Crowley v. United States

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Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit

04-5034

JOHN D. CROWLEY,

Plaintiff-Appellee,

v.

UNITED STATES,

Defendant-Appellant.

Cathy A. Harris, Kator, Parks & Weiser, P.L.L.C., of Washington, DC, argued for
plaintiff-appellee. With her on the brief were Irving Kator and Michael J. Kator.

Scott D. Austin, Commercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for defendant-appellant. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and James M. Kinsella, Deputy Director. Of counsel on the brief was James E. Hicks,
Office of Chief Counsel, Drug Enforcement Administration, of Washington, DC.

Appealed from: United States Court of Federal Claims

Judge Marian Blank Horn
 United States Court of Appeals for the Federal Circuit

04-5034

JOHN D. CROWLEY,

Plaintiff-Appellee,

v.

UNITED STATES,

Defendant-Appellant.

__________________________

DECIDED: February 17, 2005
__________________________

Before CLEVENGER, DYK, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST. Concurring opinion filed by Circuit
Judge DYK.

PROST, Circuit Judge.

The United States appeals the United States Court of Federal Claims’ assertion

of jurisdiction in this case, its grant of law enforcement officer (“LEO”) status to the

appellee, John D. Crowley, its holding that the appellee was not required to exhaust his

administrative remedies, and its legal conclusion that the appellee is entitled to

supplemental pay and pre-judgment interest stemming from his claim under the Federal

Law Enforcement Pay Reform Act of 1990, Pub. L. No. 101-509, §§ 401-
412, 104 Stat. 1389, 1465-69 (“FLEPRA”).1 We affirm the Court of Federal Claims’

assertion of jurisdiction in this case. We reverse its holding regarding Mr. Crowley’s

LEO status and decline to reach the issues of exhaustion and pre-judgment interest.

BACKGROUND

The FLEPRA promises law enforcement officers supplemental pay over and

above their standard pay if they work in certain metropolitan areas. 5 U.S.C. § 5305

note (2000). The statutory definition of “law enforcement officer” that the FLEPRA relies

on is included in the retirement statutes dealing with LEOs in the Civil Service Reform

Act of 1978 (“CSRA”).2 By the terms of the FLEPRA, a federal employee must satisfy

the statutory definition of a “law enforcement officer” found in 5 U.S.C. § 8331(20) to

qualify for the pay supplement. See 5 U.S.C. § 5541(3)(A) (2000). To meet the

statutory definition of a LEO found in § 8331(20), a federal employee must either work

in a primary law enforcement position (i.e. dedicated “primarily [to] the investigation,

apprehension, or detention of individuals suspected or convicted of [criminal] offenses”)

or have been transferred from a primary law enforcement position into a supervisory or

administrative position. 5 U.S.C. § 8331(20) (2000). An employee can meet the

definition of a LEO by either serving in an approved LEO position or by applying to the

1
Sections 401-407 and 412 of FLEPRA are found, as amended, at 5 U.S.C.
§ 5305 note (2000) (§ 407 repealed by Pub. L. No. 108-411, § 101(d) (2004)). Section
408 is codified at 5 U.S.C. §§ 4521-4523, 5541 note; § 409 at 5 U.S.C.§ 8335 and 5
U.S.C. § 8425; § 410 at 5 U.S.C. 5542, 5547 (repealed in part by Pub. L. No. 102-378,
§ 2(43), 106 Stat. 1346, 1352 (1992)); and § 411 at 5 U.S.C. § 5541.
2
The relevant retirement statutes for LEOs provide for retirement benefits in
the form of annuity payments for federal LEOs who have reached the age of fifty and
have completed twenty years of service as a LEO. See 5 U.S.C. § 8336(c) (2000).

04-5034 2
employing agency for LEO credit based on the circumstances of his or her service. 5

C.F.R. §§ 831.903, 831.906 (2004).

The Merit Systems Protection Board (“the Board”) undisputedly has jurisdiction

over claims for LEO retirement credit under the CSRA. See United States v. Fausto,

484 U.S. 439 (1988). In contrast to the CSRA, the FLEPRA is a separate money-

mandating statute that requires the payment of supplemental pay to federal employees

who satisfy both the criteria for supplemental pay and the statutory definition of “law

enforcement officer.”

The Drug Enforcement Agency (“DEA”) employs diversion investigators (“DIs”)

(formerly known as compliance investigators) to investigate the diversion of legal but

controlled substances from legitimate channels of commerce to illegitimate ones. DIs

work to determine compliance with the Controlled Substance Act (“CSA”) and may also

take part in investigations of criminal activity. DIs investigate manufacturers and

distributors of controlled substances in order to assure compliance with the CSA and

that no improper diversion of controlled substances has occurred. And even though DIs

may participate in criminal investigations, they may not carry firearms. DEA memos

(hereinafter referred to as the “Miller-Mullen Memoranda”) further established that DIs

were not to participate in undercover activities of any kind, execute arrest or search

warrants, direct or pay informants, or conduct moving surveillance. Furthermore, at the

time Mr. Crowley served as a DI, DIs had no physical fitness requirements, age

04-5034 3
requirements, or agency-imposed obligations to be on call twenty four hours a day.3

The appellee in this case began his career in the DEA as a DI serving in the

Boston Metropolitan area. His career as a DI lasted from March 12, 1973 to June 15,

1986. On June 16, 1986, he began work as a Group Supervisor in the Boston regional

office of the DEA. He remained in that position until February 25, 1991, when he was

transferred to DEA headquarters in Arlington, Virginia. There, he took the position of

staff coordinator for the Office of Diversion Control. On October 31, 1994, Mr. Crowley

was transferred back to the DEA’s Boston Office, where he resumed his duties as

Group Supervisor. In April 2001, he was made Special Assistant to the Diversion

Program Manager and stayed in that position until his retirement on October 1, 2001.

