Crowley v. United States

PROST, Circuit Judges.

Opinion for the court by filed Circuit Judge PROST. Concurring opinion filed Judge Circuit DYK. PROST, Judge. Circuit The United appeals States the United States Court of Federal Claims’ assertion jurisdiction case, in this grant its of law (“LEO”) enforcement officer status to the appellee, Crowley, John D. holding its the appellee was not to exhaust remedies, his administrative and its legal appellee conclusion that the is entitled to supplemental pay and pre-judgment inter stemming est from his claim under the Law Pay Enforcement Reform 1990, Act 101-509, §§ Pub.L. No. 401- 412,104 1389,1465-69 (“FLEPRA”).1 Stat. We affirm the Court of Federal Claims’ jurisdiction assertion of in this case. We reverse holding regarding Mr. Crow ley’s LEO status and decline to reach Kator, Harris, Cathy A. Parks issues of & Weis- exhaustion and pre-judgment in er,, P.L.L.C., DC, Washington, terest. argued

for plaintiffiappellee. her on With Irving brief were Kator and Michael J. BACKGROUND Kator. The FLEPRA promises law enforce Austin,

Scott D. Litigation Commercial ment supplemental officers pay over and Branch, Division, Civil United States De- above their standard if pay they work in 8425; § Sections 401-407 412 of FLEPRA are at § 5 U.S.C. 8335 and 5 U.S.C. found, amended, § § at 5 U.S.C. 5305 note 410 at 5 (repealed part (2000) (§ repealed by 102-378, 2(43), § Pub.L. No. 1OS- Pub.L. No. 106 Stat. 411, 101(d) (2004)). (1992)); 408 is codified §'411 Section at 5 U.S.C. 4521-4523, note; §§ .§ 5 U.S.C. 4Ó9 pay statutory and the definition of “law areas. 5 U.S.C. metropolitan certain enforcement officer.” (2000). statutory defini The 5305 note officer” that the “law tion of enforcement (“DEA”) Drug Agency Enforcement n in the re on is included FLEPRA relies (“DIs”) employs investigators diversion in the dealing with LEOs tirement statutes (formerly compliance investiga as known of tors) Reform Act Service Civil investigate legal the diversion of (“CSRA”).2 FLEP- By the legitímate terms from but controlled substances satisfy the RA, employee illegitimate must channels of commerce to ones. a federal compliance DIs work to determine with of a “law enforcement statutory definition (“CSA”) Act 8331(20) the Controlled Substance § in 5 officer” found U.S.C. in may part investigations also take of supplement. qualify pay for the See activity. investigate criminal DIs manu 5541(3)(A) (2000). § To meet U.S.C. facturers and distributors controlled in a found statutory definition of compliance in substances order to assure 8331(20), either a federal must improper no with the CSA and that diver primary posi in a law enforcement work occurred. sion controlled substances has (i.e. in “primarily [to] tion dedicated though may participate even DIs And or detention vestigation, apprehension, investigations, they may carry criminal suspected or convicted [crim individuals (hereinafter DEA firearms. memos re offenses”) or have been transferred inal] the “Miller-Mullen Memoran- ferred as position law enforcement primary from da”) further established that DIs were not posi administrative supervisory into a or in undercover activities of participate 8331(20) (2000). An em tion. 5 U.S.C. kind, any arrest or search war execute’ of a LEO can meet the definition ployee informants, rants, pay or conduct direct posi serving approved an either Furthermore, at moving surveillance. employing agen by applying tion or DI, Crowley Mr. served as a DIs had time cy credit based on the circum for LEO requirements, age re no fitness 5 C.F.R. of his or her service. stances obligations quirements, agency-imposed (2004). 831.903, §§ 831.906 day.3 twenty on call four hours to be Board Systems Protection The Merit ca- appellee began in this case Board”) (“the jurisdiction undisputedly has DI serving DEA as a reer credit un over claims for LEO retirement career as a Metropolitan area. His Boston v. Faus See United States 15, der CSRA. 12, 1973 to June DI lasted from March 668, to, 439, L.Ed.2d 108 S.Ct. 16, 1986, 484 U.S. work as On June he began (1988). CSRA, the In contrast to the regional Boston Group Supervisor money-mandating separate FLEPRA is a in that of the DEA. He remained office 25, 1991, payment sup February when he requires statute that until headquarters to DEA employees federal who was transferred plemental pay to There, he took the Arlington, Virginia. satisfy supplemental the criteria for both already opportunity 3. This court has had retirement statutes for LEOs The relevant previous pass DIs in a on the LEO status of provide benefits in the form of for retirement Justice, Dep’t case. See Hannon v. annuity payments LEOs who have for federal 674, ("Hannon (Fed.Cir.2000) 675-76 F.3d completed age fifty have reached the II"). Though in Hannon II is not twenty years of service as LEO. See 5 case for rea- entirely applicable to the instant 8336(c) (2000). later in this that shall become clear sons analysis. to our opinion, it has some relevance coordinator for the employees, of staff Office responsibility took for deciding 31, of Diversion Control. On October Mr. Crowley’s LEO status. See 58 Fed. 1994, was transferred (Dec. back to 64,366 7,1993). Reg. Office, the DEA’s Boston where he re- 1993, appellee annually After applied Group Supervisor. sumed his duties to the expand DOJ to his LEO credit for 2001, Special made April he was Assistant subsequent year each super- he served in a Program Manager Diversion and visory or position. administrative Au- stayed in that until his retirement gust of him DOJ informed October his staff coordinator position counted as a appellee sought The and received retire secondary position primary for which law for primary ment credit LEO service from experience enforcement required. was the Management Office Personnel Thus, he was conferred LEO status for his (“OPM”), arguing that his service as a DI service as staff coordinator to the Office of qualified primary as LEO service. He 1999, Diversion Control. In the DOJ re- successfully sought also LEO service cred course, versed appellee’s declared the staff 16, period it for the between June position position coordinator abe 30, 1991, September all covering of his qualify credit, did not for LEO and denied Group initial Supervisor service in Bos requests for LEO retirement credit for part ton and of his service as staff coordi 1, his service between October 1991 and nator for the Office of Diversion in Control 15,1997. June year, That same Mr. Crow- Arlington.4 argued He before the OPM ley applied one last time to the DOJ for secondary that his service him qualified for LEO credit period covering for the June pay FLEPRA because he was transferred 16, 16, 1997 to June 1998. The DOJ has directly secondary positions to those LEO never request. acted on that 1992, a primary position.5

