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which are so physically taxing as to warrant retirement after

20 years of service.

The official documentation of the officers’ position

provides further support that the position was not designed

to be LEO-eligible. The OPM classification standards for

GS-083 officers supports the Board’s conclusion that the

Norfolk Naval Base police officers do not satisfy the

definition of an LEO. The standards state that the “primary

mission and purpose of police organizations is to enforce

law, maintain law and order, preserve the peace, and protect

the life and civil rights of persons.” OPM Classification

Standards for the GS-083 Occupation Series, Occupational

Information at 2-4. The OPM classification standards also

state that “[m]ost police officers are engaged in patrol duties

and/or traffic control.” Jd. Those duties are specifically

designated by the OPM regulations to be non-LEO duties.

5 C.F.R. §§ 831.902, 842.802. The OPM Guide reiterates

the point made by the OPM Classification Standards that

“(t]he primary mission of police officers in the Federal

service is to maintain law and order.” Although noting that

the “distinction between police and guard work may not be

an easy one to make,” the Guide differentiates between police

officers who are eligible for LEO credit and guards who are

not. For instance, the Guide notes that Criminal Investigators

in the GS 1811 series are eligible for LEO credit because the

series consists of “[pJositions primarily responsible for

investigating alleged or suspected major offenses or ©

violations of specialized laws of the United States.” As noted

by the Board, “[t)his clarification sets forth OPM’s view that,

unlike positions in the GS-1811 series, the primary duties of

positions in the GS-083 Police Officer series are not the

20a

Appendix A

investigation or apprehension of persons suspected or

convicted of offenses against the criminal laws of the United

States.” Watson, 86 M.S.P.R. at 325 (emphasis added).

The Position Description also supports the Board’s

conclusion that these Norfolk Naval Base police officers are

not entitled to LEO retirement coverage. The introduction to

the Position Description states that the police officers

“provide[ ] community policing, law enforcement, and

security for the investigation of crimes, [and] protection of

life and property.” The section of the Position Description

entitled “Major Duties and Responsibilities” states that “[t]he

incumbent serves as a Police Officer assigned to a community

policing area.” It then states, inter alia, that the “position

requires an incumbent to perform duties that involve the

investigation, arrest, apprehension or detention of criminals

and/or suspected criminals” (emphasis added); significantly,

however, the Position Description does not state that the

duties are primarily the investigation, apprehension or

detention of criminals and/or suspected criminals. Other

major duties listed in the Position Description include:

1) providing police escorts and directing traffic; 2) serving

warrants and issuing summons; 3) making arrests;

4) testifying in court; 5) reporting unsafe conditions existing

in the streets and/or public facilities; 6) responding to

emergency situations; and 7) conducting preliminary

investigations, such as by interviewing witnesses or

collecting and preserving evidence.

The Board also properly concluded that the testimony

of the officers describing their daily or frequent duties did

not show that the officers were entitled to LEO retirement

21a

Appendix A

coverage. While the officers testified to some instances

involving great danger, the Board concluded that the

testimony as a whole showed that the police officers’ duties

mostly involved being “on the lookout for potential violations

of law, conduct[ing] generalized patrols, guard[ing] the gates,

check[ing] buildings at night to ensure that they were secure,

enforc[ing] traffic laws, and act[ing] as ‘first responders’ to

emergencies or potential crimes.” Jd. at 328. The Board also

considered conflicting evidence as to whether at least

50 percent of the officers’ duties consisted of LEO-type work.

The Board opinion credited the testimony of Police

Commander Hemmingsen, who reviewed the Incident

Complaint Reports to determine whether the officers

performed LEO duties. /d. at 326. Commander Hemmingsen

also testified before the AJ that the Norfolk Naval Base police

officers did not perform LEO-type work at least 50 percent

of the time, as required by sections 831.902 and 842.802.

This contradicted the testimony of petitioners’ witnesses who

testified that their duties were over 50 percent. Substantial

evidence thus supports the Board’s conclusion that the

officers’ primary duties were not LEO duties. Jd. at 328-29.

