                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     COLISTER SLATER,                                DOCKET NUMBER
                  Appellant,                         SF-3443-15-0322-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: January 21, 2016
       SECURITY,
                 Agency.



            THIS FINAL ORDER IS NONPRECEDENTIAL1

           Colister Slater, San Bernardino, California, pro se.

           Laurie K. Simonson, Esquire, San Francisco, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

regulation or the erroneous application of the law to the facts of the case; the
administrative 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, 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. We REVERSE the administrative
judge’s finding that the Board lacks jurisdiction over the agency’s decision to
deny the appellant’s claim for law enforcement officer (LEO) retirement credit
under the Federal Employees’ Retirement System (FERS), and AFFIRM the
agency’s denial of LEO retirement credit on the merits. We further AFFIRM the
administrative judge’s finding that the Board lacks jurisdiction over the
appellant’s remaining claims. 2




2
  The appellant has since filed a supplemental pleading, to which the agency has
responded. The Board’s regulations do not allow for pleadings on review other than a
petition for review, a cross petition for review, a response to a petition for review or
cross petition for review, and a reply to a response to a petition for review. 5 C.F.R.
§ 1201.114(a). No other pleading will be accepted unless the party files a motion with
and obtains leave from the Clerk of the Board. 5 C.F.R. § 1201.114(a)(5). The motion
must describe the nature of and the need for the pleading. Id. Here, the appellant
asserts that his supplemental pleading is based on new and material evidence that was
not previously available. However, while some of the attached documents are dated
after the close of record on review, we find that none of them is material to the outcome
of this appeal. Accordingly, we give no further consideration to the appellant’s
supplemental pleading or the agency’s response thereto.
                                                                                        3

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge did not abuse his discretion in denying the appellant’s
     request for class certification.
¶2         On review, the appellant contests the administrative judge’s decision to
     deny his request for class certification.    The Board’s class action regulations
     provide that, when an appellant requests class certification, “[t]he judge will hear
     the case as a class appeal if he or she finds that a class appeal is the fairest and
     most efficient way to adjudicate the appeal and that the representative of the
     parties will adequately protect the interests of all parties.” 5 C.F.R. § 1201.27(a).
     They further provide that “[i]n determining whether it is appropriate to treat an
     appeal as a class action, the judge will be guided but not controlled by the
     applicable provisions of the Federal Rules of Civil Procedure.”            5 C.F.R.
     § 1201.27(c).    Federal Rule of Civil Procedure 23(a) sets out the following
     prerequisites for a class action:
           (a) Prerequisites. One or more members of a class may sue or be
           sued as representative parties on behalf of all members only if:
               (1) the class is so numerous that joinder of all members is
               impracticable;
               (2) there are questions of law or fact common to the class;
               (3) the claims or defenses of the representative parties are typical
               of the claims or defenses of the class; and
               (4) the representative parties will fairly and adequately protect the
               interests of the class.
     Fed. R. Civ. P. 23(a).
¶3         We find that the administrative judge did not abuse his discretion in
     denying the appellant’s request for class certification. See Bacon v. Department
     of Housing & Urban Development, 20 M.S.P.R. 408, 416 (1983) (explaining that
     administrative judges are granted broad discretion in connection with class action
     orders), aff’d, 757 F.2d 265 (Fed. Cir. 1985). First, the appellant did not file a
     brief in support of his request by the deadline set forth in the administrative
     judge’s February 13, 2015 Order to Show Cause.           Initial Appeal File (IAF),
                                                                                   4

Tab 3. Moreover, the administrative judge could have reasonably concluded that
the prerequisites for class certification were not satisfied in any event, because
the proposed class of 21 was not so numerous that joinder would have been
impracticable. See, e.g., NAVFAC Employees–Hawaii v. Department of the Navy,
MSPB     Docket   No.   SF-0752-14-0265-I-1     (consolidation   of   55    appeals).
Accordingly, we will not disturb the administrative judge’s decision to deny class
certification.

The Board has jurisdiction over the agency’s denial of the appellant’s request for
LEO retirement credit.
      The Board has jurisdiction over a claim for FERS LEO retirement credit
under 5 U.S.C. § 8461(e)(1), which provides that “an administrative action or
order affecting the rights or interests of an individual or of the United States
under the provisions of this chapter administered by the Office [of Personnel
Management] may be appealed to the Merit Systems Protection Board under
procedures prescribed by the Board.” Slater v. General Services Administration,
95 M.S.P.R. 378, ¶ 10 (2004), overruled on other grounds by McNeil v.
Department of Defense, 100 M.S.P.R. 146 (2005). The agency has not issued a
decision concerning the appellant’s request for LEO retirement credit since
August 24, 2001, when it issued the denial letter that led to his 2001 Board
appeal. Initial Appeal File (IAF), Tab 15 at 41. However, the appellant has since
renewed his request for LEO retirement credit, citing an alleged change in the
duties of his position. Under these circumstances, to dismiss his appeal for lack
of jurisdiction based on the agency’s failure to issue a new decision would
effectively prevent him from obtaining adjudication of his claim. Cf. McLaughlin
v. Office of Personnel Management, 62 M.S.P.R. 536, 546 (1994) (finding
jurisdiction over retirement appeal where the agency’s failure to issue a decision
on the appellant’s retirement application amounted to a constructive denial),
aff’d, 47 F.3d 1171 (Fed. Cir. 1995) (Table).        We therefore find that the
appellant’s claim for LEO retirement credit lies within our jurisdiction.
                                                                                         5

