I]11II
[1[iliLI
I111
lllll
II1111111
IILII
I!111
II1[
I11111
IIll111111
IIIIL
LIII
IIIIll
I!111
IIII
IIIL
USFC2006-3121-01
{742F4C72-4892-4FED-A6B2-607SSB027E4D}
{708611 {32-060328:17413
S} {032406}
PETITIONER'S
BRIEF (P)
06-3121
_n _he
nite
tatrs
_J'or
_l_e
ourt
of
_Jrebrral
(.Circuit
THOR WEATHERBY,
Appeals
HI,
Petitioner,
V.
DEPARTMENT
OF THE INTERIOR,
Respondent.
PETITION
MERIT
FOR
SYSTEMS
REVIEW
OF THE
PROTECTION
BOARD
SF0842050195-I-2
BRIEF
OF PETITIONER
W. Craig James
MAL'K & BURGO_t ._T..
515 South
6th Street
Post Office
Boise,
Box 1743
Idaho
83701-1743
{208) 345-2654
Counsel
Dated:
for Petitioner
THE
_2._
_
GROUP
9_5-0001
nc¢
17_ K Street, N.W. * Suite 47:3 •
Washington,
March
D.C. 20006
• {550) 815.-3_'91 • Fax- • (__)
_a'_ 935-00 '_'_ • www.thelexgmupdc.c_m
24, 2006
CERTIFICATE
UNITED
STATES
THOR
COURT
OF
V¢I'ATHERBY
OF INTEREST
APPEALS
FOR
THE
III v. DEPARTMENT
OF
FEDERAL
THE
CIRCUIT
INTERIOR
No. 06-3121
Counsel
I.
for Petitioner,
The
full
Thor
name
Weatherby
of ever3,
III, hereby
part3, represented
certifies
by me
the following:
is: Thor
Weatherby
III.
.
The Petitioner
is the real part),
.
The
publicly
held
The
names
of
affiliates
in interest.
of any
corporate
pan3,
represented
by me
are: NONE.
4.
appeared
Board
for
the
or who
Petitioner
are expected
all
law
in this
to appear
finns
matter
and
before
in this Court:
the
partners
the
Merit
Mauk
or
Systems
& Burgoyne;
James.
DATED:
March
22, 2006.
MAUK
associates
& BURGOYNE
that
Protection
W. Craig
TABLE
CERTIFICATE
OF INTEREST
OF CONTENTS
......................................................................
I
TABLE
OF COINrrEINrTS ......................................................................................
u
TABLE
OF AUTHORITIES
.........................................................................
iv
CASES .......................................................
1
STATEMENT
OF RELATED
STATEMENT
OF JURISDICTION
STATEMENT
CONCERa\qNG
STATEMENT
OF THE ISSUES .....................................................................
2
STATEMENrl
- OF THE CASE ...........................................................................
2
A.
Introduction
B.
Course
STATEMENrl
SU_fi_IARY
..........................................................
ATTORNEY
FEES ......................................
and Legal Back_ound
of Proceedings
..........................................
.................................................................
" OF THE FACTS ....................................................................
OF ARGUMENrI"
ARGUME_\rI"
Standard
..........................................................................
B.
Petitioner's
Qualifies
!.
of Review.
Service
as Primary
......................................................................
as
an
Firefighter
Electronic
Sewice
Mechanic
1
2
5
5
...........................................................................................................
A.
1
7
7
7
WG-2604
.............................................
9
The Board's Decision to "Bifurcate:: Petitioner's
Service
as a WG-2604-11
Electronic
Mechanic
Between
1988
and ! 991 was Legal Error ...................................................
9
2.
C°
CONCLUSION
Petitioner's
Primary
Duties
Were
Rigorous
Hazardous and Directly Connected with Fire Control
Suppression ....................................................................
3.
Petitioner
Qualifies
for CSRS
4.
Petitioner
Qualifies
for FERS Coverage
Coverage ..............................
..............................
Petitioner's
Service
as a Telecommunications
Specialist
Qualifies for Secondary Firefighter Service ..............................
...............................................................................................
ADDENDUM
CERTIFICATE
and
and
OF FILING
AND SERVICE
iii
11
21
23
28
30
TABLE
OF AUTHORITIES
CASES:
Cole
v. Office
of Personnel
754 F.2d 984
Crowley
Dodd
Ellis
Cir. 1985)
v. United States,
398 F.3d 1329 (Fed.
v. Deparmaent
94 M.S.P.R.
v. Office
930 F.2d
Hathaway
981
Cir. 2005)
Cir.
of Personnel
898 (Fed.
v. MSPB,
F.2d 1237 (Fed.
of Personnel
762 F.2d 962
Cir.
Cir.
10
(Fed.
9. 10
11
1991)
1992)
.............................................................
passm_
.............................................................
8
..................................................................
8
1483 ....................................................................
9
Mmlagement:
Cir.
Obremski
v. Office of Personnel
699 F.2d 1263 (D.C. Cir.
Perske
.........................................................
Management,
v. Deparmaent
of Justice:
35 F.3d 1329 (Fed. Cir. 1994)
v. Office
l0
1979) .................................................................
Landgraf
v. US1 Film Prods.,
51 ! U.S. 2'44: I ! 4 S.Ct.
Little
................................................................
of the Interior,
i 74 (2003) .....................................................................
_: United States:
610 F.2d 760 (Fed.
Fe&ien
Jacobs
(Fed.
Management,
1985)
.....................................................................
11
Management,
1983) ...................................................................
8
v. Office of Personnel
Management,
25 F.3d 1014 (Fed. Cir. 1994) ..................................................................
iv
8
Secy.
for
Propagation
2 Gall.
Watson
of the Gospel
105, 22 F.Cas.
v. Deparmzent
86 M.S.P.R.
122 S.Ct.
756,
v. IJq_eeler,
767 No.
13,156
(CCDNq-t
1814)
...............
9
of the Navy,
318 (2000);
817 (2002)
262
F.3d
1292
(Fed.
Cir. 2001)
cert.
....................................................................
den,
9, 10, 23
STATUTES:
5 U.S.C.
§ 1204 ...................................................................................................
1
5 U.S.C.
§ 5596
....................................................................................................
1
5 U.S.C.
§ 7701
........................................................................................................
1
5 O.S.C.
§ 7701(g)
5 U.S.C.
§ 7703 ...................................................................................................
5 U.S.C.
§ 7703(b)(I)
5 U.S.C.
§ 7703(c) ................................................................................................
7
5 U.S.C.
§ 8331(21)
3
5 U.S.C.
§ 8340 ..............................................................................................
5 U.S.C.
§ 8401(14)
..........................................................................................
......................................................................................
l
I
I: 7
.........................................................................................
I
.......................................................................................
4, 28
28 U.S.C.
§ 1295 ..............................................................................................
I
28 U.S.C.
§ 2412 ......................................................................................................
I
REGULATIONS:
5 CFR
83 !.902
...........................................................................................
5 CFR
831.903
.......................................................................................................
5 CFR
831.904
....................................
, ..........................................................
3, 10, 28
2
9 3
•
5 CFR
§ 831.905
.........................................................................................
2
5 CFR
§ 831.906
..............................................................................................
2
5 CFR
§ 842.802
.....................................................................................
5 CFR
§ 842.803
...........................................................................................
2-3
5 CFR
§ 842.804
..........................................................................................
2-3
3: 4. 10:28
5 CFR § 8a2.809 ........................................................................................
3
5 CFR
3
§ 1201.56(a)(2)
OTHER
Fed.
Reg.
.......................................................................................
AUTHORITY:
Vol.
58. No. 223,
Tuesday,
December
vi
7, 1993 ..................................
4
STATEMENT
Counsel
i.
decision
OF RELATED
for the Petitioner,
I am unaware
of the Merit
this or any other
Thor
Weatherby
of any other
Systems
appellate
Protection
court
under
Protection
Board
2.
July
29:2005
was
entered
Protection
is conferred
on
December
This
which
the same
administrative
has previously
or similar
to have
by 5 U.S.C.
been
before
title.
Order
29,
been
Systems
of the Merit
2005.
The
appealable
Court's
jurisdiction
Petition
for Review
heard
§§ 120,4, 7701
of the Merit
is now directly
in or from
Board
matter
Decision
and the Final
as follows:
OF JURISDICTION
for this
The Initial
Board
3.
U.S.C.
Jurisdiction
III, states
the same
STATEMENT
i.
appeal
CASES
Systems
and 8340.
Protection
Systems
Final
by the Merit
Board
Protection
Order
of
the
was issued
Board,
Merit
below:
Systems
to this Court.
is founded
upon
28
U.S.C.
§
1295
and
5
to 5 U S.C
§
§ 7703.
4.
The
herein
was timely
filed
pursuant
7703(b)(!).
STATEMENT
An entitlement
this
Petition,
U.S.C.
to an award
is claimed
§ 7701(g);
CONCERaNqNG
herein
5 LI.S.C.
ATTORNEY
of attorney
fees,
by the Petitioner
§ 5596
and such
other
incurred
FEES
in the prosecution
pursuant
to 28 U.S.C.
statutoD,
authority
§ 2412,
as may apply
of
5
STATEMENT
1.
Did
the
misapprehending:
Merit
and
OF THE
Systems
Protection
misapplying,
ISSUES
Board
the controlling
commit
decisional
reversible
error
in
law
facts
of
to the
this case?
2.
Is the decision
substantial
of the Merit
Systems
A.
The
instant
enhanced
to retire
employees
who perform
definitions
that
has
position
and
duties
' References
who completes
fifty
Decision,
employee
position
I:
statutory
unsupported
by
Weatherby
III
Ehgibihty
ts
to the Joint
CASE
Background
from the claim
a federal
to sera, ice positions.
twenty
years
annuity
hazardous
qualify
for
of sera, ice as a firefighter
than
for such
Appendix
duties
firefighter
as such,
of Thor
firefighter.
p. 3; JA, p. 6. I Congress
approved
qualify
as
a larger
particularly
can
been
with
THE
Legal
arises
credit
at age
Initial
An
for Review
employee
employee.
and
retirement
by applying
A federal
OF
Introduction
Petition
annuity
determined
eligible
Board
evidence?
STATEMENT
for
Protection
established
See
of the
parties
ClX,II service
a preference
for
as firefighters.
service
or by applying
credit.
an ordinary
_s
credit
and
by
sera, ing
establishing
5 CFR
§§ 831 903-906,
will
be in the form
in
that
a
his
842.803-
of "JA,
p
80'4.
The
employee
bears
by a preponderance
from
without
a break
8"42.802.
2604)
secondary
which
early
System
of"firefighter
...an
three
2 The
control
the
to perform
work
transferred
to a supervisory
incorrectly
suppress
clear
legal
error.
(Fed.
Cir.
1991).
21,
he has held
duties
an
employee
§ 833 !(2 i); 5 CFR
and
credit
must
a primary
have
transferred
§ 831.904
1985
position,
& 5 CFR
Mechanic
to July
20,
1997;
and
since.
by
the rules
See 5 CFR
applicable
§ 842.809.
fires
Felzien
and
that
maintain
v. Office
whose
directly
to Civil
The
CSRS
position
connected
are
with
the
of fires or the maintenance
apparatus
and
equipment,
engaged
§ 831.902.
held
of
in
this
activity
or administrative
2 (Emphasis
under
CSRS
....
added).
rules
Mr. Weatherby
and use firefighting
of Personnel
who
position
Management,
must
both
equipment.
