## 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, Ci vil 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 F ederal Claims’ assertion of jurisdiction in this case, its grant of law enforcement officer (“LEO”) status to the appellee, John D. Crowley, it s holding that the appellee was not required to exhaust his administrative remedies, and its legal conc lusion 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 Cour t 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 ce rtain metropolitan areas . 5 U.S.C. § 5305 note (2000). The statut ory definition of “law enforcement officer” that the FLEPRA relies on is included in the retirem ent 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” f ound 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 LE O 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 suspec ted or convicted of [criminal] offenses”) or have been transferred from a primary law enf orcement 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 LE Os 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 2employing agency for LEO credit based on the circ umstances 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 retire ment credit under the CSRA. See United States v. Fausto , 484 U.S. 439 (1988). In contrast to t he CSRA, the FLEPRA is a separate moneymandating statute that require s the payment of supplemental pay to federal employees who satisfy both the criteria for supplemental pay and the st atutory definition of “law enforcement officer.” The Drug Enforcement Agency (“DEA”) em ploys diversion investigators (“DIs”) (formerly known as compliance investigators) to investigate the diversion of legal but controlled substances from legitimate channel s of commerce to illegitimate ones. DIs work to determine compliance with the Cont rolled 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, execut e arrest or search warrants, direct or pay informants, or conduc t moving surveillance. Furthermore, at the time Mr. Crowley served as a DI, DIs had no physical fitness requirements, age

04-5034 3requirements, or agency-impos ed 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 Gr oup Supervisor in the Boston regional office of the DEA. He remained in t hat position until Februar y 25, 1991, when he was transferred to DEA headquarters in Arlington, Vi rginia. There, he took the position of staff coordinator for the Office of Diversion C ontrol. 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 t hat 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”), ar guing that his service as a DI qualified as primary LEO service. He also successfu lly 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 servic e 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 tr ansferred directly to those secondary

3 This court has already had an opportuni ty 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 appell ee argued that the government was judicially and/or collaterally estopped fr om 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 argum ent was rejected by the court and has not been raised here.

04-5034 4LEO 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 re tirement 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 Depar tment of Justice (“DOJ”), pursuant to the OPM’s delegation of its authority to determine t he 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 hi m that his staff coordinator position counted as a secondary position for which primary law enfor cement experience was required. Thus, he was conferred LEO status for his servic e 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 appli ed 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 wa s properly transferred from that position to a valid sec ondary (administrative or supervisory) LEO position. If Mr. Crowley cannot prove either that he served in a primary LEO po sition or that his secondary positions were valid LEO positions , he does not qualify for supplemental pay under the FLEPRA.

04-5034 5for 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 F ederal 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 F ederal 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 determi ned 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 6In determining that the appe llee 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 o ffer 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 alte rnative basis, the Court of Federal Claims examined Mr. Crowley’s experi ences 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 fa ctors identified in Bingaman , the Court of Federal Claims determined that, in light of hi s 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 rais es 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. Cr owley properly qualified as a LEO under our precedent; (3) whether Mr. Crowley was requir ed to exhaust his administrative remedies before asserting his claim in the Court of Federal Claims; and (4) whether the federal government had clearly and unam biguously waived its sovereign immunity on pre04-5034 7judgment 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 Feder al 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 c onfers jurisdiction on the Court of Federal Claims. 28 U.S.C. § 1491(a)(1) (2000). Bu t the Tucker Act alone does not create a substantive claim against the feder al 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 ar e . . . actions brought pursuant to moneymandating constitutional provisions, statutes , regulations and exec utive orders. The Tucker Act does not itself prov ide the substantive cause of action.” (internal citations omitted)). No party in this litigation disput es that the FLEPRA is a money-mandating statute. Indeed, t he 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 metropolit an areas] shall receive an

04-5034 8adjustment [in their pay], whic h 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 entitl ed to a pay adjustment depending on the metropolitan area in which he or she worked. Thus, the FLEPRA is a money-mandating statute. The substant ive 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 retire ment 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 stat us is an element of a 5 U.S.C. § 8336(c) claim for retirement benefits, only the B oard (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 Cour t of Federal Claims. There can be no dispute that CSRA retirem ent claims must go before the Board and that FLEPRA cases must go bef ore 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 9The government argues that the Court of Federal Claims’ jurisdictional finding raises the possibility of cont radiction and lack of uniformity in future LEO determinations because the Board will determine LEO status fo r 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 jurisdic tional analysis. Indeed, it is our task to state the law that must be applied both by t he 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 Feder al Claims correctly pointed out in Hannon I , Congress merely incorporated the definition of LEO from the re tirement statutes into the FLEPRA—in doing so, it did not also inco rporate 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 woul d 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 statut es should receive a sensible construction, such as will effectuate the legisl ative intention, and, if possibl e, so as to avoid an unjust or an absurd conclusion.”).

