## United States Court of Appeals for the Federal Circuit

06-3121

THOR WEATHERBY, III, Petitioner,

v.

DEPARTMENT OF THE INTERIOR, Respondent.

W. Craig James , Mauk & Burgoyne, of Boise, Idaho, argued for petitioner. Roger A. Hipp , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Deborah A. Bynum , Assistant Director.

Appealed from: Un ited States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

06-3121

THOR WEATHERBY, III, Petitioner,

v. DEPARTMENT OF THE INTERIOR, Respondent.

__________________________

DECIDED: October 26, 2006

__________________________

Before MICHEL, Chief Judge , PLAGER, Senior Circuit Judge , and RADER, Circuit Judge

. MICHEL, Chief Judge

. Petitioner Thor Weatherby, III appeals fr om a decision of the Merit Systems Protection Board ("Board") upholding the denial of his claim for enhanced annuity benefit credits as a firefighter. Weatherby v. Dep't of the Interior , No. SF-0842-05-0195- I-2 (M.S.P.B. July 29, 2005). Because the Board correctly found that neither the job descriptions of positions that petitioner held nor his act ual primary duties met the statutory definition of "firefi ghter" under either the statute establishing the Civil ServiceRetirement System ("CSRS") or the super seding F ederal Employ ee Retirement System ("FERS"), we affirm. I. BACKGROUND Certain federal employ ees who work in unusually hazardous positions are entitled to enhanced retirement benefits. For examp l e, fi refighters and law enforcement officers are eligible for voluntary retirement earlier than other federal employees, i.e., at any age if t hey have c o mpleted 25 years of se rvice in a qualif ied position or at age 50 after 20 years of service. Se e 5 U.S.C. §§ 8336(c ) , 8412(d). In addition, they are entitled to a larger annuity. See 5 U.S.C. §§ 8339(d), 8415(d). Under CSRS, a "firefighter " is statutorily defined as: an employ ee, the duties of whose posit ion are primarily to perform work directly connected with the contro l and extinguishm e nt of fires or the maintenance and us e of fire fighting apparatus and equipment , including an employ ee engaged in this activity w ho is transferred to a supervisory or administrative position. 5 U.S.C. § 8331(21) (emphas is added). Under FERS, a "firefighter" is: (A) an employee, the duties of whose position – (i) are primarily to perform work direct ly connected with the control and extinguis h ment of fires ; and (ii) are sufficiently rigor ous that empl oyment opportunities should be limited to young and physically vigorous individuals , as determined by the Director considering the recommendati ons of the empl oying agency; and (B) an employee who is transferred direct ly to a supervisory or admi n istrative position after performing duties descri bed in subparagraph (A) for at least 3 years. 5 U.S.C. § 8401(14) (emphasis added). The implementing regulations mirro r these statutor y definitions

. See 5 C.F.R. §§ 831.902, 842.802. In addition, the regulations des cribe how t he "primary duties" of an employ ee's position are determined. The following factors are to be considered:

06-3121 2(1) whether those duties constitute the basic reasons for existence of the position; (2) whether they occupy a substantial porti on of the individual's working time over a typical work cycle; and (3) whether they ar e regular and recurring. 5 C.F.R. §§ 831.902, 842.802. Duties of an emergency, incidental, or temporary nature, however, are not "primary," even if they occupy a substantial portion of the individual's time. 5 C.F.R. §§ 831.902, 842.802. In decidi ng whether an employee is eligible for firefighter retirement credit, the Board has adopted th e "position-oriented" approach emphasized in the FERS statute that focuses on the r easons for the position' s existenc e, based on the official job description as well as t he em ployee's ac tual day-to-day duties. Dodd v. Dep't of the Interior , 94 M.S.P.R. 174, ¶ 12 ( M .S.P.B. 2003); see also Watson v. Dep't of the Navy , 262 F.3d 1292, 1296 (Fed. Cir . 2001) (approving a similar analy t ic approac h for law enforcement officers).

