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Neither the statute nor the regulations permit individuals to now request retroactive
service credit for periods prior to the statute’s effective date.
On July 18, 2011, the Office of Personnel Management (OPM) issued final
regulations concerning Section 535 of Public Law 110-161, the law establishing
the enhanced CBPO retirement system. Since the issuance of the regulations,
NTEU has received inquiries as to whether these regulations allow for retroactivity
of benefits or buy back of creditable service for periods of time prior to the statute’
s effective date of July 6, 2008. As explained below, they do not.
In FY 2007 and FY 2008, Congress appropriated a total of $250 million to pay for
the cost of the enhanced CBPO retirement system, which began on July 6, 2008.
Unfortunately, the costs attached to providing service credit for periods prior to the
statute’s effective date, including buy backs for service in predecessor legacy
positions, were prohibitive, estimated at that time to exceed $1 billion. Congress
thus deliberately chose to preclude coverage for service performed prior to the
statute’s effective date.
Accordingly, Section 535(e)(2)(B) of the statute specifies that, with one narrow
exception, the statute does not apply to any service performed before its effective
date. The only exception to this general rule permits service performed prior to the
effective date to be taken into account to determine if an individual serving on July
6, 2008, qualified for coverage in a secondary (supervisory or administrative)
position.
Otherwise, as specified in the statute and as described by OPM in comments
explaining its regulations, CBP Officers were added “prospectively” as a new group
entitled to enhanced retirement benefits. Fed. Reg. notice at pg. 41933.
Explanatory notes accompanying the regulations also set forth the above-
described Section 535(e)(2)(B) and describe the statute as being “explicit that its
provisions are prospective . . .” Fed. Reg. notice at p. 41994.
There has been a sample letter that has been circulating among employees that
relies on a section of the regulations (5 C.F.R. 831.1606) to request retroactive
credit for service performed in a legacy inspector position prior to the statute’s
effective date. When read in isolation, Section 831.1606 could be viewed to permit
such a request. But, nothing in the regulations can change the statute’s explicit
terms. And, the statute does not permit this kind of retroactive credit. Section
831.1606 should not, therefore, be read to permit retroactive service credit buy
back for periods prior to July 6, 2008. Instead, it is more reasonably read to allow
individuals in an “unapproved” position, who believe they have been wrongfully
denied coverage under the CBPO system for past service performed after the
statute’s effective date (July 6, 2008), to request credit for that service no later
than June 30, 2012.
To summarize: There is no law that permits legacy Immigration Officers and
Customs officers to buy the legacy time.
service credit for periods prior to the statute’s effective date.
On July 18, 2011, the Office of Personnel Management (OPM) issued final
regulations concerning Section 535 of Public Law 110-161, the law establishing
the enhanced CBPO retirement system. Since the issuance of the regulations,
NTEU has received inquiries as to whether these regulations allow for retroactivity
of benefits or buy back of creditable service for periods of time prior to the statute’
s effective date of July 6, 2008. As explained below, they do not.
In FY 2007 and FY 2008, Congress appropriated a total of $250 million to pay for
the cost of the enhanced CBPO retirement system, which began on July 6, 2008.
Unfortunately, the costs attached to providing service credit for periods prior to the
statute’s effective date, including buy backs for service in predecessor legacy
positions, were prohibitive, estimated at that time to exceed $1 billion. Congress
thus deliberately chose to preclude coverage for service performed prior to the
statute’s effective date.
Accordingly, Section 535(e)(2)(B) of the statute specifies that, with one narrow
exception, the statute does not apply to any service performed before its effective
date. The only exception to this general rule permits service performed prior to the
effective date to be taken into account to determine if an individual serving on July
6, 2008, qualified for coverage in a secondary (supervisory or administrative)
position.
Otherwise, as specified in the statute and as described by OPM in comments
explaining its regulations, CBP Officers were added “prospectively” as a new group
entitled to enhanced retirement benefits. Fed. Reg. notice at pg. 41933.
Explanatory notes accompanying the regulations also set forth the above-
described Section 535(e)(2)(B) and describe the statute as being “explicit that its
provisions are prospective . . .” Fed. Reg. notice at p. 41994.
There has been a sample letter that has been circulating among employees that
relies on a section of the regulations (5 C.F.R. 831.1606) to request retroactive
credit for service performed in a legacy inspector position prior to the statute’s
effective date. When read in isolation, Section 831.1606 could be viewed to permit
such a request. But, nothing in the regulations can change the statute’s explicit
terms. And, the statute does not permit this kind of retroactive credit. Section
831.1606 should not, therefore, be read to permit retroactive service credit buy
back for periods prior to July 6, 2008. Instead, it is more reasonably read to allow
individuals in an “unapproved” position, who believe they have been wrongfully
denied coverage under the CBPO system for past service performed after the
statute’s effective date (July 6, 2008), to request credit for that service no later
than June 30, 2012.
To summarize: There is no law that permits legacy Immigration Officers and
Customs officers to buy the legacy time.
If you wish to join
NTEU, please fill out
the application here
and submit to the
Union Office in
Building 77. For the
dues click here.
NTEU, please fill out
the application here
and submit to the
Union Office in
Building 77. For the
dues click here.
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