NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-3087 

MARY A. TABER, 

Petitioner, 

v. 

DEPARTMENT OF THE INTERIOR, 

Respondent. 

 W. Craig James, Mauk & Burgoyne, of Boise, Idaho, for petitioner. 

 Armando Rodriguez-Feo, Trial Attorney, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC, for respondent. With 

him on the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson,

Director, and Steven J. Gillingham, Assistant Director. 

Appealed from: United States Merit Systems Protection Board 
NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2007-3087 

MARY A. TABER, 

Petitioner, 

v. 

DEPARTMENT OF THE INTERIOR, 

Respondent. 

___________________________ 

DECIDED: October 9, 2007 

___________________________ 

Before BRYSON, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and KEELEY, Chief 

District Judge.

*

BRYSON, Circuit Judge. 

 This case once again presents us with the question whether a federal employee 

whose responsibilities included various criminal law enforcement activities was entitled 

to be classified as a “law enforcement officer,” or “LEO,” for purposes of the enhanced 

retirement benefits that federal law provides to such employees. Both the Merit 

Systems Protection Board and this court have made clear that the eligibility standards 

for LEO status are exacting and that even positions in which the incumbents have 

 

*

 Honorable Irene M. Keeley, Chief Judge, United States District Court for 

the Northern District of West Virginia, sitting by designation. 
significant law enforcement responsibilities frequently do not qualify for LEO status. 

Petitioner Mary A. Taber sought LEO retirement credit for several positions that she 

held with the National Park Service in which she performed various law enforcement 

functions. After the Department of the Interior denied her request for LEO status, she 

appealed that decision to the Merit Systems Protection Board. Following a hearing, the 

Board sustained the agency’s decision, holding that Ms. Taber did not satisfy the 

applicable standards for LEO retirement credit. Docket No. DE-0842-04-0445-I-4. We 

affirm. 

I 

 Ms. Taber served in a number of different positions with the National Park 

Service between 1983 and 1994. She served as Park Technician, Park Ranger, and 

Supervisory Park Ranger at Yellowstone National Park, and she occupied the position 

of Park Ranger at Joshua Tree National Monument. Because her service through the 

years involved various kinds of policing activity, she asked her agency to certify her for 

the special statutory retirement benefits that come with LEO status. 

Among other things, LEO status entitles an employee to retire at age 50 with full 

benefits after only 20 years of service. 5 U.S.C. §§ 8336(c), 8412(d)(2). Because the 

benefits to those who enjoy LEO status are expensive for the government and because 

the early retirement option results in the loss of many experienced employees years 

before they would otherwise leave the government, the statutes that provide for LEO 

eligibility have been strictly construed. See Watson v. Dep’t of the Navy, 262 F.3d 

1292, 1298 (Fed. Cir. 2001); Hannon v. Dep’t of Justice, 234 F.3d 674, 677 (Fed. Cir. 

2000); Bingaman v. Dep’t of the Treasury, 127 F.3d 1431, 1435 (Fed. Cir. 1997). By 

2007-3087 2 
statute and regulation, only those federal employees whose duties include “primarily the 

investigation, apprehension, or detention of individuals suspected of offenses against 

the criminal laws of the United States” qualify as LEOs. 5 U.S.C. §§ 8331(20), 

8401(17); 5 C.F.R. §§ 831.902, 842.802. Congress “clearly intended to make eligibility 

for LEO credit restrictive and not to extend the LEO benefits to all persons who work in 

law enforcement in some capacity.” Luke v. Dep’t of Health & Human Servs., 320 F.3d 

1377, 1382-83 (Fed. Cir. 2003). In particular, employees whose primary duties involve 

“maintaining law and order, protecting life and property, [and] guarding against or 

inspecting for violations of law” do not qualify for LEO retirement credit. 5 C.F.R. 

§§ 831.902, 842.802; see Watson, 262 F.3d at 1303. 

 Applying those standards, the Department of the Interior denied Ms. Taber’s 

request to be accorded LEO credit under either the Civil Service Retirement System 

(CSRS) or the Federal Employee Retirement System (FERS) for the various Park 

Ranger and Park Technician positions she held between 1983 and 1994. The agency 

denied her request on the ground that her various positions did not satisfy the strict 

standards for LEO eligibility, but instead principally involved nonqualifying activities such 

as visitor protection, search and rescue, resource management, emergency medical 

work, patrolling, and campground management. 

