                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                     2014 MSPB 69

                            Docket No. NY-0842-13-0139-I-1

                              Christopher Vincent Kroll,
                                       Appellant,
                                            v.
                         Department of Homeland Security,
                                        Agency.
                                     August 26, 2014

           Christopher Vincent Kroll, West Seneca, New York, pro se.

           Matthew C. Landreth, Buffalo, New York, for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                            Anne M. Wagner, Vice Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision which
     affirmed the agency’s reconsideration decision denying his request for enhanced
     retirement benefits as a Customs and Border Patrol Officer (CBPO) under the
     Federal Employees’ Retirement System. We DENY the appellant’s petition for
     review and AFFIRM the initial decision.

                                     BACKGROUND
¶2         The appellant began working as a Customs Inspector in November 1986,
     and he remained in that position until July 2004, when he began serving as a
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     CBPO. Initial Appeal File (IAF), Tab 9, Subtabs 4n, 4r. The appellant served as
     a CBPO until November 2007, at which time he was selected for an Automated
     Commercial Systems (ACS) Specialist position. IAF, Tab 9, Subtab 4m.
¶3         The parties stipulated that, during March and April 2008, the agency’s
     Office of Human Resource Management initially considered the ACS Specialist
     position to be a “secondary” position for purposes of enhanced CBPO retirement
     coverage. IAF, Tab 16 at 5, 7; Tab 9, Subtab 4t. However, the agency made a
     final determination in 2008 that the ACS Specialist position was not a covered
     position and notified the appellant that he was not eligible for enhanced CBPO
     retirement coverage.   IAF, Tab 16 at 5, 7, Tab 9, Subtab 4k.       The appellant
     thereafter requested reconsideration of the agency’s determination. IAF, Tab 9,
     Subtab 4k.     In a decision dated February 21, 2013, the agency denied the
     appellant’s request. IAF, Tab 9, Subtab 4b. The agency notified the appellant
     that, although his service from November 24, 1986, to November 24, 2007,
     constituted service in primary positions, his service in the ACS Specialist
     position was neither a primary nor a secondary position and therefore constituted
     a break in coverage under the governing statute and regulations discussed below.
     Id. at 1-7.   Because the ACS Specialist position was neither a primary nor a
     secondary position, the agency concluded that the appellant was not entitled to
     enhanced retirement coverage. Id. at 8.
¶4         The appellant filed a Board appeal, contending that his service in the ACS
     Specialist position qualified him for enhanced retirement benefits because, inter
     alia, his work in that position was similar to that of a CBPO and the agency had
     not recently updated the ACS Specialist position description to account for the
     duties actually performed. IAF, Tab 1, Tab 15 at 4. The administrative judge
     affirmed the agency’s reconsideration decision based on the written record. IAF,
     Tab 25, Initial Decision (ID) at 1.       Specifically, the administrative judge
     determined that, because prior experience as a CBPO was not a mandatory
     prerequisite for the position of ACS Specialist, the appellant failed to establish
                                                                                      3

     that he occupied a secondary CBPO position entitling him to enhanced retirement
     benefits. ID at 5; see IAF, Tab 9, Subtab 4b, Tab 16.
¶5         The appellant has filed a petition for review challenging the initial
     decision, and the agency has filed a response in opposition to the appellant’s
     petition. Petition for Review (PFR) File, Tabs 1, 3.

                                        ANALYSIS
¶6         The appellant bears the burden of proving his entitlement to enhanced
     retirement coverage. Olszak v. Department of Homeland Security, 117 M.S.P.R.
     75, ¶ 5 (2011), aff’d, 475 F. App’x 757 (Fed. Cir. 2012). Eligibility for enhanced
     retirement coverage is strictly construed because it is more costly to the
     government than traditional retirement plans and often results in the retirement of
     important people at a time when they would have otherwise continued to work for
     a number of years. Id., ¶ 12.
¶7         A CBPO “who is separated from the service, except by removal for cause
     on charges of misconduct or delinquency . . . after completing 25 years of service
     . . . [or] after becoming 50 years of age and completing 20 years of service” is
     entitled to an annuity. 5 U.S.C. § 8412(d)(1)-(2). Section 8401(36) of Title 5
     defines the term CBPO as “an employee in the Department of Homeland Security
     (A) who holds a position within the GS–1895 job series (determined by applying
     the criteria in effect as of September 1, 2007) or any successor position, and
     (B) whose duties include activities relating to the arrival and departure of
     persons, conveyances, and merchandise at ports of entry . . . .”
¶8         OPM has promulgated regulations to govern the CBPO enhanced retirement
     coverage program and to carry out the foregoing statutory provisions. 5 C.F.R.
     § 842.1001.    Pursuant to those regulations, an employee’s service in both
     “primary” and “secondary” CBPO positions will count toward his eligibility for
     enhanced retirement benefits. See 5 C.F.R. §§ 842.1002, 842.1003. Section 1003
     of Part 842 defines the terms “primary position” and “secondary position”:
                                                                                       4