Indeed, the official documentation of the GS-083 series

indicates that all officers in that series in all departments of

the federal government are presumptively not entitled to LEO

credit. Thus, officers in that series would only be eligible for

LEO credit if they could persuade the agency or Board that

“contrary to the official documentation of the position,” the

duties actually performed by the officers on a regular and

recurring basis clearly indicate that the “basic reasons for

the existence of the position” was the investigation,

apprehension, or detention of criminals or suspects. Jd.

22a

Appendix A

Conclusion

Under a legally correct construction of the statutes and

regulations, a federal police officer seeking LEO early

retirement credit must prove that he or she occupied a position

that primarily required the investigation, apprehension, or

detention of criminals or suspects, rather than merely the

protection of life or property, and that their duties were so

physically demanding as to necessitate his or her retirement

at an unusually early age. The Board held that these Norfolk

Naval Base police officers have not p:oven that their primary

duties nor those of their position involved the investigation,

apprehension, or detention of criminals or suspects. The

Board’s finding is supported by substantial evidence. Further,

the Board’s method of analysis was consistent with the

statutes, the regulations, and the case law. Therefore, the

Board’s decision is

AFFIRMED.

23a

Appendix A

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]Jre 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.” Jd. at 323.

The Board ruled that “[t]he classification standards and

24a

Appendix A

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.” Jd 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.” Jd. 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.” Jd. 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. .. .’

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 NNB was the performance

i

25a

Appendix A

of LEO duties ... any future appellants who encumber or

did encumber this position must show that the position was

created as a LEO position.” /d.

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.

26a

APPENDIX B — OPINION AND ORDER OF THE

UNITED STATES OF AMERICA MERIT SYSTEMS

PROTECTION BOARD DATED JULY 17, 2000

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DOCKET NUMBER

DC-0842-99-0483-I-1

JAMES A. WATSON, ET AL.,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DATE: JUL 17 2000

* es

BEFORE

Beth S. Slavet, Acting Chairman

Susanne T. Marshall, Member

OPINION AND ORDER

41 These cases are before the Board on the agency’s petitions

for review of the September 3, 1999 initial decision in the

Watson consolidation of appeals and the September 17, 1999

27a

Appendix B

initial decision in the Jefferson consolidation of appeals. The

initial decisions in both consolidations awarded law

enforcement officer (LEO) service credit to the appellants.

The Board GRANTS the motion of the appellants in the

Watson and the Jefferson consolidations to consolidate those

groups of cases on petition for review, finding that this would

expedite the processing of the appeals and would not

adversely affect the interests of the parties.' 5 C.F.R.

§ 1201.36. For the reasons stated below, the Board GRANTS

the petitions for review, REVERSES the initial decisions,

and SUSTAINS the agency’s determination that the

appellants are not entitled to LEO service credit.

BACKGROUND

q2 The appellants occupy or had occupied the position of

GS-083 Police Officer, grade leve! GS-05, at the Norfolk,

Virginia, Naval Base (NNB or Base). The appellants in the

Watson consolidation are covered under the Federal

Employees’ Retirement System (FERS), while the appellants

in the Jefferson consolidation are covered under the Civil

Service Retirement System (CSRS). Jefferson Initial Appeal

File (IAF), Tabs 10 and 27. The appellants requested LEO

retirement credit for some or all of the time spent in the

position. After the agency denied the requests, the appellants

filed the instant appeals.

q3 The administrative judge held a single hearing for both

groups of appellants and based his initial decisions on a

common evidentiary record. He found that the appellants are

1. The list of the consolidated appeals is attached to this Order

as an Appendix.

28a

Appendix B

entitled to LEO status. On petition for review, the agency

argues that the primary duties of the position are not ones

entitling the incumbents to special LEO retirement credit.

