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USFC2006-3121-02
[1 CD5A428-C3D2-40A8-8DFF-CB465CAB3572]
{70873}
{32-060516:083011}{050806}
RESPONDENT'S
BRIEF (P)
WEST/CRs
06-3121
UNITED
STATES
COURT
OF APPEALS
THoR
FOR THE FEDERAL
WEATHERBY,
CIRCUIT
FILED
III,
U.S.COURTOF APPEALSFOR
THE FEDERALCIRCUIT
Petitioner,
MAY
V.
DEPARTMENT
JANHORBALY
W
OF THE INTERIOR,
Respondent.
PETITION
FOR REVIEW
PROTECTION
BRIEF
OF RESPONDENT,
BOARD
8 20O6
OF THE MERIT
SYSTEMS
IN SF0842050195-I-2
DEPARTMENT
PETER
OF THE INTERIOR
D. KEISLER
Assistant
Attorney
DAVID
Director
M. COHEN
General
DEBORAH
A. BYNUM
Assistant Director
ROGER A. HIPP
Trial Attorney
Commercial
Litigation
Branch
Civil Division
Department
of Justice
Atm: Classification
Unit
8th Floor
1100 L Street, N.W.
Washington,
D.C. 20530
Tel: (202) 305-0391
Fax: (202) 307-0972
Attorneys
for Respondent
TABLE
TABLE
OF AUTHORITIES
STATEMENT
OF RELATED
JURISDICTIONAL
........................................
iii
CASES
vi
STATEMENT
STATEMENT
OF THE
ISSUE
STATEMENT
OF THE
CASE
I.
Nature
of the Case
II.
Course
of Proceedings
STATEMENT
SUMMARY
OF THE
OF THE
ARGUMENT
OF CONTENTS
................................
...................................
.......................................
........................................
........................................
Below
FACTS
2
...............................
2
......................................
ARGUMENT
3
...................................
7
......................................................
Of Review
7
I.
The Standard
II.
The MSPB
Correctly
Determined
Retirement
Benefits
Are Governed
As Of January
III.
1
The MSPB
That
1, 1987
Properly
Mr. Weatherby
...................................
That
7
Mr. Weatherby's
By FERS
...................................
Sustained
Was
The
Agency's
Not Entitled
10
Determination
To Firefighter
Retirement
Coverage
Pursuant
To CSRS or FERS
For His Service
As An Electronic
Mechanic
In The Branch
A.
The
Of Radio
Firefighter
Repair
Statutory
And Installation
And Regulatory
..............
Scheme
12
........
12
The MSPB Properly Sustained The Agency's
Determination
That Mr. Weatherby's
Primary
B°
Duties
IV.
The MSPB
Were Not Those
Properly
Sustained
Of A Firefighter
................
The Agency's
Determination
That Mr. Weatherby
Was Not Entitled To Firefighter
Retirement
Coverage Pursuant To FERS For His Service As
An Electronic Mechanic In The Branch Of Remote Sensing
.....
V.
The MSPB
Determination
Properly
Sustained
16
18
The Agency's
That Mr. Weatherby
Was Not Entitled
To
Firefighter
Retirement
Coverage Pursuant To FERS For
His Service As An Electronic
Mechanic In The Branch
Of Technical
VI.
....................................
19
Because The MSPB Correctly Sustained The Agency's
Determination
That Mr. Weatherby's
Prior Service Was Not
Primary
Qualify
CONCLUSION
Systems
Firefighter
Service, His Subsequent
Service Cannot
As Secondary
Firefighter
Service ....................
...................................................
20
21
TABLE
OF AUTHORITIES
FEDERAL
CASES
Bingaman v. Department
of Treasury_,
127 F.3d 1431 (Fed. Cir. 1997)
.......................................
Brewer
v. United
States Postal
647 F.2d 1093 (Ct. C1. 1981)
Carroll
9
Service,
.........................................
8
v. HHS,
703 F.2d
Chevron
1388 (Fed. Cir. 1983)
U.S.A.,
Inc. v. Natural
467 U.S. 837 (1984)
Conner
104 F.3d
v. Office
of Personnel
Edison
305 U.S. 197 (1938)
Resources
Defense
8
Counsel,
................................................
1344 (Fed. Cir. 1997)
Consolidated
.......................................
8
Management,
.......................................
Co. v. National
Labor Relations
11
Board,
................................................
Crowley v. United States,
398 F.3d 1329 (Fed. Cir. 2005)
........................................