            Primary position means a position classified within the Customs and
            Border Protection Officer (GS-1895) job series (determined applying
            the criteria in effect as of September 1, 2007) or any successor
            position whose duties include the performance of work directly
            connected with activities relating to the arrival and departure of
            persons, conveyances, and merchandise at ports of entry.
            Secondary position means 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.
¶9          The parties stipulated below that the only matter in dispute is whether the
      appellant’s ACS Specialist position qualified as a secondary CBPO position and,
      further, that the position of ACS Specialist does not qualify as a supervisory
      position for coverage purposes. ID at 6; IAF, Tab 16 at 5, 8, Tab 17. Therefore,
      in order to qualify under the remaining “administrative” prong of section
      842.1003, the appellant was required to establish that the ACS Specialist position
      was “an executive, managerial, technical, semiprofessional, or professional
      position for which experience in a primary [CPBO] position is a prerequisite.”
¶10         The record, however, is devoid of evidence that experience as a CBPO is a
      prerequisite for the ACS Specialist position. The appellant stipulated that neither
      the position description nor the vacancy announcement states or indicates that
      prior experience as a CBPO, GS-1895, or a Customs Inspector, GS-1890, is a
      prerequisite for employment as an ACS Specialist. IAF, Tab 16 at 5, 9, Tab 17.
      He further stipulated that prior service with the agency in a primary position is
      not required in order to be hired for an ACS Specialist position and that he has
      personally known individuals in the ACS Specialist position who did not have
      experience in a primary position prior to being hired as an ACS Specialist. IAF,
      Tab 16 at 5, 9.    We agree with the administrative judge that the appellant’s
                                                                                             5

      selection for the ACS Specialist position based upon his prior experience does not
      establish that such experience was a prerequisite for the position. ID at 8.
¶11         Simply stated, the appellant is not entitled to enhanced CBPO retirement
      benefits because he failed to show that the ACS Specialist position required
      service in a primary CBPO position as a prerequisite. Accordingly, the appellant
      is precluded from establishing that the ACS Specialist position was a covered
      secondary position, regardless of what his actual duties in that position were.
      Olszak, 117 M.S.P.R. 75, ¶ 9 (citing Villarreal v. Department of Justice, 87 F.
      App’x 161, 163 (Fed. Cir. 2004)). 1 As we ruled in Olszak, the dispositive issue
      in determining if a position is secondary is whether CBPO experience was a
      prerequisite for the position “regardless of what [the appellant’s] actual duties” in
      the position entailed. Id. Indeed, even though the agency initially designated the
      ACS Specialist position as a secondary position in contravention of 5 C.F.R.
      §§ 842.1002 and 842.1003(b), the Board cannot order payment of an enhanced
      retirement benefit based on that designation.              See Office of Personnel
      Management v. Richmond, 496 U.S. 414, 416, 434 (1990) (the Board cannot order




      1
       Because Olszak was decided prior to the time that OPM had promulgated the
      regulations at issue in this appeal, the Board there was construing the interim criteria
      that the agency had developed in consultation with OPM to implement the law. See
      Olszak, 117 M.S.P.R. 75, ¶ 7. There are some differences between the terminology in
      the interim guidance and 5 C.F.R. § 842.1002. Whereas the relevant portion of 5 C.F.R.
      § 842.1002 defines “secondary position” as “an executive, managerial, technical,
      semiprofessional, or professional position for which experience in a primary [CBPO]
      position is a prerequisite,” the relevant portion of the agency’s interim guidance in
      Olszak required the appellant to show that “experience as a [CBPO] or equivalent
      experience in [the Department of Homeland Security] is a mandatory prerequisite” for
      the position at issue. Id., ¶ 8. We find that the Board’s analysis in Olszak applies with
      equal force to issues before us in the instant appeal despite these differences.
                                                                                           6

      the payment of federal retirement benefits when the statutory conditions for
      entitlement to those benefits are not met). 2
¶12         We have considered the appellant’s remaining arguments on review and
      find that they present no basis to overturn the initial decision. Thus, we agree
      with the administrative judge that the appellant cannot challenge the agency’s job
      classification of his ACS Specialist position as a means of establishing that his
      service in that position qualifies him for enhanced retirement benefits. ID at 7;
      see Crum v. Department of the Navy, 75 M.S.P.R. 75, 81 (1997) (the Board lacks
      jurisdiction to review classification decisions). Further, although the appellant
      contends that he was denied the opportunity to present his own testimony
      concerning his current duties, PFR File, Tab 1 at 5, the record reflects that he
      waived his right to a hearing, IAF, Tab 21 at 1. In any event, as discussed above,
      the appellant’s proposed testimony concerning his current duties in the ACS
      Specialist position would provide no basis for disturbing the administrative
      judge’s determination that the position was not secondary because CBPO
      experience was not a prerequisite for that position.




      2
        Although the parties stipulated below that the only dispute presented was whether the
      appellant’s ACS Specialist position qualified as a secondary position, in light of the
      fact that these OPM regulations are relatively new, they permit two scenarios to allow
      CBPOs to be entitled to receive enhanced retirement benefits, and, because of the
      appellant’s pro se status, we also have considered whether the ACS Specialist position
      qualified as a primary position and conclude that it does not. As discussed above,
      OPM’s governing regulation at 5 C.F.R. § 842.1002 defines “primary position” as “a
      position classified within the [CBPO] (GS-1895) job series (determined by applying the
      criteria in effect as of September 1, 2007) or any successor position whose duties
      include the performance of work directly connected with activities relating to the
      arrival and departure of persons, conveyances, and merchandise at ports of entry.”
      (emphasis added). The ACS Specialist position is not a GS-1895 position and there is
      no indication that it is a new incarnation of “a position within the GS-1895
      series.” Therefore, it is not a “successor position” within the meaning of 5 C.F.R.
      § 842.1002.
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¶13            Accordingly, we conclude that the administrative judge properly affirmed
      the agency’s reconsideration decision denying the appellant’s request for
      enhanced retirement coverage.

                                                  ORDER
¶14            This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                         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
                                                                                8

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
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.
