                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PATRICIA AVEITIA,                               DOCKET NUMBER
                   Appellant,                        DA-0842-13-0254-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: September 25, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Leticia Dominguez, Esquire, El Paso, Texas, for the appellant.

           Peter Arcuri, El Paso, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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 reconsideration decision to deny her Customs and Border
     Patrol Officer (CBPO) enhanced retirement coverage.             Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. Except as expressly MODIFIED by this Final
     Order to apply the appropriate regulations, we AFFIRM the initial decision.
¶2        The appellant appealed from the agency’s decision to deny her enhanced
     retirement coverage under the Federal Employees’ Retirement System.           Initial
     Appeal File (IAF), Tab 1 at 1.    She is currently employed by the agency as an
     Assistant Director, GS-0340-15, in the Office of Field Operations, U.S. Customs
     and Border Protection, in El Paso, Texas. Id., Subtab 36. The agency determined
     that the appellant’s service between 1999 and 2004 did not constitute service in a
     secondary covered position. Instead, the agency determined that it represented a
     break in service before she later served in positions that are otherwise secondary
     covered positions.   Id., Attachment 1.     The agency thus found that she was
     ineligible for CPBO enhanced retirement coverage. Id. The appellant filed a
     Board appeal after the agency issued its reconsideration decision, and, following
     a hearing, the administrative judge affirmed the agency’s decision. IAF, Tab 19,
     Initial Decision (ID). The appellant filed a petition for review asserting that the
     initial decision was incorrectly decided. Petition for Review (PFR) File, Tab 1.
¶3        The federal civil service retirement laws extend special retirement benefits
     to persons who serve in physically rigorous positions, such as law enforcement
                                                                                             3

     officers and firefighters.     Employees who transfer from these 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)); 5 C.F.R. § 842.1002. 2
     Eligibility rules for enhanced retirement coverage are strictly construed.            See
     Kroll v. Department of Homeland Security, 2014 MSPB 69, ¶ 6 (2014).
¶4         To remain eligible for CBPO enhanced retirement benefits, an employee
     who is in a secondary covered position must have transferred to that position
     from a primary covered position with no break in service after at least 3 years in a
     primary covered position. Primary covered positions are those in the GS-1895
     job series or 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 after performing
     such duties . . . in 1 or more positions.” 5 U.S.C. § 8401(36); see also 5 C.F.R.
     § 842.1002. An employee seeking enhanced retirement coverage bears the burden
     of proving her entitlement thereto by preponderant evidence. Kroll, 2014 MSPB
     69, ¶ 6 (citing Olszak v. Department of Homeland Security, 117 M.S.P.R. 75, ¶ 8
     (2011), aff’d, 475 F. App’x 757 (Fed. Cir. 2012)).



     2
       The initial decision erroneously cites subpart 842H of Title 5 of the Code of Federal
     Regulations as the applicable regulation in this appeal. See, e.g., ID at 5. In July 2011,
     however, a regulation specific to CBPO enhanced retirement coverage was issued.
     Customs and Border Protection Officer Retirement, 76 Fed. Reg. 41,993 (July 18, 2011)
     (codified at 5 C.F.R. subpart 842J). We considered this appeal under the regulation
     specific to CBPO positions. Although the plain language of the regulation differs
     considerably from the generally applicable regulation in subpart 842H, the underlying
     principles do not differ, and we reach the same result. We note that cases decided
     under subpart 842H are applicable when addressing those basic principles.
                                                                                    4

¶5         The appellant was a Customs Inspector and Supervisory Customs Inspector,
     positions in the GS-1890 occupational series, from June 22, 1987, through
     October 23, 1999. See IAF, Tab 1, Subtabs 1, 4-5. From October 24, 1999, until
     September 18, 2004, she served as an Investigative Program Officer (IPO),
     GS-1801-13, within the Office of Internal Affairs (OIA), and later, within the
     Office of Professional Responsibility (OPR).         Id., Subtabs 5-6.   She was
     promoted to the position of Customs Inspector (Program Officer), GS-1890-14,
     effective September 19, 2004. Id., Subtab 6. It is undisputed that she had the
     requisite primary covered service. Id., Subtab 1. It is likewise undisputed that
     the position to which she was promoted in 2004 is a secondary covered
     position.     Id.   The appellant’s burden of proof was to establish that the IPO
     position in which she served between 1999 and 2004 was a covered secondary
     position and thus did not constitute a break in service.
¶6         A secondary covered position within the agency 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 (emphasis added). The agency’s position description for an
     IPO states:
           The position is located in the Office of the Special Agent-in-Charge
           (SAC), Office of Internal Affairs (OIA). As an advisor to the SAC,
           the incumbent may formulate, plan, develop and review major IA
           programs and projects; develop and review valuative data, including
           internal and external evaluations, statistical and management
           information reports, and other measurement tools; review and
           research employee integrity lapses; evaluate investigations for
           improvement indicators and participate in selected projects designed
           to identify and target areas of concern requiring improvement.
                                                                                    5

