Felzien v. Office of Personnel Management, No. 90-3445

• Decision Date: 17 April 1991
• Docket Number: No. 90-3445
• Parties: Thomas J. FELZIEN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 898

930 F.2d 898

Thomas J. FELZIEN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 90-3445.

United States Court of Appeals, Federal Circuit.

April 17, 1991.

W. Craig James, Skinner, Fawcett & Mauk, Boise, Idaho, argued for petitioner.

Genevieve Holm, Atty., Commercial Litigation Branch, Department of Justice, of Washington, D.C., argued for respondent. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Also on the brief were Jaime Ramon, Gen. Counsel, Thomas F. Mayer, Asst. Gen. Counsel and Murray M. Meeker, Atty., Office of Personnel Management.

Before MAYER and MICHEL, Circuit Judges, and SMITH, Senior Circuit Judge.

OPINION

MAYER, Circuit Judge.

Thomas J. Felzien appeals the decision of the Merit Systems Protection Board affirming the Office of Personnel Management's denial of his claim for retirement credit as a "firefighter." No. SE08319010177 (May 24, 1990). We reverse and remand.

Background

From May 23, 1965 through July 2, 1977, Felzien worked as a Forest Electronics Technician for the United States Forest Service, Department of Agriculture. During his three and one-half years at the Clearwater National Forest in Idaho, his two and one-third years at the Sitgraves National Forest in Arizona, and his six and one-half years at the Gila National Forest in New Mexico, Felzien worked on hundreds of fires. Though his responsibilities grew as he moved from Clearwater to Sitgraves to Gila, at each location Felzien functioned primarily as a communications officer. Upon arriving at fire sites, he would design, install, and maintain communications systems that were both essential to extinguishing the fires and instrumental in assuring the safety of other firefighters. Indeed, while not directly attacking the fire, a communications officer like Felzien could make a greater contribution to fire suppression than a front-line firefighter brandishing pick and shovel.

Communications systems included telephones, "handi-talkies," "repeaters" (electronic devices that transmit communications over rough terrain and long distances), and radios. The Forest Service acquired most of this equipment specifically for fighting fires; firefighting was the highest priority use of the equipment and most of it was stored in permanent fire caches. Felzien used the equipment throughout the year. In fall and winter, he maintained, repaired, and tested it; in spring, he trained other personnel to use it; and in summer, the fire season, he deployed it and maintained it in actual fire suppression efforts.

Felzien's summer duties were both hazardous and physically demanding. The communications systems had to be set up at fire locations, and this often entailed flying over the fires to specially design systems and decide where to place individual devices. Installing the devices was frequently the most dangerous aspect of the job, because they often had to be placed in precarious places accessible only by climbing towers or trees or negotiating mountainous terrain. On one occasion, for example, Felzien had to hang from a hovering helicopter to put a device on a mountain peak.

After Felzien installed a communications system, he typically worked out of a "spike camp," a staging camp between the fire line and the base camp. There he repaired and altered the system or its components as necessary. He also carried a pulaski ^*, shovel, and bucket in his truck, front-line firefighting implements which the Forest Service required anyone on or near the fire line to carry because of their continual exposure to danger. To minimize that danger and to maintain the physical abilities his job required, each spring Felzien, like other firefighters, was required to pass a physical fitness test. He also carried a "red card" that certified his skill and ability to perform firefighting duties.

Believing he was entitled to early retirement with an enhanced annuity because of his service as a firefighter, see 5 U.S.C. Secs. 8331(21), 8336(c)(1), 8339(d)(1) (1988); 5 C.F.R. Sec. 831.902 (1990), on June 30, 1988 Felzien asked the Forest Service for its opinion and recommendation. Notwithstanding his actual duties and the fact that the Forest Service had paid him largely from "fire dedicated" funding, the agency concluded that none of Felzien's service was creditable as "firefighting." It noted that none of his position descriptions "says or implies that [his] primary duty was firefighting," and "there is no evidence that he personally extinguished fires." It concluded that Felzien was no more a firefighter than other Forest Service employees--electronic technicians, aircraft mechanics, retardant mixers, and warehousemen--whose positions likewise "d[id] not expose them to the 'vigorous demands' of firefighting."