from LEO In response to the DOJ’s denial of his receiving period after LEO credit for the status, requests for appellee LEO filed 12, between March and September complaint with the Board for LEO re- 30, 1991, Crowley began Mr. to apply an and, tirement concurrently, credit a com- nually to the OPM for LEO retirement plaint in the Court Federal Claims to coverage supervisory for his and adminis recover supplemental pay under in applied trative work. He 1992 for LEO FLEPRA period for the covering October performed status for he in the work fiscal 1, (“FY”) 1991 to October year Before the he did the up claims, Board could take his retirement same for FY 1993. The OPM acted on it 7, 1993, stayed Mr. request. Crowley’s neither On December action for retire- (“DOJ”), ment credit in Department pursu of Justice order to allow him pursue ant delegation to the OPM’s of its authori his FLEPRA claim before the Court of ty to determine the LEO status of DEA Federal stay Claims. theWith Board’s Claims, 4. Before Court of qualify supplemental In order to pay for FLEPRA, appellee argued government Crowley under the ju- that the was must show primary that he served in a dicially LEO collaterally estopped from ar- and/or properly was transferred from that guing primary that he was not entitled to LEO (administrative secondary a valid supervi- credit as a result of OPM's initial determina- sory) position. LEO If Mr. cannot tion that he was indeed entitled to such cred- prove primaiy either that he served in LEO argument it. rejected by That was the court secondary positions or that his were and has not been raised here. positions, qualify valid LEO he does not supplemental pay under the FLEPRA. . (Fed.Cir.2001) pro- Using 264 F.3d 1050 of Federal Claims the Court place, appel- and decide in Bingaman, to consider six factors identified ceeded claim. that, lee’s FLEPRA Court Federal Claims determined light personal experiences of his as a DI rulings dealing with In a series of DEA, appellee being merited general and of this of DIs LEO status granted primary status under 5 of Federal particular, Court appellee (l) juris 8331(20). that: 'it had Claims determined The thus sat appellee (2) claims; FLEPRA diction to hear DI’s necessary prerequisites isfied the for the status was entitled appellee supplemental pay award of FLEPRA DI for his as a and also both for his service in DEA supervisory his service or adminis po secondary drug enforcement service I, positions. Crowley trative 53 Fed. atCl. (3) DEA; appellee within the sitions 774-88. his adminis to exhaust States now raises four issues United since the DOJ had al trative remedies - appeal from the Court of Federal ready position regarding determined (1) (4) status; Pay Back whether the of Federal Act Claims: his LEO immunity sovereign the waiver of provided jurisdiction Claims had to determine Mr. to recover permit appellee that would (2) status; Crowley’s LEO whether Mr. from the federal interest pre-judgment Crowley as a un- properly qualified FLEPRA claims. See for his government (3) precedent; whether Mr. Crow- der our States, 48 Hannon v. United generally ley to exhaust his adminis- (2000) (“Hannon ”); Crowley I 15 Fed.Cl. asserting trative before his claim remedies (2002) States, 737 v. 53 Fed.Cl. United (4) Claims; the Court of Federal States, ”); Crowley (“Crowley I v. United government whether the federal had clear- (2003) II”); (“Crowley Fed.Cl. ly unambiguously sovereign waived its States, 57 Fed.Cl. 376 Crowley v. United immunity pre-judgment interest for III”). (2003) (“Crowley FLEPRA. granted awards under the We appellee is enti determining that jurisdiction appeal have to hear this under status, the of Federal tled to LEO Court 1295(a)(3). § 28 U.S.C. interpretation undertook a de novo Claims 8331(20), § that “the stating 5of U.S.C. DISCUSSION

