# Crowley v. United States

> United States Court of Federal Claims · August 30, 2002 · 53 Fed. Cl. 737

URL: https://www.frixlaw.com/law-library/cases/6651267

## Case

- **Full name:** John CROWLEY v. UNITED STATES
- **Court:** United States Court of Federal Claims
- **Decided:** August 30, 2002
- **Citations:** 53 Fed. Cl. 737; 2002 U.S. Claims LEXIS 260; 2002 WL 31261717
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Horn
- **Judges:** Horn
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

*739 OPINION
HORN, Judge.
BACKGROUND
Congress has established a special retirement system for federal law enforcement officers (LEOs), granting Law Enforcement Officers entitlement to an annuity at a younger age and with fewer years of service than other federal employees. 5 U.S.C. § 8336 (c)(1) (2000). In addition to the special retirement system, Law Enforcement Officers are eligible for enhanced pay under certain circumstances, pursuant to the Federal Law Enforcement Pay Reform Act of 1990 (FLEPRA), Pub.L. No. 101-509, §§ 401-412, 104 Stat. 1389 , 1465-69. 1 A “law enforcement officer” is defined in the statute as “an employee, the duties of whose position are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States, including an employee engaged in this activity who is transferred to a supervisory or administrative position.” 5 U.S.C. § 8331 (20). The definition of “law enforcement officer,” set forth in 5 U.S^C. § 8331(20), governs the determination of whether an employee is entitled to FLEPRA benefits. See 5 U.S.C. § 5541 (3)(A). Pursuant to the regulations promulgated under 5 U.S.C. § 8347 , there are three categories of positions that qualify for Law Enforcement Officer credit: (1) primary; (2) secondary supervisory; and (3) secondary administrative. Each category establishes separate requirements for entitlement. See 5 C.F.R. § 831.902 (2002).
The regulations setting forth the standards for qualification as an Law Enforcement Officer are found at 5 C.F.R. §§ 831.903-831.911 . There are two methods for claiming entitlement to law enforcement officer status in any of the three categories. 5 C.F.R. §§ 831.905-831.910 . First, an agency may determine that the duties of a position meet the criteria for an Law Enforcement Officer position. See 5 C.F.R. §§ 831.903 (a), 831.904(a) (2001). 2 Alternatively, “[a]n employee who is currently serving in a position that has not been approved by OPM as a primary or secondary position, but who believes that his or her service is creditable as service in a primary or secondary position and that he or she satisfies the conditions for credit must” submit an application for credit to OPM through the current employing agency. 5 C.F.R. § 831.906 (b). 3 For requests from individuals from 1990 to 1993, the employing agency also was required to submit “an advisory opinion to OPM as to whether it believes the individual’s service in the position should or should not be credited and, if it qualifies, whether it should be a primary or secondary position.” 5 C.F.R. § 831.908 (b) (1993). Coverage “in a position or credit for service will not be granted for a period greater than 1 year prior to the date that the request from an individual is received by the employing agency ____” 5 C.F.R. § 831.906 (e) (2002). 4 Regarding individual requests for coverage, “[t]he employee bears the burden of proof with respect to credit under 5 U.S.C. 8336(e).” 5 C.F.R. § 831.906 (a). 5
Plaintiff, John Crowley, is one of a number of plaintiffs who have filed claims in this court for Law Enforcement Officer credit. The plaintiffs in these consolidated cases are *740 two hundred forty-nine 6 Diversion Investigators (DIs), employed by the Drug Enforcement Administration (DEA), which is an agency within the Department of Justice (DOJ). The plaintiffs are classified as GS/ GM-1810 and range from grade five through grade sixteen on the federal pay scale. The plaintiffs allege that the decision to deny them overtime compensation and benefits in accordance with FLEPRA while providing such compensation to Special Agents, GS-1811 Criminal Investigators, also employed by the DEA, is arbitrary, capricious and not in accordance with the law. The plaintiffs seek relief in this court pursuant to 28 U.S.C. § 1491 (2000), and the Back Pay Act, 5 U.S.C. § 5596 (2000), because of the defendant’s refusal to pay them premium and overtime pay, as allegedly required pursuant to FLEPRA, administratively uncontrollable overtime (AUO), as provided by 5 U.S.C. § 5545 (c)(2), and availability pay, as provided by 5 U.S.C. § 5545a. The plaintiffs argue that under the applicable law they are Law Enforcement Officers, entitled to receive the same compensation as other DEA Law Enforcement Officers, including Special Agents, based on the actual work performed by them during the course of their employment.
Three individual cases were selected by the parties to serve as the test plaintiffs for this matter: John W. Partridge v. United States, Case No. 94-819C, John D. Crowley v. United States, Case No. 94-711C, and John Buckley v. United States, Case No. 92-469C. Originally, the test cases were selected to cover three categories of plaintiffs: (1) Diversion Investigators; (2) Diversion Group Supervisors; and (3) those from the above two categories who transferred to administrative positions. In addition, the test cases represent plaintiffs from DEA offices in three different geographical regions: Los Angeles, California; Boston, Massachusetts; and Arlington, Virginia. According to the plaintiffs, Mr. Buckley’s case was initially “selected for trial as representative of those plaintiffs in the instant case who had transferred initially from Diversion Investigator positions to administrative positions, either directly or from supervisory positions.” In contrast, “Mr. Crowley’s case was selected for trial as representative of those plaintiffs who had filed suit in the above-captioned cases and who transferred from Diversion Investigator primary positions to supervisory positions in DEA.”
On December 6, 2001, the court issued a decision in Buckley v. United States, 51 Fed.Cl. 174 (2001). In its decision, the court found that two of Mr. Buckley’s administrative positions, first as a Staff Coordinator in the Office of Diversion in DEA headquarters in Arlington, Virginia, and then as the Deputy Chief of Diversion, qualified him for Law Enforcement Officer credit. Id. at 212-214 . The court also found, however, that Mr. Buckley’s administrative position as an Inspector at the Office of Inspections did not qualify him for Law Enforcement Officer credit. Id. at 216 . In determining whether Mr. Buckley’s administrative positions qualified him for Law Enforcement Officer credit, the court was required to determine, and did find that, his primary and supervisory positions also qualified for Law Enforcement Officer credit. Id. at 178 . Therefore, as the court has interpreted the statute and regulations, Mr. Buckley’s claims raised issues previously reserved for Mr. Crowley’s case.
