(a) An employee's service in a position that has been determined by the employing agency head to be a secondary law enforcement officer or firefighter position is covered under the provisions of 5 U.S.C. 8336(c) if all of the following criteria are met:
(1) The employee is transferred directly (i.e., without a break in service exceeding 3 days) from a primary position to a secondary position; and
(2) If applicable, the employee has been continuously employed in secondary positions since transferring from a primary position without a break in service exceeding 3 days, except that a break in employment in secondary positions which begins with an involuntary separation (not for cause), within the meaning of 8336(d)(1) of title 5, United States Code, is not considered in determining whether the service in secondary positions is continuous for this purpose.
(b) This requirement for continuous employment in a secondary position applies only to voluntary breaks in service beginning after January 19, 1988.
(c) An employee who is not in a primary position, nor covered while in a secondary position, and who is detailed or temporarily promoted to a secondary position is not covered under the provisions of 5 U.S.C. 8336(c).
(d) The service of an employee who is in a position on January 19, 1988, that has been approved as a secondary position under this subpart will continue to be covered under the provisions of 5 U.S.C. 8336(c) as long as the employee remains in that position without a voluntary break in service, and coverage is not revoked by OPM under § 831.911, or by the agency head.
Notes of Decisions
Buckley v. United States, 57 Fed. Cl. 328 (Fed. Cl. 2003).
· cites it 9× “The parties jointly stipulated to the issue regarding what the plaintiff must prove to meet the transfer requirement of 5 C.F.R. § 831.904 (2001) as follows: [wjhether the previous decision of the Office of Personnel Management to grant plaintiffs primary law enforcement officer…”
Crowley v. United States, 53 Fed. Cl. 737 (Fed. Cl. 2002).
· cites it 10× “The parties jointly stipulated to the issue regarding what the plaintiff must prove to meet the transfer requirement of 5 C.F.R. § 831.904 (2001) as follows: [wjhether the previous decision of the Office of Personnel Management to grant plaintiffs primary law enforcement officer…”
W. Quinten Cole v. Off. of Pers. Mgmt., 754 F.2d 984 (Fed. Cir. 1985).
· cites it 5× “2d 760, 765 (1979), held to be a nullity that portion of 5 C.F.R. § 831.904 (a) which requires the determination of an employee’s primary duties to be based solely on the official position description.”
Ellis v. United States, 222 Ct. Cl. 65 (Ct. Cl. 1979).
· cites it 2× “5 C.F.R. § 831.904 (1978). The eligibility of firefighters to retire under the "50-20” provisions of 5 U.”
Buckley v. United States, 51 Fed. Cl. 174 (Fed. Cl. 2001).
· cites it 8× “The parties jointly stipulated to the issue regarding what the plaintiff must prove to meet the transfer requirement of 5 C.F.R. § 831.904 (2001) as follows: [wjhether the previous decision of the Office of Personnel Management to grant plaintiffs primary law enforcement officer…”
Robert A. Perske v. Off. of Pers. Mgmt., 25 F.3d 1014 (Fed. Cir. 1994).
· cites it 2× “” 5 C.F.R. § 831.904 (a)(2) (1993). However, "[t]his requirement for continuous employment in a secondary position applies only to voluntary breaks in service beginning after January 19, 1988.”
William R. Little, Jr. v. Off. of Pers. Mgmt., 762 F.2d 962 (Fed. Cir. 1985).
· cites it 2× “*964 In Ellis , the court addressed the validity of 5 C.F.R. § 831.904 (a) (1978), which reads: “ ‘Firefighter’ includes an employee whose primary duties, as set forth in the official position description, require the performance of work directly connected with the control and…”
Brunson v. Dep't of Just., 123 F. App'x 389 (Fed. Cir. 2005).
“5 C.F.R. § 831.904 . In this case, Mr. Brunson argues that as an AUSA he supervises primary LEOs, such as agents of the Federal Bureau of Investigation.”
Sandifer v. Dep't of Navy, 34 F. App'x 750 (Fed. Cir. 2002).
“5 C.F.R. § 831.904 (a). To establish an entitlement to secondary LEO coverage in his supervisory position, Mr.”
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