Dodd v. Department
of the Interior,
94 M.S.P.R.
174 (2003)
............................................
Doe v. Hampton,
566 F.2d 265,272
Felzien
v. Office
(D.C. Cir. 1977)
of Personnel
930 F.2d 898 (Fed. Cir. 1991)
....................................
8
8
15
8
Management,
.......................................
Hannon v. Department
of Justice,
234 F.3d 674 (Fed. Cir. 2000) .......................................
111
13
4, 5
Hayes
v. Department
727 F.2d
of the Navy_,
1535 (Fed. Cir. 1984)
........................................
Mississippi
Valley Barge Line Co. v. United States,
292 U.S. 282 (1934)
................................................
Morgan
v. Office of Personnel
8
8
Management,
773 F.2d 282 (Fed. Cir. 1985) .........................................
9
Newman v. Love.,
962 F.2d 1008 (Fed. Cir. 1992) .......................................
10
Perske v. Office of Personnel Management,
25 F.3d 1014 (Fed. Cir. 1994) ........................................
15
Princess Cruises, Inc. v. United
201 F.3d 1352 (Fed. Cir. 2000)
States,
........................................
Watson v. Department
of the Navy,
262 F.3d 1292 (Fed. Cir. 2001) ....................................
Yates v. Merit Systems Protection Board,
145 F.3d 1480 (Fed. Cir. 1998) ........................................
FEDERAL
§ 7703
5 U.S.C.
§ 8331(21)
5 U.S.C.
§ 8333
5 U.S.C.
§ 8334(c)
15, 16
7
STATUTES
Federal Employees
Retirement
System Act of 1986,
Pub. L. No. 99-335, 100 Stat. 514 .....................................
5 U.S.C.
9
....................................................
................................................
...................................................
..................................................
iv
I0
7
12
11
3
5 U.S.C.
§ 8335
5 U.S.C.
§ 8336(c)
................................................
5 U.S.C.
§ 8347(a)
..................................................
5 U.S.C.
§ 8401(14)
..........................................
13, 20, 21
5 U.S.C.
§ 8402
...................................................
11
5 U.S.C.
§ 8412(d)
................................................
5 U.S.C.
§ 8422(a)
..................................................
5 U.S.C.
§ 8425
5 U.S.C.
§ 8461(g)
28 U.S.C.
....................................................
....................................................
..................................................
§ 1295(a)(9)
..............................................
FEDERAL
3
1-3
9
1-3
3
3
9
1
REGULATIONS
5 C.F.R.
§ 831.902
........................................
5 C.F.R.
§ 831.903-.906
5 C.F.R.
§ 842.802
5 C.F.R.
§ 842.803-.804
............................................
16
5 C.F.R.
§ 1201.56(a)(2)
.............................................
8
............................................
...........................................
14, 15, 18, 20
16
14, 15, 18
STATEMENT
Pursuant
other
appeal
other
appellate
states
that
directly
to Rule
in or from
court
respondent's
this action
under
he is unaware
affected
47.5,
OF RELATED
that
the same
of any case
by this Court's
counsel
previously
or similar
pending
decision
CASES
states
was before
title.
he is unaware
this Court
Respondent's
in this or any other
in this appeal.
vi
that
or any
counsel
court
of any
that
also
will be
2006-3121
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
THOR WEATHERBY,
Petitioner,
III,
V.
DEPARTMENT
OF THE
INTERIOR,
Respondent.
PETITION
FOR
REVIEW
PROTECTION
OF THE
BOARD
28 U.S.C.
Court
not entitled
5 U.S.C.
STATEMENT
jurisdiction
to entertain
STATEMENT
OF THE
this appeal
pursuant
to
§ 1295(a)(9).
Whether
committed
possesses
SYSTEMS
IN SF-0842-05-0195-I-2
JURISDICTIONAL
This
MERIT
the Merit
reversible
error
to the enhanced
§ 8336(c)
Systems
Protection
by determining
retirement
and 5 U.S.C.
Board
ISSUE
("MSPB"
that petitioner,
benefits
§ 8412(d).
conferred
or "board")
Thor
Weatherby,
III, is
upon
firefighters
by
STATEMENT
Nature
appeals
"firefighter"
II.
an information
("agency")
positions,
who
Course
letter
retirement
dated
of 5 U.S.C.
decision
sustained
the agency's
Mr. Weatherby
§§ 8336(c)
JA 114-15.1
29, 2005,
filed
the board
for review
denied
the petition
thereby
rendering
the initial
decision
the final
"'JA
"refers
to the joint
to the agency
the claim
for
in a
with
the MSPB.
administrative
In
judge
JA 4-18
The board
a timely
denied
an appeal
the MSPB
29, 2005.
filed
a claim
The agency
August
Mr. Weatherby
a
JA 116-19.