simple words of the statute offer sufficient I, 53 Fed. guidance.” and clear of Federal Claims’ review the Court We interpretation of the at 777. Under its Cl. all of de novo and conclusions of law statute, the Court of plain meaning of Heisig v. findings of fact for clear error. appel- that the Federal Claims determined States, 1153, 1157-58 719 F.2d United DI service as a was covered lee’s (Fed.Cir.1983). Legal analysis involving “law statutory definition of enforcement legal of law to the facts is application Id. at 768-74. As an alternative officer.” de novo. See question that is reviewed basis, exam the Court of Federal Claims Prods., Inc. v. Solid State Litton Indus. a DI in Crowley’s experiences ined (Fed.Cir. 755 F.2d Sys. Corp., rulings in light precedential of this court’s 1985) “if (requiring reversal the court en Treasury, Bingaman Department v. of faulty analysis applying in a gaged II, (Fed.Cir.1997); Hannon F.3d 1431 application and a correct law to the facts 674; Department 234 F.3d Watson v. might bring a differ (Fed.Cir.2001); to those facts law Navy, 262 F.3d result”). Treasury, ent Department and Hall v.

A. The Jurisdiction Court enforcement officer” is found the retire- of Federal Claims ment statutes and successful showing LEO status is an element of a 5 U.S.C. stated, previously As Tucker 8336(c) benefits, claim for retirement jurisdiction on the Act confers Court of (as only opposed the Board to the Court 1491(a)(1) Federal Claims. 28 Claims) jurisdiction has to hear (2000). Act But the Tucker alone does not case that turns on determination against create a substantive claim the fed argument, LEO status. This while crea- money See government damages. eral States, tive, unpersuasive. is Martinez v. United 333 F.3d (“The (Fed.Cir.2003) 1302-03 actions for positive A determination of LEO status which the Tucker Act waives sovereign is a necessary element to successful recov- ... immunity brought actions pursu ery for both CSRA claims money-mandating ant constitutional brought before the Board and also pay statutes, provisions, regulations and execu adjustment brought claims under tive orders. The Tucker Act does not FLEPRA before Court of Federal provide itself the substantive cause of ac Claims. There be no dispute can (internal omitted)). tion.” citations CSRA go retirement claims must before party litigation disputes No in this the Board FLEPRA and that cases must money-mandating FLEPRA is a stat- go before the of Federal Claims. Indeed, very ute. explicit the FLEPRA jurisdiction And courts have over claims— paid as to what LEOs. As 404 of be not over elements claims. Given that states, the FLEPRA the Court of jurisdic- Federal Claims has officer [E]ach law enforcement whose tion over FLEPRA claims via the Tucker post of duty is in one the [enumerated Act, it jurisdiction also has to make the metropolitan shall receive an ad- areas] legal necessary and factual determinations justment which their shall be a pay], [in to resolving those claims. percentage of rate of the basic officer’s government argues that the Court pay .... jurisdictional of Federal finding Claims’ 5 U.S.C. 5305 note. The statute is raises the of contradiction possibilityi and clear—if in statutorily a LEO works lack uniformity in' future LEO determi- area, metropolitan defined that LEO is nations because Board will the determine pay adjustment entitled to a depending on purposes LEO status for retirement and metropolitan which he or area she the Court of Claims will deter- Federal Thus, money- worked. the FLEPRA is a mine LEO status for FLEPRA purposes. mandating statute. The substantive cause potential uniformity The mere for lack of FLEPRA, of action in this case is the but jurisdictional change does not analysis. grant jurisdiction the Court of Indeed, it is our task state the law that Federal properly Claims is found applied must be both the Board and 1491(a)(3). Tucker Act. 28 U.S.C. Court of Federal guidance Claims. Clear Notwithstanding jurisdic obvious from mitigate any this court can risk of Act, tion appellant' under the Tucker contradiction between the Board this that because United argues case Court of Federal Claims. Fausto, States v. 439, 484 U.S. 108 S.Ct. Furthermore, the Court (1988), of Federal gives L.Ed.2d 830 I, Hannon correctly pointed Board Claims out in jurisdiction exclusive over retire CSRA, Congress ment brought merely incorporated claims under the defini- statutory because the definition of “law tion of LEO from the retirement statutes so, doing not courts are to make the law into FLEPRA —in it did not free anew the review mechanisms incorporate simply they disagree also because with the the retirement statutes. associated with precedential and authoritative of a I, at 23. Fed. Cl. Further- Hannon reviewing appellate court.