ANALYSIS

94 In finding that the appellants are entitled to LEO service

credit, the administrative judge followed the approach set

forth in Bremby v. Department of the Navy, 81 M.S.P.R. 450

(1999). Watson Initial Decision (ID) at 30-35. Under that

approach, even if the incumbent of a Police Officer position

spends the majority of his time patrolling and the evidence

shows that his primary duties involve maintaining law and

order and protecting life and property, he still is entitled to

special LEO retirement credit if he can show that his primary

duties “involve the investigation, apprehension and/or

detention of criminals and/or suspected criminals.” Bremby,

81 M.S.P.R. 4 15. That statement suggests that even if the

primary duties of the GS-083 Police Officer position consist

of non-LEO duties, namely, maintaining law and order and

protecting life and property, the incumbents of the position

are nonetheless entitled to LEO credit if their primary duties

“involve,” to some unspecified degree, LEO duties.

Moreover, the Bremby approach requires the fact-finder to

focus on the incidents and events encountered by the

incumbent of the position for certain periods of time to see

if he, as an individual, is entitled to LEO service credit, cither

for that period of time or for his entire period of service in

the position (the “incumbent-oriented” approach). /d.,

17 13-18.

29a

Appendix B

95 As discussed in Member Marshall’s dissent in Hamilton

v. Department of Defense, 85 M.S.P.R. 409, 412 (2000)

(Hamilton Dissent), a case which also involved GS-05-083

Police Officers at the NNB, the approach set forth in Bremby

for determining LEO entitlement placed too much emphasis

on the day-to-day duties of a particular incumbent over a

limited period of time. Hamilton Dissent, f] 9-11. For the

reasons stated below, the Board now adopts an approach that

more affirmatively takes into account the basic reasons for

the existence of the position (the “position-oriented”

approach). /d., {] 5-8. Under this approach, 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. This is not to

say that the Board will not consider evidence of what duties

the appellants performed from day-to-day in the GS-083

Police Officer position. Rather, the Board will consider that

evidence, along with all of the other evidence of record, to

ascertain whether the appellant is entitled to LEO retirement

coverage. Accord Ferrier v. Office of Personnel Management,

60 M.S.P.R. 342, 345 (1994) (in determining whether a

position is an LEO position, the Board must examine all

relevant evidence, including the position description),

reconsideration denied, 66 M.S.P.R. 241 (1995).

96 The proper approach to adjudicating claims for LEO

service credit may not have been obvious in earlier cases,

such as Bremby, in part because the evidentiary records in

those cases may not have been fully developed. Indeed, the

agency here argued that the Board’s decision in Bremby was

“grossly inaccurate” in describing the conditions at the NNB

and the primary duties of the GS-083 Police Officer position.

30a

Appendix B

Hearing Transcript (Tr.) at 258. However, the voluminous

evidence presented in these appeals covers the creation of

the Police Officer position and its classification in the

GS-083 series, the way security is handled at the NNB, the

division of the Base into patrol areas, and the types of

positions created by the Navy to deal with criminal,

investigative, security, and police matters. Thus, we find it

appropriate in these cases to adopt a more position-oriented

approach to the adjudication of claims for LEO retirement

credit.

The statute and the regulation

q7 “It is axiomatic that statutory interpretation begins with

the language of the statute.” VE Holding Corp. v. Johnson

Gas Appliance Co., 917 F.2d 1574, 1579 (Fed. Cir. 1990),

citing Mallard v. U.S. District Court for the Southern District

of Iowa, 490 U.S. 296, 300, 109 S. Ct. 1814, 1818 (1989).

“If .. . the language of the statute is clear and fits the case,

the plain meaning of the statute will be regarded as

conclusive.” Jd. (citations omitted).

98 In relevant part, the FERS statute at 5 U.S.C.

§ 8401(17)(A) defines a “law enforcement officer” for

retirement purposes as —

(A) an employee, the duties of whose position —

(i) are primarily —

(I) the investigation, appre-

hension, or detention of

3la

Appendix B

individuals suspected or

convicted of offenses against

the criminal laws of the

United States ....

The CSRS statute at 5 U.S.C. § 8331(20) contains identical

language.”

q9 Both the FERS and the CSRS statutes give OPM the

authority to “prescribe regulations to carry out the provisions

of [the statute] administered by [OPM].” 5 U.S.C. §§ 8347(a)

and 8461(b). OPM’s interpretation of statutes which Congress

charges it to administer, such as the retirement statute here,

is normally entitled to great deference. Newman v. Love, 962

F.2d 1008, 1012 (Fed. Cir. 1992).

