                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     SUSAN FITZGERALD,                               DOCKET NUMBER
                  Appellant,                         AT-0831-14-0684-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: April 2, 2015
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Susan FitzGerald, Hortense, Georgia, pro se.

           Virginia Clay, Esquire, Glynco, Georgia, 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
     affirmed the agency’s decision denying her request for secondary Customs and
     Border Protection Officer (CBPO) retirement credit for her service in various
     Instructor positions at the Federal Law Enforcement Training Center (FLETC).


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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 the facts of the case; the 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, and based on the
     following points and authorities, 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        The appellant has asked the Board to review the agency’s decision to deny
     her request for secondary CBPO retirement credit under the Federal Employees’
     Retirement System (FERS). Initial Appeal File (IAF), Tab 1. She served as an
     Immigration Inspector (GS-1816 series) from August 2, 1987, through July 2,
     1988, in the Immigration and Naturalization Service, Department of Justice, and
     as a Customs Inspector (GS-1890 series) with the Customs Service, Department
     of the Treasury, from July 3, 1988, through May 6, 2000. IAF, Tab 3, Subtab D
     at 19, 40-43, 48-50.     Since May 7, 2000, she has served in various Law
     Enforcement     Specialist    (Instructor)    positions    (GS-1801     series)    at
     FLETC. Id. at 1-19. The appellant requested coverage for any benefits to which
     she might be entitled under the Consolidated Appropriations Act of 2008. Id.,
     Subtab C; see Consolidated Appropriations Act of 2008, Pub. L. No. 110-161,
     § 535(b)(1)(C), 121 Stat. 1844, 2076 (2007) (codified at 5 U.S.C. § 8401(36))
     (hereinafter “Consolidated Appropriations Act”).          C.C., Executive Director,
     Human Resources Operations, Programs, and Policy Division, responded to the
                                                                                         3

     appellant’s request, stating that the agency was unable to grant it. IAF, Tab 3,
     Subtab B. C.C. explained that the agency denied her claims for CBPO-related
     service performed before July 6, 2008, as well as any related request to
     retroactively adjust her retirement contributions. Id. After the appellant received
     the agency decision, she sent an email message to D.C., Director of Positions
     Management and Classifications, Office of Human Resources Management,
     asserting that the agency had failed to address her request for coverage for service
     from July 6, 2008, forward. Id., Subtab I. C.C. reiterated the agency’s denial of
     the appellant’s request and advised her that she had Board appeal rights. Id.,
     Subtab J. The appellant filed this appeal, IAF, Tab 1, and after a hearing, the
     administrative judge issued an initial decision affirming the agency’s decision,
     IAF, Tab 14, Initial Decision (ID). On review, the appellant generally asserts that
     the appeal was wrongly decided. Petition for Review (PFR) File, Tab 1.
¶3        Federal civil service retirement laws extend enhanced benefits to persons,
     such as law enforcement officers and firefighters, who have served in physically
     rigorous positions. Section 535 of the Consolidated Appropriations Act extends
     these benefits to CBPOs. Because enhanced benefits are more costly and may
     result in the untimely retirement of valuable employees, the eligibility rules
     governing coverage for the benefits are strictly construed.           See Kroll v.
     Department of Homeland Security, 121 M.S.P.R. 526, ¶ 6 (2014). An employee
     seeking enhanced retirement benefits bears the burden of proving her entitlement
     thereto by preponderant evidence. Id. (citing Olszak v. Department of Homeland
     Security, 117 M.S.P.R. 75, ¶ 5 (2011), aff’d, 475 F. App’x 757 (Fed. Cir. 2012)).
¶4        Under the eligibility rules, primary covered positions are those in the
     GS-1895 job series or in any predecessor positions “whose duties include
     activities relating to the arrival and departure of persons, conveyances, and
     merchandise at ports of entry, including any such employee who is transferred
     directly to a supervisory or administrative position in the Department of
     Homeland Security.” 5 U.S.C. § 8401(36); see 5 C.F.R. § 842.1002.
                                                                                     4