more, jurisdiction the Board’s is because LEO, definition, A statutory under the limited, it cannot hear FLEPRA claims. who primarily “investigat[es], is one appre- Thus, government’s if were suspected or those hen[ds] det[ains]” correct, a claimant would first have to 8331(20). féderal crimes. 5 U.S.C. His pursue undesired retirement perhaps her that: primary or duties are those claim Board in order to before the be able FLEPRA claim litigate pay his or her paramount i Are in influence or weight; the Court of Federal Claims. before is, constitute the reasons for basic in the language There no FLEPRA to the position; existence of support an odd result. And we do such Occupy portion ii substantial ways that lead to construe statutes time working typical individual’s over See, if can avoid doing such a result we so. cycle; work 661, 667, e.g., Chapman, In re U.S. (1897) iii Are on a assigned regular re- (“[NJothing S.Ct. 41 L.Ed. settled, curring than that statutes should basis. better construction, a sensible such as will receive (2004). 831.902, §§ 5 C.F.R. 842.802 .Gen- intention, and, if legislative effectuate the erally, spends an employee who least an possible, unjust so as to avoid working half of time on his or her conclusion.”). absurd investigation, apprehension detention of Accordingly, question insofar as the criminal to be suspects is considered one n jurisdiction of the Court primarily whose duties are law enforce- to make LEO determinations Claims ment. Id. concerned, claims is deciding FLEPRA precedent regarding Our current affirm of Federal the Court Claims’ asser- employees LEO status of federal has jurisdiction. tion of specific case-by-case

evolved from a factor Appellee’s B. The LEO Status position-oriented framework to a frame- supplemented by work the individual facts of the appellee’s Our re by presented each case. governed by our quest for LEO status precedent That precedent. relevant binding on this court as it is on the

binding case-by-case 1. framework The In opinion, Court of Federal Claims. The framework was case-by-case first begin Court of Federal Claims chose to v. by articulated the Board Hobbs Office interpretation undertaking the of 5 Management, Personnel 58 M.S.P.R. of 8331(É0) and, § de novo in the al (1993), adopted by this 628 and later court ternative, analyzing this case our under Bingaman. at Bingaman, F.3d precedent. reject the initial We court’s de 1436. This relied on articulat- framework 8331(20) § novo of interpretation because employee’s ed factors an individual may Court of Federal Claims not devi experience actual work determine ate of precedent from the the United whether not a federal was for Appeals of the Federal States Court These to be LEO. factors were considered any Circuit more than the Federal Circuit a whole the Board on a weighed as can precedent deviate from the of the case-by-case Supreme Court. Trial basis. United States Hobbs, on the legis captures In the Board relied of afterward] essence 8331(20) Congress § what Id. lative behind 5 U.S.C. intended.” history series factors would establish a In applied December of we determining employee’s help in to a Hobbs-Bingaman factors case involv- Accordingly, the Board status. construed ing request a DI’s for LEO retirement 8331(20) “investigation” in the term II, generally credit. See Hannon or, investigation” specifi mean “criminal case, F.3d at 674. which was “investigation cally, suspected similar to this one on the facts and which pur known criminals for the immediate below, thoroughly will be discussed more criminally if pose prosecuting them war we affirmed the Board’s determination Hobbs, ranted.” at 633. M.S.P.R. that a DI who failed to meet four of the six identify on to Board went hazard and Hobbs-Bingaman factors not a LEO physical requirements as integral stamina 8331(20). under Id. at 677-82. deciding to a LEO determination. Hall, Finally, in we affirmed the Board’s case, on six the Board relied factors to denial of LEO credit retirement to a Ca- spe determine that Hobbs’s nine Enforcement Officer Customs Alcohol, inspector cial for the Bureau Hall Service. described the Hobbs-Bin- Tobacco and Firearms was a law en gaman being factors as set of “a tools to purposes forcement for in gauging assist the Board whether an 1) 8331(20). Those were: con factors employee’s assigned properly activities fall 2) criminals; tact with or known suspected scope within the law enforcement carry weapon authorization to and re recognized by duties and containéd within quirement proficiency maintain in using statutory ambit” 3) weapon; giving warnings Miranda Hall, dealing statutes with LEOs. F.3d course of in witnesses interviewed Thus, view, at the factors 4) vestigation; requirement to be on call “were forth not set as a substitute for the 5) twenty a day; working four hours over statute, but rather as a framework 6) frequently; requirement time to factual inquiry needed to ascertain cover- maintain a level of fitness. See age statutory under the scheme.” Id. Hobbs, 633 n. M.S.P.R. position-oriented 2. The framework Hobbs, years adopted Four after we in Bingaman. Hobbs ourselves Watson marked a step factors further There, Bingaman, 127 F.3d at case-by-case evolution of the framework adopted Bingaman,6 There, affirmed the Board’s denial of LEO status first we analysis per- adopted based on an of the facts position-oriented the Board’s new approach, formed under the rubric of Hobbs. affirmatively which “more con Bingaman, adopted specifically the six sidered the reasons for the creation and Hobbs and explained, factors “while the existence of ... positions than the officers’ scope statutory category actual, occasional, if of ‘law even incidental or Watson, crisply enforcement officer’ cannot be duties.” de- 262 F.3d 1295. The single fined phrase, with a the set of fac- actual duties carried out federal em tors developed ployees only the Board has Hobbs be if they [in would relevant run Though roughly any analysis issued at Hall same controls LEO done this court. explicitly adopt time as and did Watson not generally Koenig Dep’t Navy, See v. position-oriented approach, our subse- (Fed.Cir.2003). F.3d 1378 quent cases show the Watson framework analysis for the existence of vant statutes than an an em- to the reasons counter positions. their Id. at 1300-01. ployee’s actual duties. See Watson v. Dep’t Navy, 86 M.S.P.R. 320-21 position-ori- to adopting In addition (2000) 8331(20) (construing 5 U.S.C. approach, the court identified ented (“ ‘[L]aw enforcement means an officer’ probative” factors five “most determin- employee, the duties whose are entitlement to LEO ing a federal officer’s primarily investigation, Those factors are: apprehension status. five or 1) suspected detention of individuals or merely whether officers are offenses.”) property (empha- life or convicted of guarding [criminal] and whether added)). frequently officers instead more sis 2) criminals; detaining or pursuing early mandatory an