This
was
930
898,
902
F.2d
§
(WG-
'' is:
including
A J, below,
July
enrollees.
control
and extinguishment
and
use
of
firefighting
5 U.S.C.
in either
in the Electromc
is covered
("CSRS")
credit
5 CFR
service
which
service
or administrauve
days.
from
service
employee,
primarily
a supervisory
he encumbered
Weatherby:s
definition
the employee
primary
for the positions
Retirement
service,
exceeding
for such
§ 1201.56(a)(2).
service
to either
has claimed
service
Mr.
job
entitlement
for firefighter
For secondary
in service
Petitioner
5 CFR
be eligible
a first-line
positions
Service
can
position.
directly
of proving
of the evidence.
,An employee
or secondary
the burden
Under the ';Federal Employees Retirement System ("FERS';), the statutory
definition of _;firefighter:; became:
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, 3 considering the
recommendations of the employing agency,
and
B. an employee who is transferred directly to a
supervisor),
or
administrative
position
after
performing duties described in subparagraph (A) for
at least 3 years.
5 U.S.C. § 8"401(14); 5 CFR § 842.802.
Petitioner maintains that the CSRS definition applies to all of his service
through November 19..1988 even though retirement coverage under FERS became
generally effective on January 1, 1987. Most particularly, this is the case insofar as
Petitioner held the same position and grade: Electronic Mechanic (WG-2604-11)
from July 21, 1985 through November 19, 1988.
3 Effective
heads
January
the authority
December
[.
199'4, the Director
to decide
these
of OPM
matters.
7, 1993.
4
Fed.
delegated
Reg.
Vol.
to the various
58, No.
223,
agency
Tuesday,
B. Course of Proceedings
The
Interior
Alaska
(the
("BLM::).
and
JA:
Petitioner
that
pp. 20-23.
denying
Review
was
Mr.
Systems
sought
pp. !-3.
"Agency"):
by the Agency
was taken,
by Petitioner
Board
This Petition
Fairbanks,
AFS
from
Thor
Alaska.
July
Dates
26,
Weatherby,
Mr.
1984
of Service
issued
and
a final,
for review
works
for
the
has encumbered
Land
of the
Management
reurement
benefits
of November
and
29,
Board::)
18: 2004.
an Initial
2005.
adverse:
timely
OF THE
Weatherby
July
or "the
Department
annuity
conducted
was
("MSPB:'
of
by letter
a hearing
claim
of the
Bureau
for enhanced
STATEMENT
Petitioner:
is a division
application
Weatherby:s
Protection
JA:
the
was denied
An Appeal
then
("AFS::)
or
made
application
29: 2005:
Service
"Department::
("ID::)
Merit
Fire
JA,
decision
was
Decision
pp.
of the
issued
followed.
FACTS
Agency
in its AFS,
the following
located
positions
in
with
to the present:
Position
Title
Series
and Grade
Electronic
Mechanic
07/2 !/85- ! 1/! 9188
Electronic
Mechanic
WG-2604-
! 1120188-10105191
Electronic
Mechanic
WG-2604-10
10/06/9
Electronic
Mechanic
WG-2604-
7/21197-0910710"2_
full
December
0712618'4-07120185
i -07/20197
4-18
Telecommunications
Specialist
5
Helper
WG-2604-05
GS-0391-11
!1
II
09108102-06128103
lnfotech
06/29/03-11/0 i/03
IT Specialist
(SYSADMIN)
GS-2210-11
I I/02/03-Present
IT Specialist
(SYSADMIN)
GS-2210-12
Specialist
GS-2210-11
(Network)
Hrg. Ex. A; JA: p. 75.
This
positions
AJ and
bifurcation
1987
Board
question
whether
of a federal
have
found
concern
of Petitioner's
parts:
(1)
to November
Petitioner's
firefighter
that
in this Petition.
July
under
eligibility.
ID,
4 Petitioner
none
the
for
service
retirement
of Petitioner's
either
pp.
Position
7 &
Board's
in
these
purposes.
service
1985
analytical
pp. 5,9&
10.
the Board
CSRS
The
is entitled
JA,
encumbered
Description,
more
FERS,
pp.
10
the same
from
&
15.
position,
July
of this
broadly
for
to
This
AFS
Agency's
(2)
effected
due
effective
service
position
to November
1.
to the
January
1;
is challenged
was not a
retirement
conclusion
into
January
that Petitioner
enhanced
21, 1985
and,
was
coverage,
the
WG-2604-11:
1986;
bifurcation
division
found
or
31,
to FERS
of the artificial
of
Mechanic
to December
CSRS
12;
acceptance
as an Electronic
from
significance
actually
the same
21,
of Petitioner
Moreover,
firefighter,
is
19, 1988. 4 This
change
legal
here
service
ID, pp. 2,6&7;JA,
The
with
as that
specific
discrete
mandated
1987.
the
coverage.
Of
two
presents
qualifies
Agency.
such
case
annuity
is
hkewise
number
03972,
19, 1988
challenged in this Petition. Resolution of these challenges
on a factual
analysis
of the positions
in issue,
SUMMARY
The
credit,
Final
is
not
opposition
only
of
the
evidence
Board,
unsupported
by
to the uncontroverted
misapplication
either
Decision
fully
the CSRS
the
support
and Petitioner's
denying
firefighter
statutory
qualifying
in the
and exhibits
thereto.
claim
firefighter
record,
is error.
in direct
the Board's
The
for firefighter
sern, lce
it is
Furthermore.
definitions
Petitioner's
or the FERS
service
dependent
ARGUMENT
evidence
testimony
of the appropriate
herein
OF
is necessarily
record
and
eligibility
under
definitions.
ARGI._IENT
A.
The
statute.
this
standard
Upon
Court
agency
for judicial
the filing
is instructed
actions,
STANDARD
findings
review
of a petition
to review
OF REVIEW
of decisions
for review
the record
or conclusions
5 U.S.C.
by substantial
of a final
hold
is provided
decision
unlawful
by
of the Board.
and set aside
any
found to be:
(I)arbitrary,
capricious,
an abuse
not in accordance
with law;
(2) unsupported
and
of the Board
of discretion,
or otherwise
evidence...
§§ 7703(b)(I) & (c)
To the degree
of statutory,
terms,
that this case
regulatory
terms
involves
issues
and decisional
7
of interpretation
law,
it presents
and application
questions
of law
which the Court max,decide de novo.
25
F.3d
1014,
Management,
invoh,
699
ing
involve
1017
F.2d
regulator),
a lesser
degree
where
accord
the law.':
with
the
On the other
on
factual
decision
reasonable
supra,
(Fed.
minds
at I 019;
Cir.
evidence
1992).
(Fed.
Cir.
is "poorly
findings
might
accept
Hathaway
v. Mer#
Court
that
Office
1983).
of
Personnel
Furthermore,
like
relating
Management,
those
presented
to employee
reasoned
and
matters
here.
performance.
imminenth,
out
of
supra.
of fact are reviewed
evidence.
by
Board
as adequate
Systems
has determined
Jacobs
to determine
decisions
substantial
evidence
a reasonable
of the evidence.
1994).
Cir.
interpretation
by substantial
This
(D.C.
v
interpretations,
if unsupported
is so sparse
preponderance
1268
of Personnel
Obremskt
than cases
Obremski,
is supported
1994);
statutory
by substantial
matters
v. Office
of deference
hand,
are supported
Cir.
1263,
and
particularly
they
(Fed.
Perske
when
whether
or not
will not be sustained
evidence.
That
is,
based
"'such
evidence
to support
Protection
upon
a conclusion."
Board,
that
it must
fact-finder
could
v. Deparmlent
a Board
98 ! F.2d
reverse
when
as
Perske.
1237;
1240
supporting
not reach
a finding
by a
of Justice,
35 F.3d
1329
B.
PETITIONER'S
SERVICE
MECHANIC
PP,_'IARY
1.
The
Board's
Mechanic
As mentioned
above,
Electronic
because
the
Watson
2001)
cert.
M.S.P.R.
den.
122
S.Ct.
adopted,
determining
817
v
artificial
bifurcation
is error.
Court
firefighter
Dodd
Error.
i, 1987,
and this
has
retirement
138 (2000),
(2002);
Legal
of the AJ's
as of January
has subsequently
for
was
as a WG-2604-
262 F.3d
ratified,
a
eligibility.
1292
Department
It is
of
(Fed
Cir
Interior_
94
(WG-2604-1
l)
! 74 (2003).
on July
21,
should,
therefore,
firefighter
1985,
began
away
his sera, ice as an Electromc
prior to FERS
continue
retirement.
transactions
U.S.
position
Service
and 1991
adoption
of Atavy: 86 M.S.P.R.
Mr. Weatherby
'_akes
1988
the Board's
approach
v. Department
Petitioner's
Behveen
Mechanic
Board
"position-oriented"
WG-2604
QUALIFIES
AS
FIREFIGHTER
SERVICE
to "Bifurcate"
11 Electronic
of Petitioner's
error
Decision
AS AN ELECTRONIC
to
or impairs
114
S.Ct.
W77eeler,
2 Gall.
therefore,
is especially
out the "basic
105,
reason
fall
Otherwise,
vested
or considerations
at 269,
applicability.
applying
rights
problematic
for the existence
of his sen, ice in this
CSRS
definition
a new definition
under
Secy.
756,
767
for
No.
13,156.
of the position."
Conduct
of Watson,
Prods.,
the
to
511
Gospel
of this
supra,
of
position
respect
v. USI Fihn
of
position
purposes
laws...in
Propagation
under the teaching
9
for
to an existing
existing
past .... ': Landgraf
quoting
F.Cas.
the
acquired
already
1483,
22
within
All
Mechanic
v
sort,
to search
However:
Petitioner's
regardless
service
as Electronic
retirement
if one
Personnel
Management
which
duties
whether
looks
occupy
cycle;
Once
regularity
Federal
important
then the decision-maker
criteria
Cir. 2005);
Felzien
(Fed. Cir.
1991);
Cole
(Fed.
1985).
Thus,
Cir.
working
position:
that is, whether
time
of
in determining
(2) whether
on a regular
Office
(1)
they
the duties
on atyptcal
or recurring
work
bas_s.
262 F.3d at ! 299; Dodd v. Department
is instructed
5
of the
v. Office
documents.
of Personnel
of Personnel
as has always
been
10
test.
actual
Crowley
v. Department
of the posiuon
to consider
three-prong
held that an applicant's
Watson
v. O._ce
for the existence
of the regulator3,
as the offficial job description
(Fed. Cir. 2001);
or weight,
with the reason
has consistently
1329 (Fed.
The
of a particular
of the position;
are assigned
for firefighter
test to assist
duties"
of the individual's
associated
of assi_unent
Circuit
a three-prong
to
174, ! 79 (2003).
the duties
have been resolved,
is apphed
of the position.
in the influence
the duties
or FERS)
WG-I 1, he qualifies
the "primary
& 5 CFR § 842.802.
94 M.S.P.R.
(CSRS
duties
for the existence
portion
and (3) whether
Interior,
F.3d
has created
the basic reasons
CFR § 831.902
Mechanic,
are paramount
a substantial
definition
at the primary
are considered
the duties
constitute
of which
the time and
Moreover,
job duties
Management:
Management,
the case,
are as
v. United States,
of the Nav3_: 262 F.3d
the
398
1292
930 F.2d 898, 903
754 F.2d
testimony
984, 986
and statements
from
colleagues
for
law
and supervisors
enforcement
Management,
(1979).
