for review of the Merit Systems Protection Board in No.
C. Herman, Robbins Geller Rudman & Dowd LLP, Atlanta, GA,
argued for petitioner. Also represented by Carlton Jones,
Robert James Leonard.
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.
Dyk, Schall, and HUGHES, Circuit Judges.
Schall, Circuit Judge.
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.
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"),  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).
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. Ms. Fitzgerald has been continuously
employed in various Instructor positions at FLETC since May
of 2000. One of her main responsibilities while at
FLETC has been providing training to criminal investigators
and LEOs from various federal organizations.
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.
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.
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
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
(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
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").
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.
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 ...