410 OPM’s FERS regulation at 5 C.F.R. § 842.802 defines

“primary duties” for purposes of LEO retirement credit

as —

2. The FERS statute additionally requires that the duties of the

position be “sufficiently rigorous that employment opportunities are

required to be limited to young and physically vigorous individuals.”

5 U.S.C. § 8401(17)(A){ii). Because the evidence shows that the

duties of the GS-083 Police Officer position are not primarily the

investigation, apprehension, or detention of persons convicted or

suspected of federal offenses, the Board need not consider whether

the “sufficiently rigorous” requirement is met for the Watson

appellants, who are under FERS. Thus, the CSRS and FERS statutes

are the same for purposes of this analysis.

32a

Appendix B

those duties of a position that —

(a) Are paramount in influence or weight; that

is, constitute the basic reasons for the existence

of the position;

(b) Occupy a substantial portion of the

individual’s working time over a typical work

cycle; and

(c) Are assigned on a regular and recurring basis.

411 Under the regulations, “duties that are of an emergency,

incidental, or temporary nature cannot be considered

‘primary’ even if they meet the substantial portion of time

criterion.” 5 C.F.R. § 842.802. Further, the regulations state

that the definition of law enforcement officer “does not

include 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.”

Id. OPM’s CSRS regulations contain the same requirements.

5 C.F.R. § 831.902.

412 It is clear from the language of the statute that it is the

“duties of [the] position” that must be examined to determine

whether an employee meets the definition of a “law

enforcement officer.” Thus, under the statute, an employee

may receive LEO credit only if the position he occupies is a

LEO position, that is, a position whose primary duties are

the “investigation, apprehension, or detention of individuals

33a

Appendix B

suspected or convicted of offenses against the criminal laws

of the United States.” OPM’s regulations thus comply with

the legislative mandate for a position-oriented approach in

cases of requests for LEO credit by requiring that the “basic

reasons” for the existence of the position must be the

performance of LEO duties. In these appeals, the parties

submitted extensive argument and evidence regarding certain

on-the-job situations encountered by the appellants during

discrete time periods, and the administrative judge spent a

great deal of effort reviewing that evidence. However,

because the administrative judge followed Bremby, he 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. This approach gave no weight to subsection

(a) of the regulation quoted above. See 5 C.F.R. § 842.802

(defining “primary duties” for purposes of 5 U.S.C.

§ 8401(17)).’

3. As Fitzgerald v. Department of Defense, 80 M.S.P.R. 1

(1998), aff'd, No. 99-3001 (Fed. Cir. Dec. 13, 1999) (Table), Bremby,

Hamilton, and these cases illustrate, appeals involving GS-083 Police

Officers in the Department of Defense reach the Board at different

times, in different legal postures, and with different evidentiary

records. Moreover, in many ways it is happenstance which appeals

involving a position in the same classification series in the same

agency reach the Board first; for instance, the agency may issue final

decisions on the LEO requests of some employees sooner than it

does for others or one administrative judge may adjudicate a case

involving the same position quicker than another administrative judge

might. Consequently, the Board could issue serial opinions which

can, as illustrated by Bremby and these cases, lead to potentially

inconsistent results.

(Cont’d)

34a

Appendix B

The classification standards

413 The agency stated, and the appellants have never

disputed, that the Police Officer position at issue was

classified in the GS-083 occupational series using standards

promulgated by OPM. Watson IAF, Tab 4, Subtab 1. The

agency, again without dispute, quoted the OPM standard for

the GS-083 series as follows:

The primary mission of police officers in the

Federal service is to maintain law and order. In

carrying out this mission, police officers protect

life and property, and the civil rights of

individuals. They prevent, detect, and investigate

violations of laws, rules, and regulations involving

accidents, crimes, and misconduct involving

misdemeanors and felonies. They arrest violators,

assist in the prosecution of criminals, and serve

as a source of assistance to persons in emergency

situations.

