Michael V. Poillucci v. Department of Justice

United States Court of Appeals for the Federal Circuit
2006-3160
MICHAEL V. POILLUCCI,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Michael V. Poillucci, of St. Simons Island., Georgia, pro se.
J. Reid Prouty, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Franklin E. White, Jr., Assistant Director.
Appealed from: United States Merit Systems Protection Board

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United States Court of Appeals for the Federal Circuit
2006-3160
MICHAEL V. POILLUCCI,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
___________________________
DECIDED: August 18, 2006
___________________________
Before BRYSON, Circuit Judge, ARCHER, Senior Circuit Judge, and LINN, Circuit
Judge.
BRYSON, Circuit Judge.
Michael V. Poillucci appeals from a decision of the Merit Systems Protection
Board regarding his eligibility for law enforcement officer retirement credit. Mr. Poillucci
appealed to the Board from a decision of the Office of Personnel Management (“OPM”)
denying Mr. Poillucci’s request for law enforcement officer retirement credit for his
service with the Federal Law Enforcement Training Center. We agree with the Board
that OPM’s decision accorded with the statutes governing retirement credit for law
enforcement officers and members of the Capitol Police, and we therefore affirm.
I
Generally, the Federal Employees’ Retirement System Act provides an annuity to
employees who retire after reaching age 55 and completing at least 30 years of service.
5 U.S.C. § 8412(a). However, an employee who serves in one of several specified

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positions is entitled to an annuity upon retirement after completing 20 years in such a
position if the employee retires after reaching age 50, or after completing 25 years in
such a position regardless of the employee’s age at retirement. 5 U.S.C. § 8412(d).
Prior to 1990, those early retirement benefits were accorded to employees who
completed the required years of service as a “law enforcement officer or firefighter.” In
that year, Congress enacted the Capitol Police Retirement Act, Pub. L. No. 101-428,
104 Stat. 928 (1990), which amended 5 U.S.C. § 8412(d) to extend the early retirement
benefit to any employee who completed the required years of service as a “law
enforcement officer, member of the Capitol Police, or firefighter.”
For purposes of the early retirement benefit, section 8401(17) of title 5 provides
that a “law enforcement officer” receives law enforcement officer retirement credit for
time served in either a primary or secondary law enforcement position. Primary
positions are those in which the employee is directly performing the duties of a law
enforcement officer, such as investigating or apprehending criminals. 5 U.S.C.
§ 8401(17)(A)(i). Secondary positions are supervisory or administrative positions. Law
enforcement officer retirement credit for secondary positions is available only when an
employee serves at least three years in a primary law enforcement position and then
transfers directly to the secondary position. Id. § 8401(17)(C). Section 8401(14)
contains a similar provision for primary and secondary firefighter positions, but there is
no similar provision for members of the Capitol Police.
Mr. Poillucci served as an officer with the Capitol Police beginning in January
1989. On January 27, 2002, he transferred to the position of Firearms Training
Specialist for the Bureau of Alcohol, Tobacco and Firearms (“ATF”) at the Federal Law

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2006-3160 3
Enforcement Training Center, where he served until December 28, 2002. The question
raised by Mr. Poillucci’s appeal is whether he is entitled to secondary law enforcement
officer retirement credit for his service at the Federal Law Enforcement Training Center.
When Mr. Poillucci took the position with ATF, the Department of the Treasury
changed his retirement status to the regular Federal Employees’ Retirement System
(“FERS”) rather than the special FERS law enforcement officer retirement status that he
had enjoyed while he was a member of the Capitol Police. On March 4, 2002, Mr.
Poillucci asked ATF to review his position description and classify his position as a
“secondary administrative” law enforcement officer position so that he would receive law
enforcement officer retirement credit for the period he was in that position. Neither ATF
nor the Department of the Treasury responded to his request at that time. In January
2003, ATF became part of the Department of Justice, and Mr. Poillucci continued to
press his claim that he was entitled to secondary law enforcement officer retirement
credit for the period he had worked at the Federal Law Enforcement Training Center. In
its responses to congressional inquiries made on Mr. Poillucci’s behalf, OPM in July
2003 explained that Mr. Poillucci was not eligible for secondary law enforcement officer
retirement credit because his position with the Capitol Police did not qualify as a
statutory “law enforcement officer” position.
In March 2004, the Department of Justice sent a letter to Mr. Poillucci stating that
his service with the Federal Law Enforcement Training Center qualified for secondary
law enforcement officer retirement credit. Three months later, however, after having
received contrary legal advice from OPM, the Department of Justice notified Mr.
Poillucci that its March 29, 2004, letter was in error and that his service with the Law

