NOTE: This disposition is nonprecedential.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 Washingt on, 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 Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential.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 enforcem ent activities was entitled to be classified as a “law enforcement offi cer,” 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 hav e made clear that the eligibility standards for LEO status are exacting and that ev en positions in which the incumbents have

* Honorable Irene M. Keeley, Chief J udge, 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 retire ment credit for several positions that she held with the National Park Service in which she performed various law enforcement functions. After the Departm ent of the Interior denied he r request for LEO status, she appealed that decision to the Merit Systems Pr otection Board. Fo llowing a hearing, the Board sustained the agency’s de cision, holding that Ms. Taber did not satisfy the applicable standards for LEO reti rement credit. Docket No. DE-0842-04-0445-I-4. We affirm

. I Ms. Taber served in a number of diffe rent 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 Tr ee 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 reti rement benefits that co me with LEO status. Among other things, LEO status entitles an employee to re tire 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 LE O status are expensive fo r the government and because the early retirement option results in the loss of many experienced employees years before they would otherwise le ave the government, the stat utes that provide for LEO eligibility have been st rictly construed. See Watson v. Dep’t of the Navy , 262 F.3d 1292, 1298 (Fed. Cir. 2001); Han non 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 2statute and regulation, only those federal employees whos e duties include “primarily the investigation, apprehension, ordetention of individuals suspected of offenses against the criminal laws of the United States” qualify as LE Os. 5 U.S.C. §§ 8331(20), 8401(17); 5 C.F.R. §§ 831.902, 842.802. Congre ss “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.” Luk e 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 lif e and property, [and] guarding against or inspecting for violations of law” do not qua lify 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 eit her 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 vari ous positions did not satisfy the strict standards for LEO eligibility, but instead principally involved non qualifying activities such as visitor protection, search and resc ue, resource management, emergency medical work, patrolling, and campground management. Ms. Taber appealed the agency’s decisi on to the Merit Systems Protection Board. Following an evidentia ry 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 3administrative 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 statutor y definition of a “law enforcem ent officer” in that she had failed to show that her primary duties invo lved the investigation, apprehension, or detention of individuals suspected or convict ed of federal criminal offenses. She now petitions this court for reviewof the Board’s decision.
II Ms. Taber first argues that the admin istrative judge violat ed the Board’s own regulations because the adminis trative judge’s initial decis ion did not constitute a reasoned opinion providing an ad equate basis for review. Spit haler 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 t hat the Petitioner did not meet her burden of proof.” The fact that the transcript of the evidentia ry hearing was 139 pages long and the administrative judge’s opinion summarized t he evidence in only 13 pages indicates, according to Ms. Taber, that the administrat ive judge’s opinion failed to comply with the requirements imposed by the Board’s regulations. We reject that argument for several r easons. As the Board has explained, the pertinent Board regulation require s administrative judges to identify all material issues of fact, summarize the evidence on each such issue sufficiently to disclose the evident iary basis for the presiding official’s findings of fact, set forth those findi ngs clearly and explain how any issues of credibility were resolved and why, de scribe the applicati on of burdens of proof and address all material legal issu es in a fashion that reveals the

2007-3087 4presiding official’s conclusions of law, legal reasoning and the authorities on which that reasoning rests. Spithaler , 1 M.S.P.R. at 589 (quot ing 5 C.F.R. § 1201.111(b)(1 )). In the Spithalercase, on which Ms. Taber relies, the Board held that a three-sent ence initial decision, which simply announced the administrative judge’s disposition of t he case without any analysis, failed to satisfy that regulatory requi rement. In this case, by contrast, the administrative judge wr ote a 13-page opinion that identified the prin cipal legal issue, summarized the facts bearing on t hat issue, and made clear t he legal reasoning that led the administrative judge to reject Ms. Taber ’s claim. Ms. Taber argues that the administrative judge failed to address “any num ber of material issues,” yet she cites only one such issue—her argum ent that her service prio r to 1989 should have been evaluated under the l egal standards applicable to CSRS employees rather than those applicable to FERS employees. As the governm ent 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 anal ysis of Ms. Taber’s case. Because the administrative judge’s failure to address t hat legal question had no effect on the outcome of this case, it was not critical t hat the administrative j udge 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 require ments regarding the contents of an initial decision is primarily a question for the Merit Systems Protec tion Board, not this court, to decide. The Board has frequent ly had occasion to address whet her administrative judges have complied with regulatory requi rements that the Board has imposed on them, and the

2007-3087 5Board has developed standards for t he adequacy of such opinions. See Smart v. Dep’t of the Army , 105 M.S.P.R. 475, 480 (2007); M ahaffey 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 departu re from the standards that the Board has imposed regarding the adequacy of admini strative 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 requirem ents 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 pr ocedural processes is in that light”); Wissman v. Social Sec. Admin. , 848 F.2d 176, 178 (Fed. Cir. 1988) (Board’s standard for drafting initial dec isions “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 asse rted 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 th e Board’s regulations governing how Board decisions should be written, we disagree with Ms. Taber t hat the administrative judge’s opinion in this case violated the regulatory requirements. The opinion set forth the pertinent legal standard, summarized the fa cts 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 stat us. Despite Ms. Taber’s protestations, the

2007-3087 6factual 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 app roval, the Board has adopted a “position-oriented” approach to determining LEO status. See Crowley v. United States , 398 F.3d 1329, 1337 (F ed. 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 w hether the employee’s position is one that exists for the purpose of investigation, appr ehension, or detention of persons suspected or convicted of violating feder al criminal laws. The questi on 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 ex plained, the employee’s actual tasks may bear on what the position entails, an d 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 administrativ e 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 7investigation, apprehensi on, or detention of persons sus pected or convicted of violating the criminal laws of the Un ited 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 tak en, standing alone, as suggesting that Ms. Taber’s actual duties are irrele vant 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 questi on, the administrativ e judge described in detail the actual duties that Ms. Taber perform ed in her various positions. That lengthy discussion of Ms. Taber’s actual duties would have been wholly unnecessary if the administrative judge h ad regarded her actual duties as irrelevant to determining LEO eligibility for each of the disputed positions. Moreover, as indicated, the administrat ive judge’s summary of Ms. Taber’s actual duties, with which Ms Taber does not take iss ue, demonstrates that those duties did not consist primarily of qualifying LEO activiti es. 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 posit ion,” 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 temporar y basis are not primary. Id. The evidence recited by the adminis trative judge showed that, under the applicable tests, qualifying LEO activities did not constitute the “p rimary” duties of Ms. Taber’s position, either as de scribed or as performed. For example, the administrative judge noted that although Ms. Ta ber was involved in criminal investigations and helped

2007-3087 8in making arrests and transporting prisoners fr om time to time, th e record showed that she made only four arrests during one year and five during another year. During most of the period at issue, accord ing 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 case s have established, howev er, that the type of activity in which she was engaged, such as patrolling, enforcing tra ffic laws, and acting as a first responder to emergencies or potential crimes, does not constitute qualifying LEO activity unless the employee’s primary re sponsibilities 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 administrativ e 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 t hat the Board’s decision in this case conflicts with the Board’s decision in an ea rlier 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 investigati on and apprehension of criminal suspects. Moreover, the Board itse lf has not applied Ferrierin a manner that dictates that Ms. Taber’s positions would qualif y for LEO status. In a se ries of cases following the Board’s decision in Watson , the Board has held that activities such as patrolling for purposes of property protecti on and traffic control are no t 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 9Navy , 91 M.S.P.R. 1, 9-10 (2001). The Board has made clear that it would no longer regard as authoritat ive 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 appr oaches claims for LEO eligibility by persons in positions similar to Ms. Taber’s. IV Finally, Ms. Taber argues that the admin istrative judge improperly declined to permit her attorney to make a closing statement at the c onclusion of the evidentiary hearing in her case. The B oard has held that the questi on whether to permit closing argument is a matter committ ed 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 implic ation. That regulation provides that the record of a hearing will ordinarily cl ose at the conclusion of the hearing, but that “[w]hen the j udge allows the parties to s ubmit 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 pres ent closing argument. Ms. Taber has not shown that the admin istrative judge abused his discretion in this case by declining to hear closing argumen t. Instead, she merely points to what she regards as the administrative judge’s legal errors in the ca se as indicating that the administrative judge should have permitted clos ing argument so as to avoid making those errors. It is open to question whethe r an administrative judge’s refusal to permit closing argument could ever constitute revers ible error on a petition for review to this

2007-3087 102007-3087 11 court. But even if there might be a case in which denial of cl osing argument would be reversible error on appeal to this cour t, this is certainly not such a case. In sum, although the positions at issue in this case involved many activities that would ordinarily be r egarded as constituting law enfor cement, the statutory and regulatory standards for obtaining LEO retirem ent 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.