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USFC2006-3121-04
{2FEAE438-7DB9-4BF8-BOB3-F9AAB279DDC4}
{70879}
{32-060606:133038}
{052506}
REPLY BRIEF (P)
06-3121
_niteb
_tates
_ourt
___or _l_e
_'eberal
of
Appeals
(_ircuit
THOR WEATHERBY,
III,__/(__
Petitioner,
Vt
DEPARTMENT
OF THE INTERIOR,
Respondent.
PETITION
FOR REVIEW OF THE
MERIT SYSTEMS PROTECTION
BOARD
IN SF0842050195-I-2.
REPLY
BRIEF
OF PETITIONER
FOL_
W. Craig James
MAUK
& BURGOYNE
515 South
Post
6th Street
Office
Box 1743
Boise,
Idaho
(208)
345-2654
Counsel
May 2 5 2006
for
THE
83701-1743
Petitioner
LEX
(202)
Dated:
GROUP
955-0001
•
I)c
(800)
• 1750
K Street,
815-3791
• Fax:
N.W.
• Suite
(202) 955-0022
475
• Washington,
• www.thelexgroupdc.com
May 25, 2006
D.C.
20006
TABLE
OF CONTENTS
Pa._Ag_e.
TABLE
OF AUTHORITIES
I.
INTRODUCTION
II.
REPLY
....................................................................................
..........................................................................................
ARGUMENT
1
....................................................................................
Pre-FERS
Petitioner's
B.
The Bifurcation
of Petitioner's
Initial Electronic
Mechanic
Position Was Error ...............................................................................
Defective
Under
"Fire fighter"
Mechanic
CSRS ........................
Definition
Position
(2)
5
....................................................................
8
10
"directly connected with the control and extinguishment
of fires" .....................................................................................
11
"sufficiently
14
Petitioner's
Secondary
CONCLUSION
2
To
is
Regardless
of Whether Petitioner's
Initial Electronic
Mechanic
Position is Bifurcated,
it Qualifies as Firefighter
Service Under
FERS ...................................................................................................
(1)
E.
Qualifies
The Application
of the FERS
Petitioner's
Initial
Electronic
Constitutionally
D.
Service
2
A.
C.
III.
ii
rigorous..."
Post-July
Service
..........................................................
21, 1997 Specialist
Positions
Qualify
..............................................................................
.............................................................................................
CERTIFICATE
OF FILING
AND SERVICE
CERTIFICATE
OF COMPLIANCE
for
15
16
TABLE
OF
AUTHORITIES
Pa ets
CASES:
Bishop
v. Ward,
42 U.S.
Conner
341,
v. Office
of Personnel
104 F.3d
Dandridge
U.S.
Cir.
Orleans
427
6, 8
25 L. Ed. 2d 491 (1970)
...............................
10
Cir.
1991)
................................................................
2, 3, 4
389
(1940)
........................................................................................
U.S.
of the Interior,
638 (2005)
297 (1976)
v. Office
..................................................................................
........................................................................................
of Personnel
1014
v. Department
262 F.3d
1292
CONSTITUTIONAL
CONST.
7
4
v. Dukes,
25 F.3d
U.S.
..................................................................
Management,
Obremski
v. Office of Personnel
699 F.2d 1263 (D.C. Cir.
Watson
9
Co. v. Helvering,
v. Department
Perske
1997)
90 S. Ct. 1153,
898 (Fed.
98 M.S.P.R.
New
...................................
Management,
of Personnel
F.2d
308 U.S.
Henry
(Fed.
471,
v. Office
930
Haggar
1344
48 L. Ed. 2d 684 (1974)
v. Williams,
397
Felzien
96 S. Ct. 2074,
amend.
(Fed.
Management,
1983) ......................................................................
9
1
Management,
Cir.
1994)
..................................................................
1, 12
................................................................
7, 12
of the Navy,
(Fed.
Cir.
2001)
PROVISION:
V ..............................................................................................
8
STATUTES:
5 U.S.C.
§ 8331(21)
5 U.S.C.
§ 8401,
5 U.S.C.
§ 8401(14)
5 U.S.C.
§ 8402
5 U.S.C.
§ 8402(b)
..................................................................................................
etseq
..............................................................................................
..........................................................................................
.........................................................................................................
....................................................................................................
2
5
11, 14
6
8
REGULATIONS:
5 C.F.R.
§ 842.802
..................................................................................................
