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2. FERS Definition of a “Law Enforcement Officer” and Service

Requirements

An LEO is defined in 5 U.S.C. S 8401(17), for FERS purposes, as

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an employee, the duties of whose position - (i) are primarily - (I) the
investigation, apprehension, or detention of individuals suspected or
convicted of offenses against the criminal laws of the United States, or (II)
the protection of officials of the United States against threats to personal
safety; and (ii) are sufficiently rigorous that employment opportunities
should be limited to young and physically vigorous individuals, as
determined by the Director considering the recommendations of the
employing agencyl.]

The statutory definition also designates the following as LEO's: 1) certain employees that perform LEO functions for 3 years and then move to a supervisory or administrative position; 2) Park Police and Uniformed Secret Service employees that, but for the enactment of FERS, would be subject to the District of Columbia Police and Firefighters' Retirement System; and 3) federal prison guards whose detention duties with federal and military criminal offenders “require frequent direct contact with these individuals in their detention and are sufficiently rigorous that employment opportunities should be limited to young and physically vigorous individuals, as determined by the head of the employing agency.

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For workers under the FERS system, 8412(d)(2) states that, an employee, “after becoming 50 years of age and completing 20 years of service as a law enforcement officer, member of the Capitol Police or Supreme Court Police, firefighter, or nuclear materials courier, or any combination of such service totaling at least 20 years, is entitled to an annuity.” A FERS employee is entitled to an annuity at any retirement age after 25 years of service.?

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3. Procedures for Securing a “Law Enforcement Officer” Designation

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There are three methods for federal law enforcement personnel to obtain the LEO designation. First, it may be specifically granted in statute for a specific group. Second, it may be designated by the employing agency in the official position description, based upon the standards set forth by OPM in 5 CFR $ 831.901 et seq. and 5 CFR § 842.801 et seq.

Finally, a person in federal law enforcement seeking the designation may appeal to the MSPB seeking credit for previous work that meets the requirements set forth in the

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S U.S.C. $ 8401(17) (2001).
5 U.S.C. & 8412(d)(1) (2001).

As previously noted, Capitol Police and Supreme Court police are also LEO's pursuant to 5 U.S.C. S 8336(m) & (n).

statute and regulations. An appellant files an appeal with the appropriate MSPB regional or field office having geographical jurisdiction. An administrative judge issues an initial decision. Unless a party files a petition for review with the Board, the initial decision becomes final 35 days after issuance. Any party, or OPM or the Office of Special Counsel, may petition the full Board in Washington to review the initial decision.

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An unfavorable decision by the Board can be appealed to the Court of Appeals for the Federal Circuit, and the "court shall review the record and hold unlawful and set aside any agency action, findings, or 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.'

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4. Regulatory Development of the Definition of a “Law Enforcement

Officer"

OPM further developed the definition of a LEO for both CSRS and FERS in 5 CFR § 831.901 et seq., and 5 CFR § 842.801 et seq., respectively. Both provisions clarify the statutory definition by stating: "the definition does not include an employee whose primary duties involve maintaining order, protecting life and property, guarding against or inspecting for violations of law, or investigating persons other than those who are suspected or convicted of offenses against the criminal laws of the United States.”

5. Development of the Definition of “Law Enforcement Officer” in Case

Law

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In Bingaman v. Department of the Treasury, the Court described the factors that the Merit Systems Protection Board had extrapolated from the statutory and regulatory language to determine whether an employee qualified as a LEO, “captur[ing] the essence of what Congress intended.? A LEO “commonly (1) has frequent direct contact with criminal suspects; (2) is authorized to carry a firearm; (3) interrogates witnesses and suspects, giving Miranda warnings when appropriate; (4) works for long periods without a break; (5) is on call 24 hours a day; and (6) is required to maintain a level of physical fitness.

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6. Merit Systems Protection Board Application of LEO Retirement

Credit Statutory and Regulatory Standards

In Watson v. Department of the Navy, the MSPB began a new approach for analyzing LEO credit appeals that emphasized the reasons for the creation and existence of the positions rather than the officers' actual (even if incidental or occasional) duties as

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255 C.F.R. § 1201.114(a)(1)(2002).

