Bingaman v. Department of Treasury

• Decision Date: 23 September 1997
• Docket Number: No. 96-3368,96-3368
• Parties: Gary T. BINGAMAN, Eldon H. Kern, Edmund W. Price, William T. Arps, George A. Berry, James L. Coulter, John D. Fowler, Jerry W. Lunceford, Matthew L. Hillman, Eron S. Paul, Stephen J. Schleif, Robert E. Young, Thomas A. Adair, Mark R. Curtin, Danny E. Fletcher, Kenneth W. Lanning, James T. Mason, Wendel L. Ruegsegger, Edmond R. Smith, Bunnie B. Stanfield, Steven G. Starr, Daniel L. Uptegrove, Daniel R. Williams, Thomas L. Heldenbrand and Stephen J. MacDonald, Petitioners, v. DEPARTMENT OF THE TREASURY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1431

127 F.3d 1431

Gary T. BINGAMAN, Eldon H. Kern, Edmund W. Price, William T Arps, George A. Berry, James L. Coulter, John D. Fowler Jerry W. Lunceford, Matthew L. Hillman, Eron S. Paul Stephen J. Schleif, Robert E. Young, Thomas A. Adair, Mark R. Curtin, Danny E. Fletcher, Kenneth W. Lanning, James T Mason, Wendel L. Ruegsegger, Edmond R. Smith, Bunnie B. Stanfield, Steven G. Starr, Daniel L. Uptegrove, Daniel R. Williams, Thomas L. Heldenbrand and Stephen J. MacDonald, Petitioners, v. DEPARTMENT OF THE TREASURY, Respondent.

No. 96-3368.

United States Court of Appeals, Federal Circuit.

Sept. 23, 1997.

Chris Kronberg, Cosho, Humphrey, Greener & Welsh, P.A., Boise, ID, for petitioners.

Thomas D. Dinackus, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, for respondent. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, James M. Kinsella, Assistant Director. Of counsel on the brief was Tom F. Dower, Office of Associate Chief Counsel, U.S. Customs Service, Houston, TX.

Before RICH, PLAGER, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

This case requires us to address petitions for review in four consolidated cases from the Merit Systems Protection Board, Bingaman v. Department of the Treasury, No. DA-0831-95-0675-I-2; Arps v. Department of the Treasury, No. DA-0842-96-0058-I-2; Kern v. Department of the Treasury, No. DA-0831-96-0063-I-2; and Adair v. Department of the Treasury, No. DA-0842-96-0068-I-2. In each case, employees of the Customs Service, within the Department of the Treasury, contend they are eligible for law-enforcement officer (LEO) retirement benefits. The Board denied relief in all four cases. We agree with the Board with respect to each group of petitioners and therefore affirm.

I

The petitioners in all four cases work as either Detection Systems Specialists (Airborne) (DSSAs) or Supervisory DSSAs for the Customs Service. DSSAs spend a major portion of their working time aboard aircraft, using on-board surveillance equipment to identify suspected drug smugglers. From their airborne posts, the DSSAs identify particular aircraft or boats as likely smuggling vessels and relay their findings to ground crews that apprehend the suspected smugglers. The DSSAs do not conduct the apprehension of the suspected smugglers on the ground and do not have direct personal contact with suspects.

Two of the petitioners, Gary T. Bingaman and Eldon H. Kern, are covered by the Civil Service Retirement System (CSRS) and are therefore seeking LEO benefits under 5 U.S.C. § 8336(c)(1) and the regulations pertinent to that statute. The rest of the petitioners are covered by the Federal Employee Retirement System (FERS) and are therefore seeking LEO credit under 5 U.S.C. § 8412(d)(2) and the regulations promulgated under that statute.

Under both the CSRS and the FERS, an employee who qualifies for LEO retirement credit is eligible to retire upon attaining age 50 and completing 20 years of LEO service. See 5 U.S.C. §§ 8336(c), 8412(d)(2). By contrast, most civil service employees are eligible to retire at age 60 with 20 years of service or age 55 with 30 years of service. See 5 U.S.C. § 8336(a), (b); id. § 8412(a), (b). An employee who qualifies for LEO retirement receives a larger annuity than ordinary civil service employees, but is subject to larger deductions from salary during the employee's period of service. In addition, an LEO employee is subject to mandatory early retirement. See 5 U.S.C. §§ 8334(c), 8425. An employee can qualify for LEO retirement credit either by serving in a position that has been approved as an LEO position or by applying for LEO credit and satisfying the employing agency that he is entitled to LEO retirement status. See 5 C.F.R. §§ 831.903-.906, 831.910(a), 842.803-.804, 842.807(a).