762
This
as a manet
2.
Petitioner's
support
when
from
with
Fire
services
.... ': ld. at p. 53.
Physical
maintain
Demands.
Frequently
and
kneeling,
required.
ld.
at
p.
Weatherby
and
clearly
Under
created
Major
repair
55.
And,
were
that:
Work
pleasant
weather
on
"for
610
Hazardous
fire
Duties.
and
pushing,
Personnel
F.2d
760
erred:
posmon
and
! position
suppresmon
the incumbent
of electronic
in
Directly
carry
heavy
periods
Environment,
in
well
weather
stable
li
to
related
was required
Id
objects
often on
of guard
bending,
are
expectations
and
heated
of the time
conditions
terrain
and
components
of time
the
lighted
70 percent
is set out at
to:
reaching,
for sustained
inside
varying
States,
the single
from helicopters,
without
benefit
for approximately
under
and
a variety
unload,
Workin_
is performed
conditions
outside
under
bifurcate
was required
pullin_
climbing
of
or not the Board
for the WG-2604-1
] load,
Liftin_
whether
Office
duues
Suppression.
weighing
over
100 pounds
small
space on mountaintops
mils.
v.
v. United
Rigorous
and
the employee
help[
Ellis
assessing
Were
description
was
Little
primary
to 1988.
Control
position
in determining
to analytically
1985
The
1985);
when
Duties
position
overhaul,
Cir.
true
evidence
retirement.
it elected
Primary
written
(Ted.
52-56.
to install;
Under
962
served
Connected
pp.
firefighter
is equally
of law,
Petitioner
JA,
F.2d
notion
which
The
and
is relevant
from
extremely
and
mdd
cold,
for
Mr.
windy
weather
on
mountaintops
over
Transportation
to and from work sites
aircraft,, helicopter, or motor vehicle.
ld. s
The
foregoing
is consistent
Announcement
for this position;
duties between
1984 and 1988.
Further,
Petitioner's
detail the nature
History.
ofhis
he declares
with,
JA,
is by fixed
wing
corroborated
CLAIM
the
1991 description
FOR DOI SERVICES
work with the AFS as of 1995.
that
by
Vacancy
of his actual
p. 58 & pp. 78-83.
90-95%
Petitioner
was required
were all other
front-line
firefighters;
Id.
feet
and: by Petitioner:s
assimaments.
strength.
and
5000
of his
time
had
CREDIT
JA, pp. 48-51.
been
spent
on
described
Under
in
Fire
fire related
to score a 45 or more on the "step test" as
the 'step test' measures
heart cardiovascular
Furthermore:
Because AFS is a Fire Organization
I am told to keep a
bag packed
and ready so I can be sent on a fire
assignment
at any time.
Just because the organization
requires
that I take step-tests
and be ready for a fire
assimunent
doesn:t mean that I actually worked on fire,
but I have. In general, I don't get assigned to small fires
because the communications
requirements
are not that
greaL Most of my assignments
come in really big fire
years, like; Northern California
in 1987, Idaho during
the Yellowstone
fire or Idaho in 1995. Since I started to
work at BLM I have been sent to 29 incidents by Alaska
Fire Service;
two of which were not related to fire
(E_xon
Valdez
Oil Spill and Mr. Redought
volcano
eruption).
5 The physical
changed
demands
somewhat
An estimate
and working
in 1992.
of the number
conditions
JA, p. 55-56.
12
of hours
I have
in the official position
description
been
assigned
hours
ld
to fire is over 4000
per shift,
hours
(270
shifts
at 15
see IQS Fire History).
at p. '49.
Mr.
rigorous
Weatherby
duty
as well
position.
Their
appreciate
the
and
testimonies
the vigorousness
I
rock
rocks
to pour
concrete
sheds,
these
duties.
with
Totson
picks
for
and shovels,
concrete,
houses
to
which
mountaintop
hauling
up on the buildings
radio
associated
reviewed
in
For
whole
example,
of
these
was a rounded
us,
and
chipping
concrete
that
and stuff,
some
we were
digging
away
bags
in
at the
and mixing
placing,
and working
not
small
on the towers
up there and working
on large wind generators
on top of
these towers.
40 foot tower had probably
an 800 pound
wind
generator
sticking
five foot long
blades
up on top of it with
and doing
three
maintenance
bladed
on them
and
pulling
spring
blades off in the fall and putting them back on the
and - and this is just a small part of the physical
labors
that were
Q:
while
involved
Okay.
you were
and
also tesufied
as follows:
going
including
higJa
of the duties
be
of
remember
mountaintops,
hea_,
of the hazardous
supervisors,
should
of this position
particularly
examples
level
nature
requirements
A:
telling
and second
hazardous
respective
physical
very
JA. pp. 4%51.
as his first
as to the vigorous
explained
set out two
of the position.
Petitioner,
detail
also
with
these
positions.
was
that
consistently
And
in the radio
A:
Yes.
Q:
Okay.
shop
13
as a wage
grade
the
11?
case
with
to
in
th_s
fully
Petitioner
A:
there
And
specifically
is the established
where
we poured
structures
in with
and power
systems.
Q:
Are
there's
been...
Hrg.Tr.;
With
spring,
Yes.
Q:
...
pp. 271-272;
talking
repeater
and put structures
helicopters
and assembled
the
reference
backbone
during
about
type positions
foundations
to "repeater
described
startup
you
process
in terms
work"
in, slung
large
towers
the course
towers
to
which
of the day?
heard
duty
Greg
Is that consistent
Part
it became
that
or backbone
describe
sort
was undertaken
and the field systems
with
your
recollection?
of-
yes.
What
a rush
happened
to - not
system
as follows-
[Ely]
in the spring
of the repeaters
A: Yes.
on the permanent
this significant
Q: Thor:
get -
we're
JA: p. 103.
respect
Petitioner
permanent
those
A:
what
a rush,
of the
at AFS
and so on.
is we would
but
we
would
prepare
as much as we could
in early spring
until we
could actually
fly to the mountaintops
and as soon as we
could
the
fly to the mountaintops
snow
melting
enough
that
of thing
them
and
start
working
actually,
stations
to
what
like
work
on
the
we
would
wing
on those
the mountaintops
Q: Okay.
sort
Galena
in a fixed
would
being
away
then
do
and
with
radio
And again,
from
we
mountaintop
and Fort
as soon
aircraft
them
would
Yukon
lower
get
into
Well,
start
at the
we could
elevations
and
first and then
fly
we
start on
accessible.
this was the backbone
14
and
immediately
would
which
as they were
the..
to
systems.
is we
systems
available
system
or
in the
A: Correct.
id
at p. 284;
JA, p. 104.
Appellant:s
thin_,
Petitioner.
required
an
Seealso,
Heating
example
of
These
photos
to install
Exhibit
the
locations
are
photographs
where
radio
the
type
of
JA, pp.
111-112
showing,
repeaters
terrain
among
were
where
installed
Petitioner
this equipment:
repeater
Does
it fairly
depict
the scene
where
the
in E-6 was installed?
A: Yes.
And
it also
to can 3, up
over
E
exempli_
Q: Okay.
had
Hrg. Tr., pp. 354-355;
including
and things
depicts
100 pound
the sort
repeater
all the rugged
boxes
terrain
that we had to scramble
of things
and
over
that
we
and
batteries
large
boulders
to get it up to the
top.
Q: Was this
to work in?
of,
A: Nothing
yes: many
typical
of the type
of terrain
you
needed
is really t3,pical.
But this is an example
of the sites that -- every spot is different
and that's
part of the beauty
and the fun of the
thing is to try and make it work, it's the challenge
job is to. you "know,
needs to be done.
Q: Does
E-4 relate
get
the
communications
to the same
whole
of the
where
it
fire?
A: Yes, it does.
Q: And what
A: That
one
that
does
is another
we tried
that depict?
mountaintop
to get into
15
- tried
that - I believe
to put
that's
a repeater
on
other
by
was
but I don't think it actually provided the coverage that we
needed.
Id
at pp. 287-288;
A listing
Hearing
June
spring
to the
was
would
return
duties
of 1997.
shift.
months
fire
The
Hrg.Tr.
incident
history
Thirty-five
with
each
JA,
maintained
and
in the late
permanent
upgraded.
Id.
fall to "pickle"
the rigorous
the system
and hazardous
from
in the late
period
("OP':)
reflecting
Peutioner
Mechanic.
Id
system
at 337;
are listed
occurs
p. 104.
"backbone"
in Appellant's
typically
operational
pp. 283-284;
forth
incidents
in Alaska
of the year as an Electronic
the
is set
large-fire
fire season
months
season,
required
fire
pp. 76-77.
the summer
nine
system
these
to July
16 hour
worked
Petitioner's
B; JA,
through
a 14 to
Prior
of
Exhibit
of 1986
JA at p. 103.
JA
at 334:
of the
at il 1.
components
activity
on
average
JA at 110.
mountaintop
Mr
Weatherbv
for winter.
mentioned
All of
above
Id. at
28'4; JA at 104.
Petitioner
gloves
and
Petitioner
refuse
a helmet
was
issued
a fire incident
hazardous
298-299;
was
pay status
required
when
a "red
to wear
assigned
card"
assignment,
at least
protective
to a fire
reflecting
ld
Nomex
incident,
a required
at 295-296,
rift), percent
317;
of the time
JA at ! 06- i 07.
16
clothing,
a fhght
ld. at 304-305;
fitness
level
JA at 108.
and could
JA at 106 & ! 09.
when
inside
su_t,
not
He was in
a fireline.
/d
at
The
rigorous
requirements
and
associated
retired
primary
level supervisors.
by the AJ. 6
from
federal
For example,
service
Communications
during
Unit Leader
the arduous
Hrg.Tr.,
pp. 148-152;
Mr.
Ely
dangerous.
also
nature
JA,
at 203-204;
JA at 99.
between
the field
geologist
or biologist
of 2001.
position
position
and
He retired
and regularly
the
were underscored
testimony
was
Mechanic:
from an +'approved"
supervised
Petitioner
at 140 & 168; JA, p. 91 & 95.
He verified
Mechanic
(Corn
Yech)
position
pp. 92-93.
why
flying
in helicopters
When working
at
low
altitudes
on fires, sixteen-hour
of an Electronic
working
Q: Geologists,
Mr. Ely also explained
Mechanic
is
days were
JA at 95, seven days per week up to 21 days straight.
On cross examination,
work
duties
Ely, also an Electronic
of the Electronic
explained
ld. at 168-169;
Petitioner's
Mechanic
Gregory
Hrg.Tr.
Id. at 159; JA at 94.
the rule,
of
None of this corroborating
in August
the time period in issue.
in detail
nature
with the Electronic
by his first and second
mentioned
hazardous
Id
the difference
and that of an hypothetical
for the BLM:
biologists,
you're
not aware
of these
people going into the field for BLM ?
6 The
AJ,
below,
incorrectly
discounted
the
hazardousness
of
Petitioner's
Electronic
Mechanic
duties because he did not go to "hundreds
of fires, like
Felzien.':
ID, pp. 9. 12 & 15. This is clear error in light of the Court's prior
holding in Felzien to the effect that "any reading of the [definitional]
statute that
disqualifies
an
employee
solely
because
he
did
not
assume
risk...disregards
one of the statute's primary purposes."'