(Cont'd)

The Board has a procedure for adjudicating an appeal as a “class

appeal” if the appellants file as representatives of a class of

employees, and the administrative judge finds that “a class appeal is

the fairest and most efficient way to adjudicate the appeal and that

the representative of the parties will adequately protect the interests

of all parties.” 5 C.F.R. § 1201.27(a). Use of the class-appeal

procedure might be the fairest and most efficient way of deciding

the LEO status of a single position, ¢.g., the GS-083 Police Officer

position in the Department of the Navy at the NNB.

35a

Appendix B

Most police officers are engaged in patrol

duties and/or traffic control. In performing patrol

duties, they serve as a deterrent to crime and other

violations of laws, rules, and regulations. Crime

prevention is enhanced by the presence of

uniformed officers in an area and by his [sic] being

continually alert in observing, inspecting, and

investigating circumstances or individuals which

appear unusual and suspicious. Police officers

regulate pedestrian and vehicular traffic; prevent

accidents, congestion, and parking problems; give

warnings; issue citations for traffic violations; and

make arrests if necessary. They conduct

preliminary investigations of crimes, investigate

accidents, dispose of complaints, recover stolen

property, counsel adults and juveniles, and assist

persons needing help. Typically, investigations

that remain incomplete at the end of an assigned

shift are turned over for completion by detectives

or criminal investigators.

Id. (emphasis added), citing OPM Classification Standards

for the GS-083 Occupation Series, Occupational Information

at 2-4.

414 A December 1997 “Grade Evaluation Guide for Police

and Security Guard Positions GS-0083/GS-0085” (the Guide)

published by OPM states that the “primary mission and

purpose” of the Police Officer series, GS-083, is “to enforce

law, maintain law and order, preserve the peace, and protect

the life and civil rights of persons.” Greenfield LAF, Tab 29,

36a

Appendix B

Guide at 2 (emphasis added).* The Guide reiterates at least

once that “(t]he primary mission of police officers in the

Federal service is to maintain law and order.” Id., Guide at 3

(emphasis added). It also says that “[i]n some instances, the

distinction between police and guard work may not be an

easy one to make, because of the similarities between the

two kinds of work.” Jd., Guide at 2. OPM’s Guide explains

to classifiers that positions in the GS-083 Police Officer series

are distinguished from positions in the GS-1811 Criminal

Investigator series in that the latter series consists of

“{p]ositions primarily responsible for investigating alleged

or suspected major offenses or violations of specialized laws

of the United States.” Jd., Guide at 1. This clarification sets

forth OPM’s view that, unlike positions in the GS-1811

series, the primary duties of positions in the GS-083 Police

Officer series are not the investigation or apprehension of

persons suspected or convicted of offenses against the

criminal laws of the United States.

715 The 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. OPM’s classification materials thus

support a finding that the GS-083 Police Officer position

does not meet either the statutory or regulatory definition of

4. The appeal of Greenfield v. Department of the Navy, MSPB

Docket No. DC-0842-99-048 1-I-1, was included in the consolidated

hearing in these cases. ID at 2. We take note of the Guide because it

is in the record accompanying these appeals and because the Board

may take official notice of such documents. See 5 C.F.R. § 1201.64.

The Board is issuing a separate opinion in the Greenfield appeal.

37a

Appendix B

a “law enforcement officer.” The agency’s denial of LEO

status to the appellants is therefore consistent with OPM’s

classification guidance. It is also consistent with Fitzgerald

v. Department of Defense, 80 M.S.P.R. 1 (1998), aff'd,

No. 99-3001 (Fed. Cir. Dec. 13, 1999) (Table), a case in which

the Board sustained the agency’s decision to deny LEO credit

to Police Officers in the Department of the Navy who also

were in the GS-083 classification series.

The position descriptions

416 Position description (PD) No. 6374A covers the

GS-083 Police Officer position, grade level 5, and is the one

under which the appellants in the Watson and Jefferson

consolidations worked. Watson IAF, Tabs 9 and 26; Jefferson

IAF, Tab 6, Subtab 2b. The Introduction to PD No. 6374A

states that the position is in the Community Policing Division,

Security Department, at the NNB, and that the Division

“provides community policing, law enforcement, and security

for the investigation of crimes, protection of life and

property.” It also states that this mission “includes arrest,

apprehension, and detainment of those person(s) suspected

of violations of United States Code, and applicable state

statutes.” Jd. (emphasis added). The section of the PD entitled

“Major Duties and Responsibilities” begins by saying that

“(t]he incumbent serves as a Police Officer assigned to a

community policing area.” It then states that the “position

requires the incumbent to perform police duties that involve

the investigation, arrest, apprehension or detention of

criminals and/or suspected criminals.” Jd. (emphasis added).

