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This post is part of a continuing series describing the general discovery tools available to Federal Employees who are Appellant

This post is part of a continuing series describing the general discovery tools available to Federal Employees who are Appellants before the Merit Systems Protection Board (MSPB) and/or Complainants before the Equal Employment Opportunity Commission (EEOC)

We have been getting an increasing number of calls over the last year about firefighters in the Federal Government being denied retirement credits for time served as a firefighter. Here are the rules, and how it works.

If you are reading this, then you know that Federal employees that work as firefighters are entitled to enhanced retirement benefits (including earlier retirement ages, larger annuities, etc). However, in order for a federal employee to get this annuity, they have to have spent between 20-25 years in a qualified firefighting position.

What then, is a “firefighter”?

Under CSRS, a firefighter is defined by statute as: an employee, the duties of whose position are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment, including an employee engaged in this activity who is transferred to a supervisory or administrative position. 5 U.S.C. § 8331(21).

Under FERS, a firefighter is defined by statute as:

(A) an employee, the duties of whose position –

(i) are primarily to perform work directly connected with the control and extinguishment of fires; and

(ii) are sufficiently rigorous that employment opportunities should be limited to young and physically vigorous individuals, as determined by the Director considering the recommendations of the employing agency; and

(B) an employee who is transferred directly to a supervisory or administrative position after performing duties described in subparagraph (A) for at least 3 years. 5 U.S.C. § 8401(14)

Boiling out all the legalese, the FERS statute makes it harder to qualify for retirement credit as a firefighter by adding language such as “sufficiently rigorous” and removing the language “maintenance and use of firefighting equipment”; indeed Senate Reports on the language before it was passed indicated that the new provisions only apply to those who actually and directly participate in firefighting activities.

So, unless you are in a position classified as eligible for retirement credit as a firefighter, you are not likely to get the credits – unless you can show that your primary duties were firefighting. To show this, you will need to show that (1) firefighting duties are the basic reason for the existence of the position; (2) firefighting occupies a substantial portion of your working time; and (3) firefighting duties are regular and recurring. 5 C.F.R. §§ 831.902, 842.802; Dodd v. Dept. of the Interior, 94 MSPR 174 (2003); Watson v. Dept. of the Navy, 262 F.3d 1292, 1296 (Fed. Cir. 2001).

If you do not serve in a position that is designated as one that is eligible for firefighter retirement, then you will likely be denied credit for this service. There is a process whereby you can seek a waiver from the head of your Agency, but this is a long process that could involve years of waiting.

So what do you do when you have been working in a firefighter position that meets the definitions above, but are not given the retirement credit because the position was not classified as a Firefighter position? Appeal to the Merit Systems Protection Board (MSPB). You will need either OPMs letter denying you retirement or (more likely) the Agency’s denial of your request for retirement to establish MSPB jurisdiction. You may need more – every case is different.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

If you are a CSRS or FERS firefighter, and have been denied retirement credits for your work fighting fires or as a firefighter and would like to speak with a lawyer about your rights of appeal to the Merit Systems Protection Board (MSPB), or if you would like to discuss legal representation with an attorney before the MSPB), contact the Law Office of Eric L. Pines, PLLC.