     IAF, Tab 9, Subtab C at 2. It is undisputed that, while serving as an IPO, the
     appellant did not supervise or manage any employees in primary covered
     positions, and, indeed, no such employees were assigned to her worksite. See ID
     at 8; see also IAF, Tab 18, Hearing Compact Disc (HCD). She thus would not
     have qualified under the “supervisory” prong of the definition.              See
     Olszak, 117 M.S.P.R. 75, ¶ 8; 5 C.F.R. § 842.1002.        Accordingly, she was
     required to prove that she qualified under the “administrative” prong; that is,
     experience as a Customs Inspector or in an equivalent position was a prerequisite
     for the IPO position.    See Kroll, 2014 MSPB 69, ¶ 11 (citing Olszak, 117
     M.S.P.R. 75, ¶¶ 8-9).
¶7        The appellant asserted that she would not have been able to perform her
     duties as an IPO without prior experience as a Customs Inspector. See HCD. For
     example, she believed her prior experience was valuable when she was charged
     with investigating whether inspectors failed to follow agency procedures or
     violated the law. Id. One of her witnesses, a retired Investigative Intelligence
     Officer who worked with her when she was an IPO, testified that she would have
     been able to work as an IPO without prior experience as a Customs
     Inspector. Id. Nevertheless, he explained, her job would have been “difficult”
     because the operational experience and technical knowledge she gained as a
     Customs Inspector helped her perform at a higher level. Id.
¶8        The appellant admitted, however, that she did not have the same duties or
     job functions as a Customs Inspector. Id. She indicated that she did not inspect
     vehicles, persons, or merchandise. Id. She did not carry a gun, wear a uniform,
     or have to maintain firearms proficiency. Id. The appellant related that her main
     duties included review of various files and tapes and sometimes of time and
     attendance records. Id. She handled several types of in-house investigations,
     most of which were not related to law enforcement, e.g., time and attendance
     issues regarding employees who were not in law enforcement.        Id.   She also
                                                                                        6

      assembled and tracked compilations of investigative reports (known as “red
      books”) for use in the field. Id.
¶9          The OPR SAC in El Paso testified, stating his belief that prior experience as
      a CBPO had never been required for appointment as an IPO. Id. He also stated
      that the current IPO in that office had not served as a Customs Inspector or in any
      other CBPO position prior to appointment. Id. The Assistant SAC in El Paso,
      who worked with the appellant while she was an IPO, testified that she held “a
      support position” in OIA and, to the best of his knowledge, IPOs were support
      personnel and CBPOs.      Id.   One of the appellant’s former colleagues in OIA
      testified that there are no mandatory experience requirements for the IPO
      position. Id. She explained that two persons have performed IPO functions in El
      Paso since the appellant’s promotion from that position, and neither person had
      prior experience as a CBPO or Customs Inspector. Id.
¶10         The agency also provided testimony from its trainer to the field offices
      regarding CBPO enhanced retirement coverage.               This employee makes
      recommendations as to which positions would qualify for secondary retirement
      coverage. Id.; see IAF, Tab 5 at 105. She testified that, when she reviewed the
      agency’s documentation regarding the IPO position, she did not find any
      requirement that an appointee have prior CBPO experience.          See HCD.     She
      further testified that her review of the appellant’s reconsideration request
      included evaluating the qualifications of other IPOs, the official position
      description, and the appellant’s own account of her duties. Id.; see IAF, Tab 5
      at 106-11, Tab 9, Subtab C. She concluded that the IPO position did not meet the
      definition of a secondary covered position. See HCD; see also IAF, Tab 5 at 105.
¶11         An agency employee who served on the CBPO Enhanced Retirement
      Program Management Team testified that she helped review position descriptions
      and duties for approximately 21,000 cases in order to develop a list of primary
      and secondary covered positions. She said that the IPO position does not appear
      on that list. Id.; see IAF, Tab 12 at 18-22. She further testified that only four of
                                                                                              7

      nine people who have been appointed as IPOs had prior experience as CBPOs.
      See HCD. Four of the appointees had no prior agency experience, and the records
      for the remaining appointee were not available. 3 Id.
¶12         As a result, the administrative judge determined that the preponderant
      evidence showed that the appellant’s prior experience as a Customs Inspector
      likely contributed to her success as an IPO, but it was not a mandatory
      prerequisite for appointment to that position.         The administrative judge also
      concluded that the position did not meet the definition of a secondary covered
      position. See 5 C.F.R. § 842.1002; ID at 13.
¶13         On review, the appellant reiterates her assertion that a December 5, 2010
      Standard Form 50, which shows that her service computation date for CBPO
      retirement coverage as July 6, 2008, proves that she qualifies for enhanced
      retirement coverage.     PFR File, Tab 1 at 6; see IAF, Tab 1, Subtab 36. The
      witness from the agency’s CBPO Enhanced Retirement Program Management
      Team, however, testified that the form is incorrect and was created by off-site
      personnel unfamiliar with the IPO position. See HCD.
¶14         The appellant also argues that members of the agency’s CBPO Enhanced
      Retirement Program Management Team were inexperienced in Customs field
      operations, relied too heavily on official position descriptions in making their
      assessments and, in her case, used the wrong position description.             PFR File,
      Tab 1 at 5. She argues that her duties became more rigorous after the agency was