That section of the PD goes on to say that the incumbent

“provides police escorts and directs traffic,” “reports unsafe

38a

Appendix B

conditions existing in street or other public facilities,”

responds to emergency situations, and “conducts preliminary

investigations.”

417 The PD shows that while incumbents in the GS-083

Police Officer position were expected to investigate,

apprehend, or detain criminals or suspected criminals as the

need arose, 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.

The PD is therefore consistent with OPM’s classification

guidance.

The duties of GS-083 Police Officers at the NNB

{18 The witnesses, including the appellants who testified,

described the duties of a GS-083 Police Officer at the NNB.

Commander Hemmingsen said that GS-083 Police Officers

can investigate misdemeanors committed in their presence,

traffic violations, and violations of Navy rules or regulations.

Tr. at 1505. Other criminal or suspected criminal activity is

investigated by NCIS. Jd.

419 Appellant Watson stated that he patrols for an 8-hour

shift, either in a car or on foot, “looking for criminal activity”

and traffic violations. Jd. at 690. Appellant Acres said that

when he is patrolling, he is looking for “[a}nything that

happens,” but he declined to say whether he was looking for

any particular criminal or suspected criminal. Jd. at 798.

Commander Hemmingsen averred, without rebuttal, that the

majority of patrols are generalized, that is, done for the

purpose of being visible and responding to crimes in progress,

39a

Appendix B

and that they are not specialized patrols done with the intent

of focusing on a particular problem, criminal, or suspect. /d.

at 1481.

420 Appellant Pennington said that GS-083 Police Officers

act as “first responders” to crime scenes, that is, they render

first-aid or assistance to anyone who is injured, check to see

if any suspects are still in the immediate area, secure the

scene, and gather preliminary information. /d. at 131.

Commander Hemmingsen stated that the officers patrol up

to the perimeter of the Base. Jd. at 1235-36. In addition to

patrolling and responding to emergencies or reports of

criminal activity, the appellants also guard the gates through

which traffic enters the Base.

421 Appellant Pennington acknowledged that he stood guard

duty at the gates 24 hours (3 working days) per week.

Id. 271. Appellant Streat stated that he stands gate duty 2 to

3 times per week. Jd. at 650. In his view, gate duty is LEO

work because each individual who comes through the gate

is a potential suspect. Jd. at 656-57. Commander

Hemmingsen declared that, at the time of the hearing, four

GS-083 Police Officers were assigned to gate duty as their

sole duty. Jd. at 1727-28. Hemmingsen said that the Police

Officers check decals on vehicles entering the NNB and ask

visitors for identification in order to protect the property and

persons on the NMB. Jd. at 1463. GS-083 Police Officers

also check locks and doors on “hot buildings,” that is,

buildings which hold money or classified materials and which

are unoccupied at night. /d. at 1722.

40a

Appendix B

22 In an attempt to prove their entitlement to LEO coverage,

the appellants who testified offered examples of incidents in

which they were involved. Appellant Pennington testified

that he once was shot at by an individual who had been

drinking and was under the influence of marijuana as he

(Pennington) drove by in a marked patrol car. Jd. at 127. He

described talking a sailor out of committing suicide, assisting

persons from a vehicle that had caught fire, tackling a person

who had pulled a gun on him, and writing 600 traffic tickets

in 1997. Id. at 146-47, 154, and 171. Appellant Watson stated

that he used his gun when he saw an individual brandishing

a weapon in front of a restaurant close to one of the Base

gates. Id. at 682. He also discussed finding a gun in a vehicle

that he had stopped and detaining a juvenile who had violated

curfew. Id. at 684-88. To show that the appellants were not

primarily engaged in LEO duties, the agency presented

statistics based on Incident Complaint Reports (ICRs).