December
petitioned
mechanic
and 8412(d).
submitted
Mr. Weatherby
decision.
of electronic
of
Below
benefits.
dated
for the Department
he is not and has not been
Mr. Weatherby
13, 2004,
specialist
in a series
and Disposition
18, 2004.
an initial
that
19, 2003,
November
On December
served
decision
of Proceedings
On December
technology
previously
the board's
for purposes
firefighter
CASE
of the Case
Mr. Weatherby,
the Interior
OF THE
petition
for review
appendix.
-2-
of the initial
for review
decision
decision
on December
of the MSPB.
in this Court
on
29, 2005,
JA 1-3.
on January
5, 2006.
STATEMENT
Mr. Weatherby
Management
contends
has served
Federal
Employees
In both the CSRS
of service
5 U.S.C.
§§ 8336(c),
than ordinary
him for firefighter
Retiremefit
systems,
is eligible
8412(d)(2).
civil service
and mandatory
of the Bureau
of Land
System
He
retirement
("CSRS")
and/or
the
System ("FERS").
and FERS
as a firefighter
deductions
qualify
to the Civil Service
Retirement
Fire Service
from July 26, 1984, to the present.
that some of those positions
pursuant
annuity
the Alaska
in a series of positions
benefts
OF THE FACTS
an employee
who completes
to retire upon attaining
A qualifying
retirees,
firefighter
early retirement.
5 U.S.C.
50 years of age.
retiree
but is subject
20 years
receives
a larger
to larger salary
§§ 8334(c),
8335,
8422(a)
and 8425.
Mr. Weatherby
the Branch
is entitled
10-12.
waived
of Radio Repair
to firefighter
However,
not entitled
entered
Federal
service
and Installation.
retirement
He argued
credit for his service
his brief does not challenge
to firefighter
any argument
credit for service
with respect
as an electronic
-3-
before
the MSPB
in that position.
the MSPB's
in that position,
to that position.
mechanic
helper
in
that he
See JA
determination
that he is
and therefore
he has
E.__., Harmon
v. Department
of
Justice, 234 F.3d 674, 680 (Fed. Cir. 2000) (holding argument not raised in
opening brief is waived).
Mr. Weatherby next served, from July 21, 1985, to November 19, 1988, as
an electronic mechanic (WG-2604-l l) in the Branch of Radio Repair and
Installation.
The position description identified the following major duties:
As electronic mechanic, installs, overhauls, maintains,
and repairs a variety of electronic components, related
devices and equipment. As such, performs the following
typical tasks.
Conducts inspections, diagnoses malfunction, and
troubleshoots to determine cause. Determines whether
equipment may be economically repaired or declared
unserviceable ....
Removes, disassembles, inspects, repairs, adjusts,
overhauls, modififies, calibrates, aligns, and tunes
electronic sets, components, and associated equipment,
such as radio sets ....
Replaces defective transformers, switches, relays, tubes,
circuits, choke coils, capacitors, resistors, cannon plugs,
junction blocks, wires, potentiometers, etc....
Uses all types of test equipment, such as system tests
sets, frequency meters, standing wave oscillators,
ohmmeters, voltmeters, resistance bridges, tube testers,
and signal generators ....
-4-
JA 10-11,64-65.
The position description describes some physical demands, such
as working on mountaintops and in winter weather, but does not refer to the
hazardous and physically demanding circumstances of a forest fire. JA 13, 65-66.
Mr. Weatherby next served as an electronic mechanic (WG-2604-10) in the
Branch of Remote Sensing, from November 20, 1988 to October 5, 1991. The
position description listed the following duties:
Supervisory_
Duties
Supervises one Electronics
Helper who assists in the
maintenance
and installation
of ALDS [Automatic
Lightning
Automatic
Detection
Weather
Non Supervisory.
Installs,
Reads
Calibrates
Reads
and maintains
electronic
and writes
and interprets
Keeps proper
RAWS,
and
programs.
equipment.
schematic
inspects,
records
ALDS,
systems.
computer
electronic
Disassembles,
[Remote
Duties
calibrates,
other special
System] and RAWS
Station] systems.
diagrams.
and repairs
of all work.
JA 16-17, 60.
-5-
electronic
hardware.
