Before Plager, Schall, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Donna M. Hill petitions for review of the final decision of the Merit Systems Protection Board ("Board") that sustained the denial of her request for law enforcement officer ("LEO") service credit under the Federal Employees Retirement System ("FERS"). The Board determined that Ms. Hill was not entitled to such credit because she did not meet the requirements for LEO status set forth in 5 U.S.C. § 8401(17) and 5 C.F.R. § 842.803(b)(1)(ii). See Hill v. Department of Justice, No. DC-0842-99-0105-I-1 (Mar. 19, 1999). We affirm.
Ms. Hill was employed by the Bureau of Prisons ("BOP") of the Department of Justice ("DOJ") in a primary LEO position *fn1 from November 4, 1990 until February 9, 1992. At that time, she was voluntarily transferred to an administrative secondary LEO position, where she served until August 20, 1992, when she was promoted to another administrative secondary LEO position. On July 19, 1998, she was reassigned to a non-LEO position because DOJ had determined that she did not meet the requirements for secondary law enforcement retirement coverage. Ms. Hill appealed this determination through DOJ channels, and, on October 22, 1998, DOJ issued a final decision determining that she was not entitled to secondary law enforcement retirement coverage.
Ms. Hill appealed the decision to the Board's Washington Regional Office, and the administrative Judge ("AJ") issued an initial decision affirming DOJ's determination. See Hill v. Department of Justice, No. DC-0842-99-0105-I-1 (Mar. 19, 1999). In particular, the AJ concluded that Ms. Hill was not eligible for LEO credit under the FERS in her secondary LEO positions because the positions were not rigorous and did not involve frequent and direct contact with detainees, as required by 5 U.S.C. § 8401(1)(A) and (D), and because she had not served in a primary LEO position for three years before she was transferred to the secondary positions, as required by 5 U.S.C. § 8401(1)(C) and 5 C.F.R. § 842.803(b)(1)(ii). This decision became the final decision of the Board on April 23, 1999.
Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board's decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703; Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). The decision of the Board in this case is none of these.
Ms. Hill argues that her LEO status should be determined under 5 U.S.C. § 8401(17)(D). This statute provides that employees of BOP "whose duties . . . require frequent direct contact with . . . individuals [in detention] . . . and are sufficiently rigorous that employment opportunities should be limited to young and physically vigorous individuals" are LEOs. 5 U.S.C. § 8401(17)(D). The Board found that Ms. Hill could not be an LEO under this statute because her secondary LEO positions were not rigorous and did not involve frequent contact with detainees. Ms. Hill does not challenge this characterization of her positions, but instead argues that because other employees performing the same duties that she performs qualify as LEOs, she also qualifies as an LEO. These other employees, however, served in primary LEO positions for at least three years before being transferred to their current positions; accordingly, their LEO status is conferred by 5 U.S.C. § 8401(17)(C), which encompasses employees transferred directly to administrative or supervisory positions after serving in primary LEO positions for at least three years. See 5 U.S.C. § 8401(17)(C). Because Ms. Hill served in a primary LEO position for only 15 months, she does not qualify as an LEO under § 8401(17)(C).
Ms. Hill argues that she must be an LEO under § 8401(17)(D) because the statute gives agencies discretion to determine which positions fall within its definition of LEOs, and because DOJ has determined that a person performing the duties of her positions can qualify as an LEO under § 8401(17). Ms. Hill also argues that her LEO status should be determined by the duties she performs, not her work experience. We must reject these arguments.
Under § 8401(17)(D), LEO status is defined by the duties performed by the employee-these duties must require frequent direct contact with detainees and be rigorous, as determined by the agency. See 5 U.S.C. § 8401(17)(D). Under § 8401(17)(C), however, LEO status is defined by both the duties performed by, and the work experience of, the employee-the duties must be administrative or supervisory and the employee must have served in a primary LEO position for at least three years. See 5 U.S.C. § 8401(17)(C). In the regulations implementing § 8401(17), positions that meet the definition of § 8401(17)(D) are called "rigorous" positions, whereas administrative and supervisory positions are called "secondary" positions. See 5 C.F.R. § 842.802.
From the outset, DOJ classified Ms. Hill's administrative positions as "secondary" positions. Moreover, the Board found that Ms. Hill's administrative positions did not require frequent direct contact with detainees and were not rigorous. Thus, in these positions, Ms. Hill could qualify as an LEO only under § 8401(17)(C). Because she does not meet the three-year service requirement set forth in this ...