* * * Petitioner is employed by the Alaska Fir e Service in the Bureau of Land Management, within the Depart m ent of the Interi or ("a gency"). Since July 26, 1984, he has held the following positions:

7/26/84–7/20/85 Electronic Me chanic Helper WG-2604-05 7/21/85–11/19/88 Electronic Mechanic WG-2604-11 11/20/88–10/5/91 Electronic Mechanic WG-2604-10 10/6/91–7/20/97 Electronic Mechanic WG-2604-11 7/21/97–9/7/02 Telecommunicati ons Specialist GS-0391-11 9/8/02–6/28/03 Infotech Specia list (Network) GS-2210-11 6/29/03–11 /01/03 IT Specialist (SYS ADMIN) GS-2210-11 11/02/03–p resent IT Specialist (SYS ADMIN) GS 2210-12

06-3121 3In December 2003, petitioner su bmitted a claim seeking firefi ght er retirement credits. The agenc y denied his claim by letter dated November 18, 2004. Petitioner timely appealed to the Board. On July 29, 2005, an administrative ju dge ("AJ") issued an initial decisio n agreeing with the agency that petitioner was never a firefi ghter within the statutory meaning of the word under CSRS or F E RS. The AJ f i rst determined that petitioner's service was covered by CSRS through December 31, 1986 and by F E RS s i nce January 1, 1987, its effective date. Weatherby , slip op. at 6-7.

The AJ found that petitioner's first job as an Electronic Mec hanic Helper invo lved the maintenance and repair of electroni c com m unications equipm ent used by firefighters but did not satisfy the CSRS de finition bec ause his duties were performed solely in the radio shop, not at the fire sc ene. Id. , slip op. at 9. Likewise, the job description for his next job as an Electronic Mechanic did not mention work near fires, though it did refer to physically demanding wo rk som e times performed in "extremely cold, windy weather on mountaintops." With respect to petitioner 's actual day-to-day duties, he was not as signed to any fire inci dents until J une 1986, w hen he was sent to a command center 1 handling four simultaneous fires in Alaska. T he AJ ack n owledged that petitioner's work installing repeaters 2 and distributing radio kits 3 during these four

1 Usually, a command center is close enough to a fire that it would need to be moved if the fire spread in an unexpected direction. But it is not at the fire line.

2 A repeater is a device with a lar ge mast antenna and a power source temporarily installed on a mountaintop to facilitate radio communications among firefighters. Petitioner was responsible fo r installing and maintaining repeaters during the fire and removing them afterw ards.

3 A radio kit is a set of si xteen ha ndheld radios issued to firefighters.

06-3121 4fires was similar to the type of work found to sa tisfy the CSRS definiti on of "firefighter" in Felzien v. Office of Personnel Managem ent , 930 F

. 2d 898, 903 (Fed. Cir. 1991). Weatherby , slip op. at 12. The AJ noted that only other fire-rel a ted incident to which petitioner was ass i gn ed before December 31, 1986 was a temporary assign ment to the Boise Inter agency F i re Center—i.e., not on the fire line—in Augus t 1986. Id. , slip op. at 11. Because petitioner's expos ure to hazardous fire conditions was limited to a single occasion in June 1986—unlik e Mr. Felzien, who worked at "hundr eds of fires," Felzie n 930 F.2d at 899—the AJ declined to find that the primary duties of his service before December 31, 1986 met the CSRS def inition of "firefighter." Weatherby , slip op. at 12. The AJ then analyzed the remainder of petitioner's service under FERS. He noted that this court, in Felz ien , f ound that work with r epeater s and radio kit s was not the type of front-line f i refight ing duties that would satisfy the first claus e of the CSRS definition— i.e., "work directly connected with the control and extinguishment of fires." Id. , slip op. at 13. B e cause this language was preserved in the FERS definition of "firefighter," the AJ dete rmined that petitioner's work after January 1, 1987 was not eligible for firefighter credit. Id. The AJ similarly conclu ded that petitioner's other positions as an Electr onic Mechanic did not meet th e FERS definition of "firefighter." Id. , slip op. at 13-15. Having found that no service from Ju ly 26, 1984 to Ju ly 20, 1997 was entitled to primary firefi ghter coverage under 5 U.S.C. § 8401(14)(A), the AJ found that petitioner was not entitled to "seco ndary" firefighter co verage under 5 U.S.C. § 8401(14)(B) for any service thereafter in adm inistrative or supervisory pos i tions. Id. , slip op. at 15.

06-3121 5On Augus t 29, 2005, petitioner sought review from the full Board. On
December 29, 2005, the Board d enied further review, rendering the AJ's decision fina l. This timely appeal followed. We have juri sdiction pursuant to 28 U.S.C. § 1295(a)(9).