Mr. Weatherby then became an electronic mechanic (WG-2604-11) in the
Branch of Technical Systems from October 6, 199l, to July 20, 1997. The
position description identified the following major duties:
Installs, calibrates, and maintains components of ALDS,
IAMS [Initial Attack Management System], RAWS, and
other systems (e.g. direction finders, automated weather
station sensors and controllers, computers, terminals, etc.
Installs and maintains various data communications and
computer networking equipment (e.g. modems,
multiplexors, X.25 packet switches, ethernet adaptors,
etc.)
Installs, maintains, and assists users with various
computer systems (e.g. IBM-PC equivalents, Macs, Data
General MV series, etc.)
Disassembles, inspects, and repairs electronic system
components using standard shop test equipment with
little or no supervision.
Reads and interprets schematic diagrams in order to
maintain, repair, and calibrate electronic components in a
timely and efficient matter.
Keep proper records of all work.
Maintains logs on hardware to determine length of
operation, failure rates, and dates problems were
corrected.
JA 14, 54.
-6-
From July 21, 1997, to the present, Mr. Weatherby has held a series of
tecl'mical positions: telecommunications specialist, infotech specialist (network);
and information technology specialist (SYSADMIN).
SUMMARY
The MSPB
Mr. Weatherby
correctly
some of Mr. Weatherby's
fire sites, the primary
connected
OF THE ARGUMENT
sustained
does not qualify
the agency's
for firefighter
electronic
determination
retirement
mechanic
positions
duties of those positions
with the control
JA 75.
that
coverage.
have involved
were not to perform
and extinguishment
Although
travel to
work directly
of fires.
ARGUMENT
I. The Standard
Of Review
The scope of judicial
The MSPB
decision
review
of decisions
must be affirmed
unless
of the MSPB
(2) obtained without procedures
required
regulation having been followed; or
5 U.S.C.
§ 7703(c);
by substantial
A board decision
or
by law, rule, or
evidence...
Yates v. Merit Systems
1483 (Fed. Cir. 1998).
by statute.
it is found to be:
(I) arbitrary, capricious,
an abuse of discretion,
otherwise not in accordance
with law;
(3) unsupported
is defined
Protection
regarding
-7-
Board,
a factual
145 F.3d
1480,
matter must be
sustained unless it is unsupported by substantial evidence from the record taken as
a whole. Hayes v. Department
of Navy_, 727 F.2d 1535, 1537 (Fed. Cir. 1984).
A court will not overturn
relevant
evidence
conclusion."
Indeed,
Cir. 1977).
States Postal
Edison
judicial
of the administrative
decision
mind might
v. United
Consolidated
U.S. 197 (1938)).
review
as a reasonable
Brewer
1981) (quoting
an agency
accept as adequate
Service,
Co. v. National
review
record.
is exhausted
basis for the conclusions
reached
by the administrative
1388, 1390 (Fed. Cir. 1983) (citing
States,
292 U.S. 282, 286-87
Mr. Weatherby
evidence,
that he is entitled
see also Crowley
(applying
5 C.F.R.
Finally,
it is charged
U.S.A.,
has the burden
v. United
with administering
Inc. v. Natural
of proving,
service
States, 398 F.3d
it is well-settled
Resources
1093,
1096 (Ct. CI.
Board,
is limited
566 F.2d 265,272
body.
Valley
a
305
to a
(D.C.
to be a rational
Carroll
v. HHS, 703
Barge Line Co. v.
(1934)).
to firefighter
§ 1201.56(a)(2)
to support
when there is found
Mississippi
by "such
Labor Relations
Doe v. Hampton,
function
United
647 F.2d
of MSPB decisions
The judicial
F.2d
if it is supported
by a preponderance
credit.
that an agency's
Defense
-8-
§ 1201.56(a)(2);
1329, 1339 n.11 (Fed. Cir. 2005)
to law enforcement
is entitled
5 C.F.R.
of the
officers).
regulations
to considerable
Counsel,
interpreting
deference.
the statute
Chevron
467 U.S. 837 (1984);
see
Princess
Cruises,
the 'statute
Inc. v. United
is silent or ambiguous
for the court is whether
of the statute'"
Chevron,
for firefighter
construed."
program
the government
for fire fighters
continued
to work for a number
construction
retirement
credit must
127 F.3d 1431,
for law enforcement
officer credit).
is necessary
and law enforcement
than more traditional
people
the question
retirement
of Treasury,
that strict construction
of important
Morgan
officer
v. Department
definitions
retirement
issue,
is based on a permissible
or law enforcement
1435 (Fed. Cir. 1997) (applying
retirement
answer
to the specific
467 U.S. at 843).
Bingaman
This Court has emphasized
201 F.3d 1352, 1359 (Fed. Cir. 2000) ("if
with respect
the agency's
(quoting
Eligibility
be "strictly
States,
because
officers
"'is more costly to
plans and often results
at a time when they would otherwise
v. Office of Personnel
of years.'"
