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Appealed from: Merit Systems Protection Board

Opinion for the court filed by Circuit Judge MICHEL. Dissenting opinion filed by Senior Circuit Judge FRIEDMAN.

James A. Watson et al. petition for review of the July 17, 2000 final decision of the Merit Systems Protection Board (“Board”), sustaining the Department of the Navy’s (“Navy” or “agency”) determination that petitioners did not satisfy the statutory and regulatory criteria for early retirement coverage as law enforcement officers (“LEO”) under the Civil Service Retirement System (“CSRS”), 5 U.S.C. � 8336(c) (1994), or the Federal Employees’ Retirement System (“FERS”), 5 U.S.C. � 8412(d) (1994). Watson v. Dep’t of the Navy, 86 M.S.P.R. 318 (2000). The petitioners are thirteen current or former police officers employed by the Navy at the Norfolk Naval Base in Norfolk, Virginia. In upholding the Navy’s denial of the officers’ applications for LEO retirement credit, the Board employed a new approach that more affirmatively considered the reasons for the creation and existence of the positions than it had used in its prior LEO decisions, which emphasized the officers’ actual, even if incidental or occasional, duties. Id. at 321. In this case, after reviewing the Office of Personnel Management (“OPM”) classification standards for the GS-083 Occupation Series to which the officers belonged, a December 1997 “Grade Evaluation Guide for Police and Security Guard Positions GS-0083/GS-0085″ (“the Guide”) published by OPM, the Position Description for the officers’ positions, and the duties actually performed by the officers on a regular and recurring basis, the Board concluded that the officers’ positions did not exist primarily for the purpose of investigating, apprehending, or detaining individuals suspected or convicted of federal offenses. Id. at 328; see also 5 U.S.C. �� 8331(20), 8401(17) (1994). We hold that the approach used by the Board is consistent with the statutes and regulations of the LEO retirement coverage program, and that it does not conflict with our decision in Bingaman v. Department of the Treasury, 127 F.3d 1431 (Fed. Cir. 1997), or with its own decision in the same case. We also hold that under this approach, the Board’s determination that these Norfolk Naval Base police officers did not satisfy the definition of a LEO was free of legal error and supported by at least substantial evidence. Therefore, we affirm.

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