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2006-3160 4
Enforcement Training Center did not qualify for secondary law enforcement officer
retirement credit.
Pursuant to 5 C.F.R. § 842.807(a), Mr. Poillucci appealed to the Merit Systems
Protection Board from that decision. The Board, however, upheld the agency’s ruling.
The administrative judge who was assigned to Mr. Poillucci’s appeal concluded that a
position with the Capitol Police did not qualify as a primary law enforcement position
that could serve as the basis for obtaining law enforcement officer retirement credit for
time served in a secondary law enforcement position. The administrative judge reached
that conclusion because he interpreted the relevant statutes as treating Capitol Police
officers separately from “law enforcement officers.” The full Board affirmed the
administrative judge’s decision. Mr. Poillucci now petitions for review by this court.
II
The government concedes that if Capitol Police officers are “law enforcement
officers” within the meaning of the pertinent statutory provisions, Mr. Poillucci is entitled
to secondary law enforcement officer retirement credit for his service at the Federal Law
Enforcement Training Center. The government argues, however, that the Board was
correct to hold that service as a member of the Capitol Police does not constitute
service as a “law enforcement officer” within the meaning of the statute. If that is so, Mr.
Poillucci did not transfer from a primary law enforcement position when he transferred to
the Federal Law Enforcement Training Center, and he is not entitled to secondary law
enforcement officer retirement credit for his service as a Firearms Training Specialist
with ATF.

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2006-3160 5
1. We agree with the government’s interpretation of the relevant statutes.
Section 8401(17) of title 5, which defines “law enforcement officer,” sets forth the
conditions for obtaining secondary law enforcement officer retirement credit. Section
8401(17)(C) defines “law enforcement officer” to include “an employee who is
transferred directly to a supervisory position after performing duties described in
[section 8401(17)(A) or (B)] for at least three years.” Mr. Poillucci argues that the duties
of a Capitol Police officer fit within the description of duties listed in section
8401(17)(A)(i)(I) and (II) and therefore that his service in the Capitol Police qualifies as
service as a primary law enforcement officer. The problem with that argument is that
when Congress first extended early retirement benefits to Capitol Police officers through
the enactment of the Capitol Police Retirement Act, it did so by adding the phrase
“member of the Capitol Police” to section 8412(d) rather than by including the Capitol
Police within the definition of “law enforcement officer” in section 8401(17).
The fact that Congress listed the Capitol Police separately from “law enforcement
officers” in section 8412(d) results in members of the Capitol Police being subject to
different treatment from statutory “law enforcement officers” in certain respects, some
favorable and some unfavorable. As the administrative judge pointed out, one
consequence of Congress’s decision to treat the Capitol Police as a separate group
under the statute, rather than simply including them within the definition of “law
enforcement officers,” is that all members of the Capitol Police are entitled to the
statutory early retirement benefits. By contrast, members of other federal law
enforcement agencies are entitled to such treatment only if they satisfy the definition of
“law enforcement officer,” which requires that the duties of their particular positions be

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2006-3160 6
primarily “the investigation, apprehension, or detention of individuals suspected or
convicted of [federal] offenses” or “the protection of officials of the United States against
threats to personal safety,” and that those duties be “sufficiently rigorous that
employment opportunities should be limited to young and physically vigorous
individuals.” 5 U.S.C. § 8401(17)(A). On the other hand, the separate treatment of the
Capitol Police under the statute means that they are not entitled to the same benefits
with respect to secondary law enforcement positions as are statutory “law enforcement
officers.” Thus, because members of the Capitol Police are not “law enforcement
officers” under section 8401(17), there is no statutory basis for Mr. Poillucci’s request for
secondary retirement credit when he transferred to a supervisory or administrative
position outside of his agency. Although there are specific statutory provisions granting
early retirement benefits to law enforcement officers and firefighters who transfer to
supervisory or administrative positions after performing law enforcement or firefighting
duties for at least three years, see 5 U.S.C. § 8401(14)(B), (17)(B), there is no such
provision for members of the Capitol Police who transfer to supervisory or administrative
positions outside of their agency.
In sum, the statute makes clear that Mr. Poillucci is ineligible for secondary law
enforcement officer retirement credit because he did not transfer from a position as a
“law enforcement officer” to a secondary law enforcement position, but instead
transferred from a position as a member of the Capitol Police to a secondary law
enforcement position outside that agency. In light of the clear distinction in the pertinent
statutory provisions regarding firefighters and law enforcement officers on the one hand,