The appellee sought and received retirement credit for primary LEO service from

the Office of Personnel Management (“OPM”), arguing that his service as a DI qualified

as primary LEO service. He also successfully sought LEO service credit for the period

between June 16, 1986 and September 30, 1991, covering all of his initial service as

Group Supervisor in Boston and part of his service as staff coordinator for the Office of

Diversion Control in Arlington.4 He argued before the OPM that his secondary service

qualified him for FLEPRA pay because he was transferred directly to those secondary

3
This court has already had an opportunity to pass on the LEO status of
DIs in a previous case. See Hannon v. Dep’t of Justice, 234 F.3d 674, 675-76 (Fed. Cir.
2000) (“Hannon II”). Though the analysis in Hannon II is not entirely applicable to the
instant case for reasons that shall become clear later in this opinion, it has some
relevance to our analysis.
4
Before the Court of Federal Claims, the appellee argued that the
government was judicially and/or collaterally estopped from arguing that he was not
entitled to primary LEO credit as a result of OPM’s initial determination that he was
indeed entitled to such credit. That argument was rejected by the court and has not
been raised here.

04-5034 4
LEO positions from a primary LEO position.5 In 1992, after receiving LEO credit for the

period between March 12, 1973 and September 30, 1991, Mr. Crowley began to apply

annually to the OPM for LEO retirement coverage for his supervisory and administrative

work. He applied in 1992 for LEO status for the work he performed in fiscal year (“FY”)

1992. In 1993, he did the same for FY 1993. The OPM acted on neither request. On

December 7, 1993, the Department of Justice (“DOJ”), pursuant to the OPM’s

delegation of its authority to determine the LEO status of DEA employees, took

responsibility for deciding Mr. Crowley’s LEO status. See 58 Fed. Reg. 64,366 (Dec. 7,

1993).

After 1993, the appellee annually applied to the DOJ to expand his LEO credit for

each subsequent year he served in a supervisory or administrative position. In August

of 1994, the DOJ informed him that his staff coordinator position counted as a

secondary position for which primary law enforcement experience was required. Thus,

he was conferred LEO status for his service as staff coordinator to the Office of

Diversion Control. In 1999, the DOJ reversed course, declared the appellee’s staff

coordinator position to be a position that did not qualify for LEO credit, and denied his

requests for LEO retirement credit for his service between October 1, 1991 and June

15, 1997. That same year, Mr. Crowley applied one last time to the DOJ for LEO credit

5
In order to qualify for supplemental pay under the FLEPRA, Mr. Crowley
must show that he served in a primary LEO position and was properly transferred from
that position to a valid secondary (administrative or supervisory) LEO position. If Mr.
Crowley cannot prove either that he served in a primary LEO position or that his
secondary positions were valid LEO positions, he does not qualify for supplemental pay
under the FLEPRA.

04-5034 5
for the period covering June 16, 1997 to June 16, 1998. The DOJ has never acted on

that request.

In response to the DOJ’s denial of his requests for LEO status, the appellee filed

a complaint with the Board for LEO retirement credit and, concurrently, a complaint in

the Court of Federal Claims to recover supplemental pay under the FLEPRA for the

period covering October 1, 1991 to October 1, 2001. Before the Board could take up

his retirement claims, it stayed Mr. Crowley’s action for retirement credit in order to

allow him to pursue his FLEPRA claim before the Court of Federal Claims. With the

Board’s stay in place, the Court of Federal Claims proceeded to consider and decide

the appellee’s FLEPRA claim.

In a series of rulings dealing with the LEO status of DIs in general and of this

appellee in particular, the Court of Federal Claims determined that: (1) it had

jurisdiction to hear a DI’s FLEPRA claims; (2) the appellee was entitled to LEO status

both for his service as a DI and also for his service in secondary drug enforcement

positions within the DEA; (3) the appellee was not required to exhaust his administrative

remedies since the DOJ had already determined its position regarding his LEO status;

and (4) the Back Pay Act provided the waiver of sovereign immunity that would permit

the appellee to recover pre-judgment interest from the federal government for his

FLEPRA claims. See generally Hannon v. United States, 48 Fed. Cl. 15 (2000)

(“Hannon I”); Crowley v. United States, 53 Fed. Cl. 737 (2002) (“Crowley I”); Crowley v.

United States, 56 Fed. Cl. 291 (2003) (“Crowley II”); Crowley v. United States, 57 Fed.

