James A. Lowder v. Department of Homeland Security

United States Court of Appeals for the Federal Circuit
2006-3181
JAMES A. LOWDER,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Kevin P. Anderson, Wiley Rein & Fielding LLP, of Washington, DC, argued for
petitioner.
Kenneth S. Kessler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. On
the brief were Peter D. Keisler, Acting Attorney General and Steven J. Gillingham,
Assistant Director.
Appealed from: United States Merit Systems Protection Board

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United States Court of Appeals for the Federal Circuit
2006-3181
JAMES A. LOWDER,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
__________________________
DECIDED: October 16, 2007
__________________________
Before RADER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and MOORE, Circuit
Judge.
FRIEDMAN, Senior Circuit Judge.
The question is whether the appellant James A. Lowder’s service with the United
States Secret Service Uniformed Division (“Uniformed Division”) qualifies as “law
enforcement officer” service. If so, he would be entitled to the higher retirement benefits
that such officers receive. The Merit Systems Protection Board (“Board”) determined,
however, that Mr. Lowder’s service did not so qualify, and we affirm.
I
A. Federal “law enforcement officers” may receive more favorable retirement
benefits than most federal employees. They may retire earlier, at age 50, after 25 years
of such service, rather than at age 55 and after 30 years of service. They also receive a
higher annuity. In return for these benefits, they are required to contribute a slightly

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higher portion of their pay toward those benefits. 5 U.S.C. §§ 8334(c), 8336(a),
8336(c)(1), 8412(a), 8412(d), 8422(a)(2) (2000).
“Law enforcement officer” positions may be either “primary” or “secondary.”
5 C.F.R. §§ 831.902, 842.802. Primary positions are those where the employee directly
performs law enforcement officer duties. Id. Secondary positions are generally
supervisory or administrative law enforcement positions. Id. To qualify for law
enforcement officer retirement, an employee must have a specified period of primary
service. He may combine that service with secondary service to attain law enforcement
officer status by transferring directly from a primary to a secondary service position.
5 C.F.R. §§ 831.904(a), 842.803(b).
B. Mr. Lowder worked in the Uniformed Division from 1970 until
September 1978, when he voluntarily transferred to the Federal Law Enforcement
Training Center (“Training Center”). While at the Division, he was assigned to both the
White House and the Foreign Mission Division. At the White House, his regular duties
involved protecting the President of the United States, his family and the White House
grounds. At the Foreign Mission Division, he patrolled areas of Washington, DC,
functioning, in essence, as a regular Washington, DC police officer. Members of the
Uniformed Division are authorized to make arrests and are required to carry a firearm.
The maximum entry age for the Division was 28, and retirement was mandatory at age
59. Employees of the Division were required to have an annual physical examination.
At the time of Lowder’s service with the Uniformed Division, the Division
members’ retirement benefits were provided under the District of Columbia Police and
Firefighters’ Retirement System (“District of Columbia System”). That system had
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superior benefits to the Civil Service Retirement System. When Lowder transferred to
the Training Center in 1978, however, he became subject to the Civil Service
Retirement System (“Civil Service System”) and received retroactive service credit
under that system for his service with the Uniformed Division.
C. The government recognizes that Lowder’s work at the Training Center
constituted secondary law enforcement officer service. Whether Lowder qualifies for
law enforcement officer retirement benefits thus depends on whether his Uniformed
Division service was primary law enforcement officer service.
In 2004, the Treasury Department (of which the Secret Service was a part),
overruling a prior determination, ruled that Lowder’s service with the Uniformed Division
did not constitute “law enforcement officer” service and that he, therefore, did not qualify
for law enforcement officer retirement benefits.
Lowder appealed that ruling to the Board, which affirmed. In his initial decision,
which became final when the Board denied review of it, the Board’s administrative judge
found that Lowder’s “duties as an officer with the [Uniformed Division] largely involved
the protection of life and property, with particular focus on the president and his family,
and included patrolling, enforcing traffic laws, acting as a first responder with regard to
public disturbances or other incidents, and conducting preliminary investigations.” The
administrative judge held that Lowder’s service in the Uniformed Division “was not in a
position which existed for the purpose of investigating, apprehending, or detaining
individuals suspected or convicted of violating the criminal laws of the United States”
and, therefore, did not constitute law enforcement officer service.
II
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A. The governing statute defines a “law enforcement officer” as “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), 8401(17). An OPM implementing regulation states
that “law enforcement officer” “does not include an employee whose primary duties
involve maintaining order, protecting life and property, guarding against or inspecting for
violations of law, or investigating persons other than those who are suspected or
convicted of offenses against the criminal laws of the United States.”
