United States Court of Appeals for the Federal Circuit
06-3180
CRAIG R. LETZ,
Petitioner,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
W. Craig James, Mauk & Burgoyne, of Boise, Idaho, argued for petitioner.
Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, and Todd M. Hughes, Assistant Director.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
06-3180
CRAIG R. LETZ,
Petitioner,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
___________________________
DECIDED: January 22, 2007
___________________________
Before MICHEL, Chief Judge, RADER, and LINN, Circuit Judges.
RADER, Circuit Judge.
The Merit Systems Protection Board (Board) affirmed the United States
Department of the Interior’s (Agency’s) decision denying Mr. Craig Letz’s firefighter
retirement service credit (FF credit) during two periods of his career. Letz v. Dep’t of
Interior, Docket No. DE0842050189-I-2 (M.S.B.P. Jan. 17, 2006) (Initial Decision). The
Board found that Mr. Letz did not timely file his application for FF credit for his service
between January 24, 1991 and October 11, 1997, and between March 24, 2002 and
June 15, 2002. Initial Decision, slip op. at 2, 5. Because the Board correctly applied its
regulation on timeliness, this court affirms.
I.
Under the Federal Employees Retirement System (FERS), a qualified law
enforcement officer or firefighter who completes twenty years of service may retire upon
attaining fifty years of age. See
5 U.S.C. § 8412(d) (2000). These qualified employees
receive an enhanced annuity, but are subject to mandatory early retirement and larger
salary deductions during employment. See
5 U.S.C. §§ 8415(d), 8425(b) (2000);
5
C.F.R. § 842.804 (2006). An employee can qualify for the enhanced annuity either (1)
by serving in a position that has been approved for firefighter or law enforcement officer
service credit (FF/LEO credit), or (2) by applying for enhanced annuity service credit
with a showing of qualification for such credit. See
5 C.F.R. §§ 842.801-842.806
(2006). Mr. Letz must prove that he completed three years of qualifying first-line service
as a precondition to entering a qualifying secondary position.
5 C.F.R. § 842.803(b)(iii)
(2006). Service in both “rigorous” and “secondary” firefighter positions is creditable
toward enhanced firefighter retirement.
5 U.S.C. § 8401(14) (2000). A “rigorous”
firefighter position is defined as a position in which the duties “are primarily to perform
work directly connected with the control and extinguishment of fires; and . . . are
sufficiently rigorous that employment opportunities should be limited to young and
physically vigorous individuals.”
5 U.S.C. § 8401(14) (2000);
5 C.F.R. § 842.802
(2006). A “secondary” firefighter is “an employee who is transferred directly to a
supervisory or administrative position after performing [rigorous firefighter] duties . . . for
at least 3 years.”
Id. However, service in secondary positions is not creditable if the
employee has not “completed 3 years of service in a rigorous position, including any
such service during which no FERS deductions were withheld.”
5 C.F.R. §
842.803(b)(1)(ii) (2005).
06-3180 2
Mr. Letz enrolled in the FERS on August 14, 1994, when he accepted a Forestry
Technician position appointment. He appeals the Agency’s FF credit coverage
determinations for his work in the following positions:
Date of Appointment Position
• August 14, 1994 GS-0462-06 Forestry Technician position
• March 19, 1995 GS-0462-06 Forestry Technician position
• April 16, 1995 GS-0462-07 Forestry Technician position
• October 12, 1997 GS-0462-08 Forestry Technician position
• October 11, 1998 GS-0462-09 Forestry Technician position
• July 4, 1999 GS-0401-09/11 Fire Management Officer position
• March 24, 2002 GS-0401-11 Forestry Technician/Fuels Specialist
position
• June 16, 2002 GS-0401-12 Fire Use Manager position
During Mr. Letz’s service between August 14, 1994 and July 3, 1999, the Agency
had not yet made coverage determinations for those positions. Mr. Letz admits that
when enrolled in FERS, he was aware that his position was not a covered position for
FF/LEO credit. Furthermore, the Agency found that for all positions, Mr. Letz was both
aware of the FF/LEO credit program and that he was not paying the required extra one-
half percent contribution into the FF/LEO retirement program.
On January 17, 1997, Mr. Letz submitted his first and only application for FF/LEO
benefits. In this application, he sought coverage for positions he held between August
14, 1994 and January 17, 1997. Thereafter, he did not file any additional applications
for FF credit for any other positions. The Agency, nonetheless, also considered
whether Mr. Letz might have been eligible for FF credit at any time during his service.