5 C.F.R. § 842.803(b)(ii)
5 C.F.R.
§ 842.809(b)
...........................................................................................
..........................................................................................
14
9
7, 14
OTHER:
1948
U.S.
S. Rep.
No.
Code
Cong.
99-166
& Ad. News
2276
................................................................
........................................................................................
iii
6
6, 11, 14
I. INTRODUCTION
The
parties
standards
of review.
application
novo.
1983).
work
the Board
evidence.
issues
presents
case
are questions
also
the
decision
below
which
of law
issues
Fire
this
the
define
Service.
F.2d
regarding
With
respect
may
and
decide
1268
the
to
de
(D.C.
nature
these
if unsupported
25 F.3d
the
firefighter
1263,
fact
Management,
and
interpretation
the Court
699
of
Petition
Petitioner's
which
will not be sustained
of Personnel
by
involving
Management,
presents
Alaska
v. Office
issues
terms
of Personnel
presented
of
factual
by substantial
1014,
1017
(Fed.
1994).
Here,
applies
the
parties
to Petitioner's
1987.
Mr.
Weatherby
cannot
be bifurcated
parties
diverge
(WG-2604)
that
case
These
with
Perske
on the
and regulatory
v. Office
This
Petitioner's
Cir.
This
eligibility.
Obremsla"
issues,
agree
of statutory
retirement
Cir.
hereto
the
coverage
given
service
as to what
on whether
for
that
different
Petitioner's
enhanced
overwhelmingly
the rigorous
statutory
as of the date
maintains
into
qualifies
record
diverge
FERS
his service
retirement
eligibility
effective
criteria.
under
duties
his
FERS.
connected
Petitioner
with
at that
Moreover,
Mechanic
qualification
or FERS)
on January
he held
in the Electronic
establishes
and hazardous
became
(CSRS
in the position
retirement
service
definition
for
1,
time
the
position
maintains
firefighter
fire suppression.
II.
A.
Petitioner's
The
CSRS
"fire fighter
work
definition
connected
maintenance
and
§8331(21).
FERS
definition.
Here,
that this service
work
done
in [Felzien
1991)]
to satisfy
Felzien
Petitioner's
and
The
fall
an
deployed
equipment
arduous
were
had
issued
fitness
case
an electronics
and funded
and
clause
job
duties.
to fight
fires.
in fire
to
be
level.
("AJ")
even
to the work
Management,
is error.
worked
This
efforts
in
clothing
Felzien
and gear
court
the
and
found
Federal
(Fed.
similar
were
that
Both
JA, p.
work
to
in the spring
fire
season.
Felzien
required
this
Cir.
specifically
summer
terrain.
the
that "the
898
equipment
during
precarious
U.S.C.
Petitioner's
by the
maintained
the
than
conceding
very
on electronic
was
5
stringent
F.2d
a
or
of firefighter."
performing
equipment
.... "
found
930
from Felzien
fires
rejected
though
definition
installed
The
is less
that
to perform
of
equipment
of the CSRS
suppression
firefighter
and
definition,
technician,
Both
are primarily
definition
is similar
provides
extinguishment
Judge
of Personnel
Petitioner's
primary
Petitioner
that the CSRS
at fires
the second
was
and
CSRS
service
position
apparatus
the CSRS
v. Office
To distinguish
control
the Administrative
met
Under
firefighter
of whose
firefighting
by the [Petitioner]
Circuit
designed
the
concedes
Qualifies
primary
the duties
of
Petitioner
ARGUMENT
Service
for
with
use
claim
15.
Pre-FERS
is an employee,
directly
REPLY
position
and
to maintain
met
the
hazardous
physical
demand
and this Court should
do likewise
The decision
primary
fres.
below
Of significance
AJ
also
Petitioner's
work
for CSRS
here with respect
is based
primary
firefighter
on the erroneous
to the AJ was his finding
address
conclusion
that Petitioner's
found
duties
that
that the position
the use of electronic
the
hazardous
and
equipment
physically
or after the fire season.
demanding
Felzien
Imposing
a requirement
line to qualify
or regulatory
for CSRS
regard,
required
1997.
enough
engaging
of
of the
JA, p. 14. It is true that Petitioner
to be near
the fire line.
must be performed
or FERS
is supported
coverage
JA, p. 13.
and that much
that the job duties
in an effort
for fire fighter
the AJ utilized
Thirty-five
required
("PD")
necessary,
930 F.2d
solely
nowhere
at 899.
on the fire
in the statutory
scheme.