5 U.S.C. $ 7703(c)(1)-(3) (2001). 127 F.3d 1431 (Fed. Cir. 1997)

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had been done in the past. This new emphasis on a "position-oriented approach” focuses on the employer's purpose in creating the position, rather than a “fact-specific" or "frequent duties” approach to LEO classification. In Watson, the MSPB noted that the OPM guide for the police officers at issue stated that the “primary mission and purpose" of the positions was “to enforce law, maintain law and order, preserve the peace, and protect the life and civil rights of persons," and, based in part on that job description, LEO credit was denied."

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The U.S. Court of Appeals for the Federal Circuit affirmed the MSPB decision to use a “position-oriented approach” in Watson.” The Court noted that an employer, when assessing why a position exists, should factor in early mandatory retirement age and a maximum entry age characteristic of LEO's to determine whether the “basic reasons for the existence of the position" consists of duties that will make the employee LEOeligible.

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The Court noted that the Board's approach included consideration of both the position documentation and actual duties. The Board would examine the actual duties of an employee largely to determine if the purpose for the position's existence has changed since its creation. Thus, an employee could show, by evidence of his actual duties, that the written description of the position no longer accurately reflects the purpose for the position's existence, and that the employee should consequently be deemed entitled to LEO credit.35

D. Estimated Costs of Extending “6(c) Retirement” to Additional Federal Police

Personnel

The major policy barrier to extending LEO coverage to additional federal personnel would be its immediate and long-term costs.

OPM Associate Director for Retirement and Insurance Services William Flynn testified at the September 9, 1999 Subcommittee on the Civil Service hearing titled “Law Enforcement Retirement Coverage” that “adding police officers, other than those who are currently covered, Inspectors at Immigration and Naturalization Service, Customs Inspectors, park rangers, ATF Inspectors, and a few other groups would cost $142 billion plus future additional agency employee contributions at the higher rates.'

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86 M.S.P.R. 318 (2000). Id. at 321.

Id. at 324. 32

Watson v. Dept. of the Navy, 262 F.3d 1292 (2001).

Id. at 1300. 34

Id.

Id. at 1302. 36

Law Enforcement Retirement Coverage: Hearing before the Subcomm. on Civil Service of the House Comm. on Government Reform, 106" Cong. 62, at 62 (September 9, 1999) (statement of William E. Flynn, Assoc. Director, Retirement and Insurance Services, Office of Personnel Management).

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The Department of Justice estimated that including Assistant United States Attorneys (AUSA's) in LEO retirement coverage would add close to $600 million in the first year alone. John Vail, Deputy Assistant Attorney General for Management, testified at the aforementioned 1999 Civil Service Subcommittee hearing about DOJ's concern that attomeys over the age of 37 would be ineligible to become AUSA's if they are included in LEO coverage because of maximum age requirements designed for law enforcement personnel. DOJ statistics show that 28.5% of new AUSA hires in 1998 were 37 years of age or older. Moreover, since obtaining LEO status would force attorneys to retire at the age of 57, at the time of the testimony over 500 AUSA's would have been eligible for mandatory or voluntary early retirement, which could have led to a dramatic loss of experienced litigators.

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LEO retirement possesses an accelerated accrual rate, as it assumes the benefit will need to be accumulated earlier to account for the stressful and demanding nature of the job. Despite the fact that law enforcement personnel are required to contribute a greater percentage of their salary into retirement, federal government agencies still shoulder higher proportionate costs of early retirement when compared to non-LEO federal employees, as indicated by the following tables.

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1999 Civil Service Hearing, at 81, (statement of John Vail, Deputy Assistant Attomey General for Management, Department of Justice).

CSRS

Regular

Retirement at age:

55 w/ 30 years

60 wl 20 years

62 wl 5 years

Annuity:

w/ 30 years •

56.25% of high 3

wl 20 years

36.25%

wl 5 years

7.5%

Contribution: 7% by the employee

18% by the Government

FERS

Regular

Retirement at age:

55 w/ 30 years 60 wl 20 years

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LEO Retirement at age:

50 w/ 20 years LEO

Annuity: 70% of high 3

w/ 30 years

Wi 20 years

50%

w! 5 years

7.5% (not LEO)

Contribution:

7.5% by the employee

31.5% by the Government

LEO
Retirement at age:

50 wl 20 years LEO
Any age wl 25 years LEO

Annuity:

w/ 30 years •

44% of high 3

wl 20 years - 34%

wl 5 years

5% (not LEO)

Contribution:

Contribution:

0.8% by the employee

1.3% by the employee

10.7% by the Government

22.7% by the Government

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