Bingaman,
Management,
the
in the
have
127 F.3d. at 1435 (quoting
773 F.2d 282, 286-87
(Fed. Cir.
1985)).
The Office
of Personnel
addressing
the circumstances
firefighter
special
§§ 8347(a),
statutes
Management
under which
retirement..See
8461(g)).
OPM's
by any other executive
("OPM")
Federal
Bingaman,
interpretation
agency,
employees
of statutes,
Congress
regulations
are eligible
127 F.3d at 1434 (citing
"which
-9-
has promulgated
for
5 U.S.C.
like the interpretation
charges
of
it to administer
is normally entitled to great deference." Newman
v. Love, 962 F.2d
1008, 1012
(Fed. Cir. 1992).
As demonstrated
below,
the MSPB's
capricious,
an abuse of discretion,
substantial
evidence.
II.
The MSPB
Benefits
Correctly
As the MSPB
1986, his retirement
Mr. Weatherby
System
entered
benefits
became
to law, and is supported
That Mr. Weatherby's
judge
Federal
correctly
service
were governed
subject
to FERS.
Act of 1986, Pub. L. No. 99-335,
employees
position,
to be switched
by
Retirement
1, 1987
noted at JA 4 and 9-10, from
in 1984 through
by CSRS.
The Federal
Effective
Employees
100 Stat. 514, provided
with fewer than five years of service,
Mr. Weatherby's
in this case is not arbitrary,
By FERS As Of January
administrative
the time Mr. Weatherby
or contrary
Determined
Are Governed
decision
including
from CSRS
December
31,
January
1, 1987,
Retirement
for most Federal
those in
to FERS as of January
1,
1987.
Mr. Weatherby
taking
of vested
cites no precedent,
argues
rights.
that this "bifurcation"
Pet. Br. at 9. This argument,
lacks merit.
-10-
of service
for which
was erroneous
Mr. Weatherby
and a
As this Court noted in Conner v. Office of Personnel
1344,
1346 (Fed. Cir. 1997), "FERS
§ 8402, which
defines
Employees
service
he became
subject
automatically
§ 8333.
to employees
Because
he was transferred
employees
5 U.S.C.
and therefore
§ 8402).
annuity,
in a CSRS
As of January
because
with at least five years of creditable
into the FERS system,
no legally
of firefighter
service.
protectable
-11-
date
At that time,
was expressly
5 U.S.C.
annuity
at the time
interest
the MSPB
to Mr. Weatherby's
1, 1987.
at the time
service.
coverage
in a CSRS
Accordingly,
annuity
1, 1987, the effective
CSRS annuity
he did not have a vested interest
became
Id.
had less than three years of Federal
to apply the FERS definition
who had
they make an election
from FERS,
interest
been taken from him at the time of transfer.
January
unless
as of that date.
to the FERS system.
he had no right to a CSRS
limited
excludes
5 U.S.C.
with fewer than five years of CSRS-creditable
did not have a vested
Mr. Weatherby
104 F.3d
by exclusion."
104 F.3d at 1346 (construing
1, 1987, are not excepted
system
Mr. Weatherby
in the CSRS system,
ConneL
like Mr. Weatherby
part of the FERS
of FERS,
service
system.
as of January
is defined
the scope of FERS coverage,
five years of creditable
to join the FERS
coverage
Management,
service
could have
was correct
since
III.
The MSPB Properly Sustained The Agency's Determination That
Mr. Weatherby Was Not Entitled To Firefighter Retirement Coverage
Pursuant To CSRS or FERS For His Service As An Electronic
Mechanic For The Branch Of Radio Repair And Installation
The MSPB properly sustained the agency's determination that
Mr. Weatherby's service as an electronic mechanic (WG-2604-11) in the Branch
of Radio Repair and Installation did not qualify him for firefighter retirement
benefits. This holding is wholly consistent with the applicable statutes,
regulations, and precedents of this Court.
A.