 Ms. Taber appealed the agency’s decision to the Merit Systems Protection 

Board. Following an evidentiary hearing, the administrative judge who was appointed to 

the case upheld the agency’s decision denying Ms. Taber’s request for LEO retirement 

benefit credit for the contested positions. After reviewing in detail each of the positions 

Ms. Taber held and the responsibilities she performed in those positions, the 

2007-3087 3 
administrative judge noted that Congress did not intend to extend LEO benefits to all 

persons who worked in law enforcement in any capacity and concluded that Ms. Taber 

had failed to satisfy the statutory definition of a “law enforcement officer” in that she had 

failed to show that her primary duties involved the investigation, apprehension, or 

detention of individuals suspected or convicted of federal criminal offenses. She now 

petitions this court for review of the Board’s decision. 

II 

 Ms. Taber first argues that the administrative judge violated the Board’s own 

regulations because the administrative judge’s initial decision did not constitute a 

reasoned opinion providing an adequate basis for review. Spithaler v. Merit Sys. Prot. 

Bd., 1 M.S.P.R. 587, 588-89 (1980) (citing 5 C.F.R. § 1201.111(b)(1)). She contends 

that the administrative judge “simply provided a cursory gloss on what he believed the 

applicable law to be and then recited a series of what were essentially uncontroverted 

facts, followed by a summary determination that the Petitioner did not meet her burden 

of proof.” The fact that the transcript of the evidentiary hearing was 139 pages long and 

the administrative judge’s opinion summarized the evidence in only 13 pages indicates, 

according to Ms. Taber, that the administrative judge’s opinion failed to comply with the 

requirements imposed by the Board’s regulations. 

 We reject that argument for several reasons. As the Board has explained, the 

pertinent Board regulation requires administrative judges to 

identify all material issues of fact, summarize the evidence on each such 

issue sufficiently to disclose the evidentiary basis for the presiding official’s 

findings of fact, set forth those findings clearly and explain how any issues 

of credibility were resolved and why, describe the application of burdens of 

proof and address all material legal issues in a fashion that reveals the 

2007-3087 4 
presiding official’s conclusions of law, legal reasoning and the authorities 

on which that reasoning rests. 

Spithaler, 1 M.S.P.R. at 589 (quoting 5 C.F.R. § 1201.111(b)(1)). In the Spithaler case, 

on which Ms. Taber relies, the Board held that a three-sentence initial decision, which 

simply announced the administrative judge’s disposition of the case without any 

analysis, failed to satisfy that regulatory requirement. In this case, by contrast, the 

administrative judge wrote a 13-page opinion that identified the principal legal issue, 

summarized the facts bearing on that issue, and made clear the legal reasoning that led 

the administrative judge to reject Ms. Taber’s claim. Ms. Taber argues that the 

administrative judge failed to address “any number of material issues,” yet she cites 

only one such issue—her argument that her service prior to 1989 should have been 

evaluated under the legal standards applicable to CSRS employees rather than those 

applicable to FERS employees. As the government points out in its brief, however, the 

standards for those two classes of employees are similar, and the differences were not 

material to the administrative judge’s analysis of Ms. Taber’s case. Because the 

administrative judge’s failure to address that legal question had no effect on the 

outcome of this case, it was not critical that the administrative judge distinguish between 

those periods of Ms. Taber’s service that were subject to the CSRS standards and 

those that were subject to the FERS standards. 

 More generally, the question whether an administrative judge has complied with 

the Board’s regulatory requirements regarding the contents of an initial decision is 

primarily a question for the Merit Systems Protection Board, not this court, to decide. 

The Board has frequently had occasion to address whether administrative judges have 

complied with regulatory requirements that the Board has imposed on them, and the 

2007-3087 5 
Board has developed standards for the adequacy of such opinions. See Smart v. Dep’t 

of the Army, 105 M.S.P.R. 475, 480 (2007); Mahaffey v. Dep’t of Agric., 105 M.S.P.R. 