930 F.2d at 902.
17
enough
A: Not
like we do.
Q: And
that:s
A: No:
it's
climb
high
towers
winds:
because
I know
and that
in itself
This
you
depending
manner.
to clear.
track
what
of their
their
duties
is hazardous.
time.'?
are.
[...]
We
do it in
We do it - we fly in real
is a hazardous
to - when
people
you keep
ice and snow.
visibility.
have
because
have
business
a fire going
and
you
when
have
on you and it has to be done
It isn't just sitting there
It's a different
business.
waiting
poor
you
a lot of
in a timely
for the weather
ld. at ! 86- ! 87; JA at 97-98.
Petitioner's
Fronterhouse.
Ms.
basis
were
Cullings
suppression,
during
to perform
elaborated
second
level
equally
testified
supervisors,
supportive
that
the
ld.: p. 40; JA at 84.
the fire season
on the risks
field
Q: Okay.
aviation
to
You
some
request
of
Petitioner
was required
the
AFS
to be in good
ld,
of Thor
pp.
questions
40,
the
of mine
business
use
and
organlzauon
to work
physical
JA at 84-85
duties:
of
aviation
in
earlier
today.
Is
at AFS?
shop
install
many
times
they're
situation
landing
equipment.
18
or anyone
in the
in unimproved
was
condition
Q: Why?
in Thor's
status
radio
sites
fire
on an "'on call:"
A: Yes.
A: Well.
Beverly
for firefighter
41 & 43;
Weatherby:s
mentioned
a dangerous
Cullings
mission
work.
and danger
response
of Petitioner's
and required
the mandatory
Kathy
to
in order
She
Q: Does that mean a little grass on the area?
A: Or not. Or rocks or possibly there;s a peak that
they have to get the radio on that the helicopter can't
even land on because it's too small and so the helicopter
has to find a place that they can land and then the
technicians would have to lug the equipment to the
highest point and secure it so that it didn't blow off.
They:re dealing with squirrelly winds on mountaintops.
We had a accident that injured two of our employees who
were just landing at what looks to be in innocuous hill if
you were to look at it on a map but the winds along this
hill just that fast flipped the helicopter and it rolled down
the mountainside. So it's ...
Q: That was - there were no fatalities in that, were
there?
A: No, there weren't. So the aviation aspect of the
job is risky. In many cases when you're trying to set up
communications site and the fire's been burning for quite
some time or numerous fires have been burning,
hundreds of thousands of acres throughout Alaska,
you're dealing in very heavy smoke conditions. I mean
what we ahvays tell the employees is if it doesn't appear
safe don't do it,. nothing's worth your life. But there's
ahvays the attempt knowing that the communications are
critical to get the systems in and in place. And the
conditions can change like the wind.
Q:Okay.
threatening.
And
those
conditions
can
be
life
A: Yes.
Q:Fires
can be dangerous
wildfires, can't they?
A: Yes, they can.
19
all
by
themselves,
Q: They can turn: they can travel faster than expected,
they can slow down, they can do a whole lot of things.
A: One of the most dangerous things they can do is
when you have a big huge column of smoke carrying
burning embers up is spot out ahead of where you think it
is. You can be in a place that there's no fire with the fire
on one side ofyou and find out the fire's actually on both
sides of you.
Q: What kind
circumstances?
of
safety
rules
apply
in
those
A:There's
10 lookout signs that everybody is
supposed to know before they go to the field and one of
the thin_ that you really have to look out for when
you're doing the type of work our communications
technicians do is make sure you have someone taking a
look at the overall weather and what's going on. You
can't ahvays afford somebody above you in the air
looking so they'll pull what they call a human repeater
out who will just kind of keep their eyes on things while
the technicians are working on their stuff and if they see
something that looks real bizarre going on with the
smoke column or the weather they'll get a hold of the
technician and they'll get somebody in to evacuate them
real quick.
Q: I'm going to show you a photo that's been
identified as E-7, Appellant's E-7. Is that - does that
depict the sort of human repeater you were talking about?
A: Yes. uh-huh (affirmative). Now see, this fellow or
woman: I don't know who it is, here would be watching
the way the fire is behaving. And, you know, there's
many times the column will go up, the weather will
change and then the column will just come down and the
fire will race in every direction. It's a very dangerous
situation to be in. And it's not just dangerous for the
technician. The reason that they're up there is to provide
2O
communications for the people that are down possibly on
the line there so that they can be told what's going on.
ld
at pp. 46-49;
JA at 85-86.
Seealso:
Because
of the
rigorous
Cullings
was
concerned
about
53;
p.
JA,
87.
compensated,
The
duties
As
encompasses
connected
above,
the CSRS
definition
understand
whose
of this definition.
fires.
primary
duties
equipment
in
electronic
whether
inside
the fire
only
Id,
Ms
pp. 52-
expected,
but
in that
hazardous:
line or out.
regard
rigorous,
These
21
duties
were
work
serxqce
(l)
directly
or (2) the maintenance
duties
risky
facts.
"firefighter'"
It is difficult,
to
The next step
to these
do
repair
dangerous
clearly
"directly
and
on the entire
qualify
created
install,
and
based
not
of an organization
were
to the prima_
was uncontested.
of fires
primary
He was part
respect
are to perform
....
Petitioner's
with
of primary
duties
and equipment
components
His
primary
and extinguishment
how
not
of"firefighter"
Coverage.
apparatus
to
position
for CSRS
use of firefighter
injuries,
line of duty.
was
at the hearing
the definitions
the control
record,
presented
to apply
with
recurring
pp. 88-89.
Mechanic
an employee
p. 90.
JA:
and
in this
conditioning
Qualifies
outlined
duties
workforce
Electronic
is thus
Petitioner
of these
the aging
JA,
evidence
of Petitioner's
in the analysis
3.
pp. 90-91;
foregoing
nature
physical
Therefore:
ld,
Hrg. Tr., pp. 101-102;
for
both
to suppress
and
maintain
conditions:
related
to"
the control and suppression of fire; as well as being "'directly related to:' the
maintenance and use of firefighting apparatus and equipment.
This Court's decision in Felzien,
matter.
that
Felzien
of
Felzien
930
Petitioner
did
F.2d
a Forest
with
not
use
at 902.
firefighting
only
was
required
equipment
comparable
equipment
The
Felzien
hazard
and
held
fire
the fire line.
line,
Felzien
on the facts
performing
risk;
to perform
qualified
the
is close
Technician
Court
equipment
to be near
inside
Electronics
his
electronic
supra,
that
fire
the
as firefighter
/d.
at 899,
nevertheless
similar
although
actual
to the instant
unhke
and
precisely
most
the
importantly,
and
duty.
Felzlen
Petitioner
focused
types
of
Conmess
envisioned
retirement
treatment
hazardous,
in the sense
line
was
exposed
fly over
individual
poles
Felzien
hazards
when
to
was
and
it
actually
on the critical
that
extended
to danger,
on
and because
spurs
and
precarious
places
on mountainous
The
was
work
also
sometimes
physically
had
demands
work
or near
he often
the fire to design
a system
and
devices.
In addition,
he climbed
with
to
preferential
His
anyone
exposed
physical
firefighters.
to place
was
the fire
had to
position
towers
the
and
devices
in
terrain.
demanding.
Because
he
was required
to go "on site" wherever
the fire was, he
often
had
to traverse
rough
terrain
or climb
steep
mountains.
Installation
of devices
in these locations
was
many
times
equipment
arduous.
and often
In addition,
worked
long
22
he had
hours.
functions
maintenance
Where
to carry
heavy
to
Petitioner.
suppression
as follows:
Finally
work
use
used
of
was
the
mquiry
ld. at 903.
4.
Petitioner
Qualifies
As outlined
encompasses
above,
duties
with the control
which
for FERS Coverage.
the
opportunities
individuals.
The AJ placed
firefighter
be limited
great
significance
set
Electronic
since
"Thus,
forth
to young
upon
the
positions
applicabilio,.
Changing
unfairly
away or impairs
eligibility
definitions,
position
is neither
rigorous
physically
the differences
that
vigorous
between
is maintaining
the
and
of
ID, p. 5; JA, p. 8. This oversimphfication
CSRS
definition
(WG-2604)
definitions
into
two
should
apply
at least through
rights
already
acquired
approach,
distinct
time
fair nor contemplated
23
to Petitioner:s
November
19: 1988:
as of the date of FERS general
during an employee's
is based on a "position-oriented"
of a single
and
connected
he meets the literal CSRS definition
he was already in the WG-I 1 level position
takes
directly
services
reasons.
above,
Mechanic
work
to the extent an individual
but not the FERS definition."
As
firefighter
of fires and (ii) are sufficiently
apparatus and equipment,
is error for the following
of primary
to perform
should
CSRS and FERS definitions:
firefighting
definition
are (i) primarily
and extinguishment
employment
using
FERS
periods,
tenure
under
Watson,
in one position
law.
Firefighter
supra.
Bifurcation
dependent
by the controlling
law.
on
changing
Nevertheless,
in parL
under
even
the
FERS
firefighter
eligibility.
Petitioner's
duties
the control
if Petitioner's
definition
The
before
and after
January
of fires."
the
assuring
the safety
of other
Felzien
the
could
make
fires
and analyzed,
he sull
retains
this
"directly
connected
were
in Felzien,
contention
with
Petitioner.
design,
install and
that
were
both
and
instrumental
firefighters.
Indeed,
in
while
fire, a communications
officer
a greater
to fire
than a front-line
primal'
supports
As was the case
to extinguishing
attacking
1987,
1, 1987
essential
directly
be bifurcated
overwhelmingly
[...] would
systems
suppression
and shovel.
contribution
firefighter
brandishing
pick
F.2d at 899.
Inexplicably:
equipment
actual
was
fires.
the
not done
Petitioner:s
connected
concluded
in the field,
that
and
use
of
equipment
as hazardous
therefore
not
the record,
was
as any other
Petitioner's
not
of
sufficiently
as cited
only
front-line
use
done
firefighters
connected
above,
in
firefighting
to
demonstrates
the
field,
and just
but
m
as directly
to fire suppression.
Not
only
control
Gregory
AJ
ID, p. 9; JA, p. 12. However,
circumstances
fire
here
I,
Upon arriving
at fire sites,
maintain
communications
like
that
could
of January
record
and e_inguishment
not
930
position
Ely's
of Petitioner
were
and
Petitioner's
suppression,
statement
from
1986
post
but
his primary
succinctly
through
January
June
addresses
of 1996:
24
1987
duties
these
duties
were
factors
directly
connected
exceedingly
during
with
rigorous.
his supervision
I, Greg
Ely,
have
and
Emergency
Fire
Service.
directly
worked
with
Incidents
From
Leader
while
communications
while
June
supervised
Thor
we
1986
Thor
as
through
a
on
emergency
present
I worked
a
as
much
Some
the
of his
hazardous
June
1994
to
Coordinator
require
multiple
him to spend
in hazardous
situations
1
Unit
resources
for
as a COMT.
which
time
1996
maintaining
Command
Communications
on incidents
as 50%
of
at Alaska
June
From
organizing
the communications
fires in areas where Thor worked
has worked
Fire
Communications
incidents.
as
on
worked
he was a COMT
using and
systems
in the
Incident
System
Thor
Weatherby
duty
included:
status
flying
in
helicopters
over fire and landing
on mountains
and ridge
tops within
firelines;
driving,
hiking
and using
ATVs
inside
the fireline
Many
of the
threatening
scale
to set up communications
fires
Thor
to nearby
air operations
The
and
helicopters
doing
work;
large
attack
and
civilian
personnel
fixed
at an
wing
with
other
unimproved
small,
trips
aircraft,
landing
army
heavy
water
aircraft
and
aircraft.
type
and
and
and
so large
many
medium
retardant
large
Chinook
transports
coordinated
to use the same
Most
repeater
installation
dealing
were
or resources,
Large
light,
small
on
set up involving
included:
supervisors,
flight
worked
communities
were
air operations
helicopters
has
systems.
lift
bucket
including
air
planes
all
lead
smoke filled air space.
required
a helicopter
smoke
sites
on
and then
to land
mountaintops
and
ridges.