Cl. 376 (2003) (“Crowley III”).

04-5034 6
 In determining that the appellee is entitled to LEO status, the Court of Federal

Claims undertook a de novo interpretation of 5 U.S.C. § 8331(20), stating that “the

simple words of the statute offer sufficient and clear guidance.” Crowley I, 53 Fed. Cl.

at 777. Under its interpretation of the plain meaning of the statute, the Court of Federal

Claims determined that the appellee’s service as a DI was covered by the statutory

definition of “law enforcement officer.” Id. at 768-74. As an alternative basis, the Court

of Federal Claims examined Mr. Crowley’s experiences as a DI in light of this court’s

precedential rulings in Bingaman v. Department of the Treasury, 127 F.3d 1431 (Fed.

Cir. 1997); Hannon II, 234 F.3d 674; Watson v. Department of the Navy, 262 F.3d 1292

(Fed. Cir. 2001); and Hall v. Department of the Treasury, 264 F.3d 1050 (Fed. Cir.

2001). Using the six factors identified in Bingaman, the Court of Federal Claims

determined that, in light of his personal experiences as a DI in the DEA, the appellee

merited being granted primary LEO status under 5 U.S.C. § 8331(20). The appellee

thus satisfied the necessary prerequisites for the award of FLEPRA supplemental pay

for his service in DEA supervisory or administrative positions. Crowley I, 53 Fed. Cl. at

774-88.

The United States now raises four issues on appeal from the Court of Federal

Claims: (1) whether the Court of Federal Claims had jurisdiction to determine Mr.

Crowley’s LEO status; (2) whether Mr. Crowley properly qualified as a LEO under our

precedent; (3) whether Mr. Crowley was required to exhaust his administrative remedies

before asserting his claim in the Court of Federal Claims; and (4) whether the federal

government had clearly and unambiguously waived its sovereign immunity on pre-

04-5034 7
judgment interest for awards granted under the FLEPRA. We have jurisdiction to hear

this appeal under 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review the Court of Federal Claims’ conclusions of law de novo and all of its

findings of fact for clear error. Heisig v. United States, 719 F.2d 1153, 1157-58 (Fed.

Cir. 1983). Legal analysis involving the application of law to the facts is a legal question

that is reviewed de novo. See Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755

F.2d 158, 164 (Fed.Cir.1985) (requiring reversal “if the court engaged in a faulty

analysis in applying the law to the facts and a correct application of the law to those

facts might bring a different result”).

A. The Jurisdiction of the Court of Federal Claims

As previously stated, the Tucker Act confers jurisdiction on the Court of Federal

Claims. 28 U.S.C. § 1491(a)(1) (2000). But the Tucker Act alone does not create a

substantive claim against the federal government for money damages. See Martinez v.

United States, 333 F.3d 1295, 1302-03 (Fed. Cir. 2003) (“The actions for which the

Tucker Act waives sovereign immunity are . . . actions brought pursuant to money-

mandating constitutional provisions, statutes, regulations and executive orders. The

Tucker Act does not itself provide the substantive cause of action.” (internal citations

omitted)).

No party in this litigation disputes that the FLEPRA is a money-mandating

statute. Indeed, the FLEPRA is very explicit as to what is to be paid LEOs. As § 404 of

the FLEPRA states,

[E]ach law enforcement officer whose post of duty is in one
of the [enumerated metropolitan areas] shall receive an

04-5034 8
 adjustment [in their pay], which shall be a percentage of the
officer’s rate of basic pay . . . .

5 U.S.C. § 5305 note. The statute is clear—if a LEO works in a statutorily defined

metropolitan area, that LEO is entitled to a pay adjustment depending on the

metropolitan area in which he or she worked. Thus, the FLEPRA is a money-mandating

statute. The substantive cause of action in this case is the FLEPRA, but the grant of

jurisdiction in the Court of Federal Claims is properly found in the Tucker Act. 28 U.S.C.

§ 1491(a)(3).

Notwithstanding obvious jurisdiction under the Tucker Act, the appellant in this

case argues that because United States v. Fausto, 484 U.S. 439 (1988), gives the

Board exclusive jurisdiction over retirement claims brought under the CSRA, and

because the statutory definition of “law enforcement officer” is found in the retirement

statutes and a successful showing of LEO status is an element of a 5 U.S.C. § 8336(c)

claim for retirement benefits, only the Board (as opposed to the Court of Federal

Claims) has jurisdiction to hear a case that turns on the determination of LEO status.

This argument, while creative, is unpersuasive.

A positive determination of LEO status is a necessary element to successful

recovery for both CSRA retirement claims brought before the Board and also for pay

adjustment claims brought under the FLEPRA before the Court of Federal Claims.

There can be no dispute that CSRA retirement claims must go before the Board and

that FLEPRA cases must go before the Court of Federal Claims. And courts have

jurisdiction over claims—not over elements of claims. Given that the Court of Federal

Claims has jurisdiction over FLEPRA claims via the Tucker Act, it also has jurisdiction to

make the legal and factual determinations necessary to resolving those claims.