The Firefighter
Congress,
by which
FERS
Statutory_ And Regulatory_
at title 5 of the United
to determine
may qualify
whether
Federal
for firefighter
States Code,
employees
retirement
Scheme
set forth a statutory
covered
coverage.
scheme
by either CSRS
5 U.S.C.
or
§§ 8331(21),
8401(14).
Pursuant
to the CSRS definition,
duties of whose position
control
are primarily
and extinguishment
apparatus
supervisory
and equipment,
or administrative
"'firefighter'
to perform
means an employee,
work directly
of fires or the maintenance
including
an employee
position."
5 U.S.C.
-12-
connected
the
with the
and use of firefighting
who is transferred
§ 8331(21).
to a
The FERS definition is more specific:
The term "firefighter"
means--
(A) an employee, the duties of whose position-(i) are primarily to perform work directly
connected with the control and extinguishment of
fires; and
(ii) are sufficiently rigorous that employment
opportunities should be limited to young and
physically vigorous individuals, as determined by
the Director considering the recommendations of
the employing agency; and
(B) an employee who is transferred directly to a
supervisory or administrative position after performing
duties described in subparagraph (A) for at least 3 years.
5 U.S.C. § 8401(14).
The plain language of the FERS statute, unlike the CSRS statute, requires
that theduties of the position must be "sufficiently rigorous that employment
opportunities should be limited to young and physically vigorous individuals."
5 U.S.C. § 8401(21)(A)(ii).
However, this Court has also recognized that in
establishing enhanced retirement benefits for firefighters pursuant to CSRS,
Congress intended "to facilitate the maintenance of relatively younger and more
vigorous firefighting
Office of Personnel
forces throughout the Federal establishment." Felzien
Management,
H.R. Rep. No. 840 (1972),
reprinted
v.
930 F.2d 898, 901 (Fed. Cir. 1991) (quoting
in 1972 U.S.C.C.A.N.
-13-
2941,2942).
Thus,
both the CSRS and FERS statutes
employees
occupying
The regulatory
definitions
provided
reserve
frefighter
physically
rigorous
positions.
defnitions
of firefighter
by their respective
retirement
mirror,
statutes.
for Federal
in relevant
See 5 C.F.R.
part, the
§§ 831.902
and
842.802.
The regulations
also define
regulations
set forth identical
employee's
position
to constitute
three-part
duties"
of the evidence,
duties."
The CSRS
tests by which
must by ascertained.
the "primary
preponderance
"primary
5 C.F.R.
of a position,
and FERS
the "primary
§§ 831.902,
the employee
duties"
842.802
must prove,
that the duties:
(1) Are paramount in influence or weight; that is,
constitute the basic reasons for the existence of the
position;
(2) Occupy a substantial
portion of the individual's
working time over a typical work cycle; and
(3)
5 C.F.R.
Are assigned
§§ 831.902,
In addition,
Duties
on a regular
and recurring
basis.
842.802.
both the CSRS
and the FERS regulations
that are of an emergency,
incidental,
clarify
that:
or temporary
nature cannot be considered
"primary" even if they meet
the substantial portion of time criterion. In general, if an
employee
spends
an average
of at least 50 percent
-14-
of his
of an
In order
by a
or her time performing a duty or group of duties, they are
his or her primary duties.
5 C.F.R. §§ 831.902, 842.802.
The MSPB has adopted a "position-oriented
approach" to determining
whether employees qualify for firefighter retirement coverage. Dodd v.
Department
of the Interior,
the position-oriented
law enforcement
approach
officers.
1296 (Fed. Cir. 2001).
considers
the reason
position
documentation
M.S.P.R.
consistent
M.S.P.R.
94 M.S.P.R.
for the similar
Watson
Pursuant
174, 180 (2003).
system
v. Department
existence
and the employee's
of retirement
coverage
of the Navy_, 262 F.3d
to the position-oriented
for the position's
This Court has endorsed
approach,
by assessing
actual day-to-day
precedents
at 180, citing Perske v. Office
both the official
duties.
Dodd, 94
1018 (Fed. Cir. 1994) ("We have held that entitlement
firefighter
must be determined
in a position
can qualify
Management,
cases.
94
to credit for service
as a
as well as
description.").
for firefighter
that has been approved
is
25 F.3d 1014,
on the basis of actual duties performed,
by the grade level or by the official
An employee
approach
of this Court in firefighter
of Personnel
1292,
the MSPB
at 180. As the board noted in Dodd, the position-oriented
with the pre-Watson
for
service
for coverage,
-15-
coverage
or by applying
either by serving
to his employing
agency and establishing that his position and duties qualify for such coverage.