On October 5, 1998, the Agency determined that the positions Mr. Letz held
between March 19, 1995, and October 11, 1997, should be covered as
06-3180 3
secondary/administrative positions. Mr. Letz did not receive any notice of this coverage
determination for these positions because he was no longer serving in those positions.
On January 20, 1999, the Agency determined that the positions Mr. Letz held
between October 12, 1997 and July 3, 1999, should also be covered as secondary/
administrative. The Agency provided Mr. Letz with a “Statement of Understanding”
about its coverage determination because he was an incumbent of one of the newly
covered positions.
On May 6, 1999, Mr. Letz challenged these coverage determinations. On
February 17, 2005, the Agency issued its final decision. The agency noted that he did
not meet the six-month filing deadlines set forth in
5 C.F.R. § 842.804(c) or the special
one-time, November 1, 1995, filing deadline. Because Mr. Letz failed to demonstrate
that he was unaware of his coverage status or prevented from timely filing by
circumstances beyond his control, the Agency concluded that his request for an
eligibility determination was untimely. As for the positions he held from October 12,
1997 through July 3, 1999, however, the Agency concluded that the request was timely,
but they were properly classified as secondary/administrative. Regardless, Mr. Letz
was not eligible for FF/LEO credit for that time period because it was not preceded by
three years of primary fightfighter service, as required by
5 U.S.C. § 8401(14) and
5
C.F.R. § 842.803(b)(ii).
Mr. Letz appealed to the Board. On January 17, 2006, the administrative judge
(AJ) issued an initial decision, agreeing with the Agency that Mr. Letz failed to file a
timely request, and that his untimeliness was not excused under
5 C.F.R. § 842.804(c).
Initial Decision, slip op. at 2-3. Moreover, the Board found that there were no significant
06-3180 4
changes in any of the pertinent positions.
Id. at 3. This decision became final on
February 21, 2006 because Mr. Letz did not petition for further review. Instead, Mr. Letz
appealed to this court, which has jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
Mr. Letz appeals the Board’s Initial Decision denying his applications for FF
credit arguing that he has no deadline to seek FF credit. Alternatively, he argues that
the reason he missed the November 1, 1995 special deadline was because he did not
know he needed to challenge the “coverage, or lack of coverage.” He also argues that
when the Agency determined, on October 5, 1998, to provide secondary coverage for
the positions he held between March 19, 1995 and October 11, 1997 that this was a
“significant change” in his position for which he should have been provided notice. Mr.
Letz asserts that this determination providing secondary coverage was a “significant
change” because it was a “retroactive bar” to his proving that “he had completed three
years of qualifying first-line service as a precondition to entering a qualifying secondary
position.” Thus, because the Agency did not provide notice to him, he argues this was
cause beyond his control that prevented him from filing a timely claim.
II.
The standard of review for appeals from a final order of the Board states:
the court shall . . . hold unlawful and set aside any agency action, findings
and conclusions found to be (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without
procedures required by law, rule or regulation having been followed; or (3)
unsupported by substantial evidence.
5 U.S.C. § 7703(c) (2000). The applicable regulation for challenging an agency’s
FF/LEO credit coverage provides:
If an employee is in a position not subject to the one-half percent higher
withholding rate of 5 U.S.C. 8442(a)(2)(B), and the employee does not,
06-3180 5
within 6 months after entering the position or after any significant change
in the position, formally and in writing seek a determination from the
employing agency that his position is properly covered by the higher
withholding rate, the agency head’s determination that the service was not
so covered at the time of the service is presumed to be correct. This
presumption may be rebutted by a preponderance of the evidence that the
employee was unaware of his or her status or was prevented by cause
beyond his or her control from requesting that the official status be
changed at the time the service was performed.
5 C.F.R. § 842.804(c) (2006) (emphases added). This court has affirmed that this
regulation, setting forth a six-month time limit for FF/LEO credit application, is a
reasonable interpretation of the enabling statute,
5 U.S.C. § 8412 (d). See Fitzgerald v.
Dep’t of Def.,
80 M.S.P.R. 1, 9, 11 (1998), aff’d,
230 F.3d 1373 (Fed. Cir. 1999). This
court also affirmed that such an interpretation additionally serves the significant policy
goal of preventing employees from postponing appeals for many years and thus
creating fiscal uncertainties and inevitable losses of evidence.