Mr. Crowley has raised the following claims: (1) qualification for a special rate of pay for employees at grades GS-3 through GS-10 pursuant to FLEPRA section 403, 5 U.S.C. § 5305 note (2000); (2) qualification for a special rate of pay for employees who were posted for duty in one of eight specified metropolitan areas pursuant to FLEPRA section 404, 5 U.S.C. § 5305 note; (3) eligibility for premium pay for working scheduled overtime work compensated at the greater of one hundred fifty percent of the GS-10 hourly pay rate, or his own hourly pay rates, pursuant to FLEPRA section 410, 5 U.S.C. §§ 5542 , 5547; (4) qualification for premium pay on an annual basis for AUO, at an appropriate percentage, not in excess of twenty-five percent, of such part of the basic pay for the position that does not exceed the mini *741 mum rate of basic pay for GS-10, pursuant to 5 U.S.C. 8 5545(c)(2) 7 ; and (5) eligibility for premium pay given to ensure the availability of criminal investigators for unscheduled duty in excess of a forty hour work week at a rate of twenty-five percent of the rate of basic pay for the position, pursuant to 5 U.S.C. § 5545a. 8
DEA’s predecessor, the Bureau of Narcotics and Dangerous Drugs (BNDD), established the Diversion Control program in 1971, following passage of the Controlled Substances Act of 1970(CSA), Pub.L. No. 91-513, 84 Stat. 1242 (codified at 21 U.S.C. §§ 801 et seq. (1994 & Supp. V 1999)). One of the purposes of the CSA was to combat the illegal diversion of controlled substances to addicts and drug dealers by doctors, pharmacists, manufacturers and distributors. The Act established requirements for the use, storage and distribution of controlled substances, and made the diversion of controlled substances a violation of law punishable under the criminal statutes of the United States. Duties of Diversion Investigators include investigating violations of criminal laws with respect to the diversion of controlled substances into illegal channels and assuring compliance with the requirements created by the CSA.
Diversion Investigators have not been considered by the DEA as meeting the definition of an Law Enforcement Officer for premium pay purposes. Diversion Investigators have not been paid under special pay provisions of FLEPRA and have not received pay for AUO pursuant to 5 U.S.C. 8 5545(c)(2) (2000). DEA has adopted the position that once an employee is determined to be entitled to Law Enforcement Officer retirement credit for a period of time subject to FLEPRA, that employee will be paid premium pay pursuant to FLEPRA as follows. DEA will pay the employee premium pay pursuant to FLEPRA section 403, 5 U.S.C. § 5305 note, for any period of time, subsequent to the effective date of FLEPRA section 403, for which it is determined: (1) that the employee is entitled to Law Enforcement Officer retirement credit and (2) that the employee satisfies the requirements of FLEPRA section 403. DEA will pay the employee premium pay pursuant to FLEPRA section 404, 5 U.S.C. 8 5305 note, for any period of time, subsequent to the effective date of FLEPRA section 404, for which it is determined: (1) that the employee is entitled to Law Enforcement Officer retirement credit and (2) that the employee satisfies the requirements of FLEPRA section 404 and 5 C.F.R. §§ 531.301-531.306 (2002). 9 DEA will pay the employee premium pay pursuant to FLEPRA section 410, 5 U.S.C. §§ 5542 , 5547, for any period of time, subsequent to the effective date of FLEPRA section 410, for which it is determined: (1) that the employee is entitled to Law Enforcement Officer retirement credit and (2) that the employee satisfies the requirements of FLEPRA section 410. Each Diversion Investigator who meets the requirements for premium pay pursuant to FLEPRA discussed above, will be paid retroactively, the amount to which he or she is entitled.
Two hundred forty-nine Diversion Investigators have cases pending in this court. One hundred forty-five of the original plaintiffs have applied to the DEA and/or the Justice Management Division (JMD), a division of the DOJ, for Law Enforcement Officer retirement credit under the Civil Service Retirement System (CSRS), as provided by 5 U.S.C. 8§ 8331(20), 8336(c) (2000), and under the Federal Employee Retirement System *742 (FERS), as provided by 5 U.S.C. §§ 8401 (17), 8412(d). By 1995, the JMD only had issued final orders on nine of the one hundred forty-five pending applications. Subsequently, the JMD issued additional decisions, but as discussed at numerous status conferences with the court, the rate of decision making at DOJ was, at best, extremely slow. All nine of the applications decided by 1995 were denied, and each affected Diversion Investigator filed an appeal to the Merit Systems Protection Board (MSPB).
The nine cases were consolidated on appeal, and two of the cases, James T. Han-non and Ronald J. Townsend, proceeded to a hearing on December 11, 1995. The remaining seven appeals were stayed at the MSPB pending final resolution of the two designated cases. On April 30, 1997, MSPB Administrative Judge Jenkins issued a decision reversing the JMD’s denial of Law Enfoi’cement Officer retirement credit, concluding that both plaintiffs were entitled to Law Enforcement Officer retirement credit under their respective retirement systems. The government filed a Petition for Review before the MSPB on June 3, 1997. The MSPB issued a final decision in the case of James T. Hannon on June 11, 1999, reversing the Administrative Judge’s decision. The MSPB decision found that Mr. Hannon was not entitled to Law Enforcement Officer retirement credit under the CSRS, pursuant to 5 U.S.C. §§ 8331 (20), 8336(c), consistent with the JMD’s denial of Law Enforcement Officer retirement credit. Hannon v. Dep’t of Justice, 82 M.S.P.R. 315 (1999). 10 The MSPB issued a final decision in the case of Ronald J. Townsend on August 31, 1999, also reversing the Administrative Judge’s decision, and similarly holding that he was not entitled to Law Enforcement Officer retirement credit under the FERS, pursuant to 5 U.S.C. §§ 8401 (17), 8412(d). Townsend v. Dep’t of Justice, 83 M.S.P.R. 427 (1999). On December 7, 2000, the United States Court of Appeals for the Federal Circuit affirmed the MSPB’s decision which had found that James T. Han-non was not entitled to Law Enforcement Officer credit. Hannon v. Dep’t of Justice, 234 F.3d 674 (Fed.Cir.2000) (stating that it was unpersuaded that the Board’s factual determinations were not based on substantial evidence and declaring that the Board’s application of the law to those facts was not arbitrary and capricious, an abuse of discretion or otherwise not in accordance with the law), cert. denied — U.S. —, 122 S.Ct. 665 , 151 L.Ed.2d 579 (2001). On June 6, 2001, the United States Court of Appeals for the Federal Circuit affirmed the MSPB’s decision regarding Ronald J. Townsend. Townsend v. OPM, 13 Fed. Appx. 962 (Fed.Cir.2001) (using the substantial evidence, arbitrary or capricious, abuse of discretion or otherwise not in accordance with the law standards), cert. denied, Hannon v. Dep’t of Justice, — U.S. —, 122 S.Ct. 665 , 151 L.Ed.2d 579 .
In the Crowley case currently before this court, the defendant filed a motion to dismiss, which the court denied in its opinion of October 6, 2000. See Hannon v. United States, 48 Fed.Cl. 15 (2000). Before the case was tried, the parties also filed briefs regarding an issue raised by the plaintiff and jointly stipulated to by the parties as follows:
Whether the previous decision of the Office of Personnel Management to grant plaintiffs primary law enforcement officer credit is sufficient to satisfy plaintiffs’ burden of demonstrating, for purposes of obtaining secondary law enforcement officer credit, that they previously occupied a primary law enforcement officer position or whether plaintiffs must demonstrate, through evidence of their primary job activities, that the primary position they occupied was a law enforcement officer position.
At the pre-trial conference, the court informed the parties that the question raised by the plaintiffs argument would be addressed in the court’s final opinion on the merits. The test case of Crowley v. United States was tried in Boston, Massachusetts and Washington, D.C. This opinion addresses each of Mr. Crowley’s claims.