¶4         Under 5 C.F.R. § 842.804(c), an employee must file a formal, written
     request for LEO coverage within 6 months after entering the position in question,
     or within 6 months of any significant change in the position.         The regulation
     further provides that failure to make a timely request will result in a presumption
     that the agency head’s determination of noncoverage was correct, unless the
     employee can show by a preponderance of the evidence that he was unaware of
     his status or that he was prevented from making a timely request by cause beyond
     his control.    Id.     However, compliance with the 6-month time limit of
     section 842.804(c) is not a jurisdictional requirement. See Slater, 95 M.S.P.R.
     378, ¶ 10; Trivett v. Department of the Navy, 83 M.S.P.R. 61, ¶ 5 (1999). In any
     event, the regulatory 6-month time limit is deemed to be waived unless the
     agency denies coverage on that basis.      Slater, 95 M.S.P.R. 378, ¶ 11; Trivett,
     83 M.S.P.R. 61, ¶ 5.     While the agency in this case has not issued a formal
     decision on the merits, as occurred in Trivett and the appellant’s previous
     appeals, it nonetheless has declined to invoke the 6-month time limit, and we give
     it no further consideration.

     The agency’s denial of LEO retirement credit is affirmed.
¶5         To qualify for LEO retirement coverage under FERS, an employee must
     show that the duties of his position are primarily:          “(I) the investigation,
     apprehension or detention of individuals suspected or convicted of offenses
     against the criminal laws of the United States, or (II) the protection of officials of
     the United States against threats to their personal safety.”               5 U.S.C.
     § 8401(17)(A)(i).     In addition, the employee must show that the duties of the
     position are:   “sufficiently rigorous that employment opportunities should be
     limited to young and vigorous individuals.” 5 U.S.C. § 8401(17)(A)(ii). Thus, an
     employee seeking FERS LEO retirement credit must satisfy a two-prong test that
     the duties of his position are:     (1) primarily those described under 5 U.S.C.
     § 8401(17)(A)(i)(I) or (II), and (2) so rigorous as to be limited to young and
                                                                                     6

     physically vigorous individuals as required by 5 U.S.C. § 8401(17)(A)(ii). Slater,
     95 M.S.P.R. 378, ¶ 14.
¶6        In his 1998 appeal, the Board found that the appellant was not entitled to
     FERS LEO retirement credit because, regardless of whether his duties as a
     Federal Protective Service (FPS) Police Officer were so rigorous as to be limited
     to young and physically vigorous individuals, they were not primarily LEO in
     nature, i.e., duties covered under 5 U.S.C. § 8401(17)(A)(i)(I) or (II). Slater v.
     General Services Administration, MSPB Docket No. SF-0842-98-0670-I-2, Initial
     Decision (Apr. 1, 1999), petition for review denied sub nom. Goldsmith v.
     General Services Administration, MSPB Docket No. SF-0842-98-0650-I-2, Final
     Order (Nov. 5, 1999), aff’d, Slater v. General Services Administration, 250 F.3d
     762 (Fed. Cir. 2000) (Table). In his 2001 appeal, the Board again affirmed the
     agency’s denial of FERS LEO retirement credit, finding that the appellant was
     collaterally estopped from relitigating the issue of whether the duties of his FPS
     Police Officer position were primarily LEO in nature. Slater, 95 M.S.P.R. 378,
     ¶¶ 16-17.
¶7        The appellant contends that the prior Board decisions are no longer relevant
     because the duties of his FPS Police Officer position have since been changed as
     a result of the following statutes and directives:     (1) the Law Enforcement
     Officers Safety Act of 2004 (LEOSA), as amended by the Law Enforcement
     Officers Safety Act Improvements Act of 2010; (2) the Homeland Security Act of
     2002 (HSA), specifically, the portion codified at 40 U.S.C. § 1315; and (3)
     Homeland Security Presidential Directive 7 (HSPD-7), issued on December 17,
     2003. However, the appellant has not shown that the duties of his position have
     been altered by these provisions. The LEOSA, as amended, includes a definition
     of the term “qualified law enforcement officer” for purposes of determining
     eligibility to carry a concealed firearm, see 18 U.S.C. § 926B, but the definition
     applies only to that section, and does not pertain to the question of whether the
     appellant’s duties are primarily duties covered under 5 U.S.C. § 8401(17)(A)(i)(I)
                                                                                             7

