Francis Edward McGuire, Jr. v. Department of Homeland Security

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3077
FRANCIS EDWARD MCGUIRE, JR.,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Francis Edward McGuire, Jr., of St. Simons, Georgia, pro se.
Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on the
brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and
Kathryn A. Bleecker, Assistant Director. Of counsel on the brief was Margaret Wright,
Office of Chief Counsel, Federal Law Enforcement Training Center, United States
Department of Homeland Security.
Appealed from: United States Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3077
FRANCIS EDWARD MCGUIRE, JR.,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
___________________________
DECIDED: July 11, 2007
___________________________
Before MAYER, RADER, and MOORE, Circuit Judges.
PER CURIAM.
The Merit Systems Protection Board ("Board") affirmed the decision of the
Federal Law Enforcement Training Center ("FLETC") denying Mr. Francis E. McGuire,
Jr. secondary Law Enforcement Officer ("LEO") retirement credit. Francis E. McGuire,
Jr. v. Department of Homeland Security, MSPB Docket No. AT-0831-06-0472-I-1 (Initial
Decision, July 19, 2006; Final Decision, October 19, 2006). Because the Board
properly found that Mr. McGuire did not serve in a primary LEO position, this court
affirms.
I
Mr. McGuire claims secondary LEO retirement credit for the years he worked at
the FLETC. Title 5 provides secondary LEO credit only to employees that have first
worked in a primary LEO position. 5 U.S.C. § 8401(17).

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Mr. McGuire worked for the United States Capitol Police ("USCP") between 1984
and 1993. On January 9, 1993, he transferred to the FLETC without a break in service.
In 1999, Mr. McGuire applied for secondary LEO retirement credit based on his service
at the FLETC. The FLETC approved his application in 2002. In 2006, however, the
FLETC notified Mr. McGuire that the 2002 approval was in error because he was
ineligible for secondary LEO credit. Mr. McGuire subsequently appealed to the Board
and then to this court.
The Federal Employees’ Retirement System ("FERS") grants enhanced
retirement benefits to employees who qualify as LEOs. 5 U.S.C. § 8412(d)(2).
Employees that complete at least three years in a primary LEO position receive a
continued accrual of credit toward enhanced benefits after transferring to a secondary
LEO position. 5 U.S.C. § 8401(17)(C). Primary LEO positions are individuals with
primary duties including "the investigation, apprehension, or detention of individuals
suspected or convicted of offenses against the criminal laws of the United States" or
"the protection of officials of the United States against threats to personal safety." 5
U.S.C. § 8401(17)(A)(i)(I)-(II). Secondary LEO status may apply to supervisory and
administrative positions. 5 U.S.C. § 8401.
Even though Mr. McGuire’s duties as a capitol police officer included "the
protection of officials of the United States," Mr. McGuire’s work as a member of the
USCP does not qualify for primary LEO retirement credit. This court’s holding in
Poillucci v. Department of Justice, 459 F.3d 1351 (Fed. Cir. 2006) thus controls this
case. In Poillucci, a former member of the USCP claimed secondary LEO credit from
the FLETC, just as Mr. McGuire does now. This court affirmed the Board’s
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interpretation of 5 U.S.C. § 8412(d) that "member[s] of the Capitol Police" are treated
differently from other statutory "law enforcement officers." Poillucci, 459 F.3d at 1353-
54.
Although members of the USCP receive some enhanced retirement benefits in 5
U.S.C. § 8412(d)(2), those benefits are distinct from statutory LEO employees. Id. at
1354. The Capitol Police Retirement Act ("CPRA") of 1990 added the explicit category
for "member[s] of the Capitol Police" precisely because USCP employees did not
receive LEO credit or LEO classification under § 8412(d). See id.; Pub.L. 101-428, §
3(a), Oct. 15, 1990, 104 Stat. 929. The CPRA did not alter the definition of a "law
enforcement officer" to include USCP employees and thus USCP employees do not
gain LEO status. Poillucci, 459 F.3d at 1353-54. As Poillucci makes clear, the
definition of a LEO in 5 U.S.C. § 8401(17) does not apply to members of the Capitol
Police. Thus, a USCP employee does not qualify as a primary LEO employee.
Mr. McGuire claims that, unlike the petitioner in Poillucci, he followed the Office
of Personnel Management ("OPM") Individual Service Credit process and provided
convincing evidence that his duties as a member of the USCP fell within the statutory
definition of a LEO employee. Neither of these arguments effectively distinguishes Mr.
McGuire’s case from Poillucci. Although Mr. McGuire followed the OPM process, he
still cannot receive benefits that are not authorized by statute. See Office of Personnel
Management v. Richmond, 496 U.S. 414, 425-27 (1990). Poillucci makes clear that,
despite the nature of Mr. McGuire’s actual duties, the LEO definition in 5 U.S.C. §
8401(17) does not apply to USCP employees. 459 F.3d at 1353-54.
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2007-3077 4
Because Mr. McGuire’s service with the USCP did not qualify for primary LEO
credit, he cannot receive secondary LEO credit based on his service with the FLETC.
For the above reasons, this court affirms the decision of the Board.

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