*743 FINDINGS OF FACT
Mr. Crowley’s career with the DEA, and its predecessor, the BNDD, covers four periods. First, from March 12, 1973 until June 15, 1986, Mr. Crowley served as a Diversion Investigator in the Boston, Massachusetts regional office of the BNDD and, subsequently, the DEA. From June 16, 1986 until February 24, 1991, Mr. Crowley served as a Group Supervisor in the Boston, Massachusetts regional office of the DEA. From February 25, 1991 until October 30, 1994, Mr. Crowley worked as a staff coordinator for the Office of Diversion Control at DEA headquarters in Aldington, Virginia. Finally, on October 31, 1994, Mr. Crowley transferred back to the Boston, Massachusetts regional office as a Group Supervisor. In April of 2001, Mr. Crowley became the Special Assistant to the Diversion Program Manager. Mr. Crowley retired from DEA on October 1, 2001. Testimony and comments by counsel suggest that the Boston, Massachusetts regional office, where Mr. Crowley worked as a Diversion Investigator and Group Supervisor, generally covered six New England states: Maine, New Hampshire, Vermont, Rhode Island, Connecticut and Massachusetts.
Mr. Crowley was recruited in 1973 by Matthew Seifer, a Special Agent who was in charge of the Compliance Group, as the Diversion Group was called at that time. During an interview, Mr. Seifer explained to Mr. Crowley that the government was establishing the Compliance Program to provide oversight of the pharmaceutical industry and to investigate what Mr. Seifer called “bad doctors” and “bad pharmacists.” Mr. Seifer warned Mr. Crowley, though, that the job would entail long hours. According to Mr. Crowley, Mr. Seifer told him to “go home and talk to your spouse, talk to your wife, talk to your family because this is not a 9:00 to 5:00 job.”
I. Diversion Investigation Duty: 1973-1986
Mr. Crowley spent the majority of his first year as a Diversion Investigator performing regulatory, or “cyclic,” investigations. Indeed, according to a DEA study of the Diversion Control Program conducted from May 1982 until April 1983, the Diversion Investigator position was originally created to “ensure[] compliance with the regulatory aspects of the Controlled Substance Act.” The regulatory aspects of the Diversion Investigator position center on conducting cyclic (regulatory) investigations, which are “unannounced in-depth audits of controlled substances activity, focusing on production and inventory levels and purchase, transfer, and sales records. Other key activities include the review of internal accounting practices, inventory procedures, security systems, registration information, and existing systems that monitor their customer’s purchases/actions.” In 1974, however, Mi'. Crowley began to work on more criminal investigations. In this regard, the DEA study explained the evolution of the Diversion Investigator program as follows:
Prior to 1979, the Office of Compliance and Regulatory Affairs devoted most of its investigative resources towards ensuring compliance with the regulatory aspects of the Controlled Substance Act. As DEA redirected its resources from wholesaler/manufacturer compliance to retail diversion, a larger portion of its resources were spent on criminal investigations. Currently, while regulatory investigations at the non-practitioner level still remain an intricate part of the diversion effort, criminal retail diversion has emerged as the area of major concern.
The shift toward criminal investigations occurred partly because “[b]y 1977, the Office of Diversion Control concluded that the cyclic investigation program had effectively reduced diversion at the non-practitioner level and that a shift to practitioner level was necessary to attack the growing retail diversion problem.” The DEA study, although critical of the criminal investigation role of Diversion Investigators (GS 1810’s) as opposed to DEA Special Agents (GS 1811’s), found that Diversion Investigators were doing criminal investigatory work even to the point of finding that the two groups were in “competition in the dangerous drugs area.” The report also noted that: “In effect DEA has created and is perpetrating a two tier *744 enforcement program. One enforcement effort against practitioner diversion and one enforcement effort against all other drugs. The 1810 core group has in effect become defacto 1811s.” The DEA report also noted that “the increased danger to 1810 personnel” as well as “the evolution of a sec[o]nd and separate enforcement effort ...” was “particularly disturbing,” and that “Field OD [Office of Diversion] personnel are directed to work criminal cases.” Thus, although the Diversion Investigator position originally may have been created primarily to perform cyclic documentary reviews, the basic reasons for the existence of the position began to shift in the mid-1970’s and by 1983, DEA policy “reflected] an agency belief that the most effective way to impact diversion [was] through criminal investigations .... ” and in fact, many Diversion Investigators became primarily criminal investigators.
At trial, Mr. Crowley testified that the first year he worked as a Diversion Investigator, forty to fifty percent of his time was devoted to regulatory investigations. 11 Following that first year, however, the amount of time Mr. Crowley spent on regulatory investigations dropped to fifteen to twenty percent and remained steady through to the time of trial. Ed Sullivan, a Diversion Investigator who worked out of Boston, Massachusetts with Mr. Crowley from 1982 to 1987, testified that, to his knowledge, Mr. Crowley spent one hundred percent of his time on criminal investigations. John Cronin, Mr. Crowley’s Group Supervisor from 1978 to 1982, testified that Mr. Crowley spent the majority of his time as a Diversion Investigator performing criminal investigations. Finally, Dennis Johnson, Mr. Crowley’s Group Supervisor from February of 1983 to March of 1984, testified that no more than twenty to twenty-five percent of Mr. Crowley’s work was concerned with cyclic investigations.
John Coleman, the Special Agent in Charge of the Boston DEA regional office from 1985 to 1990, testified that the geographic position of the Boston office affected the number of cyclic investigations performed by that office. According to Mr. Coleman, areas with a larger proportion of pharmaceutical manufacturing plants engaged in more cyclic investigations than other, less concentrated areas. Mr. Coleman stated that in New Jersey, where he was Special Agent in Charge from 1994 to 1997, the large number of pharmaceutical manufacturing plants required more cyclic attention. In contrast, other regions, such as those controlled by the Boston office, “do not have pharmaceutical plants or distribution, or distribution warehouses and so forth, and so they have fewer, by number, cyclic investigations assigned to them.” Mr. Coleman also testified that in Boston, “[t]he emphasis was definitely on the criminal [investigations]. I mean, I ran three major field divisions in DEA while I was there, Boston, Chicago and New Jersey, and of all three, Boston was probably the most active in terms of criminal investigations,” and that in Boston most of the time was spent on criminal investigations.
A Diversion Investigator’s criminal responsibilities involved the investigation of doctors and pharmacists who were suspected of distributing controlled substances outside of the usual course of professional practice. To a lesser extent, Diversion Investigators also investigated burglaries of pharmacies. Mr. Crowley used a number of investigatory methods to gather information to support a case for the criminal diversion of controlled substances, which Mr. Crowley would then present to the United States Attorney’s Office. “I saw myself as an, as an investigator, who investigated violations of federal law and brought them to the court,” Mr. Crowley testified.