whether there is 3. Relevant in the considerations 3) age; whether there is a position-oriented framework 4) entry age; youthful maximum wheth- job is physically demanding er the so as In applying position-oriented ap- workforce; 5) youthful require to and proach, we consider the factors relevant exposed the officer is hazard whether by Bingaman established Watson danger. determining position, whether not a addition, an employee, Id. at 1303. the Hobbs-Bin is entitled status. to LEO “may And, Watson, factors be considered as nec gaman as in evidence of an individu- essary appropriate.” Id. The court employee’s al activities will be considered being necessary this explained shift as substantially insofar as it conflicts with our not the capture better whether or hazard position determination. position’s with a duties and the associated noted, previously As offer an cases demanding nature of work physically array of in apply- factors be considered associated with law enforcement

were ing the to our position-oriented approach year's Id. at Two duties. after Wat review of LEO determinations. Both Wat- son, position-oriented ap we followed the son Hall used different factor-based Koenig v. proach established Watson tests aid their review of LEO determi- Navy, Department 315 F.3d 1378 Watson, nations. (Fed.Cir.2003). Prior to the Hobbs-Bin- Indeed, Koenig used Wat gaman predominant in this factors were deny position-oriented son’s court’s police status to officer review of determinations. appellant in that case. that it While Watson identified five factors it did primary importance, held be of Koenig