423 ICRs are forms that officers complete on “non-routine”

incidents. Jd. at 1367. They include data such as the date,

time, and type of incident, as well as witness statements,

advisement-of-rights forms, and information on whether

drugs or alcohol were involved. Jd. at 1367. In preparing for

these appeals, Commander Hemmingsen located the ICRs

still in existence for the relevant time periods, tried to “get a

feel” for how much time was spent on each incident, looked

at computer-aided dispatch records to help him determine

how much time an officer spent on an incident, and estimated

how much time each task involved in an incident may have

taken, ¢.g., 15 minutes for serving a summons or issuing a

speeding ticket. Jd. at 1381-1422 and 1587-88. He explained

that such estimates were necessary because ICRs do not show

the time actually spent on an activity or incident. Jd. at 1586.

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Appendix B

424 Commander Hemmingsen also looked for information

on the ICRs that might indicate if another officer assisted

and, if so, how much time that officer spent on the matter.

Id. at 1369. However, if the person writing the ICR did not

include the name of any assisting officer, then the assisting

officer was not credited with “LEO work.” Jd. at 1369-70.

425 Commander Hemmingsen stated that older ICRs,

particularly those filed more than 2 years before the hearing,

were not available because they had been destroyed under

recordkeeping disposal schedules or because the statute of

limitations for the alleged crime had expired. Jd. at 1432-33.

He averred that if an officer did not record a task on an ICR,

the officer was not given credit for performing that task. Jd.

at 1679.

426 Commander Hemmingsen excluded from his

calculations periods of time when some of the appellants were

not performing their regular duties at the NNB, for instance,

time when appellant Rowland was on light-duty assignment

5. This opinion refers to the incidents as “LEO work” because

the agency assumed, for purposes of compiling its statistics, that each

ICR documented a duty that fell under the statutory definition of

“law enforcement officer.” However, a number of ICRs document

activity such as response to traffic accidents and issuance of

abandoned vehicle notices and speeding tickets. See, e.g., Watson

IAF, Vol. II, Exs. C, G, and H; Tr. at 1381-1422 and 1587-88. For

purposes of this opinion and in light of the Board’s adoption of a

position-oriented approach to LEO cases, we have not attempted to

sort through the thousands of ICRs to determine which ones describe

or arguably describe the investigation, apprehension, or detention of

criminals or suspected criminals. Instead, this decision simply refers

to the ICRs as documenting alleged “LEO work.”

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Appendix B

and when appellant Carney was detailed to Oceana. Jd. at

1436-37. He also declared that some of the ICRs contained,

in his opinion, tasks that were outside of the scope of

employment, for example, taking photographs of a crime

scene with a private camera, searching for a missing child at

an off-site supermarket, questioning civilian desk clerks off

Base, and breaking up a fight at a bar that was not on the

Base. Id. at 1443-52. He therefore did not consider those

activities to be “LEO work.” Jd.

Discussion of the evidence and findings

427 OPM’s classification standards and guidance show that

the GS-083 Police Officer position is not one whose duties

are primarily the investigation, apprehension, or detention

of criminals or suspected criminals. The PD for the GS-083

Police Officer position, which follows OPM’s classification

standards and guidance, is in accord. Weighed together with

the evidence showing that the GS-083 Police Officer position

at the NNB was not created as an LEO position is testimony

that persons encumbering that position at the NNB were oi:

the lookout for potential violations of law, conducted

generalized patrols, guarded the gates, checked buildings at

night to ensure that they were secure, enforced traffic laws,

and acted as “first responders” to emergencies or potential

crimes. None of these duties individually or collectively show

that the GS-083 Police Officer position was created for the

basic reason of investigating, apprehending, or detaining

known criminals or suspects. While an incumbent’s actual

duties are relevant under subsections (b) & (c) of OPM’s

regulation defining “primary duties” for purposes of 5 U.S.C.

§ 8401(17), see 5 C.F.R. § 842.802, the evidence of the actual

duties performed in these cases does not persuade us that —

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Appendix B

contrary to the official documentation of the position — “the

basic reasons for the existence of the position” was actually

investigation, apprehension, or detention.