     or (II). As for the HSA, 40 U.S.C. § 1315 provides the Secretary of Homeland
     Security with the authority to designate FPS employees as officers and agents to
     protect Federal property and persons on that property, but the appellant has not
     offered any evidence that his duties as an FPS Police Officer have been expanded
     pursuant to that authority. Similarly, the appellant has not shown that his primary
     duties were altered pursuant to HSPD-7, which set out a national policy for
     Federal departments and agencies to protect critical infrastructures and key
     resources from terrorist attacks. Because the appellant has failed to show that the
     duties of his FPS Police Officer position are now covered by 5 U.S.C. § 8401(17),
     we affirm the agency’s denial of LEO retirement credit. 3

     The administrative judge correctly found that the Board lacks jurisdiction over
     the appellant’s remaining claims.
¶8        The appellant also seeks to contest the agency’s denial of his request for
     promotion to the GS-12/13 level. However, the Board does not have jurisdiction
     over all agency actions that are alleged to be incorrect. Preece v. Department of
     the Army, 50 M.S.P.R. 222, 226 (1991). The Board’s jurisdiction is limited to
     those matters over which it has been given jurisdiction by law, rule, or regulation.
     Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985).
     Generally, the Board lacks jurisdiction over denials of promotion or classification
     matters. Frazer v. Department of the Navy, 15 M.S.P.R. 376, 377 (1983).
¶9        In some cases, a failure to promote may be appealable to the Board under
     the individual right of action (IRA) appeal provisions of the Whistleblower
     Protection Act, as amended by the Whistleblower Protection Enhancement Act of
     2012. 4 The Board has jurisdiction over an IRA appeal if the appellant exhausts

     3
       To the extent the appellant may contend that his duties were primarily LEO in nature
     at the time of his prior Board appeals, he is collaterally estopped from relitigating that
     issue. See Slater, 95 M.S.P.R. 378, ¶ 16.
     4
       The Board also may have jurisdiction over a claim that a denial of promotion was the
     result of discrimination based on uniformed service or in violation of the employee’s
     veterans’ preference rights, but the appellant has not made such an allegation here.
                                                                                        8

      his administrative remedies before the Office of Special Counsel (OSC) and
      makes nonfrivolous allegations that: (1) he made a disclosure described under
      5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C.
      § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
      was a contributing factor in the agency’s decision to take or fail to take a
      personnel action as defined by 5 U.S.C. § 2302(a).         5 U.S.C. §§ 1214(a)(3),
      1221(e)(1); Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014). The
      Board’s jurisdiction in such cases is limited to issues raised before OSC. Coufal
      v. Department of Justice, 98 M.S.P.R. 31, 38 (2004).
¶10        Here, the appellant filed a complaint with OSC in which he alleged that the
      agency took various actions against him, including the denial of promotion, in
      retaliation for protected disclosures and for his prior equal employment
      opportunity (EEO) complaints, Board appeals, and complaints to the agency’s
      Office of Inspector General (IG).         IAF, Tab 10, Exhibit L.    However, the
      administrative judge found that, to the extent the appellant had exhausted his
      remedies with OSC, he failed to nonfrivolously allege that he made protected
      disclosures that were a contributing factor in a personnel action. IAF, Tab 27,
      Initial Decision (ID) at 13-25.     He further found that the appellant’s EEO
      complaints    and   Board    appeals      were   not   covered   under   5   U.S.C.
      § 2302(b)(9)(A)(i), because they did not concern alleged violations of 5 U.S.C.
      § 2032(b)(8), and that, to the extent his IG complaints may have been covered
      under 5 U.S.C. § 2302(b)(9)(C), he failed to make a nonfrivolous allegation that
      they were a contributing factor in a personnel action. ID at 25-28. The appellant
      does not address these findings in his petition for review, and we discern no error
      in the administrative judge’s analysis.
¶11        Because the denial of promotion is not an otherwise appealable action, we
      also lack jurisdiction to adjudicate the appellant’s affirmative defenses, including
      his claims of discrimination.    See Young v. U.S. Postal Service, 115 M.S.P.R.
      424, ¶ 15 (2010). Finally, to the extent the appellant alleges wrongdoing on the
                                                                                    9

part of the agency representative, we find that his allegations are either without
merit or outside the scope of these proceedings.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit.
     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 want to request review of the Board’s decision concerning your
claims   of    prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
     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 U.S. 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 U.S. Code, at our
                                                                                 10

website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit 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. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
     If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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.
