Bert I. Lacroix v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BERT I. LACROIX,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2024-2340
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0842-19-0090-I-1.
______________________
Decided: May 8, 2025
______________________
BERT I. L ACROIX , Silver Spring, MD, pro se.
CORINNE A NNE N IOSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, D EBORAH A NN BYNUM , P ATRICIA M. MCCARTHY ,
BRETT SHUMATE.
______________________
Before L OURIE, D YK, and REYNA, Circuit Judges.
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LACROIX v. ARMY 2
P ER CURIAM .
Bert I. LaCroix appeals pro se a final decision of the
Merit Systems Protection Board. For the following rea-
sons, we affirm.
BACKGROUND
Mr. LaCroix previously served in the Department of
the Army (“agency”) from 2004 until his resignation in Au-
gust 2016. SAppx2.1 In October 2016, Mr. LaCroix
emailed the agency requesting law enforcement officer re-
tirement coverage under the Federal Employees Retire-
ment System (“coverage”) for his time spent from
approximately March 18, 2007, through approximately Au-
gust 19, 2015, assigned to the Joint Terrorism Task Force
of the Federal Bureau of Investigation (“task force”). Id.
On February 5, 2019, the agency denied Mr. LaCroix’s re-
quest in part based upon untimeliness. Id.
Mr. LaCroix appealed the agency’s denial to the Merit
Systems Protection Board (“Board”). The Administrative
Judge (“AJ”) assigned to Mr. LaCroix’s Board appeal issued
an initial decision reversing the agency’s decision. SAppx3.
The AJ ruled that Mr. LaCroix’s October 2016 email was a
timely request for coverage under the governing regula-
tion, 5 C.F.R. § 842.804, and Mr. LaCroix had shown by a
preponderance of the evidence that he qualified for cover-
age from March 18, 2007, through August 19, 2015. Id.
The agency filed a petition for review with the Board.
The Board granted the agency’s petition for review, re-
versed the AJ’s ruling that Mr. LaCroix’s request for cover-
age was timely, and vacated the AJ’s analysis of whether
Mr. LaCroix otherwise qualified for coverage. SAppx1–2.
The Board ruled that Mr. LaCroix’s October 2016 email
1 “SAppx” refers to the appendix accompanying the
government’s responsive brief.
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LACROIX v. ARMY 3
was not a timely request for coverage under 5 C.F.R.
§ 842.804. SAppx5–6. Specifically, the Board ruled that
§ 842.804(c) requires employees such as Mr. LaCroix to
“formally and in writing” request coverage “within 6
months after entering the position or after any significant
change in the position.” Id. The Board further ruled that
Mr. LaCroix was required to submit a formal request in
writing within six months of his March 18, 2007, signifi-
cant change in position, i.e., the start of his task force as-
signment. Id. As such, Mr. LaCroix’s October 2016 email
was untimely, and the Board determined there was no in-
dication in the record that Mr. LaCroix otherwise made a
timely formal written request. SAppx5–7. The Board de-
termined Mr. LaCroix failed to show good cause for his un-
timeliness and thus declined to excuse his untimeliness.
SAppx7–8.
Mr. LaCroix appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
S TANDARD OF REVIEW
Our review of Board decisions is limited. 5 U.S.C.
§ 7703(c). We set aside a Board decision only when it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.” Id.
D ISCUSSION
A claimant seeking law enforcement officer retirement
coverage under the Federal Employees Retirement System
bears the burden of proving entitlement by a preponder-
ance of the evidence. Watson v. Dep’t of the Navy, 262 F.3d
1292, 1298 (Fed. Cir. 2001). An employee in a non-law en-
forcement officer designated role who nonetheless believes
his role should be so designated must “within 6 months af-
ter entering the position or after any significant change in
the position, formally and in writing seek a determination
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LACROIX v. ARMY 4
from the employing agency that his position is properly cov-
ered by the higher withholding rate” applicable to law en-
forcement officer roles. 5 C.F.R. § 842.804(c). If an
employee fails to make such a request for a determination
or show good cause for their failure to do so, the agency’s
determination about the designation of the role will be
deemed conclusive and nonreviewable by the Board. Bing-
aman v. Dep’t of the Treasury, 127 F.3d 1431, 1441
(Fed. Cir. 1997).
Mr. LaCroix argues that the Board erred in ruling that
he did not timely request coverage, i.e., within six months
of March 18, 2007. Appellant Informal Br. 4. Specifically,
Mr. LaCroix argues that the Board’s statement that the
record is “devoid of any indication” that he made a timely
written request is “factually incorrect” because he previ-
ously submitted a sworn statement in response to a motion
to dismiss. Id. at 4–5. In his statement, Mr. LaCroix ex-
plained that he emailed a request for reclassification of his
position from GG-0132 to GS-1811 by July 2007 and that
he was unable to provide said email because it was sent on
a secured email system and contained national security in-
formation. Id.
The Board’s ruling that Mr. LaCroix failed to carry his
burden to prove that he complied with 5 C.F.R. § 842.804(c)
is supported by substantial evidence. The record does not
contain a formal request for coverage, in writing, from
within six months of March 18, 2007. Id. at 5; Appellee In-
formal Br. 8. The Board considered and rejected Mr. La-
Croix’s argument that he nonetheless informed the agency
in 2007 that he believed he was entitled to coverage, ruling
that the agency’s general awareness of Mr. LaCroix’s be-
liefs does not satisfy the formality requirements of 5 C.F.R.
§ 842.804(c). Further, the Board ruled that Mr. LaCroix
failed to provide evidence that he otherwise satisfied the
formality requirements of 5 C.F.R. § 842.804(c). Mr. La-
Croix’s sworn statement that he submitted a written re-
quest for reclassification by July 2007 does not render the
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LACROIX v. ARMY 5
Board’s decision unsupported by substantial evidence.
Mr. LaCroix did not rely on his sworn statement at the pe-
tition for review stage. In any event, his sworn statement
that he requested reclassification rather than seeking a de-
termination that that his position is properly covered by
the higher withholding rate does not render the Board’s de-
cision that Mr. LaCroix failed to carry his burden of proof
unreasonable.
CONCLUSION
We have considered Mr. LaCroix’s remaining argu-
ments and find them unpersuasive. For the reasons stated,
we affirm.
AFFIRMED
COSTS
No costs.
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