428 The agency representative said that “no one is arguing

that the GS-083 police officers are not real police officers.”

Id. at 1610. Rather, she stated that the “question is one of

whether or not their primary duties consist of investigation,

apprehension or detention cf [criminals] or people suspected

of crimes, or whether or not they are primarily responsible

for maintaining law and order, for which specifically LEO

status is not authorized.” Tr. at 1610-11. Along those same

lines, the Board wishes to make clear that by denying the

appellants LEO status, it is in no way implying that they do

not face danger, do not perform police duties, and do not

make an important contribution to the security of the NNB.

Rather, their requests must be denied because their primary

duties of maintaining law and order, protecting life and

property, and guarding against potential violations of law do

not meet the statutory definition of “law enforcement officer.”

See Ryan v. Merit Systems Protection Board, 779 F.2d 669,

672 (Fed. Cir. 1985) (definition of “law enforcement officer”

is to be “strictly construed” by the Board); Morgan v. Office

of Personnel Management, 773 F.2d 282, 286-87 (Fed. Cir.

1985) (statutory term “law enforcement officer” should not

be given expansive application). We therefore sustain the

agency’s decision that the appellants are not entitled to LEO

service credit for any period of time that they occupied the

GS-083 Police Officer position at the NNB.°

6. Although not argued by the parties, we note that the approach

we adopt today is not precluded by precedent of the Federal Circuit.

(Cont’d)

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ORDER

429 For the reasons stated above, we find that the appellants

are not entitled to LEO service credit because the GS-05-

(Cont’d)

In Bingaman v. Department of the Treasury, 127 F.3d 1431 (Fed.

Cir. 1997), the evidence showed that OPM at first informed Mr.

Bingaman that, in view of a Board decision in favor of an employee

in Peek v. Office of Personnel Management, 63 M.S.P.R. 430 (1994),

aff'd, 59 F.3d 181 (Fed. Cir. 1995) (Table), he would be given LEO

credit to the date he ceased to encumber his position. 127 F.3d at

1438. This would be consistent with the position-oriented approach.

OPM subsequently sent Mr. Bingaman a revised letter stating that if

he wished LEO credit for the future, he would have to make annual

requests for as long as he remained in his position. Jd. Regarding the

revised letter, the court noted an administrative judge’s finding that

OPM’s regulation at 5 C.F.R. § 831.906(e) required Bingaman to

make an annual application for LEO retirement credit covering the

immediately preceding year. 127 F.3d at 1438.

There is no explanation, other than the reference to the

regulation, as to why OPM changed its mind and required Mr.

Bingaman to submit yearly requests for LEO credit. The regulation

cited by the administrative judge does not require annual requests

for LEO service credit; rather, it states that a CSRS employee can

receive no more than 1 year’s retroactive LEO service credit if he

files a late request for such credit, absent a finding by the agency

under 5 C.F.R. § 831.906(f) that he was prevented by circumstances

beyond his control from making a timely request. The regulation does

not require employees in LEO positions to file yearly “accountings”

with OPM. The fact that an administrative judge apparently

misconstrued a regulation and the court did not need to reach the

issue because it denied Mr. Bingaman’s request for LEO credit on

the merits, provides no basis to reject a position-oriented approach,

which is firmly grounded in the language of the statute and OPM’s

regulations at 5 C.F.R. §§ 831.902 and 842.802.

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Appendix B

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.’

430 This is the final decision of the Merit Systems Protection

Board in these appeals. Title 5 of the Code of Federal

Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).

* * * *

7. Inso finding, we note that 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 of the GS-05-083 Police

Officer position at the NNB was the performance of LEO duties. See

Kroeger v. U.S. Postal Service, 865 F.2d 235, 239 (Fed. Cir. 1988)

(collateral estoppel, or issue preclusion, is appropriate when, among

other things, the party precluded was fully represented in the prior

action). However, any future appellants who encumber or did

encumber this position must show that the position was created as a

LEO position, not merely that from time to time they themselves

may have performed some LEO duties or that the position “involves,”

to some extent, LEO duties.