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: United 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 from 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 actual primary duties met the 

statutory definition of "firefighter" under either the statute establishing the Civil Service 
Retirement System ("CSRS") or the superseding Federal Employee Retirement System

("FERS"), we affirm. 

I. BACKGROUND 

Certain federal employees who work in unusually hazardous positions are 

entitled to enhanced retirement benefits. For example, firefighters and law enforcement 

officers are eligible for voluntary retirement earlier than other federal employees, i.e., at 

any age if they have completed 25 years of service in a qualified position or at age 50 

after 20 years of service. See 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 employee, the duties of whose position are primarily to perform work 

directly connected with the control and extinguishment of fires or the 

maintenance and use of firefighting apparatus and equipment, including 

an employee engaged in this activity who is transferred to a supervisory or 

administrative position.

5 U.S.C. § 8331(21) (emphasis added). Under FERS, a "firefighter" is: 

(A) an employee, the duties of whose position – 

(i) are primarily to perform work directly connected with the control and

extinguishment of fires; 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 agency; and 

(B) an employee who is transferred directly to a supervisory or administrative 

position after performing duties described in subparagraph (A) for at least 3 

years. 

5 U.S.C. § 8401(14) (emphasis added). 

The implementing regulations mirror these statutory definitions. See 5 C.F.R.

§§ 831.902, 842.802. In addition, the regulations describe how the "primary duties" of

an employee's position are determined. The following factors are to be considered:

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(1) whether those duties constitute the basic reasons for existence of the position;

(2) whether they occupy a substantial portion of the individual's working time over a 

typical work cycle; and (3) whether they are 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 deciding whether an employee is eligible for firefighter

retirement credit, the Board has adopted the "position-oriented" approach emphasized 

in the FERS statute that focuses on the reasons for the position's existence, based on 

the official job description as well as the employee's actual 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 analytic approach

for law enforcement officers). 

* * * 

Petitioner is employed by the Alaska Fire Service in the Bureau of Land 

Management, within the Department of the Interior ("agency"). Since July 26, 1984, he 

has held the following positions: 

7/26/84–7/20/85 Electronic Mechanic 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 Telecommunications Specialist GS-0391-11 

9/8/02–6/28/03 Infotech Specialist (Network) GS-2210-11 

6/29/03–11/01/03 IT Specialist (SYS ADMIN) GS-2210-11 

11/02/03–present IT Specialist (SYS ADMIN) GS 2210-12 

06-3121 3
In December 2003, petitioner submitted a claim seeking firefighter retirement credits. 

The agency denied his claim by letter dated November 18, 2004. Petitioner timely 

appealed to the Board. 

On July 29, 2005, an administrative judge ("AJ") issued an initial decision

agreeing with the agency that petitioner was never a firefighter within the statutory 

meaning of the word under CSRS or FERS. The AJ first determined that petitioner's

service was covered by CSRS through December 31, 1986 and by FERS since

January 1, 1987, its effective date. Weatherby, slip op. at 6-7. 

The AJ found that petitioner's first job as an Electronic Mechanic Helper involved 

the maintenance and repair of electronic communications equipment used by 

firefighters but did not satisfy the CSRS definition because his duties were performed 

solely in the radio shop, not at the fire scene. 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 work sometimes performed in "extremely

cold, windy weather on mountaintops." With respect to petitioner's actual day-to-day 

duties, he was not assigned to any fire incidents until June 1986, when he was sent to a 

command center1

 handling four simultaneous fires in Alaska. The AJ acknowledged 

that petitioner's work installing repeaters2

 and distributing radio kits3 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 large mast antenna and a power source 

temporarily installed on a mountaintop to facilitate radio communications among 

firefighters. Petitioner was responsible for installing and maintaining repeaters during 

the fire and removing them afterwards. 

3

 A radio kit is a set of sixteen handheld radios issued to firefighters. 

06-3121 4
fires was similar to the type of work found to satisfy the CSRS definition of "firefighter" in 

Felzien v. Office of Personnel Management, 930 F.2d 898, 903 (Fed. Cir. 1991).