Id. Thus, if the
employee does not request FF/LEO credit within the six-month period specified in
section 842.804(c) or show good cause for missing that deadline, the agency’s
determination receives a presumption of correctness. Bingaman v. Dep’t of Treasury,
127 F.3d 1431, 1441 (Fed. Cir. 1997).
III.
Mr. Letz acknowledges three distinct deadlines triggering his obligation to seek a
coverage determination “formally and in writing.” Mr. Letz had an obligation to seek,
formally, within six months after entering each new position. Mr. Letz also had an
obligation on November 1, 1995, when the Agency created a special, one-time filing
deadline. Finally, he could have sought credit within six-months of any significant
06-3180 6
change in his positions, though Mr. Letz asserts that the six-month time bar does not
apply to his situation.
As noted, Mr. Letz could have applied for FF credit at any time he moved into, or
within six months of entering into, a new position. He did not take these opportunities.
Furthermore, the Agency created a special, one-time deadline of November 1,
1995 that allowed employees to seek coverage for positions when such application
would have otherwise been time-barred. Thus, on November 1, 1995, Mr. Letz could
have applied for FF credit coverage for the positions he entered on dates between April
14, 1994 and April 16, 1995. Mr. Letz also did not take this opportunity. Therefore,
substantial evidence supports the Board’s determination that Mr. Letz missed the “within
six months of entering a new position” deadline and the November 1, 1995 special
deadline to file an application for or protest FF credit coverage. Initial Decision, slip op.
at 3.
With respect to applying for credit after “a significant change in the position,” this
phrase does not refer to a significant change in FF/LEO coverage. A “significant
change in position” means a significant change in the type of work or duties of the
position, see Bingaman,
127 F.3d at 1442, not a change in the agency’s determination
of the type of retirement credit or coverage available for that position.
Nonetheless, Mr. Letz is correct that on October 5, 1998, the Agency certified the
coverage of Mr. Letz’s positions, and this was retroactive to February 11, 1993. That
determination foreclosed Mr. Letz from attaining FF credit because he could not show
that he had met the threshold of three years of primary firefighting service. This
determination, however, did not affect the duties or responsibilities of his positions at all.
06-3180 7
Thus, this determination did not amount to a “significant change in position” within the
terms of the regulation that would afford Mr. Letz a six-month window of protest. The
Board correctly determined that the October 5, 1998 Agency determination was not a
“significant change in position” that opened a new application or protest opportunity.
Thus, this court affirms the Board’s interpretation of the terms “or” and “significant
change in position” in the regulation.1 Accordingly, the Board also correctly determined
that no “significant changes” in Mr. Letz’s positions occurred.
Mr. Letz also contends that the Agency had a duty to notify him of changes
affecting his FF credit coverage in the context of this case. This court’s case law,
specifically Bingaman,
127 F.3d at 1441, has foreclosed this argument. In Bingaman,
this court held that the Department of Treasury (Department) had no affirmative duty to
advise employees on requests for law enforcement officer (LEO) credit.
Id. at 1442, see
also Doyle v. Dep’t of Veterans Affairs,
80 M.S.P.R. 640, 644 (1999). As a result, the
Department could not be estopped from applying, against employees, the requirement
that they make formal, written request for such credits within six months of either taking
a position or having a significant change in position.
Id. The holding of Bingaman also
applies to employees requesting FF credit. Furthermore, the record shows that Mr. Letz
was well aware of his non-firefighter (or non-FF credit) status. He testified he was
aware that neither his initial position in 1994 nor his position in 1997 was covered
positions. The record also shows that he knew he was not paying the required extra
1
Mr. Letz further argues that the six month deadline set forth in
5 C.F.R. §
842.804(c) does not apply to a request for coverage after a significant change in
position. His reliance upon Felzien v. Office of Personnel Management,
930 F.2d 898,
902 (Fed. Cir. 1991), is misplaced because that decision does not refer to proper
interpretation of
5 C.F.R. § 842.804(c), the regulation at issue here. Instead, Felzien
interprets an unrelated statute.
06-3180 8
one-half percent contribution during his non-covered service. Thus, the Board correctly
found that Mr. Letz “presented no evidence that he was prevented by cause or
circumstance beyond his control from filing a timely appeal for firefighter/LEO benefits at
the time the service in any of the pertinent positions was performed.” Initial Decision,
slip op. at 3.
In conclusion, this court affirms the Board decision that Mr. Letz’s application for
FF/LEO benefits was time-barred, and that he has not shown good cause for waiver of
the deadline.
COSTS
Each party shall bear its own costs.
AFFIRMED
06-3180 9
