 United States Court of Appeals for the Federal Circuit


                                        06-3180



                                    CRAIG R. LETZ,

                                                             Petitioner,


                                           v.

                          DEPARTMENT OF THE INTERIOR,

                                                             Respondent.



      W. Craig James, Mauk & Burgoyne, of Boise, Idaho, argued for petitioner.

       Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, and Todd M. Hughes, Assistant Director.

Appealed from: United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit


                                          06-3180

                                      CRAIG R. LETZ,

                                                        Petitioner,

                                                v.

                           DEPARTMENT OF THE INTERIOR,

                                                        Respondent.

                            ___________________________

                            DECIDED: January 22, 2007
                            ___________________________

Before MICHEL, Chief Judge, RADER, and LINN, Circuit Judges.

RADER, Circuit Judge.

       The Merit Systems Protection Board (Board) affirmed the United States

Department of the Interior’s (Agency’s) decision denying Mr. Craig Letz’s firefighter

retirement service credit (FF credit) during two periods of his career. Letz v. Dep’t of

Interior, Docket No. DE0842050189-I-2 (M.S.B.P. Jan. 17, 2006) (Initial Decision). The

Board found that Mr. Letz did not timely file his application for FF credit for his service

between January 24, 1991 and October 11, 1997, and between March 24, 2002 and

June 15, 2002. Initial Decision, slip op. at 2, 5. Because the Board correctly applied its

regulation on timeliness, this court affirms.

                                                I.

       Under the Federal Employees Retirement System (FERS), a qualified law

enforcement officer or firefighter who completes twenty years of service may retire upon
attaining fifty years of age. See 5 U.S.C. § 8412(d) (2000). These qualified employees

receive an enhanced annuity, but are subject to mandatory early retirement and larger

salary deductions during employment. See 5 U.S.C. §§ 8415(d), 8425(b) (2000); 5

C.F.R. § 842.804 (2006). An employee can qualify for the enhanced annuity either (1)

by serving in a position that has been approved for firefighter or law enforcement officer

service credit (FF/LEO credit), or (2) by applying for enhanced annuity service credit

with a showing of qualification for such credit.       See 5 C.F.R. §§ 842.801-842.806

(2006). Mr. Letz must prove that he completed three years of qualifying first-line service

as a precondition to entering a qualifying secondary position. 5 C.F.R. § 842.803(b)(iii)

(2006).   Service in both “rigorous” and “secondary” firefighter positions is creditable

toward enhanced firefighter retirement. 5 U.S.C. § 8401(14) (2000).              A “rigorous”

firefighter position is defined as a position in which the duties “are primarily to perform

work directly connected with the control and extinguishment of fires; and . . . are

sufficiently rigorous that employment opportunities should be limited to young and

physically vigorous individuals.”     5 U.S.C. § 8401(14) (2000); 5 C.F.R. § 842.802

(2006).   A “secondary” firefighter is “an employee who is transferred directly to a

supervisory or administrative position after performing [rigorous firefighter] duties . . . for

at least 3 years.” Id. However, service in secondary positions is not creditable if the

employee has not “completed 3 years of service in a rigorous position, including any

such service during which no FERS deductions were withheld.”                     5 C.F.R. §

842.803(b)(1)(ii) (2005).




06-3180                                       2
       Mr. Letz enrolled in the FERS on August 14, 1994, when he accepted a Forestry

Technician position appointment.       He appeals the Agency’s FF credit coverage

determinations for his work in the following positions:

       Date of Appointment         Position

       •   August 14, 1994         GS-0462-06 Forestry Technician position
       •   March 19, 1995          GS-0462-06 Forestry Technician position
       •   April 16, 1995          GS-0462-07 Forestry Technician position
       •   October 12, 1997        GS-0462-08 Forestry Technician position
       •   October 11, 1998        GS-0462-09 Forestry Technician position
       •   July 4, 1999            GS-0401-09/11 Fire Management Officer position
       •   March 24, 2002          GS-0401-11 Forestry Technician/Fuels Specialist
                                   position
       •   June 16, 2002           GS-0401-12 Fire Use Manager position

       During Mr. Letz’s service between August 14, 1994 and July 3, 1999, the Agency

had not yet made coverage determinations for those positions. Mr. Letz admits that

when enrolled in FERS, he was aware that his position was not a covered position for

FF/LEO credit. Furthermore, the Agency found that for all positions, Mr. Letz was both

aware of the FF/LEO credit program and that he was not paying the required extra one-

half percent contribution into the FF/LEO retirement program.