The standards for LEO eligibility differ somewhat between the CSRS and the FERS. The statutory standard for LEO eligibility under the CSRS requires that the duties of the employee's position be "primarily the investigation, apprehension, or detention of individuals suspected or convicted of [federal] offenses." 5 U.S.C. § 8331(20). The statutory standard for LEO eligibility under the FERS is similar in pertinent part, but additionally requires that the duties of the employee's position be "sufficiently rigorous that employment opportunities are required to be limited to young and physically vigorous individuals." 5 U.S.C. § 8401(17).

Pursuant to statutory authorization, see 5 U.S.C. §§ 8347(a), 8461(g), the Office of Personnel Management (OPM) has promulgated regulations that explicate the statutory standards under both systems. Both sets of regulations specify that the definition of law enforcement officer "does not include an employee whose primary duties involve maintaining law and order, protecting life and property, guarding against or inspecting for violations of law, or investigating persons other than persons who are suspected or convicted of [federal] offenses." 5 C.F.R. §§ 831.902, 842.802. In addition, the FERS regulation specifies that a "rigorous position," within the meaning of the statute, is "a position the duties of which are so rigorous that employment opportunities should, as soon as reasonably possible, be limited ... to young and physically vigorous individuals." 5 C.F.R. § 842.802.

II

A. Bingaman

As one of the parties to the MSPB case of Peek v. Office of Personnel Management, No. DA-0831-93-0263-I-1 (Initial Decision July 15, 1993), Bingaman received LEO retirement credit under the CSRS for his services as a DSSA from February 28, 1989, through July 15, 1993. Bingaman subsequently filed a timely request for LEO credit for the period July 15, 1993, through July 13, 1994. The Department of the Treasury denied Bingaman's request for LEO credit for that period. On Bingaman's appeal, the Merit Systems Protection Board upheld the agency's decision.

The administrative judge in Bingaman's case was the same administrative judge who had ruled in Bingaman's favor on his request for LEO credit for the period from February 1989 to July 1993. With respect to his request for LEO credit for 1993-94, however, the administrative judge reached a contrary result and denied the request, even though Bingaman's duties had not materially changed. Explaining the different outcome, the administrative judge noted that in a series of recent decisions dealing with claims to LEO retirement credit, the Board has made it clear that "it is the character of 'frontline law enforcement work' entailing the unusual physical demands and hazards created by the direct contact of criminal investigations that establishes eligibility for law enforcement retirement coverage," not the extent to which a particular position contributes to a law enforcement mission.

Although the evidence showed that DSSAs such as Bingaman play an important role in the Customs Service's drug interdiction effort, the administrative judge found that Bingaman did not satisfy the Board's test for LEO eligibility. The administrative judge noted that Bingaman does not carry a weapon in the performance of his job, does not question or interview suspects, does not have personal contact with suspects, is not on call 24 hours a day, and has no direct participation in the apprehension of suspects. In sum, the administrative judge concluded that Bingaman's position "does not present unusual physical hazards due to frequent and/or direct contacts with criminals or suspected criminals" and that his duties do not "place him in the frontline of law enforcement work, in that he has no interaction by direct contact with criminals or suspects." The administrative law judge therefore concluded that the evidence was insufficient to show that Bingaman performs the requisite duties of a "law enforcement officer," as that term is used in the statute and regulations governing LEO eligibility under the CSRS.

Bingaman did not seek review by the full Merit Systems Protection Board. The administrative judge's decision therefore became the final decision of the Board, from which Bingaman has sought this court's review.

Bingaman asserts that his work leads directly to the apprehension and prosecution of suspects and that he is therefore entitled to LEO retirement credit. The administrative judge, he contends, improperly required that he have "frequent direct contact" with criminal suspects in order to qualify as a law enforcement officer. Pointing to the statutory and regulatory definition of "law enforcement officer," Bingaman argues that the "frequent direct contact" standard applies to employees who seek LEO credit based on their detention duties, but not to those employees seeking LEO credit because of the criminal investigation duties of their positions. See 5 U.S.C. § 8331(20) (referring to law enforcement officers engaged in "detention" as employees "whose duties in connection with individuals in detention suspected or convicted of [federal] offenses ... require frequent ... direct contact with these individuals"); 5 C.F.R. § 831.902 (defining "detention duties" as "duties that require frequent direct contact in the detention ... of individuals suspected or convicted of [federal] offenses").

While it is true that DSSAs play an important role in the Customs Service's drug interdiction program, the importance of a particular employee's contribution to a law enforcement mission is not enough to render that employee a "law enforcement officer" within the meaning of the LEO retirement statutes. Because the early retirement program "is more costly to the government than more traditional retirement plans and often results in the retirement of important people at a time when they would otherwise have continued to work for a number of years," Morgan v. Office of Personnel Management, 773 F.2d 282, 286-87 (Fed.Cir.1985), the statutory term "law enforcement...