       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                MICHAEL D. OLSZAK,
                     Petitioner,

                            v.
    DEPARTMENT OF HOMELAND SECURITY,
                Respondent.
              __________________________

                      2012-3031
              __________________________

   Petition for review of the Merit Systems Protection
Board in DC0842100561-I-1.
              ___________________________

                Decided: April 10, 2012
              ___________________________

      Michael D. Olszak, of Vienna, Virginia, pro se.

    DAVID F. D’ALESSANDRIS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and FRANKLIN E.
WHITE, JR., Assistant Director.
OLSZAK   v. DHS                                        2


                  __________________________

 Before BRYSON, PROST, and O’MALLEY, Circuit Judges.
PER CURIAM.

                          DECISION

    Petitioner Michael D. Olszak appeals the decision of
the Merit Systems Protection Board upholding the deci-
sion of his employer, the Department of Homeland Secu-
rity, denying his request for enhanced retirement
benefits. We affirm.

                        BACKGROUND

    Since 1989, Mr. Olszak has worked in various capaci-
ties for U.S. Customs and Border Protection (“CBP”), both
before and after it became part of the Department of
Homeland Security (“DHS”) in 2002. From 1989 to No-
vember 26, 1994, Mr. Olszak worked as an Immigration
Inspector. On November 27, 1994, he began working as
an Asylum Officer, a position he held until January of
1998. Since then, Mr. Olszak has held several other
positions with CBP and DHS. The issue in this appeal is
the proper classification of the Asylum Officer position.

    In 2007, Congress amended the statutes governing
the Civil Service Retirement System and the Federal
Employees Retirement System to extend to “customs and
border protection officers” the enhanced retirement bene-
fits provided to federal law enforcement officers. See
Consolidated Appropriations Act of 2008, Pub. L. No. 110-
161, § 535, 121 Stat. 1844, 2075 (2007). The new statute
defines the term “customs and border protection officer”
to mean a DHS employee who “holds a position within the
GS-1895 job series . . . or any successor position” and
3                                             OLSZAK   v. DHS


“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 trans-
ferred directly to a supervisory or administrative position
in [DHS] after performing such duties . . . for at least 3
years.” See 5 U.S.C. §§ 8331(31), 8401(36). Congress
made those benefits applicable to officers working for
DHS on the date the statute was enacted, 121 Stat. at
2077, and it authorized the Office of Personnel Manage-
ment (“OPM”), in consultation with DHS, to promulgate
regulations necessary to carry out the amendments, id. at
2078.

    OPM recently adopted regulations governing the en-
hanced retirement benefits scheme.            See 5 C.F.R.
§§ 831.1603, 831.1604; see also Customs and Border
Protection Officer Retirement, 76 Fed. Reg. 41,993-42,003
(July 18, 2011) (final rule). Prior to the issuance of those
regulations, DHS created its own definitions that it used
to determine which employees were eligible for the new
benefits. As pertinent to this appeal, there are no sub-
stantial differences between OPM’s regulations and the
definitions employed by DHS.

    According to DHS’s definitions, in order to be eligible
for the enhanced retirement benefits a CBP officer must
have been employed in either a primary or a secondary
covered position. A primary covered position is one in
which an employee serves as a CBP officer in a GS-1895
series position (or predecessor positions, such as Customs
Inspector, Immigration Inspector, or Canine Enforcement
Officer) “whose duties include activities relating to the
arrival and departure of persons, conveyances, and mer-
chandise at ports of entry.” There is no dispute that Mr.
Olszak’s service as an Immigration Inspector qualifies as
employment in a primary covered position.
OLSZAK   v. DHS                                           4


    An employee who is not in a primary covered position
may be eligible for the enhanced retirement benefits if he
was employed in a primary covered position for at least
three years and is then transferred directly to a secondary
covered position. DHS defines a “direct” transfer to mean
one “without a break in service exceeding 3 days.” The
agency defines secondary covered positions as either (1)
supervisory, i.e., positions in which the incumbents’
primary duties are as first-, second-, or third-level super-
visors of CBP officers, or (2) administrative, i.e., “execu-
tives, program managers, technical, semi-professional, or
professional positions for which experience as a [CBP]
Officer or equivalent experience in DHS is a mandatory
prerequisite.” Mr. Olszak’s transfer from his position as
an Immigration Inspector to the position of Asylum
Officer was effected without a break in service. There-
fore, the only question on appeal is whether the Asylum
Officer position qualifies as a secondary covered position
for purposes of determining eligibility for enhanced re-
tirement benefits.

    DHS concluded that the Asylum Officer position did
not qualify as a secondary covered position and therefore
denied Mr. Olszak’s request for enhanced retirement
benefits. Mr. Olszak appealed that decision to the Merit
Systems Protection Board. After a hearing at which
several witnesses testified about the nature of various
positions within CBP and the procedure for determining
which positions qualified for secondary coverage, the
administrative judge who was assigned to the case af-
firmed the agency’s determination. The administrative
judge concluded that the Asylum Officer position was not
a secondary covered position “due to the administrative
nature of the position” for which CBP officer experience
“was not required.” In contrast to the CBP officer posi-
tions, which involve law enforcement duties such as
5                                             OLSZAK   v. DHS


conducting searches, making arrests, and “detecting and
preventing terrorists and instruments of terror weapons
from entering the United States,” the Asylum Officer
position is “mostly sedentary in nature and is performed
predominantly in an office setting.” Although Asylum
Officers need “a thorough knowledge and understanding
of the complex body of immigration laws,” the administra-
tive judge concluded that during the time period at issue
in this case Asylum Officers could be hired “off the street”
without any previous agency experience.

