As one of the primary practice areas for the law firm of Berry & Berry, PLLC involves the legal representation of federal law enforcement officers (LEO or LEOs), we update the changes to the law and current qualification criteria for LEO status / federal LEO retirement coverage from time to time. After review some of the latest cases, we pass on the following update on these important issues.
As many federal law enforcement officers (LEOs) are aware, Federal civil service retirement laws extend special retirement benefits to them because they serve in rigorous law enforcement positions and risk their lives every day. Congress, in enacting this special program for federal law enforcement, however, intended to make it sometimes difficult to qualify for this special retirement coverage.
In particular, because these LEO retirement programs are more costly to the government than traditional retirement plans (in addition to often resulting in the retirement of important employees at a time when they would otherwise have continued to work for a number of years) eligibility for federal LEO retirement is strictly construed. Watson v. Dep’t of Navy, 262 F.3d 1292, 1298 (Fed.Cir.2001), cert. denied, 534 U.S. 1083 (2002). Additionally, in order to qualify for LEO retirement, LEOs bear the burden of proving entitlement thereto by a preponderance of the evidence. Fagergren v. Dep’t of the Interior, 98 M.S.P.R. 649 (2005), aff'd, 166 Fed.Appx. 483 (Fed.Cir.2006).
Typically, when an officer who is not already presumed to be covered under federal LEO retirement coverage wants to obtain this status, he or she will eventually contact the human resources staff for the individual federal agency. The goal in doing so is to obtain approval for this coverage from your agency.
The head of the federal agency in question (or their designee) then makes the initial decision as to whether a particular individual or position should be approved for LEO retirement coverage. If the federal agency determines the need for new positions that meet the statutory and regulatory definitions relating to a LEO (and therefore could receive enhanced retirement benefits and be subject to a mandatory retirement age), the agency sends a notice to OPM. 5 C.F.R. §§ 831.911(a) and 842.808(a).
Each federal agency, in first reviewing LEO entitlement looks to the laws and regulations which govern LEO retirements. The Federal Employees Retirement System (FERS), enacted by Congress defines a primary LEO to be one who holds a position, the “primary duties” of which involve the “investigation, apprehension, or detention” of those suspected or convicted of federal offenses. 5 U.S.C. § 8401(17)(A). Per regulation, OPM has defined “primary duties” in a three-part test.
The primary duties for a LEO under this test are those that:
(a) Are paramount in influence or weight; that is, constitute the basic reasons for the existence of the position;
(b) Occupy a substantial portion of the individual's working time over a typical work cycle; and
(c) Are assigned on a regular and recurring basis.
5 C.F.R. § 842.802.
Under this evaluation, if an employee spends at least 50 percent of his time performing certain duties, those duties are usually considered to be his or her primary duties. Furthermore, duties that are of an emergency, incidental, or temporary nature cannot be considered ‘primary’ even if they meet the substantial portion of time criterion.
When evaluating entitled to federal LEO retirement coverage for federal LEOs, I often look at the day-to-day duties of the particular LEO, along with a review of the individual LEO’s position description, their job description and any other materials which document a LEO’s duties within the context of the FERS statute.
If a federal LEO feels that they have been wrongly excluded from LEO retirement coverage, the LEO may appeal the final decision of the federal agency denying an the LEO’s request for the approval of a position as rigorous, to the Merit Systems Protection Board. If an MSPB Administrative Judge does not grant the relief sought, the federal LEO can then appeal the AJ’s opinion to the full MSPB, and from there to the U.S. Court of Appeals for the Federal Circuit.
A recent review in August of 2010 revealed that the caselaw in this area has remained fairly consistent over the last few years, but with the number of changes through restructuring of LEO positions, along with a number of new laws on the books over the past few years I fully expect that LEO issues at the MSPB will again start to appear in larger numbers as new legislative issues impact the OPM and Federal Circuit definitions of what it means to be a Federal LEO. The issues can be complex and a federal LEO is definitely advised to navigate the attempt to gain coverage with the help of an attorney.
I have also attached a recent GAO report on the subject that might be of interest to federal LEOs which can be downloaded here Download Fed Leo GAO Report