¶5         Employees who transfer from primary covered positions to supervisory or
     administrative positions in the same occupations are also eligible for enhanced
     retirement coverage. Such supervisory and administrative positions are deemed
     covered     secondary      positions.    Fritts   v.   Department   of   Homeland
     Security, 102 M.S.P.R. 265, ¶ 6 (2006) (citing Morgan v. Office of Personnel
     Management, 773 F.2d 282, 283 (Fed. Cir. 1985)).            Under the regulations
     promulgated by the Office of Personnel Management (OPM) covering FERS, a
     secondary covered position is a position within the Department of Homeland
     Security that is either:
            (1) Supervisory; i.e., a position whose primary duties are as a
            first-level supervisor of customs and border protection officers in
            primary positions; or
            (2) Administrative; i.e., an executive, managerial, technical,
            semiprofessional, or professional position for which experience in a
            primary customs and border protection officer position is a
            prerequisite.
     5 C.F.R. § 842.1002.       In order to qualify for credit for service in a primary
     covered position after transferring into a secondary covered position, the
     employee’s service in the secondary covered position must meet the following
     criteria:
            (1) The employee, while covered under the provisions of 5 U.S.C.
            8412(d) as a customs and border protection officer, is transferred
            directly (i.e., without a break in service exceeding 3 days) from a
            primary position to a secondary position; and
            (2) The employee has completed 3 years of service in a primary
            position, including service for which no FERS deductions were
            withheld; and
            (3) If applicable, the employee has been continuously employed in
            secondary positions since transferring from a primary position
            without a break in service exceeding 3 days, except that a break in
            employment in secondary positions which begins with an involuntary
            separation (not for cause), within the meaning of 8414(b)(1)(A), is
            not considered in determining whether the service in secondary
            positions is continuous for this purpose.
                                                                                       5

     5 C.F.R. § 842.1003(b).
¶6        The amendments to the federal retirement statutes enacted under the
     Consolidated Appropriations Act took effect on July 6, 2008.            § 535(e)(1).
     Regarding CBPO service performed before the effective date, the Act provides:
           (i) GENERAL RULE.—Except as provided in clause (ii), nothing in
           this section or any amendment made by this section shall be
           considered to apply with respect to any service performed as a
           customs and border protection officer before the effective date under
           paragraph (1).
           (ii) EXCEPTION.—Service described in section 8331(31) or
           8401(36) of title 5, United States Code (as amended by this section)
           rendered before the effective date under paragraph (1) may be taken
           into account to determine if an individual who is serving on or after
           such effective date then qualifies as a customs and border protection
           officer by virtue of holding a supervisory or administrative position
           in the Department of Homeland Security.
     § 535(e)(2)(B). If an individual was serving as a CBPO on July 6, 2008, pursuant
     to an appointment made before that date, his FERS annuity for service performed
     on or after that date must be at least equal to the amount that would be payable by
     applying 5 U.S.C. § 8415(d). 2 § 535(e)(2)(C).
¶7        For periods of service before September 1, 2007, OPM’s regulations define
     a primary covered position as:
           (i) A position whose duties included the performance of work
           directly connected with activities relating to the arrival and departure
           of persons, conveyances, and merchandise at ports of entry that was
           classified within the Immigration Inspector Series (GS-1816),
           Customs Inspector Series (GS-1890), Canine Enforcement Officer
           Series (GS-1801), or any other series which the agency head
           determines were predecessor series to the Customs and Border
           Protection Series (GS-1895), and that would have been classified
           under the GS-1895 series had it then existed; and
           (ii) A position within the Customs and Border Protection Series
           (GS-1895) whose duties included the performance of work directly

     2
       Section 8415(d) governs annuity computation for employees retiring under the
     enhanced retirement provisions of FERS.
                                                                                           6

           connected with activities relating to the arrival and departure of
           persons, conveyances, and merchandise at ports of entry.
     5 C.F.R. § 842.1003(c)(1). The regulations define a secondary position as:
           (i) A first-level supervisor of an employee in a position described at
           paragraph (c)(1)(i) or (c)(1)(ii) of this section; or
           (ii) A[n] executive, managerial, technical, semiprofessional, or
           professional position for which experience in a position described at
           paragraph (c)(1)(i) or (c)(1)(ii) of this section is a mandatory
           prerequisite.
     5 C.F.R. § 842.1003(c)(2).
¶8         Based on the rules set forth above, the administrative judge found that the
     appellant’s service as an Immigration Inspector in the GS-1816 series from
     August 2, 1987, through July 2, 1988, and as a Customs Inspector in the GS-1890
     series, from July 3, 1988, through May 6, 2000, would comprise the requisite
     3 years of service in a primary covered position that she would have needed to
     accrue prior to transfer to a secondary covered position. ID at 6; see IAF, Tab 3,
     Subtab D at 19; see also 5 C.F.R. § 842.1003(b)(2).           She transferred to the
     instructor position in May 2000 without a break in service.          See IAF, Tab 3,
     Subtab D at 19; see also 5 C.F.R. § 842.1003(b)(1).
¶9         The preponderance of the evidence, however, does not establish that the
     appellant’s May 2000 transfer was to a position that met the definition of a
     secondary covered position set forth in 5 C.F.R. § 842.1003(c)(2). The appellant
     was not a first-level supervisor pursuant to the definition.            See 5 C.F.R.
     § 842.1003(c)(2)(i). As the administrative judge noted, see ID at 6-7, the record
     is unclear regarding which position description in the record applied to the
     position to which she transferred. 3 The two position descriptions in the record are