347, 355 (2007); Hagen v. Dep’t of Transp., 103 M.S.P.R. 595, 599 (2006). But in the 

absence of some asserted statutory or constitutional inadequacy—and no such 

inadequacy is claimed here—an asserted departure from the standards that the Board 

has imposed regarding the adequacy of administrative judges’ opinions will normally not 

serve as a basis for reversal by this court. See Haebe v. Dep’t of Justice, 288 F.3d 

1288, 1302 n.32 (Fed. Cir. 2002) (Board’s requirements for initial decisions are “general 

internal procedural requirements that the MSPB has established for its adjudicative 

processes, and our review of the AJ’s fulfillment of these procedural processes is in that 

light”); Wissman v. Social Sec. Admin., 848 F.2d 176, 178 (Fed. Cir. 1988) (Board’s 

standard for drafting initial decisions “is nothing more than the board’s directive to its 

subordinate officials to proceed according to established regulatory procedures”). Ms. 

Taber has cited no case from this court in which asserted noncompliance with the 

Board’s regulation governing the contents of initial decisions has resulted in reversal of 

a Board decision, and we have found none. 

 Even assuming that it is part of this court’s reviewing responsibility to scrutinize 

an administrative judge’s compliance with the Board’s regulations governing how Board 

decisions should be written, we disagree with Ms. Taber that the administrative judge’s 

opinion in this case violated the regulatory requirements. The opinion set forth the 

pertinent legal standard, summarized the facts in great detail, and set forth the 

administrative judge’s conclusion that the facts did not satisfy the legal standard for 

establishing Ms. Taber’s claim to LEO status. Despite Ms. Taber’s protestations, the 

2007-3087 6 
factual summary in the administrative judge’s opinion was amply sufficient. While the 

legal analysis could have been more extensive, we are satisfied that it was sufficient to 

demonstrate the administrative judge’s reasoning and to permit informed judicial review. 

We therefore reject Ms. Taber’s argument on this issue. 

III 

 Ms. Taber next argues that the administrative judge erred in his characterization 

of the legal test for determining LEO status. With this court’s approval, the Board has 

adopted a “position-oriented” approach to determining LEO status. See Crowley v. 

United States, 398 F.3d 1329, 1337 (Fed. Cir. 2005); Watson, 262 F.3d at 1297-1301. 

That is, the Board and this court have held that the primary question in deciding whether 

an employee is entitled to LEO status is whether the employee’s position is one that 

exists for the purpose of investigation, apprehension, or detention of persons suspected 

or convicted of violating federal criminal laws. The question is not how the employee in 

question actually spends his or her time, but what duties the employee’s position 

entails. Of course, as this court has explained, the employee’s actual tasks may bear 

on what the position entails, and thus be relevant to the ultimate “position-oriented” 

inquiry. See Watson, 262 F.3d at 1301-02. In the end, however, the question turns on 

the nature of the employee’s position, not the particular tasks to which the particular 

employee is assigned. 

 Ms. Taber argues that the administrative judge misapplied those principles by 

failing to give weight to Ms. Taber’s actual duties in determining whether any of her 

positions were entitled to LEO status. She focuses in particular on the administrative 

judge’s statement that “if the [incumbent’s] position does not exist for the purpose of 

2007-3087 7 
investigation, apprehension, or detention of persons suspected or convicted of violating 

the criminal laws of the United States, the incumbent is not entitled to LEO credit no 

matter how long she spends each day performing LEO-type duties.” That statement is 

potentially confusing, as it could be taken, standing alone, as suggesting that Ms. 

Taber’s actual duties are irrelevant to whether her position is entitled to LEO status. In 

context, however, we do not interpret the administrative judge’s statement in that 

manner. Following the statement in question, the administrative judge described in 

detail the actual duties that Ms. Taber performed in her various positions. That lengthy 

discussion of Ms. Taber’s actual duties would have been wholly unnecessary if the 

administrative judge had regarded her actual duties as irrelevant to determining LEO 

eligibility for each of the disputed positions. 

 Moreover, as indicated, the administrative judge’s summary of Ms. Taber’s actual 

duties, with which Ms Taber does not take issue, demonstrates that those duties did not 

consist primarily of qualifying LEO activities. The OPM regulations indicate that 

“primary” duties are those that are “paramount in influence or weight; that is, constitute 

the basic reasons for the existence of the position,” occupy “a substantial portion of the 

individual’s working time over a typical work cycle,” and are assigned “on a regular and 

recurring basis.” 5 C.F.R. §§ 831.902, 842.802. Duties that are performed on an 

emergency, incidental, or temporary basis are not primary. Id. 