Beginning in 1977, pursuant to DEA policy, Mr. Crowley was limited in the scope of his duties. In January 1977, Donald E. Miller, Acting Deputy Administrator of the DEA, attempted to further define the roles and responsibilities of the Diversion Investigators and issued a memorandum (the Miller Memorandum) aimed to clarify DEA'policy regarding the duties of Diversion Investigators. The Miller Memorandum stated:
*745 Effective immediately, Compliance Investigators 12 will not participate directly in:
(1) Undercover purchase of evidence (investigators may continue to control such cases they have developed involving illegal sale by a registrant, but call upon 1811 assistance for the actual undercover purchases. The 1811, of course, will control the actual circumstances of the buy situation, and the advisability of such an approach).
(2) Direct, register and pay informants — This does not mean 1810’s may not interview sources of information, assist in debriefing of established informants relating to diversion or availability of legitimate drugs, however, the controlling and paying of confidential informants will be conducted by GS-1811’s;
(3) Conduct moving surveillance — There are limited occasions in which 1810’s will conduct activity which may be considered surveillance, such as monitoring the number of patients entering a methadone clinic prior to examining records, however, 1811’s will conduct activity such as following suspected diverters;
(4) Arrests and execution of search warrants — These activities will be conducted by 1811’s. On limited occasions involving registrants, 1810’s may be present after the area is secured, for technical assistance in their area of expertise of the case, i.e., identify the drugs present, identify records or documents important to the case, etc.
It is recognized that these criminal investigative functions may complement certain (compliance) investigations being handled by compliance groups in which possible criminal violations have been indicated. In those cases, Regional management should ensure 1811 support is provided in line with case load priority at the time. Additionally, 1810’s should be utilized in all cases involving registrants, whether originated by 1810 or 1811 personnel.
(emphasis in original).
On June 18, 1984, Francis M. Mullen, Jr., the Administrator of the DEA at that time, considered restructuring the 1810 position and issued a memorandum (the Mullen Memorandum), affirming the amended restrictions on the duties of Diversion Investigators:
The following enforcement actions will not be conducted by 1810 personnel:
(1) Undercover activities of any kind;
(2) Execution of arrest or search warrant. The 1810 investigator may be present after the area has been secured in order to identify records, documents or drugs;
(3) Conducting of surveillances, either moving or stationary; and
(4) Developing, direction or paying informants. This does not deny the 1810 the ability to develop or receive information from registrants or drug industry officials who wish to lend their support to investigations or to provide information on diversion. An 1810 investigator may accompany 1811 personnel in the debriefing of informants when such debriefing takes place in a secure premises; for example, a DEA office, police station, etc.
(emphasis in original).
The restrictions established in the Mullen Memorandum were reiterated in the 1984 and the 1990 Diversion Investigator Manuals, as well as in the 1996 Diversion Investigator Manual testified to at trial as the current version. On February 28, 1995, Gene Haislip, then Deputy Assistant Administrator for the DEA, issued a memorandum to all domestic Special Agents in Charge, reiterating the DEA policies regarding the duties of Diversion Investigators and stating:
Recently, there have been many questions concerning Diversion Investigator (1810) hiring, 1810 duties, etc. I would like to remind everyone that the 1810 work force continues to be required to work under the guidelines of June 18, 1984, issued by then Administrator Francis M. Mullen, Jr., (copy attached) which reiterated the 1977 *746 Memorandum from Donald Miller, then Acting Deputy Administrator.
In this same memorandum, Mr. Haislip again listed the actions which the Diversion Investigators were not supposed to perform.
Harold Wankel, 13 who became familiar with the diversion program from January 1990 to October 1996 as Deputy Assistant Administrator in charge of the Office of Investigative Support and as Chief of Operations for DEA, stated that the purpose behind the Miller Memorandum was “to keep the Diversion Investigators out of harm’s way and also to preclude them from getting engaged or involved in activities which they had not been trained in how to conduct or handle.”
Despite the restrictions imposed on Diversion Investigators by the Miller and Mullen Memoranda, however, the evidence in the record demonstrates that the Diversion Investigators still often encountered dangerous situations while performing their duties. The record also establishes that although DEA policy, as expressed through the Miller and Mullen Memoranda, prohibited Diversion Investigators from performing certain duties, the practice in the field was different from the stated policy. Mr. Crowley testified that:
From a personal standpoint, I would say to my group supervisor, who, whoever that was, that I will do my best to stay within the spirit of that memorandum. That, that policy memorandum____If, if I have to get involved in a, in a situation, if I can, I’ll tell you ahead of time. If I, if I can’t tell you ahead of time, I’ll tell you when its over.
Mr. Crowley also testified that he did not stand outside waiting for a Special Agent to secure the premises during searches, but that he entered the premises with the Special Agents. Furthermore, Mr. Crowley testified that neither the Miller nor the Mullen memorandum completely foreclosed his ability to participate in surveillance. After the distribution of the Miller Memorandum, which forbade moving surveillance, Mr. Crowley continued to conduct moving surveillance with special agents, state or local police. At trial, Mr. Crowley- acknowledged that it was his understanding that the Miller Memorandum forbade unilateral moving surveillance. Moreover, following the Mullen Memorandum, which purportedly forbade surveillance altogether, Mr. Crowley testified that “[m]y understanding was that, again, on a unilateral basis, I would not do that on my own, but in conjunction with state or local law enforcement, or our own special agents, I would do it.” Finally, Mr. Crowley’s supervisors knew that he was performing such activities because he described them in his reports.
Furthermore, even when the Diversion Investigators fully complied with the restrictions set forth in the Miller and Mullen Memoranda, these restrictions did not entirely shield the Diversion Investigators from encountering dangerous situations. The Office of Planning and Evaluation, Planning and Inspection Division at DEA issued a report entitled “Evaluation of the Diversion Control Program,” on May 1,1983. After conducting “research, file review, interviews, quantitative analysis and the on-site review of actual operations,” the report included the following findings:
There is inherent danger in an 1810’s job. Whenever an audit is conducted, the possibility exists, although remote, that a registrant or cohort may react unpredictably, at times becoming hostile or irrational. An audit at a Narcotics Treatment Program (NTP) can be particularly dangerous. NTPs are usually located in depressed areas, the clientele are suspicious of Government agents, and frequently illegal activities are suspected at these sites. Although the study team failed to find any recorded incidences of injuries to 1810s conducting audits, 1810 personnel related a number of situations where injuries could have occurred. Whereas the study team is concerned about the 1810’s safety regarding their regulatory duties, we are particularly disturbed by the increased danger inherent in criminal investigations____ With OD’s [the Office of Diversion’s] aggressive *747 entry into criminal cases the danger factor for 1810s increases substantially.
While 1811 support varied from office to office, every 1810 group supervisor interviewed related at least one incident where the lack of agent support impacted a case.
In effect DEA has created and is perpetuating a two tier enforcement program. One enforcement effort against practitioner diversion and one enforcement effort against all other drugs. The 1810 core group has in effect become defacto 1811s.