Likewise,
number
was only
of
nature
did not work on the fire line, but he did work inside the fire line when
whereas
number
description
at fires."
were not on the front line of a fire fight
was done before
coverage
to Petitioner.
duties were not done in the field or were not done at a sufficient
did "not specifically
The
requirements
To conclude
coverage
Petitioner's
fire incidents
are listed
that Petitioner
fires to qualify
to count
for firefighter
Hearing
fires
as if there
was an arbitrary
is error and unsupported
Exhibit
on this record
did not assume
coverage
by law.
In this
B to count
fires.
from
of 1986 to July of
enough
contradicts
June
JA, p. 76-77.
risk by not working
the ruling in Felzien:
on
The
House
exposed
Report
to
some
maintenance
the two
the
clauses
they
statute
[defining
an
employee
risk
- that
at 902.
argued
that
clause
rejected
Mechanic
p.
15.
states
position
This
that
services..."
Environment
evidence
Board
"did
position
JA,
pp.
sections
clarifying
98 M.S.P.R.
the
reading
of
the
disqualifies
assume
enough
firefighter
extinguished
fires
-
purposes.
not
has
the
under
This
line
created
"for
fire
PD,
duties,
section
suppression,
with
the
it is apparent
SE-
incorrectly
and
the equipment
use"
directly
was
summarily
PD
for
the
Electronic
extinguishment
the Physical
together
No.
here.
the
introduction
Considering
job
that
and
agency
of reasoning
applied
the control
Docket
the "maintenance
that he "used"
concluded
In the
53 & 64.
the actual
(2005)(Table),
but inexplicably
true.
of this
MSPB
prove
of fires.
address
was
of the Interior,
to qualify
he must
here
not
not
a front-line
primary
638
Henry
in Henry,
is simply
the
and
v. Department
suppression"
the
not
jobs,
that
not
collapse
in the original).
definition,
by the Board
Finally,
he was
controlled
for Kevin
and
CSRS]
the
emphasizes
firefighting
he did
one of the statute's
in order
in the "control
because
not
Report
any
be
under
does
Senate
under
must
even
that
accordingly,
is, because
aft'd,
of the CSRS
but
of most
solely
in Henry
0831-04-0139-I-1,
employees
qualify
The
firefighter
(Emphasis
Similarly,
one.
entail;
personally
that
to
clause,
demands
disregards
930 F.2d
use
into
hazards
imply
hazard
and
physical
who
does
of fires."
of the PD,
and
it clearly
related
support
and
Working
Demands
uncontradicted
that
JA,
Petitioner's
testimonial
pre-FERS
service
qualifies
the Board
under the CSRS definition
in this regard
B.
The
Bifurcation
of
Position Was Error
Petitioner
served
July 21, 1985 through
service
1987 and FERS
on January
magically
excluded.
changed
firefighting
Petitioner
However,
position
December
31,
position.
This is in harmony
et seq.
currently
qualify
should
First, the statues
for FERS
primary
bifurcation
to the service
prior
FERS
from
of this
to January
became
into the FERS
that the definitions
definitions
to apply
with the FERS
Respondent's
coverage
position
1,
effective
system
from
of "fire fighter"
an employee
holding
an
matter.
continue
when
applicable
until
statutory
the same position.
5
his
he changed
structure.
argument
position
under
5 U.S.C.
CSRS
"firefighter"
he continued
on
to a different
that Petitioner
he did qualify
even though
to
the new FERS definitions
in time he was a qualified
in time was unqualified
in exactly
the
Second,
At one moment
same duties
to conclude
are silent as to whether
held positions.
absurdity.
moment
1986
criteria
1, 1987 so as to exclude
that
of
Mechanic
Mechanic
The AJ approved
were mandated
is another
contends
The holding
Electronic
This was done because
employees
on January
Initial
in his first Electronic
CSRS
thereafter.
1, 1987; federal
unless
existing
criteria
Petitioner's
19, 1988.
applying
coverage.
be reversed.
continuously
November
into two parts;
CSRS
must therefore
of firefighter
to perform
§8401,
apply to
does not
creates
an
and the next
exactly
the
Notwithstanding
interpretation
of
employees
reflects
the exclusions
FERS
in new
this idea
applicability
positions,
by expecting
Paragraph
with
(15)
than
present
under
This
review
requests
to be treated
authorize
the usage
will
and
p. 40,
young
more
position
actually
No.