04-5034 10Accordingly, insofar as the question of the jurisdiction of t he Court of Federal Claims to make LEO determinations in decid ing 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 LE O status is governed by our relevant precedent. That precedent is binding on this court as it is bindi ng on the Court of Federal Claims. In its opinion, the C ourt 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 St ates Court of Appeals for the Federal Circuit any more than the Federal Circuit can deviate from t he precedent of the Unit ed States Supreme Court. Trial courts are not free to make the law anew simply because they disagree with the precedential and author itative 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 ex istence 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 115 C.F.R. §§ 831.902, 842.802 (2004) . Generally, an employee who spends at least half of his or her working time on the investi gation, apprehension or de tention of criminal suspects is considered to be one whose duties are primarily law enforcement. Id. Our current precedent r egarding the LEO status of federal employees has evolved from a case-by-case factor specific framework to a positi on-oriented framework supplemented by the individual facts presented by each case. 1. The case-by-case framework The case-by-case framework was fi rst 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 framewor k relied on articulated factors and an individual employee’s actual work ex perience to determine whether or not a federal employee was a LEO. These factor s 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 legislativ e history behind 5 U.S.C. § 8331(20) to establish a series of fa ctors that would help in determining an employee’s LEO status. Accordingly, the Board construed t he term “investigation” in § 8331(20) to mean “criminal investigation” or, specifically, the “investigation of suspected or known criminals for the immediate purpose of crim inally prosecuting t hem if warranted.” Hobbs , 58 M.S.P.R. at 633. T he Board went on to identif y 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 suspect ed or known criminals; 2)

04-5034 12authorization to carry a weapon and requirement to maintain proficiency in using a weapon; 3) giving Miranda warnings to wit nesses 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 mainta in 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 a ffirmed the Board’s denial of LEO status based on an analysis of the fa cts performed under the rubric of Hobbs . In Bingaman , we specifically adopted the six Hobbs factors and explained, “while the scope of the statutory categor y of ‘law enforcement office r’ cannot be crisply defined with a single phrase, the set of fa ctors the Board has developed [in Hobbs and afterward] captures the essenc e of what Congress intended.” Id. In December of 2000, we applied the Hobbs

- Bingaman factors to a case involving a DI’s request fo r 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 t he law enforcement duties recognized by and contained within the statutory ambit” of the retirement statutes

04-5034 13dealing 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 ra ther 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 evolut ion of the case-by-case framework first adopted in Bingaman

. 6 There, we adopted the Boar d’s new position-oriented approach, which “more affirmatively consi dered 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 ac tual 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-orient ed approach, the court identified the five “most probative” factors in determining a feder al officer’s entitlem ent 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) w hether there is a youthful maximum entry age; 4) whet her 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 positi on-oriented approach, our subs equent 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 14capture whether or not the hazard associated with a positi on’s duties and the physically demanding nature of the work were asso ciated with law enfor cement 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 empl oyee’s LEO status. 7 As the Board noted, such an approach is more in keeping with the original l anguage 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-or iented approach, we consider the relevant factors established by Bingaman and Watson in determining whether or not a position, not an employee, is entitled to LE O status. And, as in Watson , evidence of an individual

7 We decline the government’s invitati on 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 gra ft a position-oriented analysis onto Hannon II where none previously exist ed. We will, however, use Hannon II in evaluating whether Mr. Crowley’s actual duties satisfy the factors relevant to determining whether or not hi s actual experience contr adicted the reasons for his position’s existence.

04-5034 15employee’s activities will be considered insofa r 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 fact ors 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 cons idered “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 ot hers. 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-ori ented approach of LEO determinations is the physical vigorousness requi red 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 t hat physical vigorousness was a factor of utmost importanc e in determining LEO status. Hannon II , 234 F.3d at 677-

04-5034 1678; Watson , 262 F.3d at 1302; Hall , 264 F.3d at 1058 (“We agr ee 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 t he Federal Employees Re tirement System as being an employee whose duties “are suffi ciently 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 Reti rement System, a law enforcement officer was intended to be “an employ ee with rigorous law enforcem ent duties that require young and vigorous individuals”). Thus, as evi denced by the relevant legislative history and our precedents, physical vigorousness is the sine qua non of LEO status determinations. Absent a showing of a posit ion’s requirement of physical vigorousness, an employee cannot successfully show LEO status. All of the factor-based tests have attempt ed to devise factors that could help in determining the physical vigorousness required by a position. For example, in the Hobbs

- Bingaman framework, we consi dered whether or not an employee worked for long periods without a break, wa s 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 re tirement age, a youthful

04-5034 17maximum entry age, and physical dem ands so great as to require a youthful workforce. Watson , 262 F.3d at 1303. These fa ctors, pulled from our pr ecedents, are the exclusive factors that a court should c onsider in determining whether a position is sufficiently vigorous to qualify for LEO status. But physical vigorousness is only the firs t of two inquiries. As a secondary consideration, this court has also exam ined the hazardousness of a position in LEO determinations. Hazard, while importan t, is secondary to physical vigorousness because the legislative histor y 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 fact or independent of vigorousness. Given our precedent, it is clear to us that physical vigorousness and hazardousness are the major factors to be considered in dete rmining a federal employee’s LEO status.
In Bingaman , we inquired as to whether an em ployee 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 expos ed 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 factor s 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 18important factor.) These fact ors, 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 requi red by the position. The relevant considerations in any vigorousness determinati on are whether or not the position brings with it (in order of importance): 1) strenuous physica l fitness requirements; 2) age requirements (such as a mandatory retirem ent 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 Cour t of Federal Claims, who must apply the facts to the law to determine which s ub-factors, if any, have been satisfied. 9 Once that is complete, the court will have the discreti on 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 requirem ent will not satisfy the physical vigorousness factor.