04-5034 9
 The government argues that the Court of Federal Claims’ jurisdictional finding

raises the possibility of contradiction and lack of uniformity in future LEO determinations

because the Board will determine LEO status for retirement purposes and the Court of

Federal Claims will determine LEO status for FLEPRA purposes. The mere potential for

lack of uniformity does not change our jurisdictional analysis. Indeed, it is our task to

state the law that must be applied both by the Board and the Court of Federal Claims.

Clear guidance from this court can mitigate any risk of contradiction between the Board

and the Court of Federal Claims.

Furthermore, as the Court of Federal Claims correctly pointed out in Hannon I,

Congress merely incorporated the definition of LEO from the retirement statutes into the

FLEPRA—in doing so, it did not also incorporate the review mechanisms associated

with the retirement statutes. Hannon I, 48 Fed. Cl. at 23. Furthermore, because the

Board’s jurisdiction is limited, it cannot hear FLEPRA claims. Thus, if the government’s

position were correct, a claimant would first have to pursue a perhaps undesired

retirement claim before the Board in order to be able to litigate his or her FLEPRA pay

claim before the Court of Federal Claims. There is no language in the FLEPRA to

support such an odd result. And we do not construe statutes in ways that lead to such a

result if we can avoid doing so. See, e.g., In re Chapman, 166 U.S. 661, 667 (1897)

(“[N]othing is better settled, than that statutes should receive a sensible construction,

such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust

or an absurd conclusion.”).

04-5034 10
 Accordingly, insofar as the question of the jurisdiction of the Court of Federal

Claims to make LEO determinations in deciding FLEPRA claims is concerned, we affirm

the Court of Federal Claims’ assertion of jurisdiction.

B. The Appellee’s LEO Status

Our analysis of the appellee’s request for LEO status is governed by our relevant

precedent. That precedent is binding on this court as it is binding on the Court of

Federal Claims. In its opinion, the Court of Federal Claims chose to begin by

undertaking the interpretation of 5 U.S.C. § 8331(20) de novo and, in the alternative,

analyzing this case under our precedent. We reject the court’s initial de novo

interpretation of § 8331(20) because the Court of Federal Claims may not deviate from

the precedent of the United States Court of Appeals for the Federal Circuit any more

than the Federal Circuit can deviate from the precedent of the United States Supreme

Court. Trial courts are not free to make the law anew simply because they disagree

with the precedential and authoritative analysis of a reviewing appellate court.

A LEO, under the statutory definition, is one who primarily “investigat[es],

apprehen[ds] or det[ains]” those suspected of federal crimes. 5 U.S.C. § 8331(20). His

or her primary duties are those that:

i Are paramount in influence or weight; that is, constitute
the basic reasons for the existence of the position;

ii Occupy a substantial portion of the individual’s working
time over a typical work cycle; and

iii Are assigned on a regular and recurring basis.

04-5034 11
5 C.F.R. §§ 831.902, 842.802 (2004). Generally, an employee who spends at least half

of his or her working time on the investigation, apprehension or detention of criminal

suspects is considered to be one whose duties are primarily law enforcement. Id.

Our current precedent regarding the LEO status of federal employees has

evolved from a case-by-case factor specific framework to a position-oriented framework

supplemented by the individual facts presented by each case.

1. The case-by-case framework

The case-by-case framework was first articulated by the Board in Hobbs v. Office

of Personnel Management, 58 M.S.P.R. 628 (1993), and later adopted by this court in

Bingaman. Bingaman, 127 F.3d at 1436. This framework relied on articulated factors

and an individual employee’s actual work experience to determine whether or not a

federal employee was a LEO. These factors were to be considered as a whole and

weighed by the Board on a case-by-case basis.

In Hobbs, the Board relied on the legislative history behind 5 U.S.C. § 8331(20)

to establish a series of factors that would help in determining an employee’s LEO

status. Accordingly, the Board construed the term “investigation” in § 8331(20) to mean

“criminal investigation” or, specifically, the “investigation of suspected or known

criminals for the immediate purpose of criminally prosecuting them if warranted.”

Hobbs, 58 M.S.P.R. at 633. The Board went on to identify hazard and physical stamina

requirements as integral to a LEO determination. In deciding the case, the Board relied

on six factors to determine that Hobbs’s position as a special inspector for the Bureau of

Alcohol, Tobacco and Firearms was not a law enforcement position for the purposes of

§ 8331(20). Those factors were: 1) contact with suspected or known criminals; 2)

04-5034 12
authorization to carry a weapon and requirement to maintain proficiency in using a

weapon; 3) giving Miranda warnings to witnesses interviewed in the course of

investigation; 4) requirement to be on call twenty four hours a day; 5) working overtime

frequently; and 6) requirement to maintain a level of physical fitness. See Hobbs, 58

M.S.P.R. at 633 n.5.