99-166,
old
an employee
that
expects
an
position
where
and
restrictive
The committee
of this definition
or
prospectively:
a
as a firefighter
rational
employees
S. Rep.
require
is
law.
every
new
to mean
that
the most
agency
and
only
an employee
directly
participate
in
activities.
added.)
to
did
Office
of
Moreover,
establish
apply
FERS,
to
new
largely
service
basis."
Petitioner
The
U.S.
benefits
that
were
service
at the
for new
people
Cong.
stroke
dramatically
"to
1344,
enter
News
CSRS,
of positions.
this
2276.
but
it was
Congress
employees.
1345
for firefighters
& Ad.
has been
than
government
F.3d
retirement
young
Code
definition"
a review
104
of enhanced
did; his federal
notion
CSRS
Management,
to encourage
1948
restrictive
after
to supplant
the purpose
has been
a "more
employees
Personnel
officers
retirement
duties
definition
FERS
v.
'fire fighter'
....
firefighting
enacted
a review
to make
§8402,
covers
OPM
individuals
will
it
1, 1987.
vigorous
OPM
that
as of January
firefighting
in that position
meant
is
defines
rigorous
that
(Emphasis
set out in 5 U.S.C.
(Fed.
had
Conner
Cir.
1997).
and law enforcement
vital
work
This
on a career-
is precisely
what
a career.
of midnight
alerted
on January
by the operation
1, 1987
of a new
Petitioner's
law to his
existing position is irrational.
A reading of a statute that "would lead to absurd
results is to be avoided when [it] can be given a reasonable application consistent
with [its] words and with the legislative purpose." Haggar
U.S.
389,
of significance
§842.809(b).
Firefighters
the
language
date
suggests
FERS
definition
1988.
Thus,
for
fire fighter
positions;
service
not
under
As
approach
F.3d
receive
credit
that
the date
an
became
is to be
effective
only
CSRS
argued,
must
for CSRS
subject
Petitioner
on January
to new
to
position
l, 1987,
positions
that
service
qualified
performed
This
subject
to the
on November
but
the new
or new
as
5 C.F.R.
[FERS]".
did not become
Mechanic
positions
Court
firefighter
approach.
FERS
provision:
definition
employees
firefighter
19,
in old
retirement
definition.
the
2001).
transitional
becomes
is flexible.
filled
the former
by the Board,
under
employee
applied
to already
Cir.
is the CFR
he left his Electronic
to determining
position-oriented
issue
which
FERS
(Fed.
on this
on
until
initially
1292
approved
308
394 (1940).
Also
"before
Co. v. Helvering,
has
approved
eligibility.
Petitioner's
The artificial
therefore
the
Watson
interpretation
bifurcation
be reversed.
Board's
position-oriented
v. Department
is in
created
of Navy,
accord
with
by the Agency,
262
this
and
C.
The
Application
of
Petitioner's
Initial
Constitutionally
Assuming
employee
The
definition
of firefighter
have
years
five
are included
short.
under
takes
away
vested
relevance
qualified
definition
under
CSRS,
qualifying
service
those
do not are not excluded,
that
of the January
above,
employees.
Id.
applying
creates
and those
to
such
a new
two
an
To
is
existing
an application
more
classifications
that
stands
respect
protection
changing
as argued
by Petitioner
cited
1344
1, 1987
by arbitrarily
rights
authority
at 1345.
and equal
to enhanced
created
Cir.
in this
for
the
Conner
under
service
point
1997).
case,
cross-over
to the property
retirement
on this
(Fed.
to the issues
mentioned
right
FERS
1, 1987
property
104 F.3d
With
position
the
on January
classification
Management,
process
Definition
Position
restrictive
- those
do not.
Those
even
if only
that
that
do
one day
§8402(b).
only
time
apply
of summarily
FERS,
Respondent's
tenuous
to
effect
of CSRS
5 U.S.C.
The
meant
an existing
is unconstitutional.
"Firefighter"
Mechanic
Defective
Congress
holding
the
FERS
Electronic
point
idea
does
not
the Fifth
RB,
FERS
address
pp.
CSRS
was
definitions
initial
v. Office
10-11.
Conner
between
was
brief.
