W. Quinten Cole, Petitioner, v. Office of Personnel Management, Respondent, 754 F.2d 984 (Fed. Cir. 1985)

W. Quinten Cole appeals the decision of the Merit Systems Protection Board, No. DA08318310075 (July 29, 1983), which affirmed-in-part and reversed-in-part the Office of Personnel Management's (OPM) determination that certain periods of his service were not as a "firefighter" as defined in 5 U.S.C. § 8331(21) (1976). We affirm-in-part, vacate-in-part, and remand.

BACKGROUND

This appeal arises from Cole's contention that his service with the United States Department of Agriculture, Forest Service,¹  entitles him to an annuity pursuant to 5 U.S.C. § 8336(c) (1976).² 

In response to Cole's claim of entitlement, the Forest Service determined that the first period of service was creditable and the fifth period of service was probably creditable. Pursuant to 5 C.F.R. Sec. 831.905 (1981), OPM approved the claim for the first period of service and disallowed the claims for the other periods of service.³  The board affirmed OPM's credibility-of-service determination except with respect to the fifth period, holding that the fifth period was creditable as firefighter service.

DISCUSSION

Cole contends that the board's determination that his fourth, sixth through eighth, eleventh, and twelfth periods of service were not as a firefighter was based on an erroneous interpretation of the statutory definition of "firefighter."⁴  Pursuant to 5 U.S.C. § 8347(a) the Civil Service Commission prescribed regulations interpreting and amplifying the section 8331(21) definition.⁵ 

An employee may qualify as a firefighter by either of two ways. The first half of section 8331(21) covers employees who serve in a firefighter position. The second half of section 8331(21) covers employees who transfer from a firefighter position to a supervisory or administrative position.

The court, in Ellis v. United States, 222 Ct. Cl. 65, 610 F.2d 760, 765 (1979), held to be a nullity that portion of 5 C.F.R. Sec. 831.904(a) which requires the determination of an employee's primary duties to be based solely on the official position description. In reviewing Cole's claim that certain periods of service were covered by the first half of section 8331(21), the board followed the holding of the Ellis court, and looked behind the duties as set forth in the official position description. In analyzing Cole's claim that his primary duty during the fourth period of service was "the maintenance and use of firefighting apparatus and equipment," the board considered a letter from Cole's former supervisor, M.F. Phillip, in which Phillip states: "as a dispatcher in 1955, you were responsible for the daily supervision of fire crews and the dispatching of men and equipment to all fires on the district. Experience as a firefighter was necessary for you to do this job." The board reasoned, however, that Cole's duties of dispatching men and equipment did not fall within the ambit of the first half of section 8331(21). We agree.⁶ 

In denying Cole credit for the sixth period of service, the board considered a letter from Cole's former supervisor, Donald E. Jirsa. Concerning the sixth period, Jirsa wrote Cole stating: "On that district you were also Assistant District Ranger and again one of your primary duties was fire control." The board, however, found that Cole's duties were primarily timber cutting, not firefighting. Thus, the board concluded that neither the official position description nor any other documentary evidence of record qualified Cole under the first half of section 8331(21). There is nothing in the record that indicates that the board's conclusion is unsupported by substantial evidence.⁷  In determining whether the seventh, eighth, and eleventh periods qualified under the first half of section 8331(21), the board considered the firefighting activities in which Cole participated, but concluded they were not Cole's primary duties. There is substantial evidence in the record to support the board's conclusion.

In order to qualify under the second half of section 8331(21), the service in the position in question must follow service in a firefighter position, i.e., a position as defined by the first half of section 8331(21). 5 C.F.R. Sec. 831.904(b) (1). In evaluating whether Cole's sixth period satisfied this threshold requirement, the board ignored the holding of the Ellis court, and looked solely to the official position description of the preceding service. Although the board had determined that Cole's fifth period of service was creditable, it did so by relying on evidence which contradicted the accuracy of the official position description. Since the official position description did not reveal the fifth period of service as being that of a firefighter, but rather that of a forester, the board reasoned that the sixth period of service did not satisfy 5 C.F.R. Sec. 831.904(b) (1). The board's reasoning exalts form over substance and produces the kind of result that the Ellis court considered as "out of harmony with the statute." 610 F.2d at 765. The official position description is only one indicia of whether an employee is a firefighter within the meaning of section 8331(21). Accordingly, we vacate this portion of the board's decision determining that the second half of section 8331(21) was not a basis for crediting Cole's sixth and subsequent periods of service. Although the board stated that "the promotion to the [sixth] position may have represented a transfer to a supervisory or administrative position," it did not make any findings on the issue. We remand to the board for its determination of whether Cole satisfied the other transfer requirements contained in 5 C.F.R. Sec. 831.904(b) (2)-(3).⁸ 

We have fully considered Cole's contentions of procedural error and find them to be without merit. The board has wide discretion in determining when it is appropriate to extend the time in which a party must respond to a petition for appeal. Although the board's delay in rendering the decision is unfortunate, Cole does not allege that he was harmed by the board's delay.

AFFIRMED-IN-PART, VACATED-IN-PART, and REMANDED.