5 C.F.R. § 831.902. Under the Federal Employees’ Retirement System, one of two
federal retirement systems (the other being the Civil Service Retirement System, see
Part III, below), to qualify as a “law enforcement officer” the duties of the position must
be “sufficiently rigorous that employment opportunities are required to be limited to
young and physically vigorous individuals.” 5 U.S.C. § 8401(17).
In determining whether a particular employee is a “law enforcement officer,” we
use a “position-oriented approach” that emphasizes “the official documentation of the
position” in evaluating whether “the ‘basic reasons for the existence of the position’ was
the investigation, apprehension, or detention of criminals or suspects.” Watson v. Dep’t
of the Navy, 262 F.3d 1292, 1304 (Fed. Cir. 2001) (citations omitted). Thus, “a federal
police officer seeking [law enforcement officer] credit must prove that he or she
occupied a position that primarily required the investigation, apprehension, or detention
of criminals or suspects, rather than merely the protection of life or property . . . .“ Id.
Under these standards, we have no basis for rejecting the Board’s conclusion
that, while employed in the Uniformed Division, Lowder was not a “law enforcement
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officer.” The Board determined that Lowder’s duties there “largely involved the
protection of life and property, with particular focus on the president and his family, and
included patrolling, enforcing traffic laws, acting as a first responder with regard to
public disturbances or other incidents, and conducting preliminary investigations.”
Based on this finding, the Board justifiably concluded that Lowder’s service was not in a
“position which existed for the purpose of investigating, apprehending, or detaining
individuals suspected or convicted of violating the criminal laws of the United States.”
The record supports those findings. Lowder testified that when assigned to the
White House his “primary duty was protecting the President of the United States, his
family, and the grounds,” and that when he was assigned to the Foreign Missions
Division, his “primary duty was walking on foot patrol or driving a scout car and
enforcing laws in Washington, DC.” These are not the duties that, under the statutory
definition, the OPM regulations and our decisions, qualify an employee for “law
enforcement officer” status.
The classification of Lowder’s position with the Uniformed Division further
supports the Board’s decision. During the time he so served, his position was classified
under the federal government’s general classification system in the 083 Police Series.
OPM’s classification guide describes the “primary duties” of those positions as “the
performance or supervision of law enforcement work in the preservation of peace; the
prevention, detection, and investigation of crimes; the arrest or apprehension of
violators; and the provision of assistance to citizens in emergency situations, including
the protection of civil rights.” Grade Evaluation Guide for Police and Security Guard
Positions in Series, GS-0083/GS-0085 at 2, April 1988. The Guide further explains that
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“[t]he primary mission of police officers in the Federal service is to maintain law and
order. In carrying out this mission, police officers protect life, property, and the civil
rights of individuals.” Id.
In Watson, we stated that “the official documentation of the GS-083 series
indicates that all officers in that series in all departments of the federal government are
presumptively not entitled to [law enforcement officer] credit. Thus, officers in that
series would only be eligible for such credit if they could persuade the agency or Board
that ‘contrary to the official documentation of the position,’ the duties actually performed
by the officers on a regular and recurring basis clearly indicate that the ‘basic reasons
for the existence of the position’ was the investigation, apprehension, or detention of
criminal suspects.” 262 F.3d at 1304 (citations omitted). Lowder has not so shown.
As the Board stated, the “classic police functions” as described in the
Classification Guide, “dedicated to ‘maintaining order, protecting life and property, and
guarding against or inspecting for violations of law, while unquestionably critical to the
functioning of civil society itself, and involving both the exercise of sensitive judgment,
and potential exposure to diverse personal hazards, are nonetheless specifically
excluded from the legal definition of [law enforcement officer] under the CSRS
regulations.”
B. Lowder contends, however, that the Board decision was fatally defective
because the Board’s opinion did not explicitly discuss several of his contentions. He
infers that, in the absence of such discussion, the Board must be deemed not to have
considered them.
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The failure to discuss particular contentions in a case, however, does not mean
that the tribunal did not consider them in reaching its decision. See Hartman v. DVA,
483 F.3d 1311, 1315 (Fed. Cir. 2007) (“’That the court did not specifically mention the
[argument] in its opinion forms no basis for an assumption that it did not consider [it] . . .
.’”). See, also Charles G. Williams Const., Inc. v. White, 326 F.3d, 1376, 1380 (Fed. Cir.