Four years after Hobbs, we adopted the Hobbs factors for ourselves in

Bingaman. Bingaman, 127 F.3d at 1436. There, we affirmed the Board’s denial of LEO

status based on an analysis of the facts performed under the rubric of Hobbs. In

Bingaman, we specifically adopted the six Hobbs factors and explained, “while the

scope of the statutory category of ‘law enforcement officer’ cannot be crisply defined

with a single phrase, the set of factors the Board has developed [in Hobbs and

afterward] captures the essence of what Congress intended.” Id.

In December of 2000, we applied the Hobbs-Bingaman factors to a case

involving a DI’s request for LEO retirement credit. See generally Hannon II, 234 F.3d at

674. In that case, which was similar to this one on the facts and which will be discussed

more thoroughly below, we affirmed the Board’s determination that a DI who failed to

meet four of the six Hobbs-Bingaman factors was not a LEO under § 8331(20). Id. at

677-82.

Finally, in Hall, we affirmed the Board’s denial of LEO retirement credit to a

Canine Enforcement Officer of the Customs Service. Hall described the Hobbs-

Bingaman factors as being “a set of tools to assist the Board in gauging whether an

employee’s assigned activities properly fall within the scope of the law enforcement

duties recognized by and contained within the statutory ambit” of the retirement statutes

04-5034 13
dealing with LEOs. Hall, 264 F.3d at 1056. Thus, in our view, the factors “were not set

forth as a substitute for the statute, but rather as a framework for the factual inquiry

needed to ascertain coverage under the statutory scheme.” Id.

2. The position-oriented framework

Watson marked a further step in the evolution of the case-by-case framework

first adopted in Bingaman.6 There, we adopted the Board’s new position-oriented

approach, which “more affirmatively considered the reasons for the creation and

existence of positions than . . . the officers’ actual, even if incidental or occasional,

duties.” Watson, 262 F.3d at 1295. The actual duties carried out by federal employees

would be relevant only if they run counter to the reasons for the existence of their

positions. Id. at 1300-01.

In addition to adopting the position-oriented approach, the court identified the five

“most probative” factors in determining a federal officer’s entitlement to LEO status.

Those five factors are:

1) whether the officers are merely guarding life and property
or whether the officers are instead more frequently pursuing
or detaining criminals; 2) whether there is an early
mandatory retirement age; 3) whether there is a youthful
maximum entry age; 4) whether the job is physically
demanding so as to require a youthful workforce; and 5)
whether the officer is exposed to hazard or danger.

Id. at 1303. In addition, the Hobbs-Bingaman factors “may be considered as necessary

and appropriate.” Id. The court explained this shift as being necessary to better

6
Though Hall issued at roughly the same time as Watson and did not
explicitly adopt the position-oriented approach, our subsequent cases show that the
Watson framework controls any LEO analysis done by this court. See generally Koenig
v. Dep’t of the Navy, 315 F.3d 1378 (Fed. Cir. 2003).

04-5034 14
capture whether or not the hazard associated with a position’s duties and the physically

demanding nature of the work were associated with law enforcement duties. Id. at

1302. Two years after Watson, we followed the position-oriented approach established

in Watson in Koenig v. Department of the Navy, 315 F.3d 1378 (Fed. Cir. 2003).

Indeed, Koenig used Watson’s position-oriented analysis to deny LEO status to the

police officer appellant in that case.

It is clear from Koenig that the Watson position-oriented approach is the

operative test for this court’s review of a federal employee’s LEO status.7 As the Board

noted, such an approach is more in keeping with the original language of the relevant

statutes than an analysis of an employee’s actual duties. See Watson v. Dep’t of the

Navy, 86 M.S.P.R. 318, 320-21 (2000) (construing 5 U.S.C. § 8331(20) (“‘[L]aw

enforcement officer’ means an employee, the duties of whose position are primarily the

investigation, apprehension or detention of individuals suspected or convicted of

[criminal] offenses.”) (emphasis added)).

3. Relevant considerations in the position-oriented framework

In applying the position-oriented approach, we consider the relevant factors

established by Bingaman and Watson in determining whether or not a position, not an

employee, is entitled to LEO status. And, as in Watson, evidence of an individual

7
We decline the government’s invitation to decide this case by using
Hannon II as decisive precedent. Hannon II was decided prior to the adoption of the
position-oriented approach. The entire analysis in Hannon II was conducted using the
Hobbs-Bingaman factors. We cannot now graft a position-oriented analysis onto
Hannon II where none previously existed. We will, however, use Hannon II in
evaluating whether Mr. Crowley’s actual duties satisfy the factors relevant to
determining whether or not his actual experience contradicted the reasons for his
position’s existence.

04-5034 15
employee’s activities will be considered insofar as it substantially conflicts with our

position determination.

As previously noted, our cases offer an array of factors to be considered in

applying the position-oriented approach to our review of LEO determinations. Both

Watson and Hall used different factor-based tests to aid their review of LEO

determinations. Prior to Watson, the Hobbs-Bingaman factors were predominant in this

court’s review of LEO determinations. While Watson identified five factors that it held to

be of primary importance, it did not do away with the Hobbs-Bingaman factors. It

instead allowed those factors to be considered “as necessary and appropriate” in

addition to its five enumerated factors. Watson, 262 F.3d at 1303.

