                       NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit


                                       2007-3077



                          FRANCIS EDWARD MCGUIRE, JR.,

                                                            Petitioner,

                                            v.


                      DEPARTMENT OF HOMELAND SECURITY,

                                                            Respondent.


      Francis Edward McGuire, Jr., of St. Simons, Georgia, pro se.

       Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on the
brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and
Kathryn A. Bleecker, Assistant Director. Of counsel on the brief was Margaret Wright,
Office of Chief Counsel, Federal Law Enforcement Training Center, United States
Department of Homeland Security.

Appealed from: United States Merit Systems Protection Board
                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2007-3077

                        FRANCIS EDWARD MCGUIRE, JR.,

                                                    Petitioner,

                                         v.

                    DEPARTMENT OF HOMELAND SECURITY,

                                                    Respondent.

                          ___________________________

                          DECIDED: July 11, 2007
                          ___________________________

Before MAYER, RADER, and MOORE, Circuit Judges.

PER CURIAM.

       The Merit Systems Protection Board ("Board") affirmed the decision of the

Federal Law Enforcement Training Center ("FLETC") denying Mr. Francis E. McGuire,

Jr. secondary Law Enforcement Officer ("LEO") retirement credit. Francis E. McGuire,

Jr. v. Department of Homeland Security, MSPB Docket No. AT-0831-06-0472-I-1 (Initial

Decision, July 19, 2006; Final Decision, October 19, 2006).       Because the Board

properly found that Mr. McGuire did not serve in a primary LEO position, this court

affirms.

                                          I

       Mr. McGuire claims secondary LEO retirement credit for the years he worked at

the FLETC. Title 5 provides secondary LEO credit only to employees that have first

worked in a primary LEO position. 5 U.S.C. § 8401(17).
       Mr. McGuire worked for the United States Capitol Police ("USCP") between 1984

and 1993. On January 9, 1993, he transferred to the FLETC without a break in service.

In 1999, Mr. McGuire applied for secondary LEO retirement credit based on his service

at the FLETC. The FLETC approved his application in 2002. In 2006, however, the

FLETC notified Mr. McGuire that the 2002 approval was in error because he was

ineligible for secondary LEO credit. Mr. McGuire subsequently appealed to the Board

and then to this court.

       The Federal Employees’ Retirement System ("FERS") grants enhanced

retirement benefits to employees who qualify as LEOs.          5 U.S.C. § 8412(d)(2).

Employees that complete at least three years in a primary LEO position receive a

continued accrual of credit toward enhanced benefits after transferring to a secondary

LEO position. 5 U.S.C. § 8401(17)(C). Primary LEO positions are individuals with

primary duties including "the investigation, apprehension, or detention of individuals

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

"the protection of officials of the United States against threats to personal safety." 5

U.S.C. § 8401(17)(A)(i)(I)-(II). Secondary LEO status may apply to supervisory and

administrative positions. 5 U.S.C. § 8401.

       Even though Mr. McGuire’s duties as a capitol police officer included "the

protection of officials of the United States," Mr. McGuire’s work as a member of the

USCP does not qualify for primary LEO retirement credit.        This court’s holding in

Poillucci v. Department of Justice, 459 F.3d 1351 (Fed. Cir. 2006) thus controls this

case. In Poillucci, a former member of the USCP claimed secondary LEO credit from

the FLETC, just as Mr. McGuire does now.             This court affirmed the Board’s




2007-3077                                    2
interpretation of 5 U.S.C. § 8412(d) that "member[s] of the Capitol Police" are treated

differently from other statutory "law enforcement officers." Poillucci, 459 F.3d at 1353-

54.

      Although members of the USCP receive some enhanced retirement benefits in 5

U.S.C. § 8412(d)(2), those benefits are distinct from statutory LEO employees. Id. at

1354. The Capitol Police Retirement Act ("CPRA") of 1990 added the explicit category

for "member[s] of the Capitol Police" precisely because USCP employees did not

receive LEO credit or LEO classification under § 8412(d).    See id.; Pub.L. 101-428, §

3(a), Oct. 15, 1990, 104 Stat. 929. The CPRA did not alter the definition of a "law

enforcement officer" to include USCP employees and thus USCP employees do not

gain LEO status.    Poillucci, 459 F.3d at 1353-54.      As Poillucci makes clear, the

definition of a LEO in 5 U.S.C. § 8401(17) does not apply to members of the Capitol

Police. Thus, a USCP employee does not qualify as a primary LEO employee.

      Mr. McGuire claims that, unlike the petitioner in Poillucci, he followed the Office

of Personnel Management ("OPM") Individual Service Credit process and provided

convincing evidence that his duties as a member of the USCP fell within the statutory

definition of a LEO employee. Neither of these arguments effectively distinguishes Mr.

McGuire’s case from Poillucci. Although Mr. McGuire followed the OPM process, he

still cannot receive benefits that are not authorized by statute. See Office of Personnel

Management v. Richmond, 496 U.S. 414, 425-27 (1990). Poillucci makes clear that,

despite the nature of Mr. McGuire’s actual duties, the LEO definition in 5 U.S.C. §

8401(17) does not apply to USCP employees. 459 F.3d at 1353-54.




2007-3077                                  3
      Because Mr. McGuire’s service with the USCP did not qualify for primary LEO

credit, he cannot receive secondary LEO credit based on his service with the FLETC.

      For the above reasons, this court affirms the decision of the Board.




2007-3077                                  4
