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Fitzgerald v. Department of Homeland Security

United States Court of Appeals, Federal Circuit

September 20, 2016

SUSAN FITZGERALD, Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY, Respondent

         Petition for review of the Merit Systems Protection Board in No. AT-0831-14-0684-I-1.

          John C. Herman, Robbins Geller Rudman & Dowd LLP, Atlanta, GA, argued for petitioner. Also represented by Carlton Jones, Robert James Leonard.

          TARA K. HOGAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Patricia M. McCarthy, Kristin McGrory.

          Before Dyk, Schall, and HUGHES, Circuit Judges.

          Schall, Circuit Judge.

         Susan Fitzgerald is an employee of U.S. Customs and Border Protection ("the Agency"), a component of the Department of Homeland Security ("DHS"). She currently works as a "Law Enforcement Specialist (Foren-sics/Investigative Instructor)" at the Federal Law Enforcement Training Center ("FLETC") in Glynco, Georgia. In this appeal, she challenges the April 2, 2015 final decision of the Merit Systems Protection Board ("Board") that sustained the denial by the Agency of her request for secondary Customs and Border Protection Officer ("CBPO") retirement credit based upon her service as an Instructor at FLETC. J.A. 1-8. For the reasons set forth below, we affirm.

         Background

         I.

         Federal retirement laws extend enhanced benefits to certain groups, such as law-enforcement officers ("LEOs") and firefighters, who have served in physically rigorous positions. Under the Federal Employees' Retirement System ("FERS"), [1] those benefits include, inter alia, eligibility to retire with an annuity at an earlier age than many other federal employees and eligibility to retire based on fewer years of service. Compare 5 U.S.C. § 8412(a) (2012) (providing an annuity once an employee has reached the age of 55 and has completed 30 years of service) with id. § 8412(d)(1), (2) (providing an annuity at any age after completing 25 years of service as an LEO or firefighter, or after reaching the age of 50 and completing 20 years of such service). Germane to this case, in 2007, Congress passed legislation ("the Act") that amended the federal retirement statutes to provide to employees who qualify as CBPOs enhanced retirement benefits similar to those available to LEOs and firefighters. See Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 535, 121 Stat. 1844, 2075-77. The Act became effective on July 6, 2008. See id. § 535(e)(1). As charged by section 535(d) of the Act, the Office of Personnel Management ("OPM") has issued regulations governing enhanced retirement benefits for CBPOs. See Customs and Border Protection Officer Retirement, 76 Fed. Reg. 41, 993 (July 18, 2011) (codified at 5 C.F.R. pt. 842, subpt. J).

         II.

         Ms. Fitzgerald began her career with the federal government as an Immigration Inspector (GS-1816 series) with the Immigration and Naturalization Service ("INS") of the Department of Justice. She worked in that capacity from August 2, 1987, to July 2, 1988. Subsequently, from July 3, 1988, to May 6, 2000, she served as a Customs Inspector (GS-1890 series) with the Customs Service ("Customs") of the Department of the Treasury.[2] Ms. Fitzgerald has been continuously employed in various Instructor positions at FLETC since May of 2000.[3] One of her main responsibilities while at FLETC has been providing training to criminal investigators and LEOs from various federal organizations.

         On August 3, 2012, Ms. Fitzgerald requested that the Agency review her employment history so that she could obtain CBPO retirement credit for her past service with INS and Customs. The Agency denied her request on July 25, 2013, stating that the Act did not provide "retroactive service" credit for service performed before July 6, 2008, the effective date of the Act. Ms. Fitzgerald requested reconsideration and sought CBPO credit for her service at FLETC after the Act's effective date; the Agency denied her request on April 17, 2014.

         III.

         Ms. Fitzgerald timely appealed the denial of her claim to the Board. After conducting a hearing on September 19, 2014, the administrative judge ("AJ") to whom the appeal was assigned affirmed the Agency's denial in an initial decision dated September 29, 2014. Fitzgerald v. Dep't of Homeland Sec, AT-0831-14-0684-I-1, 2014 WL 4987282 (Sept. 29, 2014) ("Initial Decision"). In arriving at his decision, the AJ examined the pertinent statutory and regulatory framework for determining whether Ms. Fitzgerald is entitled to CBPO retirement credit based upon her service at FLETC.

         The Act amended FERS to make CBPOs eligible for enhanced retirement benefits. See Consolidated Appropriations Act, 2008, § 535(b)(2) (codified at 5 U.S.C. § 8412(d)). The Act defines a CBPO as

an employee in [DHS] (A) who holds a position within the GS-1895 job series (determined applying the criteria in effect as of September 1, 2007) or any successor position, and (B) 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 [DHS] after performing such duties (as described in subparagraph (B)) in 1 or more positions (as described in subparagraph (A)) for at least 3 years.

Id. § 535(b)(1)(C) (codified at 5 U.S.C. § 8401(36)) (emphasis added). As noted, the amendments made by section 535 of the Act became effective on July 6, 2008. See id. § 535(e)(1). In regard to service performed before its effective date, the Act provides as follows:

(i) GENERAL RULE.-Except as provided in clause (ii), nothing in this section or any amendment made by this section shall be considered to apply with respect to any service performed as a [CBPO] before [July 6, 2008].
(ii) EXCEPTION.-Service described in section . . . 8401(36) . . . rendered before [July 6, 2008] may be taken into account to determine if an individual who is serving on or after such effective date then qualifies as a [CBPO] by virtue of holding a supervisory or administrative position in [DHS].

Id. § 535(e)(2)(B)(i)-(ii) (emphasis added). Thus, while not retroactive, the Act is retrospective. In other words, it does not allow service rendered before the July 6, 2008 effective date to form the basis for CBPO retirement credit. However, it does permit such prior service to be considered when determining whether a position held in DHS on or after the effective date (Ms. Fitzgerald's circumstance) qualifies as a "supervisory or administrative" position for purposes of CBPO retirement credit (the question in Ms. Fitzgerald's case). See 76 Fed. Reg. at 41, 994 (explaining that if an individual is in a supervisory or administrative position on July 6, 2008, that individual's eligibility to be a CBPO will be determined by "looking back at the individual's employment history to determine whether the requirements for coverage would have been met if the provisions of [section] 535 had been in effect during the earlier employment history").

         Pursuant to its authority to promulgate regulations to implement the amendments to FERS, OPM issued final regulations governing enhanced retirement benefits for CBPOs on July 18, 2011. The regulations' definition of CBPO relates to the definition of CBPO in 5 U.S.C. §8401(36). See 5 C.F.R. §842.1002. Like the statute, the regulations split CBPOs into two categories of positions (referred to in the regulations as "primary" and "secondary" positions) for which early retirement coverage under 5 U.S.C. § 8412(d) may be available. See id.

         Under the regulations, a primary CBPO position is a position "classified within the [CBPO] (GS-1895) job series (determined applying the criteria in effect as of September 1, 2007) or any successor position whose duties include the performance of work directly connected with activities relating to the arrival and departure of persons, conveyances, and merchandise at ports of entry." 5 C.F.R. § 842.1002. As will be seen, Ms. Fitzgerald does not contend that her employment at FLETC has been in primary CBPO positions. Rather, she argues that her employment at FLETC has been in secondary CBPO positions and that, for that reason, she is entitled to CBPO retirement credit. Pertinent to Ms. Fitzgerald's claim, a secondary CBPO position is a position in DHS that is either:

(1) Supervisory; i.e., a position whose primary duties are as a first-level supervisor of [CBPOs] in primary positions; or
(2) Administrative; i.e., an executive, managerial, technical, semiprofessional, or professional position for which experience in a primary ...

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