2003) (stating “[t]he Board’s failure to discuss the evidence upon which Williams relies
does not mean that it did not consider it”); Carolina Tobacco Co. v. Bureau of Customs
and Border Prot., 402 F.3d 1345, 1350 (Fed. Cir. 2005) (stating “a district court’s failure
to discuss an issue does not necessarily establish that the court did not consider it”).
All that it means is that the author of the opinion, for whatever reasons, did not deem it
necessary or appropriate specifically to discuss those points. The author of an opinion
has broad discretion to determine what the opinion should contain and in what detail.
As we recently stated, a “’litigant’s right to have all issues fully considered and ruled on
by the appellate court does not equate to a right to a full written opinion on every issue
raised.’” Bernklau v. Principi, 291 F.3d 795, 801 (Fed. Cir. 2002) (quoting United States
v. Garza, 165 F.3d 312, 314 (5th Cir. 1999)). “While it may be desirable in some cases
to afford each issue a complete written discussion, no statute or rule compels such an
approach . . . .” Id. (citation omitted).
In this case the administrative judge wrote a detailed opinion that convincingly
explained why Lowder’s service with the Uniformed Division was not as a “law
enforcement officer.” No more detailed discussion was required.
C. Lowder argues that the administrative judge improperly excluded the
testimony of three witnesses that he wanted to present. One of the witnesses, a
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supervisor at the Training Center, was expected to testify that he hired only people with
prior law enforcement officer experience and that he considered former officers of the
Uniformed Division as such people. The other two witnesses were expected to testify
about the legal issues in the case.
Although Lowder himself testified at length and submitted documentary evidence,
the administrative judge declined to hear those three witnesses because their testimony
would have been “cumulative or insufficiently probative.” The decision whether to admit
particular evidence is within the discretion of the administrative judge. Davis v. Office of
Pers. Mgmt., 918 F.2d 944, 946 (Fed. Cir. 1990). One of the three witnesses’ testimony
related to a peripheral matter of minor relevance. The other two witnesses’ testimony
involved opinions on legal issues that were of dubious relevance. The administrative
judge did not abuse his discretion in refusing to permit those three witnesses to testify.
III
Lowder contends, however, that his claim to “law enforcement officer” status
should have been determined not under the Civil Service Retirement System (as the
Board and this court have done), but under the later-enacted Federal Employees’
Retirement System. He argues that under the latter system, he should have prevailed.
The Federal Employees’ Retirement System, created by a statute in 1986,
provides a parallel alternative retirement system for federal employees. See, e.g., King
v. Merit Sys. Prot. Bd., 105 F.3d 635, 636 (Fed. Cir. 1997). The new system’s definition
of “law enforcement officer” was substantially identical to that of the Civil Service
Retirement System. In a 1988 amendment, however, the definition was amended to
add the following to the definition of that term:
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(B) an employee of the Department of the Interior
or the Department of the Treasury (excluding any employee
under subparagraph (A)) who occupies 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, as
determined by the Secretary of the Interior or the Secretary
of the Treasury, as appropriate.
Act of Jan. 8, 1988, Pub. L. 100-238, § 103(c), 101 Stat. 1744. Lowder argues that this
amended definition covers his service with the Uniformed Division.
This contention has two fatal flaws.
First, Lowder seeks to apply the amended definition of “law enforcement officer”
enacted in 1988 to service he performed from 1970 to 1978. Federal statutes will not
be given retroactive effect, however, unless Congress clearly indicates its intention to
do so. See Bernklau, 291 F.3d 795 at 804 (stating “the Supreme Court has also held
repeatedly that federal legislation is to be construed to avoid retroactivity unless we can
discern clear congressional intent for that result”). Congress has not indicated any
intent to make the new definition retroactive.
Second, the new definition would not help Lowder. It adds to the definition of
“law enforcement officer” “an employee . . . who occupies 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.” In other words,
it covers employees who lost their coverage under the DC Police and Firefighters’
Retirement System as a result of the enactment of the 1986 Act.
Lowder, however, lost his coverage under the DC retirement system not because
of the 1986 Act, but because in 1978 he voluntarily transferred from his position in the
Uniformed Division (which the DC system covered) to the Training Center, whose
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2006-3181 10
employees were covered by the Civil Service Retirement Act. The 1988 expanded
definition of “law enforcement officer” simply does not cover Lowder.
CONCLUSION
The decision of the Board that Lowder’s service with the Uniformed Division was
not “law enforcement officer” service is
AFFIRMED.

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