5 C.F.R. §§ 831.903-.906; 842.803-.804. See also Watson, 262 F.3d at1296.
B.
The MSPB Properly Sustained The Agency's Determination That
Mr. Weatherby's
The MSPB
service
position
activities
towers,
fire season.
activities
mostly
Mr. Weatherby
line.
concerning
with the Branch
evidence.
of fighting
judge
Firefighter
Mr. Weatherby's
of Radio Repair
The administrative
judge
and Installation
reviewed
the hazardous,
the
physically
a forest fire. JA 10. The administrative
work, such as erecting
be done in the spring
also considered
that he had performed
involved
would
would
OfA
and fall, i.e___.,
before
and after
JA 10-11.
The administrative
fire-related
findings
noted that much of the physical
communications
the normal
Were Not Those
and noted that it did not describe
circumstances
further
judge's
mechanic
by substantial
description
demanding
judge
administrative
as an electronic
are supported
Primary_ Duties
working
sometimes
Mr. Weatherby's
in this position.
with repeaters
testimony
about
JA 11. These
and radio kits.
Id___.
Although
work close to fires, he did not work on the fire
JA 11-12.
To be sure, some of the work Mr. Weatherby
work performed
by the petitioner
in Felzien.
-16-
performed
was similar
to the
JA 12. In that case, this Court held
that a forest electronics technician for the Forest Service qualified as a firefighter
pursuant to the CSRS definition.
However, the administrative judge noted that the
petitioner in Felzien had worked on "hundreds of fires." JA 12 and 15 (discussing
Felzien, 930 F.2d at 899). Accordingly, the administrative judge correctly
distinguished Felzien because Mr. Weatherby did not show that the basic reason
for the existence of his position or the primary duties of his position satisfied the
CSRS definition of firefighter.
JA 12, 15.
It is even more clear that Mr. Weatherby did not satisfy the more stringent
FERS definition of firefighter.
The administrative judge found that the position
description did not address the control and extinguishment of fires. JA 15. The
administrative judge further found that Mr. Weatherby's work with repeaters and
radios at fire sites was not directly connected to the control and extinguishment of
fires. Id____.
These holdings were based upon the administrative judge's review of all
the evidence, and should be affirmed.
Mr. Weatherby's arguments to the contrary are not persuasive. The fact that
he was sometimes required to load, unload, and carry heavy equipment fi'om
helicopters in rugged outdoor conditions, Pet. Br. at 11-12, does not establish him
as a firefighter.
Nor does the fact that he worked at high altitudes (Pet. Br. at 13-
15), wore protective equipment (Pet. Br. at 16), or rode in helicopters in difficult
-17-
conditions (Pet. Br. at 17-20). These duties, though they entailed some physical
activity, are not of a type directly connected with the control
of fires.
Nor did the physical
Mr. Weatherby
primary
duties
demands
mechanic,
that would not qualify
Accordingly,
Weatherby's
those of a front-line
also failed to show that any of his fire-related
duty as an electronic
842.802.
approach
and extinguishment
service
as opposed
for firefighter
the administrative
with the Branch
judge's
duties
to incidental
coverage.
5 C.F.R.
findings
of Radio Installation
firefighter.
were his
or temporary
§§ 831.902,
concerning
Mr.
and Repair
should
be
affirmed.
IV.
The MSPB
Properly
Sustained
The Agency's
Determination
That
Mr. Weatherby
Was Not Entitled To Firefighter Retirement
Coverage
Pursuant To FERS For His Service As An Electronic Mechanic
In
The Branch
Of Remote
The administrative
entitled
to firefighter
10) in the Branch
JA 13-14.
Sensing
judge
of Remote
Sensing
The administrative
judge
to firefighting.
Mr. Weatherby's
testimony
worked
found that Mr. Weatherby
credit for his service
not refer directly
Weatherby
correctly
as an electronic
from November
reviewed
JA 14. The administrative
on only six fire incidents
-18-
during
mechanic
(WG-2604-
20, 1988 to October
the position
and fire service record
was not
(JA
description,
judge
which
did
also reviewed
76), and found
this 34-month
5, 1991.
that Mr.
period.
JA 17.
Finally,
that
the administrative
Mr. Weatherby
primary
failed
connected
to show
by substantial
Properly
JA 14.
that
that his
and upgrading
the
did not refer
the administrative
duties
and extinguishment
Sustained
171 (JA 57-58)
he stated
Mr. Weatherby
the primary
evidence,
Form
in which
was maintaining
Id___.Accordingly,
to the control
The MSPB
a Standard
29, 1991,
system.
at all on this form.
was supported
V.
on July
detection
Mr. Weatherby
directly
also reviewed
in this position
lightning
firefighting
that
completed
responsibility
automatic
judge
found
of this position
of fires.
and should
judge
Id____.