      3
        On review, the appellant argues that the agency failed to show that the five appointees
      without CBPO experience lacked any sort of law enforcement experience. She asserts
      that “it is unreasonable to expect that a person would be hired to conduct investigations,
      apprehensions or detention of individuals suspected or convicted of offenses against the
      criminal laws of the United States without some sort of law enforcement experience.”
      PFR File, Tab 1 at 6. Here, the appellant seeks to recharacterize the IPO’s duties as
      rigorous law enforcement work. She adduced no evidence to support her claim,
      whereas the agency’s evidence showed that experience in a primary customs or border
      patrol position was not a prerequisite for the IPO position. See Kroll, 2014 MSPB 69,
      ¶ 11 (the dispositive issue in determining if a position is secondary is whether CBPO
      experience was a prerequisite for the position).
                                                                                          8

      created and the Customs and Immigration functions were merged, requiring her to
      draw on her field experience. Id. at 6. The agency witness who served on the
      CBPO Enhanced Retirement Program Management Team, however, testified that
      the appellant’s personal narrative regarding her job duties was a primary source
      of information for the team. See HCD; see also IAF, Tab 5 at 106-12. Moreover,
      the appellant’s own witnesses testified that her primary role as an IPO was to
      provide administrative support to investigators rather than to serve as a field
      investigator. See HCD.
¶15        Finally, the appellant argues that the administrative judge did not use the
      correct position description, PD#A03556, because the agency could not locate it
      at the time and instead submitted the position description for Investigative
      Program Specialist (IPS).     PFR File, Tab 1 at 4.        She alleges that she only
      obtained the correct position description after the record closed. Id. She seeks to
      submit the document with her petition for review, and, in a subsequent motion to
      supplement her petition, she offers the vacancy announcement under which she
      applied for the IPO job. PFR File, Tab 1 at 8-11, Tab 5 at 1-5.
¶16        The Board will not consider evidence submitted for the first time with the
      petition for review absent a showing that it was unavailable before the record was
      closed   despite   the   party’s   due   diligence.      Avansino   v.   U.S.   Postal
      Service, 3 M.S.P.R. 211, 214 (1980). The appellant asserts that she received the
      position description after “a third party” employed by OPR conducted “extensive
      research through archived data” after the record closed. PFR File, Tab 1 at 4.
      She does not explain, however, why she did not serve any discovery requests on
      the agency or otherwise request a search of OPR’s archival records while the
      appeal was pending below.
¶17        Even if the appellant could show that she diligently sought to obtain the
      position description, she has not shown that it is of sufficient weight to warrant
      an outcome different from that of the initial decision.        See Russo v. Veterans
      Administration, 3 M.S.P.R. 345, 349 (1980).           The appellant asserted that the
                                                                                       9

      cover page of the position description in the record listed the IPO position, but
      the subsequent pages describe the IPS position. See ID at 7 n.3; see also HCD.
      However, she admitted during her testimony that IPS duties did not differ from
      IPO duties in El Paso, where she was assigned. See HCD. Additionally, we note
      that the differences between the two documents are changes in nomenclature
      arising from the creation of the agency. Compare PFR File, Tab 1 at 8-11, with
      IAF, Tab 5 at 128-31. The appellant’s version of the position description is the
      newer, post-merger version. Nothing in that document, however, would support a
      finding that agency law enforcement experience was required for the IPO
      position, that the IPO duties were law enforcement duties, or that the appellant
      supervised any law enforcement personnel.
¶18        Likewise, in her motion for leave to supplement the petition for review, the
      appellant asserts that she recently discovered the vacancy announcement under
      which she applied for the IPO position, and that announcement shows that the
      position required law enforcement experience. PFR File, Tab 5. She explains
      that she found the announcement in a box of materials she left at her sister’s
      house when she moved to another residence in 2007. Id. at 3. Recently, she
      explains, her sister reminded her about the stored items and she retrieved them,
      discovering the vacancy announcement. Id. The Board’s regulations, however,
      do not provide for pleadings other than a petition for review, cross-petition for
      review, response to a petition or cross-petition, and a reply to the response.
      See 5 C.F.R. § 1201.114(a). Parties may request permission to submit new and
      material evidence that was not readily available before the record closed after the
      closing date. See 5 C.F.R. § 1201.114(k). The appellant here has not shown that
      the vacancy announcement was unavailable to her before the record closed. It
      cannot be considered, but in any event, the provisions she cites would not affect
      the outcome of this appeal. See Avansino, 3 M.S.P.R. at 214.
¶19        Based on all of the evidence, the administrative judge correctly found that
      the appellant failed to show that the IPO position was a secondary covered
                                                                                 10

position. Instead, her break in service precludes her from eligibility for CBPO
enhanced retirement coverage.         Accordingly, we affirm the initial decision as
modified.

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
     The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.    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.
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     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.