Felzien persisted and submitted his claim to OPM. It, too, denied the claim because there was no evidence that he personally extinguished fires or that he used the communications equipment other than to install and test it. OPM stressed that "coverage as a firefighter is restricted to those who actually engage in firefighting duties" and likened Felzien's service to that of a fire inspector, who maintains but does not also use fire extinguishers and sprinkler systems and therefore does not qualify as a firefighter. When, on reconsideration, OPM reiterated its rationale and reaffirmed its decision, Felzien appealed to the board.

The board noted at the outset that the statutory definition of "firefighter" in section 8331(21) must be strictly construed because it governs entitlement to special benefits. Slip op. at 9. The statute deems a "firefighter" an employee whose duties are "primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment, including an employee engaged in this activity who is transferred to a supervisory or administrative position." 5 U.S.C. Sec. 8331(21) (emphasis added). The board conceded that the use of "the disjunctive does suggest that the term is not necessarily limited to its 'ordinary meaning' " of a person who combats fires. Slip op. at 8. However, because of the great deference owed OPM policies implementing the civil service retirement system, see McDannel v. OPM, 716 F.2d 1063, 1066 (5th Cir.1983), especially those of long standing, see Seltzer v. OPM, 833 F.2d 975, 977 (Fed.Cir.1987), the board acquiesced in OPM's argument that the use of the disjunctive "was not particularly significant." Slip op. at 8. OPM asserted that since 1972, when Congress extended the preferential retirement treatment originally accorded FBI agents and law enforcement officers to firefighters, see Pub.L. No. 92-382, 86 Stat. 539 (1972), it has considered only those who physically combat fires--and who may incidentally or in the off seasons maintain and repair firefighting apparatus and equipment--to be "firefighters" within the meaning of the statute. Thus, for example, OPM does not credit the position of Mechanic (Crash Truck) because persons filling it do not engage in firefighting duties, are not exposed to hazard, and merely care for and maintain but do not use firefighting apparatus. Slip op. at 9.

In the event this statutory construction were incorrect, the board alternatively found that Felzien "set up and maintained communications systems and devices, but he did not himself actually use them in any of the various ways they were used to actually fight fires." Id. at 8. Since the statute clearly requires maintenance and use, the board concluded Felzien did not qualify. Finally, even if Felzien maintained and used the communications equipment, he did not qualify as a firefighter because that equipment is not the "firefighting apparatus or equipment" contemplated by the statute. Id. at 9. In the board's view, only equipment that is unique to firefighting counts under the statute. Id.

Discussion

A.

Because "[t]he occupation of firefighting is among the most hazardous in the world," H.R.Rep. No. 840, 92d Cong., 2d Sess. 2, reprinted in 1972 U.S.Code Cong. & Admin.News 2941, 2942 [House Report], Congress in 1972 extended the preferential retirement treatment previously accorded FBI agents and federal law enforcement officers to federal employees whose duties "are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment." See Pub.L. No. 92-382, 86 Stat. 539 (1972). The House Report explains that the law

extend[s] the hazardous occupation provisions to those Federal firemen who primarily perform work directly connected with the control and extinguishment of fires, or the maintenance and use of firefighting apparatus and equipment.... [A]n individual determination of early retirement eligibility based upon the danger of the employee's duties will be made by responsible officials who have access to duty and personnel records. No firemen who had not in fact been exposed to hazards over a 20-year period would be eligible for such preferential consideration.

House Report at 2944 (emphasis added). Congress intended not only to reward employees who performed especially hazardous duties in the public interest, see Ellis v. United States, 610 F.2d 760, 764, 222 Ct.Cl. 65 (1979), but to "facilitate the maintenance of relatively younger and more vigorous firefighting forces throughout the Federal establishment." House Report at 2944.

The law allows any employee with at least 20 years of service as a law enforcement officer, a firefighter, or a combination of the two to retire at age 50 with an enhanced annuity. 5 U.S.C. Secs. 8336(c)(1), 8339(d)(1). A "firefighter" is defined as

an employee, the duties of whose position are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting...