NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2006-3182 

ANDREW A. SMOTZER, 

Petitioner, 

v. 

DEPARTMENT OF HOMELAND SECURITY, 

Respondent. 

Andrew A. Smotzer, of Brunswick, Georgia, pro se. 

Kenneth S. Kessler, Attorney, Commercial Litigation Branch, Civil Division, 

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

the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Mark A. Melnick, Assistant Director. Of counsel were Steven J. 

Gillingham and Kent H. Huntington, Attorneys. 

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NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2006-3182 

ANDREW A. SMOTZER, 

 Petitioner, 

v. 

DEPARTMENT OF HOMELAND SECURITY, 

 Respondent. 

Petition for review of the Merit Systems Protection Board in AT0831050444-I-1. 

__________________________ 

DECIDED: October 22, 2008 

 __________________________ 

Before NEWMAN, PROST, and MOORE, Circuit Judges. 

PER CURIAM. 

Andrew A. Smotzer petitions for review of an initial decision of the Merit Systems 

Protection Board (“Board”), Smotzer v. Dep’t of Homeland Sec., No. AT0831050444-I-1 

(M.S.P.B. July 11, 2005) (“Board Decision”), which became final after the Board denied 

Mr. Smotzer’s petition for review, Smotzer v. Dep’t of Homeland Sec., No. 

AT0831050444-I-1 (M.S.P.B. Dec. 28, 2005). Because we discern no error in the 

Board’s decision, we affirm. 

BACKGROUND 

Mr. Smotzer served with the United States Secret Service Uniformed Division 

(“USSSUD”) from May 1976 through April 1986. During this time, Mr. Smotzer was 
covered under the District of Columbia Police and Firefighters’ Retirement System. In 

April 1986, Mr. Smotzer transferred to the Federal Law Enforcement Training Center, 

and his retirement plan was switched to the Civil Service Retirement System (“CSRS”). 

Mr. Smotzer was afforded retroactive service credit under the CSRS for his service at 

the USSSUD, and he remains in the CSRS to this day. 

In 2002, the Department of Homeland Security (“Agency”) informed Mr. Smotzer 

that he would also be eligible to receive law enforcement officer (“LEO”) retirement 

benefits based, in part, on his service with USSSUD. The Office of Personnel 

Management, however, later determined that Mr. Smotzer’s USSSUD service did not 

qualify as primary LEO service and, consequently, that Mr. Smotzer is not eligible for 

the LEO retirement benefits. After his petition for review by the Agency was denied, Mr. 

Smotzer appealed to the Board. 

The administrative judge found that Mr. Smotzer’s service with the USSSUD did 

not constitute primary LEO service under the CSRS definition of “law enforcement 

officer.” Board Decision at 8. Moreover, the administrative judge concluded that Mr. 

Smotzer could not avail himself of the broader definition of “law enforcement officer” 

provided by the Federal Employees’ Retirement System (“FERS”). Id. at 3 n.2; see 5 

U.S.C. § 8401(17) (providing FERS definition of law enforcement officer). After the full 

Board denied his petition for review, Mr. Smotzer petitioned for review by this court. 

DISCUSSION 

While this court has jurisdiction to review a final decision by the Board, our scope 

of review is limited. 5 U.S.C. § 7703(b)(1). We must affirm the decision by the Board 

unless we find it to be: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not 

2006-3182 2
in accordance with law; (2) obtained without procedures required by law, rule, or 

regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. 

§ 7703(c); Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1581 (Fed. Cir. 1994). 

As noted above, Mr. Smotzer is currently enrolled in the CSRS. Thus, to 

determine whether Mr. Smotzer is eligible for LEO retirement benefits under the CSRS, 

we first look at the meaning of “law enforcement officer” in the CSRS—the statute 

defines this term to mean “an employee, the duties of whose position are primarily the 

investigation, apprehension, or detention of individuals suspected or convicted of 

offenses against the criminal laws of the United States.” 5 U.S.C. § 8331(20); see

Lowder v. Dep’t of Homeland Sec., 504 F.3d 1378, 1381-82 (Fed. Cir. 2007). Here, the 

administrative judge found that Mr. Smotzer’s position did not exist for these purposes, 

but rather primarily involved maintaining law and order and protecting life and property, 

duties which the CSRS regulations specifically exclude from the definition of a “law 

enforcement officer” even though they are “unquestionably critical to the functioning of 

civil society itself.” Board Decision at 6-8; see 5 C.F.R. § 831.902. Consequently, the 

administrative judge ruled that Mr. Smotzer’s position did not meet the CSRS definition 

of “law enforcement officer” and, thus, did not qualify as primary LEO service. Board 

Decision at 8. Mr. Smotzer does not appear to challenge this conclusion, and we see 

no error in it. 

On appeal, Mr. Smotzer primarily challenges the administrative judge’s 

determination that he could not establish primary LEO service using the FERS definition 

of “law enforcement officer.” See id. at 3 n.2. When the FERS was created in 1986, its 

definition of “law enforcement officer” was substantially identical the CSRS’s definition. 

2006-3182 3
2006-3182 4

Lowder, 504 F.3d at 1384. In a 1988 amendment, however, the FERS definition was 

expanded to specifically include certain employees “who occup[y] a position that, but for 

the enactment of the Federal Employees’ Retirement System Act of 1986, would be 

subject to the District of Columbia Police and Firefighters’ Retirement System.” Id.

(quoting Act of Jan. 8, 1988, Pub.L. 100-238, § 103(c), 101 Stat. 1744). By virtue of this 

amendment, many USSSUD employees are “law enforcement officers” under the FERS 

definition. 

This court, however, has previously decided that this broader definition of “law 

enforcement officer” does not apply before 1988, when the amendment creating it 

became effective. Lowder, 504 F.3d at 1384 (“Congress has not indicated any intent to 

make the new definition retroactive.”). As a result, because Mr. Smotzer left USSSUD, 

withdrew from the District of Columbia Police and Firefighters’ Retirement System, and 

enrolled in the CSRS before 1988 (specifically, in March 1986), Mr. Smotzer cannot use 

the new FERS definition to show that his USSSUD position was a “law enforcement 

officer” position. While we are sympathetic to Mr. Smotzer’s understandable frustration 

at this result, we cannot rewrite the statute or our prior cases to achieve any other. 

Accordingly, we conclude that the administrative judge did not err in failing to apply 

FERS’s definition of “law enforcement officer” to Mr. Smotzer. 

For these reasons, we affirm. 

COSTS 

Each party shall bear its own costs.