C.F.R. » Title 5 » CHAPTER I—OFFICE OF PERSONNEL MANAGEMENT › SUBCHAPTER B—CIVIL SERVICE REGULATIONS › PART 831—RETIREMENT › Subpart I—Law Enforcement Officers and Firefighters

5 C.F.R. § 831.902

Definitions

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In this subpart—

Agency head means, for the executive branch agencies, the head of an executive agency as defined in 5 U.S.C. 105; for the legislative branch, the Secretary of the Senate, the Clerk of the House of Representatives, or the head of any other legislative branch agency; for the judicial branch, the Director of the Administrative Office of the U.S. Courts; for the Postal Service, the Postmaster General; and for any other independent establishment that is an entity of the Federal Government, the head of the establishment. For the purpose of an approval of coverage under this subpart, agency head is also deemed to include the designated representative of the head of an executive department as defined in 5 U.S.C. 101, except that the designated representative must be a department headquarters-level official who reports directly to the executive department head, or to the deputy department head, and who is the sole such representative for the entire department. For the purpose of a denial of coverage under this subpart, agency head is also deemed to include the designated representative of the agency head, as defined in the first sentence of this definition, at any level within the agency.

Detention duties means duties that require frequent direct contact in the detention, direction, supervision, inspection, training, employment, care, transportation, or rehabilitation of individuals suspected or convicted of offenses against the criminal laws of the United States or the District of Columbia or offenses against the punitive articles of the Uniform Code of Military Justice (10 U.S.C. chapter 47). (See 5 U.S.C. 8331(20).)

Firefighter means an employee, whose duties are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment. Also included in this definition is an employee engaged in this activity who is transferred to a supervisory or administrative position. (See 5 U.S.C. 8331(21).) An employee whose primary duties are the performance of routine fire prevention inspection is excluded from this definition.

Frequent direct contact means personal, immediate, and regularly-assigned contact with detainees while performing detention duties, which is repeated and continual over a typical work cycle.

Law enforcement officer means 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, including an employee engaged in this activity who is transferred to a supervisory or administrative position. (See 5 U.S.C. 8331(20).) The definition does not include an employee whose primary duties involve maintaining law and order, protecting life and property, guarding against or inspecting for violations of law, or investigating persons other than persons who are suspected or convicted of offenses against the criminal laws of the United States.

Primary duties are those duties of a position that—

(1) (i) Are paramount in influence or weight; that is, constitute the basic reasons for the existence of the position;

(ii) Occupy a substantial portion of the individual's working time over a typical work cycle; and

(iii) Are assigned on a regular and recurring basis.

(2) Duties that are of an emergency, incidental, or temporary nature cannot be considered “primary” even if they meet the substantial portion of time criterion. In general, if an employee spends an average of at least 50 percent of his or her time performing a duty or group of duties, they are his or her primary duties.

Primary position means a position whose primary duties are:

(1) To perform work directly connected with controlling and extinguishing fires or maintaining and using firefighter apparatus and equipment; or

(2) Investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States.

Secondary position means a position that:

(1) Is clearly in the law enforcement or firefighting field;

(2) Is in an organization having a law enforcement or firefighting mission; and

(3) Is either—

(i) Supervisory; i.e., a position whose primary duties are as a first-level supervisor of law enforcement officers or firefighters in primary positions; or

(ii) Administrative; i.e., an executive, managerial, technical, semiprofessional, or professional position for which experience in a primary law enforcement or firefighting position, or equivalent experience outside the Federal government, is a prerequisite.

[58 FR 64367, Dec. 7, 1993, as amended at 60 FR 3339, Jan. 17, 1995; 66 FR 38524, July 25, 2001; 70 FR 42253, July 22, 2005]
Notes of Decisions
Cited in 35 cases, 1991–2018 · leading case: Buckley v. United States, 57 Fed. Cl. 328 (Fed. Cl. 2003).
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Buckley v. United States, 57 Fed. Cl. 328 (Fed. Cl. 2003). · cites it 29× “See 5 C.F.R. § 831.902 (2001). The regulations setting forth the standards for qualification as an LEO are found at 5 C.”
Crowley v. United States, 53 Fed. Cl. 737 (Fed. Cl. 2002). · cites it 26× “See 5 C.F.R. § 831.902 (2002). The regulations setting forth the standards for qualification as an Law Enforcement Officer are found at 5 C.”
Watson v. Dep't of the Navy, 262 F.3d 1292 (Fed. Cir. 2001). · cites it 10× “1 In order to be more faithful to the language of the statutes and the regulations, the Board expressly adopted a new "position-oriented approach" that would "more affirmatively" assess the "basic reasons for the existence of the position," as required by OPM regulations, 5…”
Louis D. Hall, Sr. v. Dep't of the Treasury, 264 F.3d 1050 (Fed. Cir. 2001). · cites it 7× “” 5 C.F.R. § 831.902 (2000). The “primary duties” of a position are those that “[a]re paramount in influence or weight; that is, constitute the basic reasons for the existence of the position; [ojccupy a substantial portion of the individual’s working time over a typical work…”
Buckley v. United States, 51 Fed. Cl. 174 (Fed. Cl. 2001). · cites it 30× “See 5 C.F.R. § 831.902 (2001). The regulations setting forth the standards for qualification as an LEO are found at 5 C.”
Lengerich v. Dep't of the Interior, 454 F.3d 1367 (Fed. Cir. 2006). · cites it 4× “See 5 C.F.R. §§ 831.902 , 831.905 (1986). Those regulations did not address how or when an individual should request service credit from his or her employing agency.”
Watson v. Dep't of the Navy, 262 F.3d 1292 (Fed. Cir. 2001). · cites it 10× “1 In order to be more faithful to the language of the statutes and the regulations, the Board expressly adopted a new “position-oriented approach” that would “more affirmatively” assess the “basic reasons for the existence of the position,” as required by OPM regulations, 5…”
Miguel A. Camacho v. R. James Nicholson, 21 Vet. App. 360 (Vet. App. 2007). · cites it 2× “2001) (noting that inclusion of conjunctive “and” clearly indicates that all three criteria in 5 C.F.R. §§ 831.902 and 842.802 must be demonstrated); Heuer v.”
Lowder v. Dep't of Homeland Sec., 504 F.3d 1378 (Fed. Cir. 2007). · cites it 2× “” 5 C.F.R. §§ 831.902 , 842.802. Primary positions are those where the employee directly performs law enforcement officer duties.”
Crowley v. United States, 57 Fed. Cl. 376 (Fed. Cl. 2003). · cites it 2× “§ 8331 (20); 5 C.F.R. §§ 831.902 . Thus, after this court determined Mr.”
Thomas J. Felzien v. Off. of Pers. Mgmt., 930 F.2d 898 (Fed. Cir. 1991). · cites it 3× “§§ 8331 (21), 8336(c)(1), 8339(d)(1) (1988); 5 C.F.R. § 831.902 (1990), on June 30, 1988 Felzien asked the Forest Service for its opinion and recommendation.”
Crowley v. United States, 398 F.3d 1329 (Fed. Cir. 2005). “5 C.F.R. §§ 831.902 , 842.802 (2004). .Generally, an employee who spends at least half of his or her working time on the investigation, apprehension or detention of criminal suspects is considered to be one whose duties are primarily law enforcement.”
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