It clear from that the Watson away Hobbs-Bingaman not do with the is the position-oriented approach operative factors. It instead allowed those factors for this of a test court’s review federal necessary appropri- be considered “as As the employee’s LEO status.7 Board to its noted, ate” addition five enumerated more in approach keep such Watson, factors. 262 F.3d at ing original language with the the rele- previ- analysis II none government’s 7. We decline ed onto Hannon where the invitation will, however, ously by using case II We use Hannon decide this Hannon as deci- existed. evaluating Crowley’s actual precedent. prior II was II in whether Mr. sive Hannon decided adoption position-oriented ap- satisfy to determin- duties the factors relevant of the ing proach. analysis experience not his actual con- The in Hannon II was whether or entire Hobbs-Bingaman position’s for exis- using fac- tradicted the reasons conducted position-orient- graft We a tence. tors. cannot now 99-166, (1985), reviewing the rationale No. S.Rep. reprinted behind at factors, 1405, Hobbs-Bingaman Watson in 1986 U.S.C.C.A.N. 1446 (asserting that, opinions Binga- purposes court’s in factors and this for of the Federal Em- Hall, II, man, ployees Watson and Koe- Retirement a System, Hannon law enforce- all nig, predominate over oth- ment two factors officer was intended be “an em- Indeed, ployee rigorous ers. it could be said that certain with law enforcement really factors are for that proxies require young vigorous identified duties and individuals”). Thus, considerations our two main behind as evidenced legislative LEO relevant our history prece- cases. dents, physical vigorousness is the sine important in consideration The most qua non LEO status determinations. position-oriented approach of LEO deter a showing position’s require- Absent of a physical vigorousness re minations is the physical vigorousness, ment of an employ- in quired by question. As we position successfully ee cannot show LEO status. legislative history in Bingaman, noted 8331(20) emphasized behind that All LEO tests factor-based have at- positions be composed, tempted “should insofar as to devise that help factors could possible, young physi men and in determining vigorousness women the physical cally capable meeting de a vigorous, required position. example, For in framework, occupations Hobbs-Bingaman mands of which are far more we con- taxing most in the federal physically than whether or an employee sidered at Bingaman, long break, service.” 127 F.3d periods worked without a 93-948, (1974), No. call (quoting S.Rep. twenty day at was on four a hours and/or reprinted a physi- in U.S.C.C.A.N. to maintain level of 3699). II, Watson, Hall, cal Bingaman, Hannon fitness. 127 F.3d at 1436. Similarly, Watson, out pointed physical vig- inquired we likewise that as to a impor position early orousness was factor of utmost a mandatory whether had an determining tance in Han age, youthful entry LEO a maximum status. Watson, II, 677-78; physical non at 262 age, great 234 F.3d so demands as to (“We 1302; Hall, require youthful Watson, F.3d at 264 F.3d at 1058 a workforce. agree analysis factors, Board’s Hobbs 262 F.3d pulled These with precedents, of hazard the relevance LEO from our exclusive fac- physical vigor stamina and is that tors that court should consider deter- hazards.”). are necessary to overcome such whether a mining sufficiently is vigorous qualify for status. LEO preeminence position’s of a physical vigorousness determining physical vigorousness But only qualifies inquiries. whether or not federal of two As a secondary first consideration, supported by is further status this court has also examined 8331(20). legislative history behind See the hazardousness of a 93-948, (1974), S.Rep. reprinted Hazard, No. at 2 important, determinations. while 3699; in 1974 see secondary U.S.C.C.A.N. also to physical vigorousness be 8401(17)(A)(ii)(2000) (referring legislative history cause the emphasizes vigor the definition of “law offi physical greater enforcement to a extent and also cer” in Employees the Federal Retirement Hall because instructs to use us hazard as System being secondary whose duties vigor indication of rigorous Hall, “are sufficiently employment ousness. See 264 F.3d at 1058. opportunities be limited young Language Bingaman, should II Hannon individuals”); vigorous and physically Watson stresses a major hazardousness as nant, physical vigorousness required is the vigorousness. of Given independent factor by position. the The .relevant consider physi- it is clear to us precedent, our any vigorousness ations in determination are and hazardousness vigorousness cal position or not with brings whether the major to be considered de- factors the (in 1) importance): it of order strenuous LEO sta- termining employee’s a federal 2) requirements; physical age fitness re tus. (such mandatory quirements a retire as. to Bingaman, inquired In as whether we 3) entry age); ment or a maximum or age carry to a was authorized employee an requirement a that an employee be on call firearm, frequent contact with criminal had twenty day.8 hours four a These sub- interrogated witnesses and suspects and/or by factors should be evaluated the Board warnings suspects (giving Miranda where Claims, the or Court of Federal who must at Bingaman, F.3d appropriate). apply to to the facts the law determine Watson, a In we asked whether 1436. sub-factors, if which have any, been satisf employee an to hazard or position exposed ied.9 that is complete; Once court will a danger position and whether weigh the have the discretion to sub-fac in guard property to life or employees a making vigorousness tors in determinat frequently pursuing of or de stead more thé position ion.10 If the-court'finds that (with life or taining guarding criminals in question require vigorousness did not as being activity). Wat property as defined, inquiry herein the LEO at its is son, 262 at 1303. These factors at F.3d position question- end must be to the of whether tempted get to essence to be of the of 5 scope deemed outside enough not a was hazardous position or 8331(20).11 If the (Indeed, a LEO position. be considered found ma vigorous, to be second then explicit in fifth factor was Watson necessary jor factor LEO sta establish important identifying hazardousness as be tus —hazardousness—must considered. factor.) factors, enumer previously These hazardousness, To determine a court court, are the exclusive factors ated this (in position- should consider whether the a determining posi to be considered importance): requires frequent order of tion’s hazardousness. with criminal consistent sus contact Thus, major (includ are two we hold there of pects part employee on ;and be deter factors that should considered of ing interrogation suspects pursuit criminals); a be con mining whether should or authorizes detention First, predomi carry As employee firearm.12 ferred LEO status. status only twenty her is entitled to LEO based four hour on- Satisfaction requirement satisfy preponderance will not of the evidence. 