In reviewing the rationale behind the Watson factors, the Hobbs-Bingaman

factors and this court’s opinions in Bingaman, Hannon II, Hall, Watson and Koenig, two

factors predominate over all others. Indeed, it could be said that certain identified

factors are really proxies for the two main considerations behind our LEO cases.

The most important consideration in our position-oriented approach of LEO

determinations is the physical vigorousness required by the position in question. As we

noted in Bingaman, the legislative history behind § 8331(20) emphasized that LEO

positions “should be composed, insofar as possible, of young men and women

physically capable of meeting the vigorous demands of occupations which are far more

taxing physically than most in the federal service.” Bingaman, 127 F.3d at 1435

(quoting S. Rep. No. 93-948, at 2 (1974), reprinted in 1974 U.S.C.C.A.N. 3698, 3699).

In Hannon II, Watson, and Hall, we likewise pointed out that physical vigorousness was

a factor of utmost importance in determining LEO status. Hannon II, 234 F.3d at 677-

04-5034 16
78; Watson, 262 F.3d at 1302; Hall, 264 F.3d at 1058 (“We agree with the Board’s

analysis in Hobbs that the relevance of hazard to a LEO analysis is that physical

stamina and vigor are necessary to overcome such hazards.”).

The preeminence of a position’s physical vigorousness in determining whether or

not a federal position qualifies for LEO status is further supported by the legislative

history behind § 8331(20). See S. Rep. No. 93-948, at 2 (1974), reprinted in 1974

U.S.C.C.A.N. 3698, 3699; see also 5 U.S.C. § 8401(17)(A)(ii) (2000) (referring to the

definition of “law enforcement officer” in the Federal Employees Retirement System as

being an employee whose duties “are sufficiently rigorous that employment

opportunities should be limited to young and physically vigorous individuals”); S. Rep.

No. 99-166, at 41 (1985), reprinted in 1986 U.S.C.C.A.N. 1405, 1446 (asserting that, for

the purposes of the Federal Employees Retirement System, a law enforcement officer

was intended to be “an employee with rigorous law enforcement duties that require

young and vigorous individuals”). Thus, as evidenced by the relevant legislative history

and our precedents, physical vigorousness is the sine qua non of LEO status

determinations. Absent a showing of a position’s requirement of physical vigorousness,

an employee cannot successfully show LEO status.

All of the factor-based tests have attempted to devise factors that could help in

determining the physical vigorousness required by a position. For example, in the

Hobbs-Bingaman framework, we considered whether or not an employee worked for

long periods without a break, was on call twenty four hours a day and/or was required to

maintain a level of physical fitness. Bingaman, 127 F.3d at 1436. Similarly, in Watson,

we inquired as to whether a position had an early mandatory retirement age, a youthful

04-5034 17
maximum entry age, and physical demands so great as to require a youthful workforce.

Watson, 262 F.3d at 1303. These factors, pulled from our precedents, are the exclusive

factors that a court should consider in determining whether a position is sufficiently

vigorous to qualify for LEO status.

But physical vigorousness is only the first of two inquiries. As a secondary

consideration, this court has also examined the hazardousness of a position in LEO

determinations. Hazard, while important, is secondary to physical vigorousness

because the legislative history emphasizes physical vigor to a greater extent and also

because Hall instructs us to use hazard as a secondary indication of physical

vigorousness. See Hall, 264 F.3d at 1058. Language in Bingaman, Hannon II and

Watson stresses hazardousness as a major factor independent of vigorousness. Given

our precedent, it is clear to us that physical vigorousness and hazardousness are the

major factors to be considered in determining a federal employee’s LEO status.

In Bingaman, we inquired as to whether an employee was authorized to carry a

firearm, had frequent contact with criminal suspects and/or interrogated witnesses and

suspects (giving Miranda warnings where appropriate). Bingaman, 127 F.3d at 1436.

In Watson, we asked whether a position exposed an employee to hazard or danger and

whether a position required employees to guard life or property instead of more

frequently pursuing or detaining criminals (with guarding life or property as not being

LEO activity). Watson, 262 F.3d at 1303. These factors attempted to get to the

essence of whether or not a position was hazardous enough to be considered a LEO

position. (Indeed, the fifth Watson factor was explicit in identifying hazardousness as an

04-5034 18
important factor.) These factors, previously enumerated by this court, are the exclusive

factors to be considered in determining a position’s hazardousness.

Thus, we hold that there are two major factors that should be considered in

determining whether a position should be conferred LEO status. First, and

predominant, is the physical vigorousness required by the position. The relevant

considerations in any vigorousness determination are whether or not the position brings

with it (in order of importance): 1) strenuous physical fitness requirements; 2) age

requirements (such as a mandatory retirement age or a maximum entry age); or 3) a

requirement that an employee be on call twenty four hours a day.8 These sub-factors

should be evaluated by the Board or the Court of Federal Claims, who must apply the

facts to the law to determine which sub-factors, if any, have been satisfied.9 Once that

is complete, the court will have the discretion to weigh the sub-factors in making a

vigorousness determination.10 If the court finds that the position in question did not

require vigorousness as herein defined, the LEO inquiry is at its end and the position in

8
Satisfaction of only the twenty four hour on-call requirement will not satisfy
the physical vigorousness factor.
9
For ongoing sub-factors (such as twenty four hour on-call requirements) to
be satisfied, the position in question must, consistent with regulation, require those
factors at least fifty percent of the time.
10
In our discussion we use the word “court” to mean either the Court of
Federal Claims or the Merit Systems Protection Board, whichever is appropriate to the
facts of the case.