Weatherby, slip op. at 12. The AJ noted that only other fire-related incident to which 

petitioner was assigned before December 31, 1986 was a temporary assignment to the 

Boise Interagency Fire Center—i.e., not on the fire line—in August 1986. Id., slip op. at 

11. Because petitioner's exposure to hazardous fire conditions was limited to a single 

occasion in June 1986—unlike Mr. Felzien, who worked at "hundreds of fires," Felzien

930 F.2d at 899—the AJ declined to find that the primary duties of his service before 

December 31, 1986 met the CSRS definition 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 Felzien, found that work with repeaters and radio kits was not 

the type of front-line firefighting duties that would satisfy the first clause of the CSRS 

definition—i.e., "work directly connected with the control and extinguishment of fires." 

Id., slip op. at 13. Because this language was preserved in the FERS definition of

"firefighter," the AJ determined that petitioner's work after January 1, 1987 was not 

eligible for firefighter credit. Id. The AJ similarly concluded that petitioner's other

positions as an Electronic Mechanic did not meet the FERS definition of "firefighter." 

Id., slip op. at 13-15. Having found that no service from July 26, 1984 to July 20, 1997 

was entitled to primary firefighter coverage under 5 U.S.C. § 8401(14)(A), the AJ found

that petitioner was not entitled to "secondary" firefighter coverage under 5 U.S.C. 

§ 8401(14)(B) for any service thereafter in administrative or supervisory positions. Id., 

slip op. at 15. 

06-3121 5
On August 29, 2005, petitioner sought review from the full Board. On 

December 29, 2005, the Board denied further review, rendering the AJ's decision final.

This timely appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

II. DISCUSSION 

We review the Board's decision by determining whether any agency action,

findings or conclusions are unsupported by substantial evidence or are arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.

§ 7703(c). Statutory or regulatory interpretations, however, like other questions of law, 

are reviewed de novo. Kindall v. Office of Pers. Mgmt., 347 F.3d 930, 932 (Fed. Cir. 

2003). 

As a preliminary matter, petitioner asserts that the CSRS definition of "firefighter" 

must apply through November 19, 1988, the terminal date of his position, because a 

service position cannot be temporally bifurcated. 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 soon 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 accumulated five 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 terms, became effective on January 1, 1987. 

Therefore, petitioner's continued service after that date was governed by FERS even 

though his position did not change. Petitioner did not cite any authority to the contrary. 

06-3121 6
On the merits, substantial evidence supports the AJ's finding that petitioner's

primary duties before December 31, 1986 did not involve the type of firefighting work

contemplated by the CSRS definition. In extending special retirement benefits to 

firefighters, Congress intended "that employees must be exposed to some hazard to

qualify even under the maintenance and use clause." Felzien, 930 F.2d at 902; see 

also H.R. Rep. No. 92-840 (1972), reprinted in 1972 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 safety of the radio shop. With respect to the four fires in 

June 1986, the AJ recognized that petitioner's duties performed while assigned to the 

command center were similar to Felzien's work as a communications officer. Yet, unlike 

Felzien, who had done such work regularly, petitioner's exposure to hazardous fire 

conditions was limited to this one occasion. This was insufficient to demonstrate that 

the primary duties of his Electronic Mechanic position deviated from his official job 

description and concerned front-line firefighting activity. 

Petitioner concedes that the definition of "firefighter" under FERS is more 

restrictive. Not only was the "sufficiently rigorous" clause added by the FERS Act, but 

the "maintenance and use 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 directly participate in firefighting activities." 

S. Rep. No. 99-166, at 40 (1985), reprinted in 1986 U.S.C.C.A.N. 1404, 1445. We have 

previously found that "work directly connected with the control and extinguishment of 

fires" means "the type of front-line firefighting duties so obviously hazardous and 

physically demanding that they supply the ordinary meaning of 'firefighting.'" Felzien, 

06-3121 7
930 F.2d at 902. The maintenance of firefighting equipment is perhaps indirectly

connected with such front-line firefighting duties but does not satisfy 5 U.S.C. 

§ 8401(14)(A)(i). Because both subsections (i) and (ii) must be satisfied to earn 

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 for firefighting credit under the FERS 

definition. This holding was heavily dependent on subsidiary findings of fact that were 

supported by substantial evidence. Accordingly, none of his subsequent administrative 

positions could qualify for secondary firefighter credit. 

III. CONCLUSION 

For these reasons, we affirm the Board's decision. Petitioner's claim for 

enhanced annuity benefit credits was properly denied by the agency whose decision 

was lawfully and correctly upheld by the Board. 

AFFIRMED. 

06-3121 8