The evidence recited by the administrative judge showed that, under the 

applicable tests, qualifying LEO activities did not constitute the “primary” duties of Ms. 

Taber’s position, either as described or as performed. For example, the administrative 

judge noted that although Ms. Taber was involved in criminal investigations and helped 

2007-3087 8 
in making arrests and transporting prisoners from time to time, the record showed that 

she made only four arrests during one year and five during another year. During most 

of the period at issue, according to the record, a major portion of her work consisted of 

patrolling roads in Yellowstone National Park and issuing traffic citations. Occasionally 

that activity resulted in arrests. Our cases have established, however, that the type of 

activity in which she was engaged, such as patrolling, enforcing traffic laws, and acting 

as a first responder to emergencies or potential crimes, does not constitute qualifying 

LEO activity unless the employee’s primary responsibilities include the investigation and 

apprehension of criminal suspects. See Watson, 262 F.3d at 1304; Luke, 320 F.3d at 

1381. Accordingly, in light of the findings made by the administrative judge, we sustain 

the Board’s conclusion that Ms. Taber is not entitled to LEO credit for the periods of her 

service that are at issue in this case. 

In her reply brief, Ms. Taber contends that the Board’s decision in this case 

conflicts with the Board’s decision in an earlier case, Ferrier v. Office of Personnel 

Management, 66 M.S.P.R. 241 (1995). Setting aside the fact that Board decisions are 

not binding on this court, the facts of that case suggest that the employee was more 

extensively involved in the investigation and apprehension of criminal suspects. 

Moreover, the Board itself has not applied Ferrier in a manner that dictates that Ms. 

Taber’s positions would qualify for LEO status. In a series of cases following the 

Board’s decision in Watson, the Board has held that activities such as patrolling for 

purposes of property protection and traffic control are not ordinarily considered LEOqualifying activities. See Fagergren v. Dep’t of the Interior, 98 M.S.P.R. 649, 653 

(2005); Street v. Dep’t of the Navy, 90 M.S.P.R. 652, 660 (2002); Koenig v. Dep’t of the 

2007-3087 9 
Navy, 91 M.S.P.R. 1, 9-10 (2001). The Board has made clear that it would no longer 

regard as authoritative the decisions prior to Watson that suggested that such activities 

constituted LEO activities. See Koenig, 91 M.S.P.R. at 10. Those cases, rather than 

Ferrier, indicate how the Board currently approaches claims for LEO eligibility by 

persons in positions similar to Ms. Taber’s. 

IV 

 Finally, Ms. Taber argues that the administrative judge improperly declined to 

permit her attorney to make a closing statement at the conclusion of the evidentiary 

hearing in her case. The Board has held that the question whether to permit closing 

argument is a matter committed to the discretion of the administrative judge. See Ford 

v. Dep’t of the Navy, 43 M.S.P.R. 495, 500 (Fed. Cir. 1990). A Board regulation, 5 

C.F.R. § 1201.58(a), makes the same point by clear implication. That regulation 

provides that the record of a hearing will ordinarily close at the conclusion of the 

hearing, but that “[w]hen the judge allows the parties to submit argument,” the record 

will remain open for that purpose. The regulation thus plainly contemplates that in some 

cases the administrative judge will not permit the parties to present closing argument. 

Ms. Taber has not shown that the administrative judge abused his discretion in 

this case by declining to hear closing argument. Instead, she merely points to what she 

regards as the administrative judge’s legal errors in the case as indicating that the 

administrative judge should have permitted closing argument so as to avoid making 

those errors. It is open to question whether an administrative judge’s refusal to permit 

closing argument could ever constitute reversible error on a petition for review to this 

2007-3087 10 
2007-3087 11 

court. But even if there might be a case in which denial of closing argument would be 

reversible error on appeal to this court, this is certainly not such a case. 

 In sum, although the positions at issue in this case involved many activities that 

would ordinarily be regarded as constituting law enforcement, the statutory and 

regulatory standards for obtaining LEO retirement credit are restrictive. Based on those 

standards, we hold that the Board did not commit reversible legal error in the 

proceedings leading to its decision in this case and that substantial evidence supports 

the Board’s finding that the positions in question were not LEO positions.