     United States Court of Appeals for the Federal Circuit



                                      06-3121



                             THOR WEATHERBY, III,

                                                                Petitioner,

                                         v.


                        DEPARTMENT OF THE INTERIOR,

                                                                Respondent.




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

       Roger A. Hipp, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, and Deborah A. Bynum, Assistant Director.


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

                                          06-3121


                                 THOR WEATHERBY, III,

                                                                Petitioner,

                                             v.

                           DEPARTMENT OF THE INTERIOR,

                                                                Respondent.


                             __________________________

                              DECIDED: October 26, 2006
                             __________________________



Before MICHEL, Chief Judge, PLAGER, Senior Circuit Judge, and RADER, Circuit
Judge.

MICHEL, Chief Judge.

       Petitioner Thor Weatherby, III appeals from a decision of the Merit Systems

Protection Board ("Board") upholding the denial of his claim for enhanced annuity

benefit credits as a firefighter. Weatherby v. Dep't of the Interior, No. SF-0842-05-0195-

I-2 (M.S.P.B. July 29, 2005). Because the Board correctly found that neither the job

descriptions of positions that petitioner held nor his actual primary duties met the

statutory definition of "firefighter" under either the statute establishing the Civil Service
Retirement System ("CSRS") or the superseding Federal Employee Retirement System

("FERS"), we affirm.

                                  I.     BACKGROUND

       Certain federal employees who work in unusually hazardous positions are

entitled to enhanced retirement benefits. For example, firefighters and law enforcement

officers are eligible for voluntary retirement earlier than other federal employees, i.e., at

any age if they have completed 25 years of service in a qualified position or at age 50

after 20 years of service. See 5 U.S.C. §§ 8336(c), 8412(d). In addition, they are

entitled to a larger annuity. See 5 U.S.C. §§ 8339(d), 8415(d).

       Under CSRS, a "firefighter" is statutorily defined as:

       an employee, the duties of whose position are primarily to perform work
       directly connected with the control and extinguishment of fires or the
       maintenance and use of firefighting apparatus and equipment, including
       an employee engaged in this activity who is transferred to a supervisory or
       administrative position.
5 U.S.C. § 8331(21) (emphasis added). Under FERS, a "firefighter" is:

       (A) an employee, the duties of whose position –
              (i) are primarily to perform work directly connected with the control and
              extinguishment of fires; and
              (ii) are sufficiently rigorous that employment opportunities should be
              limited to young and physically vigorous individuals, as determined by the
              Director considering the recommendations of the employing agency; and
       (B) an employee who is transferred directly to a supervisory or administrative
       position after performing duties described in subparagraph (A) for at least 3
       years.
5 U.S.C. § 8401(14) (emphasis added).

       The implementing regulations mirror these statutory definitions. See 5 C.F.R.

§§ 831.902, 842.802. In addition, the regulations describe how the "primary duties" of

an employee's position are determined. The following factors are to be considered:


06-3121                                      2
(1) whether those duties constitute the basic reasons for existence of the position;

(2) whether they occupy a substantial portion of the individual's working time over a

typical work cycle; and (3) whether they are regular and recurring. 5 C.F.R. §§ 831.902,

842.802. Duties of an emergency, incidental, or temporary nature, however, are not

"primary," even if they occupy a substantial portion of the individual's time. 5 C.F.R.

§§ 831.902, 842.802.      In deciding whether an employee is eligible for firefighter

retirement credit, the Board has adopted the "position-oriented" approach emphasized

in the FERS statute that focuses on the reasons for the position's existence, based on

the official job description as well as the employee's actual day-to-day duties. Dodd v.

Dep't of the Interior, 94 M.S.P.R. 174, ¶ 12 (M.S.P.B. 2003); see also Watson v. Dep't of

the Navy, 262 F.3d 1292, 1296 (Fed. Cir. 2001) (approving a similar analytic approach

for law enforcement officers).