       On January 17, 1997, Mr. Letz submitted his first and only application for FF/LEO

benefits. In this application, he sought coverage for positions he held between August

14, 1994 and January 17, 1997. Thereafter, he did not file any additional applications

for FF credit for any other positions.        The Agency, nonetheless, also considered

whether Mr. Letz might have been eligible for FF credit at any time during his service.

       On October 5, 1998, the Agency determined that the positions Mr. Letz held

between March 19, 1995, and October 11, 1997, should be covered as




06-3180                                       3
secondary/administrative positions. Mr. Letz did not receive any notice of this coverage

determination for these positions because he was no longer serving in those positions.

       On January 20, 1999, the Agency determined that the positions Mr. Letz held

between October 12, 1997 and July 3, 1999, should also be covered as secondary/

administrative. The Agency provided Mr. Letz with a “Statement of Understanding”

about its coverage determination because he was an incumbent of one of the newly

covered positions.

       On May 6, 1999, Mr. Letz challenged these coverage determinations.              On

February 17, 2005, the Agency issued its final decision. The agency noted that he did

not meet the six-month filing deadlines set forth in 5 C.F.R. § 842.804(c) or the special

one-time, November 1, 1995, filing deadline. Because Mr. Letz failed to demonstrate

that he was unaware of his coverage status or prevented from timely filing by

circumstances beyond his control, the Agency concluded that his request for an

eligibility determination was untimely. As for the positions he held from October 12,

1997 through July 3, 1999, however, the Agency concluded that the request was timely,

but they were properly classified as secondary/administrative. Regardless, Mr. Letz

was not eligible for FF/LEO credit for that time period because it was not preceded by

three years of primary fightfighter service, as required by 5 U.S.C. § 8401(14) and 5

C.F.R. § 842.803(b)(ii).

       Mr. Letz appealed to the Board. On January 17, 2006, the administrative judge

(AJ) issued an initial decision, agreeing with the Agency that Mr. Letz failed to file a

timely request, and that his untimeliness was not excused under 5 C.F.R. § 842.804(c).

Initial Decision, slip op. at 2-3. Moreover, the Board found that there were no significant




06-3180                                     4
changes in any of the pertinent positions. Id. at 3. This decision became final on

February 21, 2006 because Mr. Letz did not petition for further review. Instead, Mr. Letz

appealed to this court, which has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

       Mr. Letz appeals the Board’s Initial Decision denying his applications for FF

credit arguing that he has no deadline to seek FF credit. Alternatively, he argues that

the reason he missed the November 1, 1995 special deadline was because he did not

know he needed to challenge the “coverage, or lack of coverage.” He also argues that

when the Agency determined, on October 5, 1998, to provide secondary coverage for

the positions he held between March 19, 1995 and October 11, 1997 that this was a

“significant change” in his position for which he should have been provided notice. Mr.

Letz asserts that this determination providing secondary coverage was a “significant

change” because it was a “retroactive bar” to his proving that “he had completed three

years of qualifying first-line service as a precondition to entering a qualifying secondary

position.” Thus, because the Agency did not provide notice to him, he argues this was

cause beyond his control that prevented him from filing a timely claim.

                                            II.

       The standard of review for appeals from a final order of the Board states:

       the court shall . . . hold unlawful and set aside any agency action, findings
       and conclusions found to be (1) arbitrary, capricious, an abuse of
       discretion, or otherwise not in accordance with law; (2) obtained without
       procedures required by law, rule or regulation having been followed; or (3)
       unsupported by substantial evidence.

5 U.S.C. § 7703(c) (2000).      The applicable regulation for challenging an agency’s

FF/LEO credit coverage provides:

       If an employee is in a position not subject to the one-half percent higher
       withholding rate of 5 U.S.C. 8442(a)(2)(B), and the employee does not,



06-3180                                     5
      within 6 months after entering the position or after any significant change
      in the position, formally and in writing seek a determination from the
      employing agency that his position is properly covered by the higher
      withholding rate, the agency head’s determination that the service was not
      so covered at the time of the service is presumed to be correct. This
      presumption may be rebutted by a preponderance of the evidence that the
      employee was unaware of his or her status or was prevented by cause
      beyond his or her control from requesting that the official status be
      changed at the time the service was performed.

5 C.F.R. § 842.804(c) (2006) (emphases added). This court has affirmed that this

regulation, setting forth a six-month time limit for FF/LEO credit application, is a

reasonable interpretation of the enabling statute, 5 U.S.C. § 8412 (d). See Fitzgerald v.

Dep’t of Def., 80 M.S.P.R. 1, 9, 11 (1998), aff’d, 230 F.3d 1373 (Fed. Cir. 1999). This

court also affirmed that such an interpretation additionally serves the significant policy

goal of preventing employees from postponing appeals for many years and thus

creating fiscal uncertainties and inevitable losses of evidence.       Id.   Thus, if the

employee does not request FF/LEO credit within the six-month period specified in

section 842.804(c) or show good cause for missing that deadline, the agency’s

determination receives a presumption of correctness. Bingaman v. Dep’t of Treasury,

127 F.3d 1431, 1441 (Fed. Cir. 1997).

                                           III.