This
to
were
finding
be affirmed.
The Agency's
Determination
That
Mr. Weatherby
Was Not Entitled
To Firefighter
Retirement
Coverage
Pursuant
To FERS For His Service
As An Electronic
Mechanic
In
The Branch
Of Technical
The administrative
Mr.
Weatherby
mechanic
1991,
position
administrative
After
22, 1997.
judge
JA 17-18.
which
does
on nine
the agency's
credit
of Technical
not refer
Systems
to firefighting
Mr. Weatherby's
fire events
judge
judge
October
considered
activities.
fire service
correctly
that
as an electronic
from
for this 68-month
the administrative
-19-
determination
for his service
The administrative
also considered
this evidence,
sustained
to firefighter
in the Branch
that he worked
reviewing
correctly
was not entitled
description,
indicates
judge
(WG-2604-11)
to July
Systems
6,
the
Id_._:The
record,
period.
found
which
JA 18.
that neither
the position
description
nor Mr. Weatherby's
supported
a
claim
for firefighter
VI.
Because The MSPB Correctly Sustained The Agency's
Determination
That Mr. Weatherby's
Prior Service Was Not Primary Firefighter
Service,
Because
service.
5 U.S.C.
position
define
the administrative
positions
an employee
As Secondary
correctly
positions
determined
that Mr. Weatherby's
was not firefighter
with the agency do not qualify
service,
as secondary
includes
in the FERS definition
who "is transferred
directly"
to a supervisory
§ 831.902.
known
as primary
position
pursuant
Pursuant
directly
Qualify
§ 8401(14)(B)
"transferred
secondary
Cannot
judge
mechanic
after performing
5 C.F.R.
Service
Service
in his electronic
subsequent
for that position.
His Subsequent
Firefighter
service
coverage
actual performance
firefighter
directly"
Service
service;
subsequent
§ 8401(14)(B)
as a supervisor
from a firefighter
position.
pursuant
service
to the above definitions,
coverage
of"firefighter"
or administrative
a break of service
as a firefighter
to 5 U.S.C.
firefighter
duties for at least three years.
as "without
in a supervisory
or administrator
His previous
-20-
position
is
or administrative
cannot
because
3 days."
§ 8401(14)(A)
as secondary
Mr. Weatherby
The regulations
exceeding
to 5 U.S.C.
is known
his
service.
qualify
for
he did not transfer
was electronic
mechanic
with the Branch of Technical Systems. For the reasons discussed in the preceding
section, his service in that position did not qualify him as a firefighter pursuant to
5 U.S.C. § 8401 (14)(A).
Therefore, the administrative judge did not reach the
issue of whether Mr. Weatherby's subsequent positions of telecommunications
specialist and information technology specialist qualify as supervisory or
administrative positions pursuant to 5 U.S.C. § 8401(14)(B).
If the Court affirms the MSPB's decision with respect to Mr. Weatherby's
last purported primary service (electronic mechanic with the Branch of Technical
Systems), then it need not reach the issue of secondary service. However, if the
Court were to reverse the MSPB's decision and find that Mr. Weatherby's prior
service qualifies as primary firefighter service, then remand would be appropriate
so that the MSPB could deternfine whether some or all of his subsequent service
qualifies as secondary firefighter service.
CONCLUSION
For the reasons
affirm the decision
set forth in the board's
of the MSPB.
-21-
decision
and above,
the Court should
Respectfully submitted,
PETER D. KEISLER
Assistant Attorney General
DAVID M. COHEN
Director
Assistant Director
Trial Attorney
Commercial Litigation Branch
Civil Division
Department of Justice
Atm: Classification Unit
1100 L Street, N.W.
8th Floor, Room 12004
Washington, D.C. 20530
Tele: (202) 307-0277
May 8, 2006
Attorneys for Respondent
-22-
CERTIFICATE
I certify
caused
under penalty
to be placed
copy of "Brief
of perjury
in the United
Of Respondent"
OF SERVICE
that on this __day
States mail (first class mail, postage
addressed
as follows:
W. Craig James, Esq.
Mark & Burgoyne
515 S. 6th St.
P.O. Box 1743
Boise,
of May 2006, I
ID 83701-I
-23-
743
prepaid)
a