                                     *      *      *

       Petitioner is employed by the Alaska Fire Service in the Bureau of Land

Management, within the Department of the Interior ("agency"). Since July 26, 1984, he

has held the following positions:

       7/26/84–7/20/85      Electronic Mechanic Helper       WG-2604-05
       7/21/85–11/19/88     Electronic Mechanic              WG-2604-11
       11/20/88–10/5/91     Electronic Mechanic              WG-2604-10
       10/6/91–7/20/97      Electronic Mechanic              WG-2604-11
       7/21/97–9/7/02       Telecommunications Specialist    GS-0391-11
       9/8/02–6/28/03       Infotech Specialist (Network)    GS-2210-11
       6/29/03–11/01/03     IT Specialist (SYS ADMIN)        GS-2210-11
       11/02/03–present     IT Specialist (SYS ADMIN)        GS 2210-12




06-3121                                     3
In December 2003, petitioner submitted a claim seeking firefighter retirement credits.

The agency denied his claim by letter dated November 18, 2004.              Petitioner timely

appealed to the Board.

       On July 29, 2005, an administrative judge ("AJ") issued an initial decision

agreeing with the agency that petitioner was never a firefighter within the statutory

meaning of the word under CSRS or FERS. The AJ first determined that petitioner's

service was covered by CSRS through December 31, 1986 and by FERS since

January 1, 1987, its effective date. Weatherby, slip op. at 6-7.

       The AJ found that petitioner's first job as an Electronic Mechanic Helper involved

the maintenance and repair of electronic communications equipment used by

firefighters but did not satisfy the CSRS definition because his duties were performed

solely in the radio shop, not at the fire scene. Id., slip op. at 9. Likewise, the job

description for his next job as an Electronic Mechanic did not mention work near fires,

though it did refer to physically demanding work sometimes performed in "extremely

cold, windy weather on mountaintops." With respect to petitioner's actual day-to-day

duties, he was not assigned to any fire incidents until June 1986, when he was sent to a

command center1 handling four simultaneous fires in Alaska. The AJ acknowledged

that petitioner's work installing repeaters2 and distributing radio kits3 during these four


       1
             Usually, a command center is close enough to a fire that it would need to
be moved if the fire spread in an unexpected direction. But it is not at the fire line.
       2
               A repeater is a device with a large mast antenna and a power source
temporarily installed on a mountaintop to facilitate radio communications among
firefighters. Petitioner was responsible for installing and maintaining repeaters during
the fire and removing them afterwards.
       3
              A radio kit is a set of sixteen handheld radios issued to firefighters.


06-3121                                      4
fires was similar to the type of work found to satisfy the CSRS definition of "firefighter" in

Felzien v. Office of Personnel Management, 930 F.2d 898, 903 (Fed. Cir. 1991).

Weatherby, slip op. at 12. The AJ noted that only other fire-related incident to which

petitioner was assigned before December 31, 1986 was a temporary assignment to the

Boise Interagency Fire Center—i.e., not on the fire line—in August 1986. Id., slip op. at

11. Because petitioner's exposure to hazardous fire conditions was limited to a single

occasion in June 1986—unlike Mr. Felzien, who worked at "hundreds of fires," Felzien

930 F.2d at 899—the AJ declined to find that the primary duties of his service before

December 31, 1986 met the CSRS definition of "firefighter." Weatherby, slip op. at 12.

       The AJ then analyzed the remainder of petitioner's service under FERS. He

noted that this court, in Felzien, found that work with repeaters and radio kits was not

the type of front-line firefighting duties that would satisfy the first clause of the CSRS

definition—i.e., "work directly connected with the control and extinguishment of fires."

Id., slip op. at 13. Because this language was preserved in the FERS definition of

"firefighter," the AJ determined that petitioner's work after January 1, 1987 was not

eligible for firefighter credit.   Id.   The AJ similarly concluded that petitioner's other

positions as an Electronic Mechanic did not meet the FERS definition of "firefighter."

Id., slip op. at 13-15. Having found that no service from July 26, 1984 to July 20, 1997

was entitled to primary firefighter coverage under 5 U.S.C. § 8401(14)(A), the AJ found

that petitioner was not entitled to "secondary" firefighter coverage under 5 U.S.C.

§ 8401(14)(B) for any service thereafter in administrative or supervisory positions. Id.,

slip op. at 15.