    Mr. Olszak sought review by the full Board, which af-
firmed the administrative judge’s decision. The Board
concluded that Mr. Olszak failed to show that the agency
erred in determining that the Asylum Officer position did
not qualify for secondary coverage. The Board principally
relied on two factors: Mr. Olszak’s stipulation that during
“the relevant period, Asylum Officers could be hired as
outside applicants without CBP [officer] or Immigration
Inspector experience” and Mr. Olszak’s failure to offer
evidence that experience as a CBP officer or equivalent
experience in DHS was a mandatory prerequisite for the
Asylum Officer position.

                       DISCUSSION

    Mr. Olszak challenges DHS’s determination that the
Asylum Officer position is not a secondary covered posi-
tion for purposes of enhanced retirement benefits. It is
undisputed that the Asylum Officer position does not
satisfy the first of the two grounds for classification as a
secondary covered position—that the position is one in
which the employee exercises supervisory authority over
CBP officers, see, e.g., 5 C.F.R. § 831.1604(b)(2)(i). In-
stead, he argues that the agency should have ruled that
the Asylum Officer position satisfies the second ground
OLSZAK   v. DHS                                          6


for classification as a secondary covered position, because
it is an administrative position. Although the Board held
that Asylum Officers did not qualify under that category
because they were not required to have prior experience
in a primary covered position, Mr. Olszak argues that
prior experience in primary positions was not actually
required to qualify for secondary coverage in an adminis-
trative position. In support of his argument, he contends
that other individuals in the agency occupy positions that
are classified as secondary covered positions even though
they have not had primary position experience or train-
ing.

    The statutory scheme granting enhanced retirement
benefits to CBP officers was meant to parallel the scheme
enacted to grant similar benefits to other federal law
enforcement officers (“LEOs”). Cf. 5 C.F.R. § 831.902
(describing primary and secondary positions for LEOs);
Watson v. Dep’t of the Navy, 262 F.3d 1292, 1299-1300
(Fed. Cir. 2001). Given the purpose of the statute, it is
reasonable to conclude that Congress wanted to limit
enhanced retirement benefits to CBP employees who
perform similar law enforcement tasks.

    Primary covered positions in CBP, such as the Immi-
gration Inspector position, entail “front-line” duties such
as apprehending, detaining, or arresting persons who are
violating federal immigration laws and “search[ing]
persons, baggage, cargo, and carriers for contraband,”
tasks for which CBP officers are issued firearms and
authorized to conduct searches and make arrests. See
Office of Pers. Mgmt., Standards, Customs and Border
Protection Series, 1895. Those responsibilities differ in
their rigor and their law enforcement orientation from the
duties of an Asylum Officer.
7                                            OLSZAK   v. DHS


     Before the administrative judge, the agency presented
testimony explaining how the Asylum Officer position was
classified and why experience in a primary covered posi-
tion is not required for the Asylum Officer position.
Asylum Officers interview asylum applicants and make
initial determinations as to whether an applicant meets
the statutory requirements for asylum. To do so, Asylum
Officers need to be aware of human rights conditions in
various countries to enable them to make credibility
determinations about each applicant’s circumstances.
Such determinations are mostly factual and legal, and
they are performed primarily in an office setting.

    Given the difference in the tasks performed by Asy-
lum Officers and CBP employees who occupy primary
covered positions, the agency’s determination that Asy-
lum Officers need not have prior experience or training in
a primary covered position is a reasonable one and not at
odds with the statutory scheme. The agency’s decision
that the position of Asylum Officer does not qualify as a
secondary coverage position is therefore rational and
consistent with the purpose of the 2007 statute.

    Mr. Olszak claims that the agency has applied its
definition of secondary coverage positions inconsistently,
because it has classified certain positions, such as the
Program Manager and Supervisor Program Manager
positions, as secondary coverage positions even though
they do not require prior CBP experience. He also argues
that the agency has classified other positions, such as the
District Adjudications Officer (“DAO”) and Center Adjudi-
cations Officer (“CAO”) positions, as secondary coverage
positions even though they require skills “virtually simi-
lar” to those of Asylum Officers. With respect to the
Program Manager and Supervisory Program Manager
positions, Mr. Olszak has not shown that those positions
OLSZAK   v. DHS                                          8


are ineligible for secondary coverage under the “supervi-
sory” prong of the definition of secondary coverage. As for
the DAO and CAO positions, Mr. Olszak has not shown
that those positions are so similar to the Asylum Officer
position as to warrant a conclusion that the agency’s
classification of the Asylum Officer position was errone-
ous. The Board therefore properly held that Mr. Olszak
failed to show either that he qualified for enhanced re-
tirement benefits under DHS’s rules applying the 2007
statute, or that the agency misapplied either the statute
or its own rules in classifying the Asylum Officer position
as ineligible for enhanced retirement credit.

                      AFFIRMED