9 For ongoing sub-factors (such as twent y 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 “c ourt” to mean eit her the Court of Federal Claims or the Merit S ystems Protection Board, whic hever is appropriate to the facts of the case.

04-5034 19question 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 sec ond major factor necessary to establish LEO status—hazardousness—must be considered. To determine hazardousness, a court shoul d consider whether the position (in order of importance): requi res frequent and consistent cont act with criminal suspects on the part of the employee (including interrogat ion of suspects and pur suit or detention of criminals); or authorizes t he employee to carry a firearm. 12 A s i n Watson , the hazardousness sub-factors are to be consider ed under the position-or iented approach. Again, this determination of hazardousne ss 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 po ssible that agencies will not always keep job descriptions current to match the actual activities of the individuals who occupy described positions. For exampl e, 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 positi on is entitled to LEO status based on a preponderance of the evidence. 5 C.F.R. § 1201.56( a)(2) (2004). Before the C ourt of Federal Claims, a plaintiff attempting to qualify for LEO status also bears t he burden of proof. 5 C.F.R. § 831.906(a). A plaintiff in the Court of Feder al Claims must also s how that his or her position is entitled to LEO status by a preponderance of the evidence.

12 Satisfaction of the firearm r equirement alone will not satisfy the hazardousness factor. There must be some showing of a requirement of frequent and consistent contact with criminals or sus pects 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 exam ination of the official documentation surrounding the position’s existence.

04-5034 20the test for vigorousness or hazard may nonet heless by actual duties be required to satisfy both those tests. The possible c onflict between a position based decision and a decision driven by the activities of a particu lar individual was foreseen by the Board in Watson : “evidence of actual duties performed . . . [must show] that—contrary to the official documentation of the position—‘t he basic reason for t he existence of the position’ was actually investigat ion, apprehension, or detention.” Watson , 86 M.S.P.R. at 328. Therefore, the em ployee has the opportunity to disprove the conflict between the description of the position and the real-life facts of o ccupying 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 hazardousne ss 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 serv ed 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 ident ified 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, nothi ng in his position description or in any of the official docum entation regarding his pos ition articulated a physical fitness requirement. Indeed, DEA memoranda from 1988 and 1989 support that assertion. Furthermore, as the court itself noted, no physica l fitness standards or

04-5034 21requirements were ever adopt ed 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 correct ly 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 anal ysis 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 Cour t 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 regar ding 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 testifi ed that he “considered every DEA employee to be at my beck and call”). But anecdotal evidence and te stimony 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 22Ordinarily, under the posit ion-oriented approach we ar ticulate here, once a negative determination regarding vigorousness is made, a court need not delve into the hazardousness of an employee’s position to dete rmine 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 posit ion did not authorize him to carry a firearm. Furthermore, there is no evidence that his position exis ted for the purpose of pursuing and detaining criminals. And even though the Court of Federal Claims correctly noted that there is some evi dence that Mr. Crowle y 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 c onforms with our decision in Hannon II . There, we applied the case-by-case framework to det ermine 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 r equired 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 23though there was anecdotal evi dence that Hannon was present at the execution of several searches and occasionally interview ed witnesses and criminal suspects over the course of his seven year career as a DI, we held that he neverthele ss 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 fo r our conclusion that DIs are not entitled to LEO status because it precedes the positi on-oriented framework established in Watson , it does confirm our contenti on that anecdotal evidence of criminal contact cannot in and of itself confer LEO status on a federal employ ee. And it provides further persuasive support for our c onclusion 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. Furt hermore, 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 s how that his actual duties conflict with his job descr iption to the extent required to gain LEO status. We thus reverse the Court of F ederal Claims’ finding that t he 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 pr e-judgment interest on any recovery stemming from his FLEPRA claim. Because we have determined that his position di d not confer LEO status upon Mr. Crowley, reaching these issues is unnecessary.

04-5034 24CONCLUSION For the reasons stated abov e, 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 r equire that the two proceedings in cases such as this — one in the Court of Feder al Claims for supplemental pay and one before the Merit Systems Protection Board (“B oard”) for retirement pay — proceed simultaneously. Both the Court of Federal Claims and t he 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 t he Board has had twenty-seven years of experience administering the statute. Where claims ar e filed both in the C ourt of Federal Claims and before the Board, the Court of Federal Claims should rout inely stay its proceedings pending the outcome of Board proceedings, unless the Court of Federal Claimsproceedings are at an advanced stage when t he 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