Kelly Jay Smith v. Department of the Army ( 2016 )

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
3
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).
4
¶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.
5
¶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.
6
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
7
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.