06-3121                                         5
         On August 29, 2005, petitioner sought review from the full Board.                On

December 29, 2005, the Board denied further review, rendering the AJ's decision final.

This timely appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                     II.    DISCUSSION

         We review the Board's decision by determining whether any agency action,

findings or conclusions are unsupported by substantial evidence or are arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.

§ 7703(c). Statutory or regulatory interpretations, however, like other questions of law,

are reviewed de novo. Kindall v. Office of Pers. Mgmt., 347 F.3d 930, 932 (Fed. Cir.

2003).

         As a preliminary matter, petitioner asserts that the CSRS definition of "firefighter"

must apply through November 19, 1988, the terminal date of his position, because a

service position cannot be temporally bifurcated. This argument lacks merit. Because

he had fewer than five years of service as of January 1, 1987, the AJ correctly found

that petitioner was subject to FERS as soon as the Federal Employees Retirement

System Act of 1986, 5 U.S.C. §§ 8401-8479, became effective. See 5 U.S.C. § 8402;

Connor v. Office of Pers. Mgmt., 104 F.3d 1344, 1348 (Fed. Cir. 1997) (construing

§ 8402(b)(2)(B) to allow employees who have accumulated five years of creditable

service before January 1, 1987 to opt out of FERS and remain covered under CSRS

instead). The FERS Act, by its express terms, became effective on January 1, 1987.

Therefore, petitioner's continued service after that date was governed by FERS even

though his position did not change. Petitioner did not cite any authority to the contrary.




06-3121                                        6
       On the merits, substantial evidence supports the AJ's finding that petitioner's

primary duties before December 31, 1986 did not involve the type of firefighting work

contemplated by the CSRS definition.         In extending special retirement benefits to

firefighters, Congress intended "that employees must be exposed to some hazard to

qualify even under the maintenance and use clause." Felzien, 930 F.2d at 902; see

also H.R. Rep. No. 92-840 (1972), reprinted in 1972 U.S.C.C.A.N. 2941, 2944. Until

June 1986, however, petitioner's maintenance and repair of electronic communications

equipment was confined to the safety of the radio shop. With respect to the four fires in

June 1986, the AJ recognized that petitioner's duties performed while assigned to the

command center were similar to Felzien's work as a communications officer. Yet, unlike

Felzien, who had done such work regularly, petitioner's exposure to hazardous fire

conditions was limited to this one occasion. This was insufficient to demonstrate that

the primary duties of his Electronic Mechanic position deviated from his official job

description and concerned front-line firefighting activity.

       Petitioner concedes that the definition of "firefighter" under FERS is more

restrictive. Not only was the "sufficiently rigorous" clause added by the FERS Act, but

the "maintenance and use of firefighting apparatus and equipment" clause was deleted.

Moreover, the Senate Report expressly states that the FERS definition only applies

where the employee "will actually and directly participate in firefighting activities."

S. Rep. No. 99-166, at 40 (1985), reprinted in 1986 U.S.C.C.A.N. 1404, 1445. We have

previously found that "work directly connected with the control and extinguishment of

fires" means "the type of front-line firefighting duties so obviously hazardous and

physically demanding that they supply the ordinary meaning of 'firefighting.'" Felzien,




06-3121                                       7
930 F.2d at 902.      The maintenance of firefighting equipment is perhaps indirectly

connected with such front-line firefighting duties but does not satisfy 5 U.S.C.

§ 8401(14)(A)(i).    Because both subsections (i) and (ii) must be satisfied to earn

firefighter credit, it is insufficient that some of petitioner's other job duties were physically

rigorous.

       In short, the AJ correctly held that none of petitioner's service as an Electronic

Mechanic after January 1, 1987 qualified for firefighting credit under the FERS

definition. This holding was heavily dependent on subsidiary findings of fact that were

supported by substantial evidence. Accordingly, none of his subsequent administrative

positions could qualify for secondary firefighter credit.

                                    III.    CONCLUSION

       For these reasons, we affirm the Board's decision.               Petitioner's claim for

enhanced annuity benefit credits was properly denied by the agency whose decision

was lawfully and correctly upheld by the Board.

                                           AFFIRMED.




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