04-5034 19
question must be deemed to be outside of the scope of 5 U.S.C. § 8331(20).11 If the

position is found to be vigorous, then the second major factor necessary to establish

LEO status—hazardousness—must be considered.

To determine hazardousness, a court should consider whether the position (in

order of importance): requires frequent and consistent contact with criminal suspects

on the part of the employee (including interrogation of suspects and pursuit or detention

of criminals); or authorizes the employee to carry a firearm.12 As in Watson, the

hazardousness sub-factors are to be considered under the position-oriented approach.

Again, this determination of hazardousness will be at the discretion of the court.13

When a court determines that a position fails to qualify for LEO status, the court

must afford the employee the opportunity to show that, notwithstanding the absence of

a described LEO position, the employee in fact does qualify for LEO credit. This

opportunity is necessary since it is possible that agencies will not always keep job

descriptions current to match the actual activities of the individuals who occupy

described positions. For example, an employee occupying a position that fails to satisfy

11
In actions before the Board, the burden of proof is on the employee to
show that his or her position is entitled to LEO status based on a preponderance of the
evidence. 5 C.F.R. § 1201.56(a)(2) (2004). Before the Court of Federal Claims, a
plaintiff attempting to qualify for LEO status also bears the burden of proof. 5 C.F.R.
§ 831.906(a). A plaintiff in the Court of Federal Claims must also show that his or her
position is entitled to LEO status by a preponderance of the evidence.
12
Satisfaction of the firearm requirement alone will not satisfy the
hazardousness factor. There must be some showing of a requirement of frequent and
consistent contact with criminals or suspects in order for the hazardousness prong of
our inquiry to be met.
13
This position-oriented evaluation will be carried out as the analysis in our
Watson decision was carried out, with careful examination of the official documentation
surrounding the position’s existence.

04-5034 20
the test for vigorousness or hazard may nonetheless by actual duties be required to

satisfy both those tests. The possible conflict between a position based decision and a

decision driven by the activities of a particular individual was foreseen by the Board in

Watson: “evidence of actual duties performed . . . [must show] that—contrary to the

official documentation of the position—‘the basic reason for the existence of the

position’ was actually investigation, apprehension, or detention.” Watson, 86 M.S.P.R.

at 328. Therefore, the employee has the opportunity to disprove the conflict between

the description of the position and the real-life facts of occupying the position. To

establish LEO status in this fashion, the employee must, consistent with the regulation,

show that fifty percent or more of his or her actual duties were LEO duties (i.e. duties

that satisfy the vigorousness and hazardousness requirements for LEO status). A

preponderance of the evidence must support the employee’s claim.

4. Mr. Crowley’s case

Applying our test to the facts of this case, we first determine whether Mr. Crowley

served in a primary LEO position when he served as a DI for the DEA. If he did not,

then our inquiry is at its end. If he did, then we must consider whether he properly

transferred to a secondary LEO position.

We begin by using the factors identified above to determine the physical

vigorousness required by Mr. Crowley’s position as a DI within the DEA.

Throughout Mr. Crowley’s DI service with the DEA, nothing in his position

description or in any of the official documentation regarding his position articulated a

physical fitness requirement. Indeed, DEA memoranda from 1988 and 1989 support

that assertion. Furthermore, as the court itself noted, no physical fitness standards or

04-5034 21
requirements were ever adopted for DIs by the DEA. Crowley I, 53 Fed. Cl. at 780.

The Court of Federal Claims found that Mr. Crowley’s position was physically

demanding because Mr. Crowley may have been asked to move heavy objects and

inspect rooftops on occasion. Crowley I, 53 Fed. Cl. at 780. The court, however, failed

to find that Mr. Crowley’s position had any strenuous physical fitness requirement.

Moreover, this type of incidental physical labor does not satisfy a physical fitness

requirement as interpreted by this court. See Hannon II, 234 F.3d at 677.

The Court of Federal Claims also correctly noted that Mr. Crowley’s position was

not subject to any maximum entry level age requirement or any mandatory retirement

age. Id. As a result, Mr. Crowley’s position as a DI does not satisfy the age-related

factors pertaining to vigorousness.

The final factor in our vigorousness analysis is whether or not Mr. Crowley was

required to be on call twenty four hours a day. There was no official requirement that he

be on call twenty four hours a day. The Court of Federal Claims points to anecdotal

evidence where Mr. Crowley was called in to work irregular hours to support its finding

that Mr. Crowley was on call twenty four hours a day. Crowley I, 53 Fed. Cl. at 779. It

also pointed to testimony regarding the attitude of Mr. Crowley’s superiors towards his

general availability. Id. (quoting the Special Agent in Charge of the Portland, Maine

DEA office as having testified that he “considered every DEA employee to be at my

beck and call”). But anecdotal evidence and testimony regarding general availability is

insufficient to show that Mr. Crowley was required by the obligations of his position to be

on call twenty four hours a day. Accordingly, under our position-oriented approach, we

find that the final vigorousness factor has not been met in this case.