The
hazards
of the job
shovel,
and
leather
boots
usually
set up inside
fire shelters;
and
coverage,
around
Because
wear
he carry:
Nomex
Repeaters
the fireline,
these
locations
practice
site, cover
the repeater
25
hard
hat,
on
fires
are
large
in the center
to all locations
provide
to:
a polaski;
clothing,
and located
the best coverage
it is common
a repeater
required
gloves.
of the fire to provide
a fire.
have
the
clear
best
on
radio
a fireline
equipment
with
a fire shelter and locate the repeater in the black (an area
that has already been burned).
While not actively working on fire, Thor
physical
fitness
nature
of the job.
can3'
radio
pounds
large
program
kits
up
locations.
The
or charged
trips
on
to
the
better
handle
As a COMT,
weighing
mountains,
boulders
to
from
along
install
the
job
also
required
was
fifty
to
and
repeaters
a regular
basis
repeater
sites.
extensive
COM'i"
experience
has helped
incidents
required
terrain
the
optimum
frequent
this
return
had
to
to sixteen
a day off.
and enthusiastic
the communications
of
to be changed
requiring
All
to
hundred
over
batteries
a
arduous
one
in
accomplished
while
working
fourteen
days for up to twenty-one
days without
Thor's
the
Thor
ridges
to
maintained
hour
attitude
systems
be
as a
at many
run smoothly.
JA; p. 26.
The
testimony
work
required
carry
radio
ridges
do this
work.
significant
kits
and over
one
This
of all
physical
weighing
from
terrain
task
and
is why
witnesses
of large
then
Petitioner
at the hearing
vigor.
As an example,
fifty to one
boulders
maintain
many
of
of them
the
mechanics
tasks
hundred
.... :'
with
ld
that
Pemioner's
was
required
"Thor
pounds
up mountains,
Petitioner
a straight
face
challenges
that
this
is not
testified:
A: I personally
believe
that
trouble
finding
qualified
communication
established
technicians
was having
technician,
and got into a position
were
physically
that
were
in the radio
the radio shop
electronic
unable
being
shop.
26
And
to complete
assigned
I believe
to
where
some
electronic
this position
to
along
anyone
rigorous
to
- I mean this position
was an attempt
announcement,
job announcement,
at trying to fill those positions
in the radio
shop of electronic
mechanic and getting the - a more
younger vigorous person into those positions that could
handle the rigors of the job.
Hrg.Tr.,
pp.
Weatherby
work
273-274;
JA,
p. 103.
refers was Appellant's
in remote
extreme':.
and/or
rugged
The position
Hearing
terrain
Exhibit
where
in issue at that time.
the position
requirements
had been
has not been
imposed.
D where
"'involve
field
duties
condiuons
"'approved"
effective
age of fiftT-five.
mandatory
retirement
application
of Electronic
youthful
physical
was created
Petitioner's
1997 qualifies
service
"approved:'
are variable
in 1981 and,
Hrg.Tr.,
fitness
and
therefore,
p. 177;
as an Electronic
firefi_ter
Mechanic
27
be age
Mechanic
had an early
mandatory
However:
The important
point
rigorous
and risky
nature
to fire suppression.
from January
under FERS.
here
as an Electronic
entr3' age was significant
connected
service
are insigmficant
JA at 96.
of the hazardous
directly
entry age
yet - if it had, there would
within AFS was sufficiently
because
for and
as primary
these factors
Id. at 178; JA at 96.
Mechanic
age or maximum
Mr. Ely's position
age nor a maximum
for approval.
retirement
However,
For example,
retirement
which
Mr
JA: pp. 78-83.
for the position
position
to which
climatic
It is true that there was no mandatory
because
announcement
neither
a
to Mr. Ely's
is that the
as to require
of the work
Therefore,
1, 1987 to July 20,
C.
PETITIONER'S
SPECIALIST
QUALIFIES
Petitioner
1997.
The
coverage
claims
AJ did
because
the transfer
SERVICE
FOR
secondary
not
requirements
SECONDARY
service
address
he found
AS A TELECOMMUNICATIONS
for his Specialist
whether
these
no primary
FIREFIGHTER
positions
positions
coverage
prior
under
5 U.S.C.
§ 8401(14);
a secondary
position
is defined
SERVICE
as of July
qualified
thereto
5 CFR
for
2 I.
secondary
as a prerequisite
§ 842
802.
to
ID, p. 15,
JA, p. 18.
Under
FERS,
(a)
Is clearly
(b)
Is
mission;
in
in the ...firefighting
an
organization
that
are as a first-level
positions;
is, a position
a...firefighting
whose
primary
firefighters
duties
in rigorous
or
that
technical,
semiprofessional,
for which
experience
§ 842.802.
that
field;
having
supervisor...of
(2) Administrative;
5 CFR
a position
and
(c)
Is either
(!) Supervisory;
...is
to mean
a mandatory
is, an executive,
managerial,
or professional
position
is a rigorous...firefighting
position
prerequisite.
Compare:
5 CFR
§ 831.902
(CSRS
determination
of secondary
positions).
The
0391-11
position
is
found
management
systems."
description
at JA,
and systems
Sixty
fire suppression
for the Telecommunication
p. 39.
It explains,
"This
support
for all AFS
computer
percent
of Petitioner's
electronic
equipment
duties
including
28
involved
Specialist
position
and
provides
data
network
the planning
position
and
GS-
network
communication
management
implementation
of
of systems, ld. at p. 41.
Environment.
Under
it is apparent
some
of the same
above.
The
duties
and
that
headings
this
required
Specialist
management
the
Physical
position
required
by the Electronic
position
administration
is
than
field
the
more
work
and
Specialist
Mechanic
obviously
the
Demands
to perfoma
position
focused
required
by
Workino
addressed
on
planning.
the
Mechanic.
however.
Beverly
1997.
was
She
Fronterhouse
testified
firefighting
that
Hrg.Tr.,
was
Petitioner's
asked
for the positions
all of our
field
firefighting
Hrg.Tr.:
pp. 242-243;
In her
The
the
and
since
I'm
We consider
personnel
So
that
I'm
not
the case
when
firefighting
she responded:
with
regards
to
a
number
of
Ser,,ice
as
Fire
not
the
1990,
consider
Alaska
during
whether
question
We
JA, pp. 100-101.
submitted
sure
what
as of
fire season
he was an
was
position
all of our - I consider
deploy
sure
to incidents
I can
answer
in a
your
skill
behalf
added).
of Petitioner's
firefighter
how:
and
in the Branch
are
(Emphasis
on
explained
knowledge,
Mechanic],
to.
AJ
position,
as asked.
further
employee
your
at
role.
statement
Ms. Fronterhouse
by
positions
referring
the
by Petitioner
positions
question
by
experience.
firefighting
you're
held
confused
different
responsibility
When
prerequisite
firefighting
primary
in this
JA, p. 102, as had been
Mechanic.
I'm
supervisor
p. 250;
Electronic
A:
Petitioner's
considered
abilities
he gained,
of Communications
prerequisite
29
while
[Electronic
and
mandatory
an
eligibility,
a
requirements of an IT Specialist, System Administrator
GS2210... In addition, all employees in the Branch of
Technical
Systems
be deployed
are required
to emergency
fire suppression
currently
retains
Comm
Tech
capacities,
during
incidents
currency
including
and
wildland
in all areas of their expertise.
Thor
a Red Card in the following
disciplines:
and
Thor
IT
Specialist.
utilizes
his tenure
i 984 through
to maintain
Working
knowledge
in the Branch
in
and skills
both
developed
of Communications
from
1988.
JA, pp. 24-25.
The
Telecommunication
positions
easily
coverage.
The
primary
duties
of these
technical
duties
which
incorporated
classic
fall
Specialist.
within
firefighting
sen, ice
as an
secondary
firefighter
description
documentation
the
FERS
Electronic
coverage
as
GS-0391:
and subsequent
definition
of
positions
of
administrative
mim'ated
Petitioner's
Mechanic.
July,
and the hearing
from
Thus,
testimony
field
experience
1997.
IT Specialist
Petitioner
Both
support
the
secondary
work
to more
in his primary
is entitled
official
to
position
this conclusion
CONCLUSION
Based
reverse
consistent
the
upon
Final
with
the
foregoing
Decision
the precedent
of the
Petitioner
Board
respectfully
and
of this Court.
30
remand
requests
this
matter
that
the
Court
for adjudication
DATED: March 21,2006.
Respectfully submitted,
W. Craig
(,I._ # 2009)
MAUK
& B_RGOYNE
5 ! 5 South 6 _ Street
Jai_
Post Office
Boise,
Idaho
(208)
345-2654
Attorneys
31
Box
1743
83701-I
for Petitioner
743
ADDENDUM
UNITED
MERIT
WEATHERBY:
THOR
STATES
SYSTEMS
OF
AMERICA
PROTECTION
III:
BOARD
DOCKET
NUMBER
SF-0842-05-0195-I-2
Appellant:
V.
DEPARTMENT
OF THE
INTERIOR,
;q:VC",.
q. _"_bC.
'_
DATE:
Agency.
W. Craie
James.
Chandra
Esquire,
R. Postma.
Idaho,
Boise:
for the appellant.
Esqt, ire, Anchorage:
Alaska,
for the agency
BEFORE
Nell
A. G. McPhie,
Barbara
J. Sapin:
FINAL
The
appellant
reconsider
the
petitions
such
iha|
not
was
made
this
initial
section
available
one
of review
fully
earlier
a law
unavailable,
DENY
the
this
case
new
judge.
evidence
us
We
the
administrative
The
regulation
that
of Federal
to
grant
is presented
or when
5 of the Code
asking
to us
judge
establishes
Regulations
§ 1201.115).
considering
in law or regulation
in Title
in
administrative
or regulation.
is found
(5 C.F.R.
review
the
for consideration
no
we
by
significant
previously
Therefore,
issued
for
,,,'hen
no new,
error
Member
ORDER
a petition
only
interpreting
1201.115
After
filed
decision
as this
an error
standard
has
Chairman
the
filings
evidence
that
petition
affects
for
in this
appeal,
and that
we
conclude
the administrative
the outcome.
5 C.F.R.
review.
initial
00|
The
that
judge
there
is
made
§ 1201.115(d)
decis,on
of
the
administrative
5 C.F.R.
judge
is final.
This
is the
Board's
final
You
court
in th_s matter
§ 1201.113.