Conner
Petitioner's
has
not working
to
The
of Personnel
and FERS.
meant
also
only
at the
Conner,
apply
to
constitutional
as
new
due
Amendment.
deprivation
under
in his
is Conner
at best.
that
statutory
CSRS
claim,
when
Petitioner
he is found
looses
to not
a vested
qualify
for the same right
under FERS
out of employment
relationships
341, 96 S. Ct. 2074,
Government
certainly
action
would
1, 1987.
in a variety
among
although
the most
'fundamental'
important
of personal
New
Orleans
interests
Bishop
"A person's
not
be likely to affect."
Property
of ways.
48 L. Ed. 2d 684 (1974).
employment,
ranks
as of January
v. Ward,
interest
as the
42 U.S.
in continued
law
concerns
v. Dukes,
may arise
now
stands,
that Government
427 U.S. 297, 322-323
(1976).
Thus,
primary
under
as of January
service
FERS.I
which
this loss.
sought
a transfer
law.
Those
retirement
he arbitrarily
This constitutes
contest
Equally
If Petitioner
to a position
important,
who
benefit
has no reasonable
have
i The
net
effect
without
years
qualified
of
or administrative
qualifies
involved
get
basis.
to
statutory
ever meeting
service
positions.
5 C.F.R.
to
have
protection
their
of
"firefighter"
or classification
has some
'reasonable
the classification
'is not
is to completely
requirement
prior to being eligible
firefighter
he could
equal
interpretation
the threshold
afforded
at the time, in 1987.
retain
because
of CSRS
as a "firefighter"
or hearing
violates
"If the classification
simply
days
of this taking,
under FERS,
service
498
who do not lose it. This distinction
of the Respondent's
firefighter
amassed
any notice
had been given notice
the Constitution
Mr. Weatherby's
years of qualifying
supervisory
five
had
lost if he no longer
the classification
or rational
it does not offend
Petitioner
a taking
which
and those
basis',
foreclose
1, 1987,
to transfer
to complete
to approved
§842.803(b)(ii).
3
made
with
mathematical
Dandridge
v. Williams,
(1970).
Here,
completely
397
it is not
arbitrary
restrictive
or because
in practice
471,485,
90 S. Ct.
U.S.
just
with
eligibility
existing
nicety
a matter
no
rational
requirements,
definition
applicable
does
not
the
just
the
attack
application
already
holding
eligible
positions
eligible
position
should
be deemed
position.
As noted
above,
approach
purposes
- encouraging
of FERS
D.
Regardless
Position
FERS
Petitioner
19,
an
a
existing
inequity'"
25 L. Ed. 2d 491
The
supporting
to
1988.
Mechanic
However,
qualifies
as those
goal
of enacting
of these
new
but not
others.
FERS
classification
change
to
position
that
is
a more
held
by
an
regardless
for enhanced
restrictive
until
to some
those
that
employees
working
employee
is not only
but
eligibility
in a CSRS
moves
in conformity
promotes
one
out of
with
the
of the
key
in firefighting.
Petitioner's
it Qualifies
the CSRS
position
All
eligibility,
a career
more
requirements
eligible
to firefighter
of Whether
is Bifurcated,
maintains
Electronic
Petitioner
duties
1161,
inequity.
this interpretation
position-oriented
initial
basis
1153,
in some
employee.
Petitioner
that
of some
it results
Initial
Electronic
Mechanic
as Firefighter
Service
Under
defnition
held
of which
fire fighter
that:
10
from
applies
July
definition,
retirement.
21,
to his full service
1985
CSRS
FERS
through
November
or FERS,
defines
in his
applies.
"firefighter"
(i)
are primarily to perform work directly connected
with the control and extinguishment of fires; and
are sufficiently
rigorous that employment of
opportunities should be limited to young and
physically vigorous individuals...
(ii)
5 U.S.C. §8401(14).
(1) "directly
To
duties
166
qualify
under
are connected
emphasized
position
will
(emphasis
fire
the
does
the
duties
in the
BLM
PD
not place
done
idea
that
the
and
that
the control
the
and extinguishment
employee
must
and extinguishment
FERS
definition
directly
show
should
in
be
of fires"
that
of fires.
participate
Petitioner's
support
Alaska
Service,
job
major
duties
of installing
field
Fire
addresses
these
Electronic
and related
his
primary
S. Rep.
used
No.
"where
firefighting
in difficult
Demands
section
loading,
unloading
equipment
had to be done
created
duties,
skills
maintaining
terrain
of
from
the
99that
activities"
to
100
11
and
created
Petitioner's
as part
of its fire
responsibilities,
here
is field
pounds.