On June 14, 1988, Mr. Haislip wrote a memorandum to the Chief of the Congressional Affairs Section of DEA, explaining the hazards faced by Diversion Investigators when interviewing “patients” of the doctors and pharmacists being investigated: “Because of drug use, [the patients’] behavior is seldom predictable. For the Investigator, the situation is at the least very stressful and can be extremely hazardous.” On February 13, 1990, a diversion group supervisor wrote a memorandum to the Chief of the Planning and Policy Assessment Unit explaining that although prohibiting Diversion Investigators from performing undercover activities was intended to protect the Diversion Investigators:
[I]t is far more dangerous for Diversion Investigators to enter a Narcotic Treatment Program (NTP) or Methadone program, which often times treats hundreds of hard core drag addicts in major urban high crime areas (where many NTPs are located), to conduct a regulatory investigation, than it is to do undercover work in a doctor’s office.
(emphasis in original).
Mr. Crowley never has had the authority to carry a weapon, to arrest individuals, to work undercover, or to execute search warrants. Before the Miller Memorandum was issued, Mr. Crowley directed informants and under present DEA policy, Diversion Investigators now can register, direct, and pay informants. Even following the Miller and Mullen Memoranda, however, Mr. Crowley testified that he had substantial involvement with undercover buys. In one situation, Mr. Crowley worked with a Special Agent for assistance in using an informant to make several undercover purchases. Mr. Crowley “directed those undercover purchases of evidence. I handled, I directed the, the informant what to do. I debriefed him beforehand. I debriefed him afterwards. I kept him under surveillance, with the special agents, during the, during the [buy].”
During the trial, Mr. Crowley, his supervisors, and his partners, both from the DEA and from state and local law enforcement, gave a number of examples of the investigations Mr. Crowley performed as a Diversion Investigator. One of the earlier cases testified to involved Bodowin’s Drugstore in Kennebunk, Maine. Bodowin’s Drug Store was Maine’s oldest and largest retail pharmacy. The investigation was initiated after the State of Maine’s Board of Registration in Pharmacy notified the Boston DEA regional office that it suspected that Bodowin’s was failing to maintain adequate records and that it was diverting controlled substances. Mr. Crowley worked with another Diversion Investigator on the case, Patrick Hunt.
The first step taken by Mr. Hunt and Mr. Crowley in investigating the Bodowin Pharmacy was to apply for an administrative inspection warrant. An administrative inspection warrant allows the government to enter a building used by someone registered to distribute controlled substances and inspect the records and drug stock of the registrant. 21 U.S.C. § 880 (2000). To obtain an administrative inspection warrant, a Diversion Investigator presents a judge or magistrate with a “public interest” in enforcing the drug laws of the United States sufficient to justify an administrative inspection. Id. Mr. Crowley testified that he would serve administrative warrants during business hours and attempt to conduct the search without disturbing the activity within the pharmacy. Regardless of the administrative nature of the warrant, however, Mr. Crowley explained that:
[T]he pharmacist would, would know I was doing something, and it would be kind of a tense situation in many respects, because the, the Drug Enforcement Administration does not inspect retail pharmacies. We *748 haven’t got the, the resources, the, the statute was setup to do that as a non-practitioner level; that’s the drug company. We did not routinely visit retail pharmacies with an admin warrant. That would be something that would indicate to a reasonably prudent person that somet[hing] — he might have been in trouble.
Mr. Crowley and Mr. Hunt testified that serving administrative warrants was intensified because some of the pharmacists were armed.
On October 8,1974, Mr. Hunt swore out an affidavit and an administrative inspection warrant was issued to allow Mr. Hunt and Mr. Crowley to inspect Bodowin’s Pharmacy. On the same day, the two began their inspection. Mr. Crowley testified:
One of the things I remember about that, incidently, is that when we went in there, it was very, very tense. I don’t know the reason for that. I thought we conducted ourselves in a reasonable matter [sic], but the entire four days that we were on that location, it was, it was a tense situation.
The focus of Mr. Hunt and Mr. Crowley’s search was to establish how the business was being run from an accounting standpoint. As a result of their search, the Diversion Investigators determined that Warren E. Bodowin, the pharmacist and president of Bodowin’s Pharmacy, was filing illegitimate prescriptions for drug seeking individuals.
During the inspection, Mr. Crowley and Mr. Hunt advised Mr. Bodowin of his Miranda rights. Subsequently, Mr. Bodowin refused to speak with Mr. Hunt or Mr. Crowley. As a result, the Diversion Investigators developed a different approach to the investigation, deciding to interview about fifty patients to deteimine if they had legitimately received their prescriptions. Through the interviews Mr. Crowley discovered that a Dr. Cleveland was writing a number of the prescriptions that were being presented in Bodowin’s Pharmacy. The interviews further disclosed that the “patients” would pay Dr. Cleveland for an “office visit,” spend a minute or two in the office, and receive a prescription. Mr. Crowley testified that: “[W]e found out that there was no legitimate, at least in our opinion, there was no legitimate doctor/patient relationship ____ They would just say that they were here for the drugs.” Mr. Crowley testified that he uncovered a “conspiratorial relationship in the sense that his [Dr. Cleveland’s] prescriptions were making their way right to his, right to Bodowin’s Pharmacy.” According to Mr. Crowley, the relationship was necessary because the prescriptions would not have been filed at other pharmacies because they were not properly formatted.
Mr. Crowley also found that many of the patients had long criminal records due to their drug abuse problems. In addition, they had been arrested many times for breaking and entering and for using fraudulent prescriptions to support their drug addiction. Mr. Crowley described one situation in which he and Mr. Hunt participated, which he felt was particularly dangerous:
So, in order to conduct an interview, you knock on the door and say, and, you know, just wait, and if there is no answer, you knock on the door again. The third time, I just said, “Jack Crowley, Drug Enforcement Administration.” You know, kind of stupid probably now that I thought of it, but what was actually happening in that apartment was there, there were about twenty addicts having a “shoot-em-up party.” I mean, they were, they were actively shooting heroin. They were, whatever they do at a drug party----
Q. Was there consternation at your arrival?
A. Oh, yes. There was a lot of consternation. Thank goodness I had a certain presence. You know, in retrospect, I, I, I probably burned a good thing. She was never going to say it to me, but I had to clear out the room, tell most of the people in there to leave, go take a walk and come back later. I should have probably called an ambulance for one or two, two of them, but, yeah, we, we had to calm down the activity.
Mr. Crowley and Mr. Hunt presented their findings to the United States Attorney’s Office on March 27, 1975. Mr. Bodowin was indicted, but ultimately acquitted, of unlawful distribution of controlled substances. Mr. *749 Bodowin was convicted, however, on state charges of selling drugs to undercover agents. Throughout the prosecution of the Bodowin case, Mr. Crowley worked “unbelievably long hours” and was on call to his group supervisor and the prosecutor.