04-5034 22
 Ordinarily, under the position-oriented approach we articulate here, once a

negative determination regarding vigorousness is made, a court need not delve into the

hazardousness of an employee’s position to determine LEO status. Even if we were to

examine the hazardousness of Mr. Crowley’s position, however, our result would be

unchanged.

It is undisputed that Mr. Crowley’s position did not authorize him to carry a

firearm. Furthermore, there is no evidence that his position existed for the purpose of

pursuing and detaining criminals. And even though the Court of Federal Claims

correctly noted that there is some evidence that Mr. Crowley himself did engage in

contact with and interrogation of those suspects, nothing in his position description

mentions any requirements for contact with or interrogation of criminal suspects.14

Indeed, the Miller-Mullen Memoranda specifically led DIs away from activity that would

tend to lead to contact with criminals and suspects. In short, there is little in the official

duties of a DI that would incline us to find the position to be hazardous in nature.

The result of our analysis conforms with our decision in Hannon II. There, we

applied the case-by-case framework to determine that a DI did not qualify for LEO

status. As in this case, the DI in Hannon II was not authorized to carry a gun, arrest

suspects, execute search warrants, control informants or conduct moving surveillance.

Hannon II, 234 F.3d at 675. Hannon was also not required to satisfy a physical fitness

requirement or be on call twenty four hours a day. Id. at 677. Furthermore, even

14
The criminal contacts related to Mr. Crowley’s career and identified by the
Court of Federal Claims are anecdotal at best. Crowley I, 53 Fed. Cl. at 779. They are,
therefore, insufficient to show that Mr. Crowley’s position required frequent and
consistent criminal contact.

04-5034 23
though there was anecdotal evidence that Hannon was present at the execution of

several searches and occasionally interviewed witnesses and criminal suspects over the

course of his seven year career as a DI, we held that he nevertheless did not satisfy the

Hobbs-Bingaman factors and, thus, failed to qualify for LEO status. Id. at 678.

Although we cannot use Hannon II as controlling authority for our conclusion that DIs

are not entitled to LEO status because it precedes the position-oriented framework

established in Watson, it does confirm our contention that anecdotal evidence of

criminal contact cannot in and of itself confer LEO status on a federal employee. And it

provides further persuasive support for our conclusion that a DI is not entitled to LEO

status under § 8331(20).

Accordingly, we find that Mr. Crowley’s position does not qualify for LEO status

under controlling precedent and statutes. Furthermore, on this record, it has not been

established by a preponderance of the evidence that fifty percent or more of Mr.

Crowley’s actual duties were LEO duties. He therefore cannot show that his actual

duties conflict with his job description to the extent required to gain LEO status. We

thus reverse the Court of Federal Claims’ finding that the appellee, Mr. Crowley, was

entitled to LEO status under the FLEPRA.

C. Exhaustion and Pre-Judgment Interest

We do not reach the question of whether Mr. Crowley was required to exhaust

his administrative remedies before bringing suit in the Court of Federal Claims or

whether he was entitled to pre-judgment interest on any recovery stemming from his

FLEPRA claim. Because we have determined that his position did not confer LEO

status upon Mr. Crowley, reaching these issues is unnecessary.

04-5034 24
 CONCLUSION

For the reasons stated above, the Court of Federal Claims’ assertion of

jurisdiction over FLEPRA claims is affirmed. Its finding that the appellee is entitled to

LEO status is reversed.

REVERSED

04-5034 25
 United States Court of Appeals for the Federal Circuit

04-5034

JOHN D. CROWLEY,

Plaintiff-Appellee,

v.

UNITED STATES,

Defendant-Appellant.

DYK, Circuit Judge, concurring.

I join the opinion of the court. I write separately to emphasize that our

jurisdictional holding should not be read to require that the two proceedings in cases

such as this — one in the Court of Federal Claims for supplemental pay and one before

the Merit Systems Protection Board (“Board”) for retirement pay — proceed

simultaneously.

Both the Court of Federal Claims and the Board are authorized to stay their

proceedings pending the outcome of litigation in the other forum, and a decision by one

will be collateral estoppel as to the other. In my view, Congress designated the Board

as the primary forum for the resolution of disputes concerning Law Enforcement Officer

status entitlement, and the Board has had twenty-seven years of experience

administering the statute. Where claims are filed both in the Court of Federal Claims

and before the Board, the Court of Federal Claims should routinely stay its proceedings

pending the outcome of Board proceedings, unless the Court of Federal Claims
proceedings are at an advanced stage when the Board proceedings are commenced.

Cf. Martinez v. United States, 333 F.3d 1295, 1310 (Fed. Cir. 2003) (en banc) (stays in

parallel proceedings before the Court of Federal Claims and the Army Board for

Correction of Military Records).

04-5034 2