Are You Entitled to Law Enforcement Officer Retirement?

The issue of Law Enforcement Officer (LEO) Retirement is on the minds of many federal employees as they make decisions regarding the planning and timing of their retirement. Federal employees pay into their retirement through deductions from their paychecks. LEOs are entitled to a greater amount of money in their pensions and pay additional paycheck deductions to earn that right.

A most disturbing and not so uncommon event occurs when the federal employee nearing retirement learns for the first time that although he or she has paid the additional premium to earn the LEO status, the government now challenges the employee’s LEO retirement status, claiming that the employee should never have been classified as LEO. The government then contends that it made an error in accepting the higher paycheck deductions and is prepared to return the increase in premiums back to the employee with interest; however, the employee loses his LEO pension.

To be eligible for LEO retirement, Federal law requires that the employees duties primarily involve the investigation, apprehension, or detention of individuals suspected of offenses against criminal laws of US. This is distinguishable from positions involving maintaining law and order, protecting life and property and guarding against or inspecting for violations of law do not qualify as LEO retirement credit.

The Federal Circuit in a 2001 case, Watson v. Department of the Navy, set out various parameters to determine whether an employee is considered LEO. It looked to the very purpose for the creation of the subject position. The court also looked to whether the criminal investigation, apprehension and detention duties occupy a substantial portion of the individual’s working time over a typical work cycle and whether such duties are assigned on a regular and recurring basis.

The Watson Court then created a five-part test to determine LEO status based upon whether the position involved: (1) guarding property or pursuing detained criminals; (2)a youthful entry age; (3) a mandatory retirement age; (4) physically demanding work; and (5) the employee being exposed to hazard or danger. The intent of the Watson decision was clearly to more narrowly define the requirements for LEO consideration. The court ruled that the Appellant, James A. Watson, had duties that involved investigation, apprehension or detention of criminals or suspected criminals, but that they were not his primary duties. As such, he did not prevail.

Federal employees who are planning retirement or who simply need to verify whether they are LEO eligible or not, should gather their position descriptions and have them reviewed by an attorney practicing in this area. The employee should also be able to write a summary for his or her lawyer indicating his or her daily duties and a list of witnesses who can attest to the employee’s primary and secondary duties. There is nothing worse than preparing for retirement, only to later to discover that your pension is considerably smaller than planned.

Government Promises of Pension Benefits: Beware!

Federal employees and their family members run into this situation, which unfortunately is not so uncommon. In planning for retirement, the federal employee seeks verification of the amount of money to be received upon retirement. In some cases, a government agent with the Office of Personnel Management (“OPM”) or other agency will notify the employee of a guaranteed sum of monthly pension benefits. There are even cases in which the government will make this promise to the employee in writing. When the employee retires however, the government argues that the promise was made in error and that employee is not in fact entitled to the promised amount.

An equally frustrating situation involves the employee’s family members, typically the employee’s spouse, who may be planning for her future upon the death of her husband. In some cases, the spouse will make inquiry to OPM to determine her survivorship benefits upon the death of her husband. OPM may also promise her guaranteed benefits. Sure enough, upon death of the spouse, the government retracts its promise, claiming that it was made in error and that the promise actually violated a government policy or statute. The question thus arises as to whether there are any legal rights to the federal employee or his family members to enforce the ill made promise.

In the private sector, people to whom promises have been made are protected by the legal doctrine of promissory estoppel, which means that if such person reasonably relied on the promise to his or her detriment and the promise was not fulfilled, that person has a cause of action for damages incurred as a result of such reliance. This situation typically occurs during a career change, where the highly recruited employee is promised a much better position, ends up relocating, selling his or her home, etc., only to find that the new job did not materialize. Even though the employee is at-will, nonetheless, the employee has a cause of action against the new employer for promissory estoppel.

Unfortunately, with respect to federal employees and their pensions, this issue was decided against them in the U.S. Supreme Court’s decision in Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), where the claimant sought advice from a federal employee and received erroneous information about the value of pension benefits. The claimant contended that the erroneous and unauthorized advice should give rise to equitable estoppel against the government, and that the Court should order payment of benefits contrary to the statutory terms. The United States Court of Appeals for the Federal Circuit agreed with him and applied promissory estoppel against the government, entitling him to a monetary payment not otherwise permitted by law. However, the Supreme Court reversed this decision and held that estoppel could not be applied to entitle the respondent claimant to benefits.

The Supreme Court primarily relied on the Appropriations Clause of the U.S. Constitution for its reasoning which states “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Thus, “payment of money from the Treasury must be authorized by a statute.” Richmond, 496 U.S. at 424. In short, promissory estoppels, a common law remedy cannot be the basis for collecting a government pension.

If you or a close family member is employed with the federal government, the best thing to do is to have your pension benefits reviewed by an attorney who practices in this area. Don’t rely on promises made to you by a government agency