5 C.F.R. call 1201.56(a)(2) (2004). vigorousness factor. Before Court Claims, qual- plaintiff attempting Federal (such twenty ongoing 9. For sub-factors ify the burden of LEO status also bears requirements) be satis- four hour on-call 831.906(a). plaintiff proof. A 5 C.F.R. fied, must, question position in consistent must of Federal Claims also show require regulation, factors least with those position is entitled to LEO that his or her fifty percent the time. preponderance evidence. status word discussion use the "court” requirement of the firearm 12.Satisfaction either the Court of Claims mean satisfy hazardousness fac- alone will not Board, Systems Protection whichev- Merit showing a re- tor. must be some There appropriate er is to the facts case. frequent quirement contact consistent Board, suspects in order for the with criminals or before the the burden of actions inquiry prong to be met. of our proof show that his or hazardousness on the Watson, the hazardousness sub-factors are Crowley’s Mr. case position-orient considered under the be Applying our test facts the Again, this approach. ed determination of case, this we first determine whether Mr. be at will the discretion of hazardousness Crowley served in a primary position LEO the court.13 when he served DI as a for the DEA. If he not, did then our inquiry is at end. If When a court determines that a did, he then we must consider whether he status, position qualify fails to LEO properly secondary transferred to a employee oppor court afford the must position. that, tunity notwithstanding show begin by We using the factors identified position, of a absence described above physical vigorous- to determine the employee qualify fact does for LEO required by ness Crowley’s Mr. position as credit. This opportunity necessary a DI within the DEA. possible agencies since it is will not Throughout Mr. Crowley’s DI service job always keep descriptions current DEA, with the nothing position de- match the actual activities the individu scription in any of the official documen- occupy positions. als who described For tation regarding his position articulated a employee occupying example, position physical Indeed, fitness requirement. satisfy vigorous that fails-.to the test for DEA memoranda from sup- 1988 and 1989 may by ness hazard nonetheless actual port Furthermore, that assertion. as the be to satisfy duties both those noted, court itself physical no fitness stan- conflict possible po tests. The between a requirements dards or adopted were ever and a sition based decision decision driven by I, DIs Crowley DEA. 53 Fed. particular the activities of individual Cl. at 780. The Federal.Claims by the Board in was foreseen Watson: Crowley’s found that Mr. position was performed of actual duties ... “evidence physically demanding because Mr. Crow- contrary [must show] official that — ley may have been asked to heavy move documentation of the basic —‘the objects and inspect rooftops on occasion. reason for the position’ existence I, court, Fed. Cl. 780. The actually investigation, apprehension, however, failed to Crowley’s find Mr. Watson, or detention.” 86 M.S.P.R. at any had strenuous fitness Therefore, employee op has the requirement. Moreover, type this of inci- portunity disprove the conflict between dental physical satisfy labor does not description of the and the real- physical fitness requirement interpreted life facts of occupying position. To II, this court. See Hannon 234 F.3d at fashion, establish LEO status this must, with the regula consistent tion, percent fifty show that or more of his The Court of Federal Claims also cor- (i.e. or her actual were duties LEO duties rectly noted that Mr. Crowley’s position .satisfy vigorousness duties that subject any and was not maximum entry requirements hazardousness for LEO sta age requirement level or any mandatory tus). preponderance A age. result, evidence Id. As a support employee’s must claim. Crowley’s position as a DI satisfy does position-oriented 13. This evaluation will be nation official documentation sur- carried out as the in our Watson rounding position’s existence. out, decision was carried with careful exami- that vigor- correctly noted there some evidence pertaining factors the age-related Crowley engage that did Mr. himself ousness. interrogation contact with and of those vigorousness factor in our final The suspects, nothing position descrip his Crowley not Mr. is whether or analysis any requirements for tion mentions contact twenty call four on required was be susp interrogation criminal with no official re- day. There was hours a Indeed, the Miller-Mullen Memo- ects.14 twenty call four that he on quirement be away randa led specifically DIs from activ The of Federal Claims day. a Court hours ity that tend to to contact with would lead Mr. anecdotal evidence where points to short, suspects. there is criminals and irregular in to work Crowley was called DI little in official duties of a that that Mr. support finding Crow- hours to would us to find the to be incline day. four hours a ley twenty on call was in nature. hazardous I, at 779. It also 53 Fed. Cl. atti- testimony regarding the pointed to The of our conforms with result Crowley’s superiors towards tude of Mr. There, in Hannon II. ap- our decision Id. (quoting availability. his general case-by-case plied the framework deter- Portland, Charge of Special Agent mine DI did for qualify that a not LEO having testified that DEA office as Maine case, Hannon in this DI in status. As be every DEA he “considered II carry gun, authorized to a not call”). But anecdotal evi- my at beck warrants, suspects, arrest execute search regarding general testimony dence moving control sur- informants conduct that Mr. availability is insufficient to show II, Hannon F.3d at 675. veillance. required by the obligations of Crowley was satisfy not required Hannon was also a twenty on four hours to be call on requirement fitness or be call position- Accordingly, a under day. Id. twenty day. at 677. Fur- four hours that final approach, we find oriented thermore, though even there was anecdo- factor not been met vigorousness has present tal evidence Hannon was this case. the execution of several searches occa- Ordinarily, position-oriented sionally under the Witnesses and criminal interviewed here, nega- once year we articulate approach suspects over the course of his seven regarding vigorousness DI, determination tive career we held that he neverthe- as made, not delve into the a court need Hobbs-Bingaman satisfy less did not employee’s position of an hazardousness and, thus, for qualify factors failed to if Even we were determine status. Id. at 678. Although we cannot status. the hazardousness of to examine II authority use Hannon controlling however, our Crowley’s position, result that DIs not entitled to Our conclusion unchanged. would be posi- it precedes LEO status because framework established tion-oriented Crowley’s undisputed posi- that Mr. It is Watson, confirm our contention it does carry him to a fire- tion did not authorize criminal contact evidence of anecdotal Furthermore, no there is evidence arm. itself confer LEO status cannot in and of purpose for the that his existed provides it employee. And federal detaining criminals. And pursuing and support for our conclu- further persuasive of Federal though Court Claims even Crowley's posi- show that Mr. insufficient to criminal contacts related Mr. Crow frequent ley's career and identified consistent criminal tion Claims are anecdotal at best. Crow contact. are, therefore, I, They ley Cl. at 53 Fed. (“Board”) a DI is entitled to LEO pay proceed sion that si- — 8831(20). multaneously. status under Accordingly, Crowley’s find that Mr. Both the Court of Federal Claims qualify for position does not LEO status the Board are their stay authorized to controlling precedent under statutes. proceedings pending litiga the outcome of Furthermore, record, it has on this forum, tion in the other decision preponderance been established of one will be collateral estoppel as to the fifty percent that or more of the evidence view, In my Congress designated other. Crowley’s Mr. actual duties were LEO primary the Board as the forum for the therefore cannot show that his duties. He disputes concerning resolution En of Law job with his descrip- actual duties conflict entitlement, forcement Officer status gain tion the extent twenty-seven years the Board has had of of status. thus the Court Fed- We reverse experience administering statute. finding appellee, eral that the Mr. Claims’ Where claims are filed both in the Court Crowley, entitled to LEO status under was Board, Federal Claims and before FLEPRA. routinely Court Federal Claims should stay its proceedings pending the outcome Exhaustion and Pre-