II. DISCUSSI ON We review the Board's dec ision by determining whether any agency action, findings or conclus i ons are unsupported by substantial ev idence or ar e arbitrary, capricious, an abuse of discreti on, or otherwise not in accord ance with law. 5 U.S.C. § 7703(c). Statutory or regulatory interpretati ons, ho wever, like other questions of law, are reviewed de novo. Kindall v. Office of Pers. Mg mt. , 347 F.3d 930, 932 (Fed. Cir. 2003). As a preliminary matter, petitioner asserts that the CSRS definit ion of "firefighter" must apply through November 19, 1988, the terminal date of his position, because a service position cannot be temporally bifurc ated. This argument lacks merit. Because he had fewer than five years of service as of January 1, 1987, the AJ correctly found that petitioner was subject to FERS as s oon as the Federal Employees Retirement System Act of 1986, 5 U.S.C. §§ 8401-8479, became effective. See 5 U.S.C. § 8402; Connor v. Office of Pers. Mgmt. , 104 F.3d 1344, 1348 (Fed . Cir. 1997) (construing § 8402(b)(2)(B) to allow employees who have acc u mulated fiv e years of creditable service before January 1, 1987 to opt out of FERS and remain covered under CSRS instead). The FERS Act, by its express te rms, became effective on January 1, 1987. Therefore, petitioner's cont inued service after that date was gov erned by F E RS ev en though his position did not change. Petitioner di d not cite any authority to the contrary.

06-3121 6On the merits, substantial evidence s upports the AJ's finding that petitioner's primary duties before December 31, 1986 did not inv o lve the type of firefighting work contemplated by the CSRS definition. In extending special reti rement benefits to firefighters, Congress intended " t hat employ ees must be expos ed to some hazard t o qualify even under the maint enance and use claus e." Felz ien , 930 F.2d at 902; see also H.R. Rep. No. 92-840 (1972), reprinted in 197 2 U.S.C.C.A.N. 2941, 2944. Until June 1986, however, petitioner's maintenance and repair of electronic communications equipment was confined to the safe ty of the radio shop. With respect to the four fires in June 1986, the AJ recognized t hat petitioner's duties performed while ass i gn ed to the command center were similar to Felzien's work as a communications officer. Yet, unlike Felzien, who had done such work regular ly, petitioner's expos ure to haz ardous fire conditions was limited to this one occasion. This wa s insu fficient to demo n strate that the primary duties of his Electronic Mechanic position deviated from his official job description and concer ned front-line firefighting activity. Petitioner concedes that t he definition of "firefight er" under FERS is more restrictive. Not only was the "s ufficiently rigorous" clause added by the FERS Act, but
the "maintenance and us e of firefighting apparatus and equipment" clause was deleted. Moreover, the Senate Report expressly states that the FERS definition only applies where the employee "will actually and direct ly participate in firefi ghting activities." S. Rep. No. 99-166, at 40 (1985), reprinted in 1986 U.S.C.C.A.N. 14 04, 1445. We have previously found that "work direc t ly connect ed with the c ontrol and extinguishment of fires" means "the type of front-line firefi ghting duties so obv iously haz ardous and physically demanding that they supply the ordinary meaning of 'firefighting.' " Felz ien ,

06-3121 7930 F.2d at 902. The maintenance of firefighting equipment is perhaps indirectly connected with suc h front-line firefighti ng duties but does not satis f y 5 U.S.C. § 8401(14)(A)(i). Because bot h subsections (i) and (ii) must be satisfied to ear n firefighter credit, it is insufficient that some of petitioner's other job duties were physically rigorous. In short, the AJ correctly held that none of petitioner's service as an Electronic Mechanic after January 1, 1987 qualified fo r firefighting credit under the FERS definition. This hold ing was heavily depen dent on subsidiary findings of fact that were supported by substantial ev idenc e. Accordi ngly, none of his subs equent administrative positions c ould qualify for se condary firefighter credit. III. CONCLUS ION For these reasons, we affirm the Boar d' s decision. Petiti oner's claim for enhanced annuity benefit credit s was properly denied by the a gency whose dec i sion was lawfully and correctly upheld by the Board.
AFFIRMED

.

06-3121 8