NOTICE
TO THE APPELLANT
YOUR FURTHER
REVIEW
Federal
decision
have
Circuit
the
right
to request
to review
at the following
this
final
the
REGARDING
RIGHTS
United
decision.
States
You
Court
of Appeals
must submit
for the
your request
to the
60 calendar
days
address:
United
States Court of Appeals
for the Federal
Circuit
717 Madison
Washington,
The
court
must
after
your
receipt
representative
no later
to file,
than
comply
60 calendar
days
931
should
this
law:
our
website,
court's
as well
website,
1544
refer
time.
as review
Code=
than
m this case,
you
must
file w+th the court
representative,
court
has
held
deadline
See
and
if you choose
that
that
Pinat
and your
normally
filings
_t does
that
v. OJ)3ce
do not
of Personne/
1991).
about
your
law that
section
the Board's
http://www.mspb._ov.
by your
The
Cir.
information
later
a representative
be dismissed.
(Fed.
no
you do, then
receipt
to the federal
States
review
this statutory
must
further
5 of the United
after
to waive
F.2d
need
before
to file on
the deadline
Management,
Title
careful
for
If you have
this order
with
you
request
of this order.
the authority
If you
your
receives
be very
not have
court,
receive
Place, N.W.
DC 20439
right
gives
to appeal
you
"/703 (5 U.S.C.
regulations
Additional
htto://fedcir._ov/contents.html.
and
right.
§ 7703).
other
information
Of
002
this
this
particular
decision
It is found
You
related
to
m
may read
material,
at
is available
at the
relevance
is the
court's
"Guide
the court's
FOR
THE
for Pro
Se Petitioners
RuDes of Practice,
and
and
Forms
which
is contained
5_: 6_. and !___].1.
BOARD:
_5'/"
Washington:
Appellants,"
D.C.
0o3
Beniley
M. Roberts,
Clerk of the Board
Jy
0"
w_th]n
UtNrITED STATES
OF A_LERICA
MERIT
SYSTEMS
PROTECTION
BOARD
WESTERaN
REGIONAL
OFFICE
THOR
WEATHERBY,
III,
DOCKET
NUMBER
SF-0842-05-0195-I-2
Appellant,
V.
DEPARTMENT
OF THE
hNrI'ERIOR,
DATE:
July
29. 2005
Agency.
W. Crai_o James,
Chandra
Esquire,
R. Postma,
Boise,
Esquire,
Idaho,
for the appellant.
Anchorage,
Alaska,
for the agency.
BEFORE
Gerard C. Dasey
Administrative
Judge
hNrlTIA
L DECISION
IaNTRODUCTION
On December
_he agency,
benefits
his
831.110.(for
(for
Employees'
appeal
FERS
under
CSRS
under
appealed
18, 2004,
denying
his
the Civil
Service
Retirement
Retirement
5 U.S.C.
service);
timely
System
(FERS).
§ 7701(a);
and
5 U.S.C.
claim
§ 8461(e)(1)
decision
for enhanced
System
The
5 U.S.C.
the final
Board
§ 8347(d)
of
annuity
(CSRS)
and
has jurisdiction
and
and 5 C.F.R
5 C F.R
§
§ 841.308
service).
A hearing
reasons
the appellant
November
as a firefighter
the Federal
over
signed
13, 2004,
set forth
was
below,
held
on
April
the agency's
20,
2005,
decision
004
in
Anchorage,
is AFFIRMED.
Alaska.
For
the
FINDINGS A.,'_D ANALYSIS
Backeround
The
Land
appellant
Management
Fairbanks,
with
works
(BLM),
Alaska.
the AFS
for
in its Alaska
He sought
Mechanic
of the
State
an enhanced
in the following
Electronic
the Department
Office,
annuity
Interior
Alaska
(DOI),
Fire
as a firefighter
Bureau
Service
of
(AFS)
for his service
positions:
Helper,
WG-2604-5,
from July 26,
Electronic
Mechanic,
1984, to July
WG-2604-11,
20,
1985;
from July 21,
Electronic
Mechanic,
1985, to December
WG-2604-11,
31,
from January
1, 1987, to November
Electronic
Mechanic,
WG-2604! 0,
from November
20, 1988, to October
Electronic
Mechanic,
WG-2604-11,
1986;
19, 1988;
5, 1991;
from October
6, 1991, to July 20, 1997;
Telecommunications
Specialist,
GS-039111,
from July 21, 1997, to September
7, 2002;
Information
Technology
Specialist,
GS-2210-11,
from September
8, 2002, to June 28, 2003;
Initial
Information
from
Technology
Specialist
(System
Administrator),
June 29, 2003, to November
1, 2003;
Information
from
Technology
Specialist
(System
November
2, 2003 to the present.
Appeal
In his
letter
that
he sought
July
1984
positions.
held
tab 4, section
to the agency
coverage
November
IAFI,
appeal
! (IAFI)
primary
to
all positions
This
File
1988,
tab 4, section
by
the appellant
was originally
dated
Administrator),
19, 2003,
for his service
in the two
secondary
4, subtab
coverage
7, p. TW000014.
through
captioned
GS-2210-12,
3. _
December
and
GS-2210-11.
July
1997
for
as SF-0842-05-0195-I-1.
the appellant
positions
for
The
primary
specified
he held
all
agency
subsequent
assessed
coverage,
After
from
and
a dismissal
without prejudice,
the appeal was refiled and captioned
SF-0842-05-0195-I-2.
Citations
to the file for the first appeal will be designated
as IAFI; citations
to the second as
IAF2.
005
denied his request after finding
that the primary purpose of his posmons was
equipment maintenance and repair, not firefighting,
and that the evidence did not
establish that the basic reason for the existence of his positions was hrefighting.
All positions held after July 1997 were found not eligible for secondary coverage
IAFI,
tab 4. section 3.
The appellant appealed the agency's decision to the
Board.
Applicable
law
Under
of
service
until
CSRS
and
as a firefighter
whereas,
the
they
service.
majority
reach
age
Affairs,
Interior,
55
94
174,
is
employment
and
mandatory
particularly
maimenance
throughout
Management,
2d
2944);
Dodd,
strictly
construed,
more
people
Sess.
traditional
at a time
94
F.2d
2,
195
salary
duties
younger
901
reprinted
(Fed.
in
M.S.P.R.
at
because
the
1972
179.
and
preference
(quoting
U.S.Code
Cong.
Eligibility
program
is "more
plans
and often
results
when
would
otherwise
have
006
for
costly
civil
of
Admin.
or
her
8335.
who
forces
No. 840,
News
92 Qd
2941.
credit
government
to work
the
Personnel
service
in the retirement
continued
his
to "facihtate
H.R.Rep.
to the
the
service
employees
Office
firefighter
of
qualifying
firefighung
&
of
of
§§ 8334(c),
and
v.
1991)
years
Department
during
vigorous
age.
to retire
20
ordinary
interest,
more
of
v. Department
to reward
Felzien
Cir.
with
5 U.S.C.
in the public
years
an employee
than
See
retirement
they
v.
deductions
retirement.
this
60
20 years
eligible
Scott
Dodd
annuity
50
not
age
Furthermore,
larger
established
are
or
(2003);
completes
attaining
8412(a)-(d);
establishment."
898,
upon
of service
(2003).
early
who
employees
a larger
to
hazardous
Federal
930
Cong.,
subject
relatively
the
191,
178-79
Congress
of
years
receives
but
perform
service
(b), (c)(l),
M.S.P.R.
employees,
and 8425.
30
employee
to retire
civil
with
retirement
8422(a)
a federal
is eligible
§§ 8336(a),
94 M.S.P.R.
firefighter
FERS,
of other
See 5 U.S.C.
Veterans
for
both
_s
than
of important
for a number
4
of years."
Watson
v. Departmen.i
2001),
denied,
534
cert.
An employee
position
that
has
for firefighter
credit.
positions
for
have
not
C.F.R.
See
approved
Dodd,
his service
by CSRS.
from
The
that
July 26,
(Fed.
by serving
to his employing
position
Clr
at 179
either
m a
agency
and duties
quahfy
It is undisputed
bears
credit
the
by a preponderance
94 M.S.P.R.
statutory
credit
his
he
1298
94 M.S.P.R.
tO service
Thus,
credit
1292,
842.803-804.
entitlement
such.
service
§ 1201.56(a)(2);
was covered
as
Dodd,
or by applying
establishing
claims
F.3d
service
§§ 831.903-906,
appellant
to firefighter
During
and
262
7, 2002);
as such,
5 C.F.R.
which
been
entitlement
credit
Navy,
for firefighter
approved
service
for such
LI.S. 1083 (Jan.
can qualify
been
of the
the
as a firefighter
burden
of
proving
of the evidence.
See 5
at 179.
1984,
to December
definition
31,
1986,
of "firefighter"
the appellant
under
CSRS
is
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 firefi_htin*._
apparatus
and equipment,
including
an employee
engaged
a supervisory
or administrative
5 I3.S.C.
§ 8331(21).
See al,_o 5 C.F.R.
Since
January
1, 1987,
The
statutory
definition
FERS.
A.
in this
position.
An employee,
the
activity
who is transferred
(emphasis
added)
§ 831.902.
appellant
has
of "firefighter"
the duties
of whose
(i)
are primarily
to perform
control
and extinguishment
(ii)
are
sufficiently
to
served
under
in
FERS
positions
is:
position-
work directly
connected
of fires; and
rigorous
covered
that
employment
with
the
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
administrative
subparagraph
5 U.S.C.
§ 8401(14).
who
is
tr_insferred
directly
position
after
performing
(A) for at least 3 years.
See also
5 C.F.R.
§ 8'42.802.
007
to
duties
a
supervisory
or
described
in
by
The difference between these definitions is important to this appeal. The
emphasized
language
definition,
in
and the FERS
"sufficiently
occupy
using
firefighting
that
"young
Thus,
apparatus
and
but not the FERS
By regulation,
definition
OPM
was
has the added
only
the positions.
of firefighter
and
he meets
the
has defined
"primary
duties"
Occupy
typical
iii.
Are assigned
emergency,
if they
a substantial
work cycle;
meet
the
employee
spends
or group
of duties,
An employee
on a regular
Dodd,
nature
substantial
portion
an average
of at least
they
duties,
be
individuals'"
is maintaining
hterltl
are his
of
primary
to firefighter
he performed
as those
and
CSRS
definition
duties
that:
is constitute
of the individual's
and recurring
See
or temporary
is not entitled
position
portion
and
8'42.802.
incidental,
FERS
definition.
ii.
831.902,
the
vigorous
an individual
Are paramount
in influence
or weight,
that
reasons
for the existence
of the position;
§§
from
that the position
physically
to the extent
equipment,
dropped
requirement
i.
5 C.F.R.
other
CSRS
definition
rigorous"
should
the
94
the
time
179.
Duties
at
be considered
time
over
a
In
50 percent
of his
performing
duties.
5 C.F.R.
credit
titre control
time
duties.
even
general,
§§ 831.902,
merely
of an
"primary,"
criterion.
service
some
working
basis.
M.S.P.R.
cannot
the basic
because
if an
a duty
842.802
among
his
Dodd,
94 M.S.P.R
for
determining
at ! 79.
The
firefighter
position
this
Board
credit
day duties,
both
adopted
eligibility
in question,
approach,
assessing
has
which
the
reason
the
official
that
a "position-oriented"
focuses
is the
for
the
position
first
upon
prong
existence
description
ld.