(Id.).
work.
were
or anticipated
requirement
or mountaintops
was
pp. 63-66.
equipment
a fire
the
position
position
The context
out
up
helicopters
this
electronic
sets
weighing
JA,
required
in or around
PD
Mechanic
services..."
in any context.
and
Physical
unloading
criteria,
the control
actually
suppression
This
primary
with
added).
employer,
service.
this
with
It is undisputed
"for
connected
but
The
routinely
fire.
The
of "frequently"
This
loading
and
Furthermore, the Working
context
where
these
approximately
time,
weather
was
terrain
Petitioner
did
were
section
of the PD sheds
performed.
of the time;
performed
in stable
p. 66.
duties
50 percent
work
Conditions
outside
however,
"under
to extremely
not go to work
Work
during
conditions
cold,
windy
every
day
of the time
because
the equipment
on high
terrain
so it could
be used
in a fire situation.
install
Electronic
equipment,
It is hard
the
designed
how
duties
these
by the above
In addition,
this
cited
Court
actual
duties
performed.
(Fed.
Cir.
2001);
Perske
(Fed.
Cir.
1994).
The
between
Petitioner's
90 to 95 percent
1995,
time
he had
assigned
been
position,
specifically
to imagine
contemplated
Mechanic
v. Office
primary
of Petitioner's
assigned
to actual
fires.
that
duties
time
for fire
primary
building
JA,
- he worked
had to be installed
purpose
was
or existence
of
to provide
suppression
and
in the field.
"fire fighting
duties
v. Department
of Personnel
uncontradicted
pleasant
activities"
as
Report.
has held
Watson
mild,
of the
on mountaintops..."
The
do not constitute
Senate
from
the PD above,
used
indoors
50 percent
he maintained
under
and
varying
in an office
much
as to the
performed
the other
weather
outdoors
Petitioner's
was
light
record
and
here
fire
was
to 29 fire incidents
JA, p. 48.
determined
262
Management,
25 F.3d
establishes
the direct
activities.
on fire-related
and estimated
It is true that
12
also
of the Navy,
suppression
spent
are
the fire
F.3d
1292
1014,
1017
connection
For
assignments;
over
season
by
4,000
example,
as of
hours
of
is limited
to
the summer months; however, Petitioner spent considerable time each spring and
winter servicing and repairing the permanent electronic backbone system in the
field.
This field work was done on high places - mountaintops - via helicopters.
This work was also done in the summer when Petitioner was assigned to a fire.
Again, this work was "directly connected with" fire fighting activity.
JA, pp. 104,
111-112.
As mentioned above, the AJ erred by interpreting the FERS criteria of
"connected with the control and extinguishment of fires" as requiring work on or
inside the fire line. This lead the Board to simply count fire events. JA, pp. 17-18.
Not only was the counting of fires erroneous, but it was based on an interpretation
of Petitioner's fire incident history unsupported anywhere in the record.
This fire
history, JA, p. 76, lists 35 fire incidents from June of 1986 to July of 1997. The
"OP" in this listing reflects fourteen to sixteen hour shifts in the field.
JA, p. 104.
In short, the AJ and the Respondent seek to convince this Court that in order for
Petitioner
to fulfill
the first prong of the FERS test of primary
duties, the
equipment maintained and installed must have been maintained
and installed
exclusively on a fire
of the phrase
"directly
connected
have
would
so.
and
To the
line.
with
have
contrary,
This
the control
limited
this
is far too
an interpretation
and extinguishment
this test
criteria
narrow
to direct
embraces
13
fire line
a broader
of fires".
activity
reach,
Congress
if it intended
that
could
to do
is, "firefighting
activities"
S. Rep.
"fire fighting
99-166,
activities"
extinguishment
and
rigorous
Petitioner's
therefore
primary
directly
duties
connected
to
were
the
necessary
control
and
of fires.
(2) "sufficiently
Under
p. 40.
rigorous..."
FERS, an employee
to qualify
must also show that these duties were sufficiently
for an enhanced
fire fighter
retirement.
This the Petitioner
can
easily do.
"Rigorous"
regulations,
qualified
same
5 C.F.R.
meaning
in either
However,
as a rigorous
under both CSRS
statute,
physically
oriented
vigorous".
by the young
objective
The point
rigorous
career
duties
position.
and FERS.