Edward Drinan, the Special Agent in Charge for the Portland, Maine DEA office from 1977 through 1981, testified about another instance early in Mr. Crowley’s career when Mr. Crowley’s investigative techniques uncovered a crime. Mr. Drinan received a call from the president of Mercy Hospital in Portland, Maine. The hospital suspected tampering with the painkilling medicine being given to patients. The painkillers were not effective, and as a result, terminally ill patients were dying in great pain. Because Mr. Crowley was in Maine that day, Mr. Drinan considered him, and every DEA employee in Maine, to be on call twenty-four hours a day. Mr. Drinan assigned Mr. Crowley to track how the prescribed painkillers got from the pharmacy to the patient, who came in contact with the painkillers, and how the painkillers could be diverted. Mr. Drinan testified:
I sat and held hands with the hospital president while Crowley did his thing. As a result of Jack’s efforts, we discovered that a pharmacist employed by the hospital was an opium addict, a drug addict, and that he had, over a period of two months, carefully and meticulously disassembled these powerful painkillers of morphine and dilaudid.
The suspect was taken to the Portland police station where he confessed. Although the pharmacist was only stripped of his license, Mr. Drinan characterized the episode as “an example of a diversion ease that has a criminal element in it.”
Mr. Crowley also testified regarding his investigation of a burglary at the Wyeth Laboratories distribution center in Andover, Massachusetts. On the morning of September 27, 1976, Mr. Crowley received a call from the warehouse manager of Wyeth Laboratories stating that their distribution center had been broken into and that most of the firm’s inventory of Schedule II controlled substances had been stolen. Because the firm was a DEA registrant, Mr. Crowley coordinated the investigation.
Later that morning, Mr. Crowley, Mr. Hunt, and their Group Supervisor, Mr. Seifer, accompanied by state agents, began an on-site investigation of the Wyeth Laboratories distribution center. Mr. Crowley found that the thieves had disabled the security system by cutting the telephone wires, climbed down through a hole in the roof of the building and broken into the vault by burning through a combination lock. Mr. Crowley discovered the severed telephone wires by climbing up the telephone pole to see where the alarm system had been cut. Mr. Crowley discovered the point of entry by climbing on top of the roof and then climbing down through the hole the thieves had cut.
Following the on-site investigation, Mr. Crowley began what he described as “gumshoe investigations.” Under the direction of Mr. Seifer, Mr. Crowley began to interview a number of witnesses, including individuals working for the drug company, for the alarm company, and burglary experts in the area. Mr. Crowley found that the company monitoring the security system, 3M Alarm Service, had failed to respond to a signal representing circuit line difficulties. As a result, Mi'. Crowley considered the employees of the alarm service to be the first suspects.
A number of suspects were developed as a result of Mr. Crowley’s investigations. In December of 1976, the investigation focused on a property upon which two vehicles and a U-Haul truck were parked. Along with others, Mr. Crowley conducted surveillance to ensure that the vehicles did not leave the property. Subsequently, an individual identified as Mr. Toureseo, attempted to drive away from the property and was stopped by state police officers who were surveilling the property at the time. Mr. Toureseo was taken to the Northampton State Police Barracks where he was detained, but not arrested. Mr. Crowley read Mr. Toureseo his Miranda rights, was responsible for keeping him detained, and interrogated Mr. Toureseo for about four hours.
Ultimately, an informant developed by a Special Agent led the investigation to a ga *750 rage in Coventry, Rhode Island owned by a Mr. Koval, where a majority of the drugs were recovered. Mr. Crowley was present at the seizure. Mr. Crowley testified in front of the Grand Jury in Rhode Island concerning the burglary and the identification of the drugs at issue. Mr. Koval, who had ties to organized crime, was sentenced to five years in prison. Mr. Crowley testified that he worked long hours during the Wyeth Laboratories investigation. In addition, Mr. Crowley had frequent contact with criminal suspects, such as burglary experts, the employees for the alarm company, and Mr. Touresco.
In 1978, Mr. Crowley uncovered what Edward Drinan described as “the largest diversion case of legitimate controlled pharmaceuticals in the history of Maine.” Acting on a tip from a drug company, Mr. Crowley discovered that Clukey Pharmacy in Bethel, Maine was ordering unusually large amounts of stimulants. Consequently, Mr. Crowley conducted an administrative inspection of the pharmacy. Before presenting the administrative inspection warrant, however, Mr. Crowley spoke with Bob Stearns, the Chief of Police in Bethel, Maine. Mr. Stearns told Mr. Crowley that the owner of Clukey Pharmacy, Harold Clukey, was extremely dangerous and was the most prominent criminal suspect in the area. Thus, upon serving Mr. Clukey with the administrative inspection warrant, Mr. Crowley asked Mr. Clukey if he was carrying a weapon. Mr. Clukey responded that he was, and produced two or three rifles. Mr. Crowley secured the rifles in a separate area during the on-site investigation. Subsequently, Mr. Crowley, accompanied by Deputy Sheriff Deborah Conroy and Diversion Investigator Walter Houghton, interviewed Mr. Clukey and performed the inspection.
Information developed during Mr. Crowley’s investigation indicated that Mr. Clukey was smuggling pharmaceuticals to Florida in his private airplane and returning with loads of marijuana and cocaine. Mr. Crowley served Grand Jury subpoenas to Mr. Clukey and several people working in his establishment. Mr. Clukey was indicted and plead guilty to unlawful distribution of a controlled substance and was sentenced to one year in prison, a five year special parole term and a $3,000.00 fine. Subsequently, Mr. Crowley brought his information to the State Medicaid Fraud Unit. As a result, Mr. Clukey was prosecuted in Maine by the state authorities for Medicaid Fraud and received a sentence of two years in prison.
Finally, Mr. Crowley testified regarding an investigation that he began while a Diversion Investigator and continued as a Group Supervisor: Manny’s Apothecary. The investigation began with Mr. Crowley focusing on a psychiatrist located in Brookline, Massachusetts, Dr. Daniel Zoll, who Mr. Crowley suspected of writing prescriptions without a valid medical reason. The prescriptions included narcotics, at a time when psychiatrists could not write prescriptions for drug addiction. Mr. Crowley also became suspicious of the pharmacist who was filling the prescriptions, Emanuel “Manny” Rosengard. According to Mr. Crowley, his investigation indicated that Mr. Rosengard was charging “unbelievable high, high rates,” up to four or five hundred dollars per prescription. In addition, Mr. Rosengard would only fill prescriptions late in the day, from 4:00 to 6:00 p.m. Mr. Rosengard had a lookout posted at the front of the pharmacy. Finally, Mr. Crowley suspected that Mi'. Rosengard was forging prescriptions as well as filling Dr. Zoll’s improper prescriptions.
Mr. Rosengard’s pharmacy, Manny’s Apothecary, was located in South Boston in an organized crime area. Mr. Crowley testified that “every establishment there had some kind of lookout up front, whether it was a liquor establishment or, the ones that were suspected of doing illegal activity. That included this particular drugstore.” Dennis Johnson, the supervisor of the Boston diversion unit at the time of the investigation, testified that “[t]he ability to get in there [South Boston] and do an investigation without becoming, having the defendant become aware of it was very, very difficult. Very difficult.” Because it was so difficult for a law enforcement officer to safely enter the store, Mr. Crowley developed an infoimant and controlled her along with Special Agent William Powers. Mr. Crowley had the infor *751 mant perform undercover buys at the pharmacy. In addition, Mr. Crowley performed surveillance of the store with Special Agents. According to Mr. Crowley, his surveillance was ineffective because, due to the dangerous neighborhood, he and the special agents were foi-ced to station themselves a block away from the pharmacy. Nor were the undercover buys successful. Finally, Mr. Crowley performed an administrative inspection with a warrant. As a result, Mr. Crowley found evidence which led to Mr. Rosengard losing his DEA registration.