0O8
approach
the reason
of OPM's
of
the
(PD)
for the existence
test.
position
and
Id. at 180
of the
Under
is determined
the employee's
by
day
to
6
The
aooellant's
FERS
the
parties
as
November
to
the
because
from
21,
1985,
that
period
bifurcate
under
support
FERS
of that
if it was,
the same
that
of service
ld. at 992.
of service
On
in
must
of service,
criteria.
be
evaluated
is not
Public
Law
and
analyze
under
provisions
December
from
apply
31,
the
to service
apply
1986.
January
1,
from
is subject
The
in the same
neither
cites
They
1987.
to
November
precedent
found
primary
not make
the law
the
any such
CSRS
which
and
criteria
6, stde
B.
In
of the U S
of the Air
Force.
of this
an employee's
under
changed
CSRS
from
permits
secondary
finding
appeal.
CSRS
But
service
and
_n
FERS
to FERS
the bffurcatton
firefighting
service."
regarding
the bifurcation
plan
changed
and FERS.
appellant's
he elected
CSRS
tape
purposes
precedent
and
may
decision
assessment
"no
posit_on
tab 7.
of whether
was
closmg
nor the Board
Department
for
plan
that
under
hearing
IAF2,
the issue
between
1, 1987,
4-5;
(Fed.Cir).
between
did
it partly
his
WG-2604-11
the agency
Canoles-v.
retirement
and
an unpublished
to a bifurcated
Court
Submission
tab 4, pp.
Circuit,
address
not because
99-335,
1988,
a binding
not
in one position
to FERS
rules
19,
WL886971
But the Court
CSRS
regulatory
period
remained
the appellant
in one position
January
the
to
Pre-Hearing
IAF2,
the employee's
service.
and
1984,
FERS
his
toNovember
it does
position
because
that
for the Federal
decision
26,
for
the appellant
990, 2004
That
July
agree
argument,
of Appeals
95 Fed.Appx.
during
1986.
statutory
rules
argued
that
rules
31.
_"
appellant
July
from
They
argument
even
the CSRS
applicable
to the present.
The
Court
that
service
19. 1988.
1988,
partly
December
agree
appellant's
disagree
20,
after
criteria.
The
to
service
FERS
created
Compare
Appellant's
Pre-Hearing
Submission
Heating Submission
at 6 (IAF2, tab 5).
009
retirement
coverage,
FERS
and
at 5 (IAF2,
but
was
rather
mandated
from
by operation
of
its coverage
on
tab 4) and Agency's
Pre-
employees
such
TW000323.
of FERS,
coverage.
The
for
take
the
the
effect
such
§
has
the
and
could
cited
842.809(d)(1)
before
an
became
subject
to Chapter
his
service
The
before
aopellant
was
From
July
Electronic
not
AFS
positions
are
The
Interior
on
a
wide
state
services
to
million
acres
Kodiak
Island.
provide
suppression
taking
place
State
Director,
tab
4, subtab
WG-261M-5,
in
the
job
the
following
at issue
in
includes
positions
Service
(AFS)
in
Alaska.
of
his
is the
to
5
service
The
I find
occupied
the
"per-
appellant
that
of
Radio
appeal,
Repair
m that
all
these
same
selected
on
mutual
National
guidance,
suppression
lands.
It
Alaska.
p. TW000277.
OlO
the
agreement
leadership,
fire
in
functions
and
of
the
AFS
is
support
lands
on
provides
responsibility
to the
of
and
related
Corporation
AFS
a cooperative
services
Alaska.
these
areas
involves
North
with
Slope
a
and
Canada
to
area.
assistance,
directly
on
192
boundary
related
of
and
language
Department
in
suppression
only
position
introductory
only
Military
interagency
incidental
aspects
and
not
argument
rules.
this
Additionally,
Alaska
professional
49,
d_d
position.
CSRS
Branch
organization
It executes
all
found
service.
appellant
This
plus
on
CSRS
his
1, 1987.
under
providing
fire
suppression
FWS,
NPS,
BIA,
and Native
State
provides
his
1985,
fire-suppression
basis
in
analyzed
all
I have
84 .... "
January
to
Security
of FERS
applies
Chapter
p.
organization:
basis.
evaluation
on
Soclal
and
support
the
that
Fire
the
to
5 U.S.C.)
20,
not
definition
subject
durino_
to all
for
BLM,
contractual
IAFI,
for
(DOI)
responsible
services
(of
Helper,
Alaska
CSRS
and
left
50,
subject
provisions
does
subtab
became
appellant
appellant
to July
applies
the
4,
authority,
retirement
until
the
section
participation
persuasive
is appropriately
in a firefighting
BLM
AFS
84
1984,
PD
which
the
a firefi.ohter
26,
The
not
4,
appellant
Plan
no
became
date
Mechanic
Inslallation.
about
that
Savings
that
employee
tab
the
firefighter
by
says
formed
date
cited
that
date,
regulation
that
as Thrift
appellant
that
IAF1,
on
argument
on
The
C.F.R.
appellant.
Nevertheless,
provisions
none,
as
and
services
under
the
AFS
The
duties
PD introduction
also
includes
this
general
description
of the primary
of the position:
The function
Journeyman
of this position
is to help and be trained
by the Electronics
in the Radio
Shop in an on-the-job
training
situation
in the
repair
of electronics
Resource
Management.
communications
equipment
used
by
BLM
Fire
and
Id.
The following
1.
Assist
major
d.uties
Electronic
are listed
in the PD:
Journeyman
in
installations,
to
be
trained
_n
diagnosing
malfunctions,
troubleshoots
to determine
cause.
Prepares
unsatisfactory
equipment
reports
on
items
failing
repeatedly.
specifying
the nature
of the fault and the materials
necessary
for
repairs required.
.
Replaces
defective
transformers,
switches,
relays,
tubes
sohd
state
circuitry,
choke
coils,
capacitors,
resistors,
canon
plugs,
junctton
boxes,
wires, potentiometers,
etc. Makes complete
visual inspection
of all connections
and wiring and applications
of protective
coating.
decals,
and legibility
of marking.
Makes
final test and adjustments
prior to release
of equipment.
.
Removes,
disassembles,
inspects,
repairs,
adjusts,
overhauls,
modifies,
calibrates,
aligns,
and tunes
electronic
components
and
associated
equipment,
such
as transmitters,
rece,vers,
and some
simple test equipment.
Learns
to use all types of test equipment,
such as system
test sets.
frequency
meters,
standing
wave indicators,
oscillators,
ohmmeters.
resistance
bridges,
tube
testers,
transistor
checkers,
and
signal
generators
to localize
trouble
by component
unit, by circuit
within
a
.
component,
and shop
trade.
and by element
of a circuit.
Uses hand
test equipment
common
to the mechanical
Maintains
control
the Fire Cache.
.
.
Types
tive
of shop
correspondence
matters
for personnel
inventory
concerning
and
communications
in the Branch
011
records
of Remote
and power tools
and electrical
of radios
and
Sensing
stored
administra-
zn
7.
Orders
Branch
and keeps
of Remote
stock up on radio
Sensing.
parts
used
in repair
work
in the
ld. at 277-278.
There
existence
is no
of this
language
position
in the
was
PD
either
the
the maintenance
and use of firefighting
describes
performed
man.
duties
While
equipment
the_listed
used
Forest
fires
Technician
systems
of
the
physically
any
that
basic
the
the CSRS
such
use
reason
July
of
following
CSRS
tab 4.
equipment.
and
Rather,
the
documentary
determine
repaired
or
the PD
of electromc
incumbent's
use
testimony,
who
by front
designed,
line
of
Federal
was
of this
Circuit
930
of fires,"
899.
The
position.
that
satisfied
a
maintained
F.2d
and
at 903
in hazardous
appellant
Thus
position
6, s_de A.
the "maintenance
Felzien,
at
he d_d
found
and
met
at "hundreds
Id.
tape
!nstalled,
firefighter.
the Helper
the existence
hearing
firefighters
circumstances.
he held
the
evidence,
has
not
he did
not
either
clause
show
of
of ftrefighter.
21,
duties
1985,
to November
Mechanic,
are listed
19,
1988,
WG-2604-I1,
in the PD for that
the
in
the
appellant
same
occupied
Branch.
inspections,
diagnoses
malfunction,
cause.
Determines
whether
or declared
unserviceable.
012
the
The
position:
As electronic
mechanic,
installs_ overhauls,
maintains,
and repairs
of electronic
components,
related
devices,
and equipment.
performs
the following
typical tasks.
Conducts
the
of a journey-
repair
and
for
of fires
the guidance
involve
In Felzien,
by the court
while
for
Electroaic
major
and
do not
Appellant's
definition
demanding
definition
From
position
used
the use discussed
claimed
reason
extinguishment
maintenance
they
basic
and
under
testimony
1986.
Electronics
However,
and
until
B, at IAF2,
clause
Shop
the
firefighters,
exhibit
communications
use"
involve
to the appellant's
at any
appellant's
apparatus
the
in the field.
According
not work
duties
that
control
in the Radio
by agency
of the equipment
indicating
and
a variety
As such.
troubleshoots
equipment
may be
Prepares
unsatisfactory
economically
eqmpment
to
10
reports
on
items
the materials
failing
repeatedly,
necessary
specifying
for repairs
the
nature
of the fault
and
required.
Removes,
disassembles,
inspects,
repairs,
adjusts,
overhauls,
modifies,
calibrates,
aligns,
and tunes electronic
sets, components
and associated
equipment,
such
as radio
sets,
signal
generators,
audio
oscdlators,
recorders,
microphones,
speakers,
transmitters
and receivers
of limited
functions,
tape
recorders,
audio
oscillators,
synchronizers,
and other
similar
components
or equipment.
Replaces
defective
coils,
capacitors,
transformers,
resistors,
switches,
relays,
tubes,
cannon
plugs,
junction
circuits,
blocks,
choke
wires.
potentiometers,
etc.
Makes
complete
visual
inspection
of items repaired
for appearance,
security
of all connections
and wiring
and application
of
protective
coating,
decals,
and
legibility
of marking.
Makes
final
operational
tests and adjustments
prior to release
of equipment.
Uses all types of test equipment,
such
standing
wave
indicators,
oscillators,
bridges,
component
tube
testers,
and
signal
generators
unit, by circuit within a component,
Adjusts
and calibrates
testing
shop test equipment
common
IAFI,
tab 4, subtab
As noted
1986,
at 902.
fires.
the
above,
PD
the
describe
weather,"
The
is
CSRS
"Physical
work,
no
of a forest
appellant
testimony.
He said
of the job,
but
and
assess.ed
erecting
under
clause
localize
and by element
addressed
that
including
"on
of
Thus,
untd
trouble
by
of a circuit
and
December
he can
defimtion.
the use
and
show
of electronic
Conditions"
mountaintops,"
and
hazardous,
physically
31.
he was
Felzien,
"Working
the
930
a
F.2d
equipment
at
sections
of
in "cold.
windy
demanding
ld. at 274-5.
the
"Physical
the PD language
he described
40-foot
Demands"
position
rules.
address
description
titre,
in this
of the CSRS
not specifically
field
there
circumstances
rock
service
either
PD does
Although
to
instruments.