Thus,
that
retirement
program.
is that qualifying
firefighter
service
This
§842-809(b),
under
opportunities
as this would
et seq., or
CSRS
the term "rigorous"
Rigorousness
not mean
vigorous
§8401(14),
5 C.F.R.
of the enhanced
for the Alaska
has been
does
and vigorous,
such that young,
opportunity.
working
This
5 U.S.C.
under
if the duties are such that employment
performed
work
§842.802.
duty suffices
satisfied
and
is not defined
the
either
are "limited
duties
could
has the
statute
to young
only
requires
employees
would
the performance
be attracted
what
happened
Fire Service
since
July of 1984 - 22 years to date.
to Petitioner.
The fact that he has been
14
be
fly in the face of the career
is exactly
his career.
is
fit enough
of
to this
He has been
to work
This
as an
Electronic
Mechanic
submits
that
young
duties
and vigorous
The
ample
most
fire
maintenance
repair
work
the
or temporary
E.
his
specialist
following
nor
the
Petitioner
issue
Respondent
never
are error
such
the
hazard
done
in the
of a nearby
- every
brief
fire.
year.
by
All
These
were
nature
Ely
was
Petitioner's
92-93.
same
that
only
The
spring
with
of this
was
work
duties
and
its
perhaps
during
environment
not
of the
to the record
of Gregory
pp.
Petitioner
rigorous
rigorous
cites
faced
JA,
him.
in this position.
as to the
initial
be reviewed.
was
sufficiently
a career
evidence
against
the
and
the
fall
same
done
on a
of an emergency,
21,
1997
Specialist
Positions
Qualify
for
Service
to his arguments
positions
Petitioner's
been
the testimony
Post-July
Secondary
defers
not be held
nature.
Petitioner's
Petitioner
to
danger
basis
seek
with
respect
and
and recurring
have
However,
should
regular
incidental
point.
and
without
position
Petitioner's
work
but
should
would
position.
with
hazards
of 1997
is replete
on this
succinct
summer
in this
here
Mechanic
support
July
applicants
record
Electronic
the
his
until
held
after
primary
has
July
service
addressed
transferred
for the reasons
in his initial
from
1997
qualify
as an Electronic
the
primary
argued
21,
brief
merits
service;
above.
15
of this
their
with
respect
for
secondary
Mechanic.
issue
to whether
on
respective
coverage
Neither
the
premise
positions
the AJ
that
on this
III.
Based
Petitioner
this matter
DATED:
upon
the
respectfully
be remanded
May
foregoing,
requests
that
for further
CONCLUSION
and
such
the final
other
matters
decision
as
may
of the Board
proceedings.
23, 2006.
Respectfully
515
South
Post
Office
6 th Street
Box
Boise,
Idaho
(208)
345-2654
Attorneys
16
submitted,
1743
83701-1743
for Petitioner
arise
herein,
be reversed
and
CERTIFICATE
I hereby
the
foregoing
certify
Brief
addressed
Roger
David
AND SERVICE
that on this 25th day of May, 2006,
Reply
Transportation,
OF FILING
of
Petitioner
were
two (2) bound
served,
via
copies
LIPS
of
Ground
to the following:
Hipp
M. Cohen
Deborah A. Bynum
DEPARTMENT
OF JUSTICE
1100 L Street, N.W.
Room 12072
Washington,
DC
(202) 305-0277
20530
Counsel for Respondent
I further
(11)
Clerk,
copies
instructions
that on this 25th day of May, 2006,
of the Reply
United
The
certify
Brief
of Petitioner
States Court of Appeals
necessary
filing
and
given me by counsel
were hand-filed
for the Federal
service
the original
were
and eleven
at the Office
of the
Circuit.
performed
in accordance
with
the
in this case.
_y
, .,,_jf2
/.7
Justin M_"
THE LEN GROU0<_--.--------'_'-"1750 K Street, N.W.
Suite 475
Washington,
DC 20006
(202) 955-0001
.....
CERTIFICATE
1.
Appellate
This
Procedure
o
2.
brief
The
complies
OF COMPLIANCE
with
the type-volume
limitation
of Federal
Rule
of
32(a)(7)(B).
brief
contains
3,554
exempted
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brief
Appellate
Procedure
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® This brief
Microsoft
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the typeface
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Attorney
Date:
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J
for _ppellant
May
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23, 2006
using