II. Group Supervisor Duty: 1986-1991
Mr. Crowley was promoted to the position of Diversion Group Supervisor in June of 1986. Subsequently, Mr. Crowley was approached by Jim Carr, a detective in the Suffolk County Organized Crime Unit. Mr. Carr had been involved in a long term investigation concerning cocaine trafficking in South Boston. Evidence collected by Mr. Carr through wire taps led him to Emanuel Rosengard. Mr. Carr approached Mr. Crowley because Mr. Crowley knew Mr. Rosengard and the layout of the building he was using from the earlier investigation of Manny’s Apothecary. Mr. Carr acquired and served a criminal search warrant. Mr. Crowley participated in the search.
Mr. Crowley, Mr. Can- and other Boston Police Detectives rehearsed the search at 5:30 in the morning. Mr. Carr served the search wan-ant midmorning. As Mr. Can-approached the building, Mr. Crowley testified that he was directed by a sergeant of the Boston Police Department to: “ ‘Get in there. What are you waiting for?’ You know, as we were approaching. ‘Come on. Get right up there.’ ” Thus, Mr. Crowley walked through the door to the building right along with Mr. Can. According to Mr. Crowley, Mr. Rosengard had weapons at the location and was disarmed, and the police proceeded with the search. Next, Mr. Crowley and Mr. Can-then sought out an individual, William Cavanaugh, who was one of Mr. Carr’s main targets. Mr. Crowley led Mr. Can- downstairs, which was comprised of five or six interwoven rooms with common areas. As Mr. Crowley and Mr. Can entered one of the side rooms, they literally ran into Mi’. Cavanaugh. Mr. Carr announced that they were the police, and Mr. Cavanaugh resisted. Mr. Can* wrestled with Mi-. Cavanaugh and forced him to the ground. Mr. Cavanaugh was placed under anest. Mr. Crowley indicated that Mr. Cavanaugh was on his way to do his daily cocaine dealing and he had a large amount of Valium on him. According to Mr. Crowley, “[t]hey used to deal the two substances together, the cocaine and the Valium tablets. The Valium would, would be to help the addict come down or something afterwards.”
The search of Manny’s Apothecary found four kilos of cocaine and 65,000 blue Valium tablets. The authorities also found laboratory equipment, one hundred marijuana plants and five or six handguns. Mr. Crowley testified that throughout the investigation, he had contact with criminal suspects, including Mr. Rosengard, Mr. Cavanaugh and the patients/drug addicts. In addition, Mr. Crowley testified that he worked long hours on the case and that he was on call to Mr. Carr and the prosecutor.
The Diversion Investigators who worked for Mr. Crowley while he was a Group Supervisor also worked on criminal investigations. Edward Sullivan was a Diversion Investigator in the Boston regional office of the DEA while Mr. Crowley was a Group Supervisor. In 1987, Mr. Sullivan began investigating a Dr. Robert Carson for violations of the Controlled Substances Act. Through a routine pharmacy survey, the Diversion Investigation Unit of the Massachusetts Police Department had discovered that Dr. Carson had been prescribing over 21,000 dosage units of Oxycodone and Hydromorphine to a married couple, Joyce and John Lori, who had been filing the prescriptions at numerous pharmacies in Massachusetts. Dr. Carson also had been mailing prescriptions to the Loris for no apparent medical purpose.
Mr. Sullivan teamed up with Trooper Peter Silva from the Massachusetts State Police and began to investigate the different pharmacies that were filling prescriptions from Dr. Cai-son. They found that three individuals, John and Joyce Lori and Thomas West, were receiving large quantities of preserip *752 tions from a number of pharmacies. Mr. Sullivan and Mr. Silva ultimately found that the prescriptions were being filled in numerous states: New York, New Jersey, Rhode Island and Massachusetts.
Upon discovering the broad, interstate scope of the criminal activity, Mr. Sullivan and Mr. Silva proposed that their investigation be classified as an Organized Crime Drug Enforcement Task Force (OCDETF). According to Mr. Sullivan, an OCDETF brings a number of different agencies under one directive to enforce the drug laws. The different agencies included the Customs Service, the Federal Bureau of Investigation, the Immigration and Naturalization Service, the Internal Revenue Service and the DEA. The proposal was approved.
Mr. Sullivan and Mr. Silva began interviewing the different suspects, including Dr. Carson, Joyce Lori and John Lori. Mrs. Lori told Mr. Sullivan that her husband had developed a heroin addiction while in Viet Nam and sold his pharmaceuticals at area bars to fund his heroin addiction. Mrs. Lori was afraid of her husband, whom she described as a big, very violent individual. Mr. Lori had threatened to kill his wife, who was estranged at the time, if she talked and, therefore, Mrs. Lori was placed in protective custody by the DEA. In the course of his investigation, Mr. Sullivan also interviewed a number of persons with associations to motorcycle gangs who were involved with “hard” drugs such as heroin, cocaine and LSD. Mr. Silva arrested Mr. Lori and Mr. West with Mr. Sullivan present.
Eventually, five persons, including Dr. Carson, Mr. Lori and Mr. West were indicted for conspiring to distribute large quantities of narcotics. Mr. Sullivan testified before the Grand Jury investigation. Ultimately, all six were convicted for conspiracy to violate the Controlled Substance Act and unlawful distribution of Schedule II narcotics.
During his investigation of Dr. Carson, Mr. Sullivan worked long hours. In addition, Mr. Sullivan was required to issue Miranda rights to a number of individuals. Mr. Sullivan Mirandized people using DEA Form 13-A, a form that Mr. Crowley had given him when he began at the DEA. Finally, Mr. Sullivan testified that he was on call during his investigation of Dr. Carson, “because of the fact that at any, any time or any moment, that confidential informant [Joyce Lori] would contact Peter Silva, he, in turn, would contact me ... on occasion, with her, she felt as though her [life] was being threatened____”
The testimony at trial discussed another OCDETF investigation, during 1987 and 1988, supervised by Mr. Crowley, which focused on the Cumberland Prescription Center of Rhode Island. A newspaper article had reported that, using an informant, Cumberland Police Detectives had discovered that the owner of the Cumberland Prescription Center, Michael Arouth, was dispensing drugs for sexual favors. The Cumberland police performed a search of the establishment and discovered boxes with markings on them that led Mr. Crowley to believe that the boxes had been surrendered to the state for destruction yet somehow ended up in the pharmacy.
The case was further developed by Diversion Investigator Janet Gardner and Special Agent Joseph Crowe. Mr. Crowley supervised Ms. Gardner during the investigation. According to Mr. Crowe, who testified at the trial, Ms. Gardner was the lead investigator and he assisted her because he knew the police officers involved in the investigation and because he had a good relationship with the United States Attorney’s office in Providence, Rhode Island. Ms. Gardner took control of all of the evidence from the Cumberland Police Department.