      Mr. Letz acknowledges three distinct deadlines triggering his obligation to seek a

coverage determination “formally and in writing.” Mr. Letz had an obligation to seek,

formally, within six months after entering each new position. Mr. Letz also had an

obligation on November 1, 1995, when the Agency created a special, one-time filing

deadline.   Finally, he could have sought credit within six-months of any significant




06-3180                                     6
change in his positions, though Mr. Letz asserts that the six-month time bar does not

apply to his situation.

        As noted, Mr. Letz could have applied for FF credit at any time he moved into, or

within six months of entering into, a new position. He did not take these opportunities.

        Furthermore, the Agency created a special, one-time deadline of November 1,

1995 that allowed employees to seek coverage for positions when such application

would have otherwise been time-barred. Thus, on November 1, 1995, Mr. Letz could

have applied for FF credit coverage for the positions he entered on dates between April

14, 1994 and April 16, 1995. Mr. Letz also did not take this opportunity. Therefore,

substantial evidence supports the Board’s determination that Mr. Letz missed the “within

six months of entering a new position” deadline and the November 1, 1995 special

deadline to file an application for or protest FF credit coverage. Initial Decision, slip op.

at 3.

        With respect to applying for credit after “a significant change in the position,” this

phrase does not refer to a significant change in FF/LEO coverage.              A “significant

change in position” means a significant change in the type of work or duties of the

position, see Bingaman, 127 F.3d at 1442, not a change in the agency’s determination

of the type of retirement credit or coverage available for that position.

        Nonetheless, Mr. Letz is correct that on October 5, 1998, the Agency certified the

coverage of Mr. Letz’s positions, and this was retroactive to February 11, 1993. That

determination foreclosed Mr. Letz from attaining FF credit because he could not show

that he had met the threshold of three years of primary firefighting service.            This

determination, however, did not affect the duties or responsibilities of his positions at all.




06-3180                                       7
Thus, this determination did not amount to a “significant change in position” within the

terms of the regulation that would afford Mr. Letz a six-month window of protest. The

Board correctly determined that the October 5, 1998 Agency determination was not a

“significant change in position” that opened a new application or protest opportunity.

Thus, this court affirms the Board’s interpretation of the terms “or” and “significant

change in position” in the regulation.1 Accordingly, the Board also correctly determined

that no “significant changes” in Mr. Letz’s positions occurred.

       Mr. Letz also contends that the Agency had a duty to notify him of changes

affecting his FF credit coverage in the context of this case. This court’s case law,

specifically Bingaman, 127 F.3d at 1441, has foreclosed this argument. In Bingaman,

this court held that the Department of Treasury (Department) had no affirmative duty to

advise employees on requests for law enforcement officer (LEO) credit. Id. at 1442, see

also Doyle v. Dep’t of Veterans Affairs, 80 M.S.P.R. 640, 644 (1999). As a result, the

Department could not be estopped from applying, against employees, the requirement

that they make formal, written request for such credits within six months of either taking

a position or having a significant change in position. Id. The holding of Bingaman also

applies to employees requesting FF credit. Furthermore, the record shows that Mr. Letz

was well aware of his non-firefighter (or non-FF credit) status. He testified he was

aware that neither his initial position in 1994 nor his position in 1997 was covered

positions. The record also shows that he knew he was not paying the required extra


       1
              Mr. Letz further argues that the six month deadline set forth in 5 C.F.R. §
842.804(c) does not apply to a request for coverage after a significant change in
position. His reliance upon Felzien v. Office of Personnel Management, 930 F.2d 898,
902 (Fed. Cir. 1991), is misplaced because that decision does not refer to proper
interpretation of 5 C.F.R. § 842.804(c), the regulation at issue here. Instead, Felzien
interprets an unrelated statute.

06-3180                                      8
one-half percent contribution during his non-covered service. Thus, the Board correctly

found that Mr. Letz “presented no evidence that he was prevented by cause or

circumstance beyond his control from filing a timely appeal for firefighter/LEO benefits at

the time the service in any of the pertinent positions was performed.” Initial Decision,

slip op. at 3.

       In conclusion, this court affirms the Board decision that Mr. Letz’s application for

FF/LEO benefits was time-barred, and that he has not shown good cause for waiver of

the deadline.

                                         COSTS

       Each party shall bear its own costs.

                                       AFFIRMED




06-3180                                       9
