                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                     2007-3023


                                THOMAS L. BETTS,

                                                           Petitioner,

                                          v.


                         DEPARTMENT OF THE INTERIOR,

                                                           Respondent.

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

       Sean B. McNamara, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Donald E. Kinner, Assistant Director.

Appealed from: United States Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2007-3023

                                  THOMAS L. BETTS,

                                                       Petitioner,

                                            v.

                          DEPARTMENT OF THE INTERIOR,

                                                       Respondent.

                           __________________________

                              DECIDED: August 8, 2007
                           __________________________


Before NEWMAN, LOURIE, and LINN, Circuit Judges.

PER CURIAM.

      Thomas L. Betts (“Betts”) appeals from a decision of the Merit Systems

Protection Board (“Board”) that became final on September 21, 2006 when Betts failed

to file a petition for review with the Board. Betts v. Dep’t of the Interior, No. SE-0831-

04-0161-I-4 (M.S.P.B. Aug. 17, 2006).      The Board affirmed a final decision by the

Department of the Interior (“agency”) denying his request for law enforcement officer

(“LEO”) retirement coverage under the Civil Service Retirement System (“CSRS”) and

the Federal Employees Retirement System (“FERS”).            Id.     Because the Board’s

decision is supported by substantial evidence and otherwise in accordance with law, we

affirm. See 5 U.S.C. § 7703(c).
      On appeal, Betts asserts that he was entitled to LEO credit for his service as a

park ranger at Grand Canyon National Park and Rocky Mountain National Park, and for

his service as a supervisory park ranger at Yellowstone National Park. As both parties

agree, the Board misapplied the break-in-service rule by stating that it would not

consider service prior to August 31, 1986. That error is harmless, however, because

Betts’s service at Grand Canyon, Rocky Mountain, and Yellowstone—the only service

that Betts argues qualifies for LEO credit—all occurred after that date and was fully

considered by the Board.

      The parties stipulated that Betts’s service after July 15, 1990 qualifies for

secondary LEO coverage as a supervisor. Betts argues that his service after that date

also qualifies for primary LEO coverage.       We conclude, however, that substantial

evidence supports the Board’s finding that Betts failed to prove that he performed

qualifying LEO duties in a primary position after that date.     Accordingly, the Board

properly regarded Betts’s service after July 15, 1990 as a secondary LEO position.

      In order to be entitled to CSRS or FERS coverage for enhanced LEO credit in a

secondary position, an employee must have transferred directly from a primary LEO

position. See 5 C.F.R. §§ 831.904, 842.803. Although Betts argues that evidence

supports that he spent the majority of his time performing primary LEO duties in his

position at Grand Canyon, the position description and the testimony regarding Betts

actual duties demonstrate that Betts’s position did not exist primarily for the purpose of

investigating, apprehending, or detaining criminals or suspects. See Watson v. Dep’t of

the Navy, 262 F.3d 1292, 1299, 1303 (Fed. Cir. 2001). The position description and the

testimony regarding Betts’s actual duties at Rocky Mountain likewise fail to demonstrate




2007-3023                               2
that Betts’s position there existed for the purpose of law enforement. We therefore

conclude that substantial evidence suports the Board’s finding that Betts’s service at

Grand Canyon and Rocky Mountain did not qualify as service in a primary LEO position.

      Because the service at Grand Canyon and Rocky Mountain does not qualify as

service in a primary LEO position, Betts did not transfer directly from a primary LEO

position, and thus his subsequent service in a secondary LEO position does not entitle

to him to coverage for enhanced LEO credit.          Accordingly, because substantial

evidence supports the Board’s findings, we affirm.

                                        COSTS

      No costs.




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