Federal Circuit Holds MSPB Must Consider Actual Job Duties in LEO Retirement Decisions
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
The Merit Systems Protection Board (MSPB) “must afford the employee the opportunity to show that the actual duties of their position are sufficient to establish LEO status” for law enforcement retirement purposes, the Federal Circuit recently held.
In 2004, Transportation Security Administration (TSA) hired Robert Klipp to serve as a Supervisory Criminal Investigator in the position of Assistant Federal Security Director-Law Enforcement (AFSD-LE) for the New Orleans International Airport. After a year passed and TSA didn’t hire any subordinates for Klipp to supervise, the agency converted his position from supervisory to nonsupervisory. He remained in that position for the remainder of his TSA career.
After several years as the AFSD-LE in New Orleans, Klipp decided to seek Federal Employees' Retirement System (FERS) law enforcement officer (LEO) retirement benefits. People eligible for LEO retirement may retire and receive an annuity after completing either 25 years of LEO service or 20 years of LEO service service after reaching 50 years of age. LEO credit may be awarded for time service in “primary” and “secondary” law enforcement positions.
Primary law enforcement positions earning credit are those in which an employee’s duties are primarily “the investigation, apprehension, or detention” of people suspected of federal crimes, and the “protection” of federal officials “against threats to personal safety.” Those duties must be “sufficiently rigorous that employment opportunities should be limited to young and physically vigorous individuals.”
Secondary law enforcement positions are “supervisory or administrative” law enforcement positions. A person must be “transferred directly” from a primary position to receive LEO credit for their first secondary position.
In 2008, Klipp asked the Department of Homeland Security (DHS) to retroactively cover his entire TSA career as LEO service, including covering his AFSD-LE service as a “primary” law enforcement position. DHS partially denied the request, including Klipp’s request to classify the AFSD-LE service as a “primary” position. Klipp appealed the DHS decision to the Merit Systems Protection Board (MSPB).
MSPB assigned Klipp’s appeal to an Administrative Judge, who denied Klipp’s appeal. The Administrative Judge held, regarding Klipp’s AFSD-LE position, that he failed to establish the “position was created for” primary law enforcement duties. The Administrative Judge’s analysis was wrong, the U.S. Court of Appeals held on Klipp’s appeal.
The Federal Circuit held the MSPB Administrative Judge should have looked beyond the AFSD-LE position description and allowed Klipp to prove that his actual duties in the position satisfied the primary position criteria. Because agencies “will not always” keep position descriptions current, the Court held “entitlement inquiry requires consideration of both the position description and the employee’s actual duties.”
Because “must afford the employee the opportunity to show that the actual duties of their position are sufficient to establish LEO status,” the MSPB Administrative Judge erred by denying Klipp primary LEO credit for the AFSD-LE position based on the determination that the position was not “created” for primary law enforcement duties
The Federal Circuit then addressed Klipp’s other arguments on appeal, vacated the MSPB Administrative Judge’s decision, and sent the case back to MSPB for further proceedings.
Read the full Klipp v. DHS decision here.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.