Uses hand and power tools
to the mechanical
and electrical
trade.
the appellant's
by satisfying
The
sets, frequency
meters,
voltmeters,
resistance
48, p. TW000273-4.
is appropriately
f'trefighter
as system
test
ohmmeters,
additional
towers
Demands"
begins
to describe
demanding
at high
013
portion
elevations,
duties,
and
of this PD
the physical
in his
demands
such
as chipping
erecting
and
into
repatrmg
II
generators
and
and other
equipment
in Alaska,
in
the
were
known
Spring
testimony,
part
and
Although
Fall,
related
activities
August
entry
tape
5, side
for
the
assignment
to the Boise
he repaired
radios
multiple
equipment
When
communications
The appellant
and
in Boise.
the appellant
people
source.
removing
them
near
the fire.
E-6
with
in order
Appellant's
fire-
that
the
temporary
assignment.
reflect
he "supported
on electronLc
repeaters
point,
is a picture
a
radio
a large
mast
of a repeater.)
the repeaters
testimony,
and
often
to facihtate
It includes
and maintaining
of
Id.
on a high
fire.
exhibit
fires.
worked
a fire
the
for installing
after
where
different
five
1, 1986,
he worked
temporarily
fighting
(Appellant's
was responsible
for June
system",
usually
installed
his
that
not
hsting
testified
During
entries
four
were
lists
involved
this one assignment,
fighting
which
exhibit
appellant
radio"
command
by helicopter,
the
The
four
fires
That
Fire Center.
The
to an "area
only
Appellant's
B is an accurate
ld.
as "BIFC
Interagency
is a device
among
and a power
a fire,
(Idaho)
to a fire,
accessible
was done
season.
some
his exhibit
1986.
exhibit
employees
mountaintop
antenna
the
by agency
A repeater
towers
system
installations
fire
he worked
that
for
is, during
kits.
normal
These
communication
on these
of his knowledge,
That
assigned
after
towers.
distance
work
that
appellant
assignment
used
and
he stated
in a shop
incidents."
Most
testified
on
long
these
A.
to the best
described
the appellant's
on and around
permanent,
before
to him by the agency,
experience
side
of the
the appellant
his fire
radio
equipment
as the "backbone."
hearing
credited
heavy
during
heanng
tape
5,
A.
A radio
other
peripherals.
"kit is a set
The
to firefighting
personnel,
The
usually
among
appellant
several
of
16 hand
appellant
and
worked
simultaneous
held
radios,
was responsible
maintaining
out
fires.
them
with
for issuing
014
not
radios
or replacing
of a command
He was
antennas,
center
on
the
them
set
fire
batteries,
from
during
up
near
line,
but
and
the k_ts
the fire.
a fire,
was
or
close
12
enough
to
the
because
fires
The
Federal
that
moved
work
However,
assigned
the
period,
were
I find
did this
appellant's
the
The
appellant's
appellant
those
definition
of firefighter,
clause
from
July
of the
21,
four
the primary
be
moved
duties
during
this
of
to December
This
1986.
apparatus
31,
when
record
position,
does
by the
definition
in June,
of his
period
found
CSRS
1985,
fires.
use of firefighting
service
to
to the work
the one occasion
handling
and
duties
for
The
appellant's
must
now
which
he
does
during
not
th_s
and equipment.'"
not
meet
the
CSRS
be
does
not
not
B lists
the exhibit
up
maintenance
appellant's
are "primarily
5 U.S.C.
some
of the events
were
deployments,
The
the appellant's
of
repeaters,
question
becomes
and extinguishment
found
that
and
and use
015
of
as
whether
such
fires.
The
23 months.
It is
simultaneous
at fires
well
directly
did
not address
involved
the
fires
mainly
issuance
work
and
is "directly
of fires."
an employee
the maintenance
as
clause
§ 8401(14).
the appellant
work
use
work
extinguishment
whether
FERS
are the basic
to perform
of fires."
and
which
of almost
of radios.
satisfied
the duties
to FERS
stringent
and
this period
maintenance
court
more
during
In any event,
to the control
the
to November
changed
a maintenance
that
control
was
16 events
and
Felzien
the
on single
this in his testimony.
setting
address
1, 1987,
plan
to
include
of proving
and extinguishment
does
January
compared
to the control
PD
from
service.
his retirement
of the position
by the appellant
The
as before
the existence
from
connected
his duties
has the burden
exhibit
not clear
durino_ his FERS
that
the same
the appellant
connected
this
that
testified
However,
the
the second
on only
was not a firefi_hter
remained
worked
is similar
period
had
ld.
at fires
center
claim
19, 1988
reason
work
centers
of firefighter.
The aooellant
Thus,
the
the "maintenance
that
definition
during
command
direction,
to satisfy
to a command
support
the
by the appellant
in Felzien
the appellant
was
occasionally
in unexpected
done
Circuit
firefighter.
1986,
fire
with
clause
fire
site
duties
of the CSRS
simalar
definition.
to
t3
The
court
did
definition
not
find
("direcdy
apparently
that
connected
because
and
extinguished
discussing
the
first
did
physically
court
cited
not
"type
satisfied
the
control
and
claim
to
Fel_ien,
in the CSRS
are the
and
the
fires .... "
clause
and extinguishment"
duties
with
"Felzien
controlled
hazardous
the
definition,
that
clause
the
F.2d
the
supply
and
at 902.
court
CSRS
of fires").
personally
f'trefighting
they
of
extinguishment
have
930
of front-line
demanding
first
directly
However.
in
noted
that
duties
so obviously
the ordinary
"control
meanmg
of
' firefighting.'"
The
meaning
of the word
fires."
The
definition
statute
a Court
of Claims
firefighter
as used
at issue
of firefighter.
Ct.CI.
65
fires
because
climbing
(1979).
Id., citing
The
he
in the
Ellis
risked
and
entering
PD
for
ladders,
Ellis
over
was
5 U.S.C.
v. United
that
danger
300
held
statute
found
personal
which
in this
case
court
had
case
that
the
is a person
"the
ordinary
who
combats
§ 8331(21).
States,
610
F.2d
the
760,
the plaintiff
had
by
smoke-filled
entering
burning
buildings..
been
Ellis,
CSRS
764;
222
combating
houses.
610
F.2d
at
764.
work
directly
Neither
the
at fires
during
connected
this
the appellant's
period
to the control
that he was not a f'trefighter
From
position
The
November
of Electronic
Supervisory
1988,
nor
his
testimony
a finding
that
his
primary
extinguishment
of fires.
about
duties
Therefore,
his
were
I find
the FERSdefinition.
to October
5, 1991,
WG-2604-10,
lists the following
the
appellant
in the Branch
occupied
of Remote
the
Sensing.
duties:
Duties
one Electronics
Helper
who
of ALDS and RAWS_systems.
Non Supervisory
3 Automatic
20,
and
within
Mechanic,
PD for that job
Supervises
installation
supports
position,
Lightning
assists
in
the
maintenance
Duties
Detection
System
and Remote
016
Automatic
Weather
Stations
and
14
Installs,
calibrates,
and
maintains
electronic
systems.
Reads and writes computer
i_ra,_rams
Calibrates
electronic
equipment.
ALDS,
RAWS,
Reads and interprets
schematic
diagrams
Disassembles,
inspects,
and repairs electronic
Keeps proper records
of all work.
IAF1,
tab 4, subtab
The
34
The
Exxon
Valdez
hearing
tape
On
described
exhibit
appellant
oil spill
and
171
in this
job
described
other
all.
tab 4, section
directly
connected
From
position
Systems.
Electronic
on
event
were
July
but
29,
not
fires:
the
of appellant.
1991,
the
that
upgrading"
did
not
than
by the appellant.
He stated
and
of more
Testimony
worked
detail.
projects
shown
1991,
the primary
appellant
his primary
the
mention
to
lists
duties
extinguishment
definition,
Mechanic,
The PD for that job
that
and
the FERS
6,
fires
"maintaining
to the control
within
period
in Alaska.
in some
and
this
ALDS.
He
firefighting
at
5, tab 38, p. TW000182.
has not
October
of
was
for
of those
completed
position
responsibilities
appellant
not a f'trefighter,
special
hardware
events
two
six possible
Form
this
that
eruption
Standard
in
eight
a volcano
leaves
responsibility
The
testified
That
his dudes
IAFI,
B shows
6, side B.
a
other
43, p. TW000226.
appellant's
months.
and
July
of fires.
while
20,
of this
serving
1997,
the
WG-2604-11,
in
the following
"major"
the
position
I find
that
were
he was
in this position.
appellant
Branch
occupied
of
the
Technical
duties:
Installs,
calibrates,
and maintains
components
of ALDS,
IAMS, 4 RAWS,
and other systems
(e.g. direction
finders,
automated
weather
statmn sensors
and controllers,
comptiters,
terminals,
etc.
Installs
and maintains
various
data communications
networking
equipment
(e.g. modems,
multiplexors,
ethernet
adaptors,
etc.)
4 Initial
Attack
Management
System
Or7
and computer
X.25 packet switches,
15
Installs,
IBM-PC
maintains,
equivalents,
Disassembles,
standard
shop
and assists users with
Macs, Data General
proper
Maintains
and dates
IAFI,
and
appellant
support
positions
that
performing
8401(14);
B shows
diagrams
in order to maintain,
repair,
in a timely and efficient
manner
length
his
the
usual
appellant
fire
of operation,
coverage
for
site
for this
these
duties,
was a firefighter
is not
between
events
arguendo,
that the appellant
July
any
he transferred
directly
the duties
of a primary
5 C.F.R.
nine
Assuming,
he occupied
for secondary
entitled
26,
were
neither
FOR THE
agency's
and
failure
while
and
July
coverage
rates
20,
in this
for
BOARD:
C.-e asey
Ju_
years
the
the
PD
position
any
of the
he is not eligible
occupied.
for three
is AFFIRMED.
018
nor
or administrative
position
Administrative
1997,
five
at which
history
coverage
§ 842.802.
action
fires
serving
he subsequently
to a supervisory
of over
all
this
to primary
1984,
positions
period
DECISION
The
using
of all work.
exhibit
performed
a claim
(e g
43, p. TW000226.
months.
Because
show
records
tab 4, subtab
eight
schematic
components
logs on hardware
to determine
problems
were corrected.
Appellant's
systems
inspects,
and repairs electronic
system
components
test equipment
with little or no supervision.
Reads and interprets
calibrate
electronic
Keeps
various
computer
MV series, etc.)
He cannot
position
years.
after
5 U S.C
§
CERTIFICATE
I hereby
the
foregoing
addressed
certify
Brief
OF FILING
AND
that on this 24 _ day of March,
of Petitioner
were
served,
SERVICE
2006,
two (2) bound
UPS
Ground
via
copies
of
Transportation;
to the following:
Roger
David
Hipp
M. Cohen
Deborah
A. Bynum
DEPARTIV[ENrl" OF JUSTICE
I I00 L Street,.
N.W.
Room
12072
Washin_on:
(202)
(! !) copies
United
States
The
instructions
for
certify
of the
Court
nece_,
given
20530
305-0277
Counsel
I further
DC
Respondent
that on this 24 _ day of March,
Brief
of Petitioner
of Appeals
filing
and
me by counsel
were
hand-filed
for the Federal
service
2006,
the original
at the
Office
and eleven
of the Clerk;
Circuit.
were
performed
in accordance
./
in this case.
THE LEX/_OUP
1750 K_treet,
Suite 475
Washington,
(202) 955-0001
Dc
N.W.
DC
20006
with
the