     3
       The appellant asserted that the position fell under position description # 13544, IAF,
     Tab 4 at 4; see id., Subtab 1, whereas the agency stated that position description
     # 13742 was instead applicable, IAF, Tab 3 at 6; see id., Subtab F. Entries in the
     Standard Form 50s documenting her May 2000 transfer from the Customs Service to
     FLETC, and her subsequent reassignment to a different position there in
     December 2001, identify the position description as # 13742. IAF, Tab 3, Subtab D
                                                                                                7

      not identical, though both descriptions required the incumbent to possess general
      law enforcement experience. See IAF, Tab 3, Subtab F at 3-6, Tab 4, Subtab 1
      at 1c-1f.    Neither description required law enforcement experience specific to
      positions “that would have been classified under the GS-1895 series had it then
      existed,” or CBPO positions in that series “whose duties included the
      performance of work directly connected with activities relating to the arrival and
      departure of persons, conveyances, and merchandise at ports of entry.”                IAF,
      Tab 3, Subtab F at 3-6, Tab 4, Subtab 1 at 1c-1f ; see 5 C.F.R. § 842.1003(c)(1).
      Position description #13544 states only that the incumbent “must have acquired a
      thorough knowledge of criminal laws and Federal rules and/or regulations, which
      apply to cases involving crimes against the United States,” and that “[e]xperience
      in a primary Federal law enforcement position [was] a prerequisite for this
      position.”    IAF, Tab 4, Subtab 1 at 1c-1d.           Although the appellant clearly
      acquired relevant knowledge and experience during her prior service, she could
      have acquired that knowledge and experience in a federal law enforcement
      position that was not “directly connected with activities relating to the arrival and
      departure of persons, conveyances, and merchandise at ports of entry.”
      See 5 C.F.R. § 842.1003(c)(1). Thus, the position to which she was transferred in
      May 2000, did not meet the definition of a secondary administrative CBPO
      position. See 5 C.F.R. § 842.1003(c)(2).
¶10         Accordingly, the appellant has failed to establish that she transferred
      directly from a primary covered CBPO position to a secondary covered CBPO
      position in May 2000, and that she has been continuously employed in secondary

      at 19. The agency stated in its prehearing submission that it did not dispute that
      position description # 13544 may be the correct one. IAF, Tab 7 at 2 n.1. Even if, as
      the appellant claims, the agency’s statement is a stipulation that the administrative
      judge failed to honor, see PFR File, Tab 1 at 4; see also ID at 6-7, neither position
      description supports the appellant’s argument. Any adjudicatory error here is harmless.
      See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an
      adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis
      for reversal of an initial decision).
                                                                                       8

      covered positions without a break in service exceeding 3 days.       See 5 C.F.R.
      § 842.1003(b)(3).    Even if the instructor positions to which the agency later
      assigned her met the definition of a secondary covered CBPO position, she is not
      entitled to CBPO coverage for her service in these positions, including service
      that she performed on or after July 6, 2008.
¶11         On review, the appellant reiterates her contention that OPM’s regulations
      are inconsistent with the changes to the statute under the Consolidated
      Appropriations Act and, further, that the instructor positions at FLETC were
      designated as secondary covered positions after the Department of Homeland
      Security absorbed the law enforcement functions of several agencies. See PFR
      File, Tab 1 at 2-5; see also IAF, Tab 4, Subtab 2 at 2a, Subtab 3 at 3c. She argues
      that OPM’s interpretation of the phrase “supervisory or administrative position in
      the Department of Homeland Security” in section 535(b)(1)(C) of the
      Consolidated Appropriations Act, as set forth in 5 C.F.R. § 842.1002, is too
      restrictive.   PFR File, Tab 1 at 2-4; see § 535(b)(1)(C) (codified at 5 U.S.C.
      § 8401(36)). She asserts that a more inclusive interpretation would allow her and
      similarly-situated colleagues secondary coverage for service after July 6, 2008.
      PFR File, Tab 1 at 2-4. OPM’s interpretation of statutory language, however, is
      entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense
      Council, 467 U.S. 837, 843 (1984) (when Congress has not directly addressed the
      precise question at issue in an adjudicatory proceeding, an administrative
      interpretation of a statutory provision by the agency charged with implementing
      the statute may be entitled to deference). Accordingly, for the reasons set forth
      above, we conclude that the appellant failed to establish by a preponderance of
      the evidence that she is entitled to coverage under the enhanced retirement
      provisions applicable to CBPOs.
                                                                                  9

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     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 United States 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 United
States   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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           10

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.