C. of Board proceedings, unless the Court of Judgment Interest proceedings Federal Claims ad question reach the of whether We do not stage proceedings vanced when the Board required to Mr. exhaust his Martinez v. United are commenced. Cf. bringing administrative remedies before States, (Fed.Cir.2003) 333 F.3d suit the Court Federal Claims or (en banc) (stays proceedings in parallel pre-judgment whether he was entitled to before the Court of Federal Claims and stemming any recovery from interest Army Military Board for Correction we have his FLEPRA claim. Because de- Records). that did not

termined confer Crowley, upon reaching

LEO status unnecessary.

these issues

CONCLUSION above,

For the reasons stated jurisdiction of Federal assertion of Claims’ MURAKAMI, Robert K. over FLEPRA claims is affirmed. Its Plaintiff-Appellant, finding appellee is entitled to is reversed. status v. REVERSED STATES, Defendant-Appellee. UNITED No. 04-5050. DYK, Judge, concurring. Circuit join opinion I court. I write Appeals, United States Court separately emphasize jurisdic- that our Federal Circuit. holding tional not be read to re- should DECIDED: Feb. quire proceedings the two in eases such as this—one in the Court supplemental

Claims for pay and one be- Systems

fore the Protection Merit Board

Case Details

Case Name: Crowley v. United States

Court Name: Court of Appeals for the Federal Circuit

Date Published: Feb 17, 2005

Citation: 398 F.3d 1329

Docket Number: 2004-5034

Court Abbreviation: Fed. Cir.