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2006-3160 7
and members of the Capitol Police on the other, we cannot hold that Mr. Poillucci is
entitled to a retirement benefit that the statute does not confer.
2. Mr. Poillucci also argues that he has been deprived of due process because
of the government’s delay in resolving his request for law enforcement officer retirement
credit. According to Mr. Poillucci, the final resolution of his case has been delayed until
he “has reached an age where he is precluded from entering into the vast majority of
federal law enforcement positions.”
At the time Mr. Poillucci transferred from the Capitol Police, OPM had taken the
position that members of the Capitol Police were not within the statutory and regulatory
definition of “law enforcement officers” and therefore were not entitled to the benefits of
5 C.F.R. part 842, subpart H, including secondary law enforcement officer status. See
57 Fed. Reg. 32,685 (July 23, 1992). Mr. Poillucci challenged OPM’s position on that
issue, as he was entitled to do. If his challenge had succeeded, he would be entitled to
the retirement credit he seeks. But the ultimate resolution of his challenge was adverse
to him, and the delay in the disposition of his claim did not deny him due process.
At the outset of his service with ATF in January 2002, ATF placed him in the
standard FERS retirement program and did not accord him law enforcement officer
status. Although he challenged that decision in March 2002, ATF did not provide a
formal response to his challenge, but instead kept him in the standard FERS retirement
program throughout his tenure with the agency. In January 2003, ATF was transferred
from the Department of the Treasury to the Department of Justice. Although the
Department of Justice did not immediately respond to Mr. Poillucci’s request for
secondary law enforcement officer retirement credit, OPM replied in July 2003 to

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2006-3160 8
congressional inquiries on his behalf by explaining that he was not entitled to the credit
he was seeking. Moreover, while the Department of Justice in March 2004 advised Mr.
Poillucci by letter that he was eligible for law enforcement officer retirement credit for the
time he worked at the Federal Law Enforcement Training Center, OPM promptly
corrected the Department’s advice and the Department withdrew that letter in July 2004.
Under these circumstances, the delay in the final resolution of Mr. Poillucci’s
challenge to his retirement status did not violate his due process rights. OPM had made
its position on this issue clear as early as 1992, and ATF placed Mr. Poillucci in the
regular FERS retirement system from the outset of his employment with that agency.
OPM set forth its position as to Mr. Poillucci’s retirement status in July 2003 and again
in 2004, and the Department of Justice reached a final decision on the issue in July
2004. While there was a lengthy delay leading to that final determination, the position of
ATF and OPM was clear from the outset, and it would have been unreasonable for Mr.
Poillucci to assume that he would succeed in his challenge to that position and to rely
on that assumption in making career decisions. To the extent that he claims that he
was misled by the position taken by the Department of Justice in its March 2004 letter
stating that he was eligible for secondary law enforcement officer status for his service
with ATF, that contention is unpersuasive. First, the Justice Department’s position was
withdrawn within four months in light of OPM’s consistent position to the contrary, a
position OPM had set forth a year earlier in its responses to the congressional inquiries
made on Mr. Poillucci’s behalf. Second, there is no legal basis for granting Mr. Poillucci
retirement benefits to which he is not entitled by statute, even though a government
agency expressed the view that he was eligible for those benefits. See Office of Pers.

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Mgmt. v. Richmond, 496 U.S. 414 (1990) (erroneous information given by government
agents regarding disability benefits, on which employee relied to his detriment, does not
bar the government from denying benefits that are not statutorily authorized). We
therefore uphold the decision of the Board denying Mr. Poillucci’s request for secondary
law enforcement officer retirement credit for the period he worked at the Federal Law
Enforcement Training Center.
AFFIRMED.

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