Fedweek Legal

The U.S. Court of Appeals for the Federal Circuit has once again confirmed that law enforcement officer retirement will be very difficult to obtain unless an agency has designated the position as LEO covered. Luke v. Dept. of Health and Human Services, Fed. Cir. No. 02-3277 (2/26/03). The rule stated in Watson v. Dept. of the Navy, 262 F.3d 1292 (Fed. Cir. 2001), was restated: the position-oriented approach of the Merit Systems Protection Board was upheld as the burden is on the employee to prove that the “basic reasons for the existence for the position” are the investigation, apprehension, or detention of persons suspected or convicted of federal offenses. 5 USC 8401(17)(A)(i)(l). For employees such as the appellant who is covered by FERS, as opposed to CSRS, there is also a rigorous duty requirement.

The court found that the employee, a GS-083 police officer in the Investigations Section of the National Institutes of Health police force, had failed to meet the “sufficiently rigorous” requirement for FERS LEO coverage. Furthermore, as in Watson, police officers in the GS-083 series are presumed not to be entitled to LEO retirement credit. While normally the position description controls, employees were previously able to challenge denials on the basis of actual duties performed. However, 5 CFR 842.803(a), which requires a determination by the agency head as to whether physical standards and a maximum entry age are required for the job, “casts doubt” on whether an appellant may challenge the conclusion that a job is not “rigorous” on the basis of the actual duties performed.

The factors used in making a determination as to LEO retirement coverage include: (1) whether the officer is merely guarding life and property or is more frequently pursuing and detaining criminals; (2) whether there is an early mandatory retirement age; (3) whether there is a youthful entry age; (4) whether the job is physically demanding so as to require a youthful workforce; and (5) whether the officer is exposed to hazard or danger. While appellant argued that he spent most of his time investigating federal crimes, albeit nonviolent property crimes, the court noted that the agency had rejected a proposal to impose an age limit and physical standards. The court also noted its own holdings that eligibility for LEO benefits must be strictly construed.

What this decision means is that it is now imperative for any individual or group seeking LEO coverage to obtain the agency’s blessings to properly structure the position(s) to meet the rigorous requirement under FERS. It is now almost impossible for an individual employee to successfully challenge an adverse agency LEO determination unless holding a position meeting the above factors.

** This information is provided by the attorneys at

Passman & Kaplan, P.C., a law firm dedicated to the

representation of federal employees worldwide. For

more information on Passman & Kaplan, P.C., go to

http://www.passmanandkaplan.com. **