Ms. Gardner and Mr. Crowe used a number of investigatory techniques in performing what Mr. Crowley described as “old gumshoe investigation.” First, Ms. Gai’dner performed an administrative search on the premises, which was followed by a criminal search warrant. Mr. Crowe procured the search warrant and went with Ms. Gardner and Cumberland Police Officers to execute and perform the search. Mr. Crowe and two uniformed police officers executed the warrant, meaning that they told Mr. Arouth that they had a search warrant and that they were going to search the premises, while Ms. Gardner waited behind. According to Mr. *753 Crowe, Ms. Gardner did not join in executing the warrant because she was unarmed. Ms. Gardner, however, actually performed the search. In addition to administering search warrants, Ms. Gardner and Mr. Crowe also performed drive-by surveillance on suspects’ homes. Finally, Ms. Gardner and Mr. Crowe interviewed three inspectors from the Rhode Island Drug Control Unit whom they suspected of providing narcotics to Mr. Arouth.
Ms. Gardner’s investigation uncovered a conspiracy consisting of two source points and the key distributor, Mr. Arouth. One source consisted of three pharmacy inspectors, one narcotics inspector and one administrative clerk employed by the Rhode Island Department of Health, Diversion of Drug Control. This group was supplying Mr. Arouth with Percodan, Dilaudid and other prescription drugs surrendered by hospitals and nursing homes to the RIDH/DDC for destruction, which'the group than stole. The second source for Mr. Arouth was a group of employees of the United Parcel Service (UPS). This group would steal drugs from the UPS delivery system.
Ultimately, a number of individuals were sentenced to prison for their role in the Cumberland Prescription Center conspiracy. Mr. Arouth pled guilty to five counts involving the possession with intent to distribute controlled substances and record keeping violations. He was sentenced to three years in prison. Richard P. Ferucci, a former Rhode Island Pharmacy Inspector, plead guilty to five counts of possession with intent to distribute controlled substances, conspiracy and tax evasion and was sentenced to five years in prison. In addition, John J. Barry, a retired Rhode Island Pharmacy Inspector, plead guilty to conspiracy to distribute Valium and filing false income tax returns. He was sentenced to six months in prison. Robert Johnson, a UPS manager, plead guilty to conspiracy to distribute Percodan and Dilaudid and distribution. He was sentenced to one year in prison.
Mr. Crowe testified that Ms. Gardner often worked ten to twelve hour days on the Cumberland case. In addition, Ms. Gardner was on call throughout the investigation of the case. Mr. Crowley stated that there was “extra” danger involved in the case because Ms. Gardner was investigating armed agents of a state agency and working along side them at the same time as she was investigating them.
Another example of the type of criminal investigations performed by Diversion Investigators under Mr. Crowley’s supervisión was provided by Diversion Investigator Edward Harrington. Mr. Harrington testified regarding his investigation of the Frontier Pharmacy in South Deerfield, Massachusetts, during 1987 to 1989. Mr. Harrington learned, through informants and cooperative sources, that the pharmacist of the Frontier Pharmacy, William Rotkiewicz was selling drugs to area drug addicts. Initially, Mr. Harrington used an informant to buy drugs from Mr. Rotkiewicz using an obviously forged prescription. Mr. Harrington also suspected that the drugs from the Frontier Pharmacy were being sold at a bar in Vermont. Therefore, Mr. Harrington tried to use cooperating sources to make buys from suspects at the bar and the physician. Mr. Harrington testified that he gave detailed instructions to the informant before he went in to see the physician:
We, you know, we, basically, told him, when he entered the pharmacy, he had to do it in a certain way. He just couldn’t go in with a prescription that looked real. So, basically, we had to write up the prescription not putting a full DEA number on there, making all sorts of obvious mistakes that any pharmacist would realize was a false prescription. We had to tell him how to talk to the pharmacist almost admitting this is a false prescription, and, so, the pharmacist is fully aware that he’s giving someone drugs illegally.
Mr. Harrington was similarly explicit with the informant who was making drug buys from suspects at the bar in Vermont. Mr. Harrington told the informant to be sure to buy certain types of pills, such as Dilaudid or Percodan. They did not want him to go in and buy marijuana or cocaine.
Mr. Harrington monitored the buys from the pharmacy from the outside. On a couple of occasions, Mr. Harrington monitored the buys made inside the bar by going into the *754 bar to witness the transaction. After the informant completed the buys, Mr. Harrington would debrief him and take possession of any evidence.
The buys from the informants, however, were not successful in the Frontier Pharmacy case. Therefore, Mr. Harrington entered the pharmacy with a notice of inspection, performed an accounting of the pills the pharmacy had received compared to what was distributed, and also discovered a box of 248 apparently forged prescriptions which bore the signature of a doctor who was deceased. In addition to the accounting and search, Mr. Harrington also interviewed Mr. Rotkiewicz, who was suspected of violating the criminal laws of the United States at the time.
To investigate the legitimacy of the prescriptions that were found at the Frontier Pharmacy, Mr. Harrington interviewed approximately one hundred people who were named on the prescriptions. The process of interviewing these people took approximately a year and often required Mr. Harrington to travel to central Massachusetts from Boston. Some of the persons Mr. Harrington interviewed were elderly. Others, however, were “junkies” who lived in bad neighborhoods. Mr. Harrington testified that he was placed in hazardous situations when he was interviewing persons in those neighborhoods, and high crime areas. During the investigation, at the beginning of the week, Mr. Harrington would drive to Springfield and stay in a hotel, which served as a base of operations. While he was investigating the legitimacy of the prescriptions, Mr. Harrington would return to Springfield between 9:00 and 11:00 at night.
After finishing the investigation of the prescriptions, Mr. Harrington and the Assistant United States Attorney selected the best witnesses from the one hundred interviewed and presented them to a Grand Jury. At the Grand Jury, the prosecution presented a handwriting analysis of the prescriptions which showed that Mr. Rotkiewicz had forged almost all of the prescriptions himself. As a result, Mr. Rotkiewicz’s DEA registration number was revoked.
After the DEA revoked Mr. Rotkiewicz’s registration number, Mr. Harrington received information that he was continuing to order controlled drugs through a distributor in Long Island, New York. Consequently, Mr. Harrington traveled to Long Island to interview an executive from the distributor and learned that Mr. Rotkiewicz’s daughter, who was also a pharmacist, had ordered the drugs. Mr. Harrington traveled back to Boston and went to Springfield that night. The following morning, Mr. Harrington wrote up an affidavit for a search warrant. It is not apparent from the record whether the warrant was for an administrative inspection or a criminal search. The following morning, Mr. Harrington served the search warrant.
Mr. Rotkiewicz was eventually charged with falsifying prescriptions and illegally dispensing controlled substances. Mr. Rotkiewicz’s daughter was not charged. Mr. Rotkiewicz plead guilty to charges that he falsified ten prescriptions and to a single charge of unauthorized drug distribution. Mr. Rotkiewicz, age 67 at the time, was sentenced to one year of in-home detention and fined $40,000.00.
III. Staff Coordinator Duty: 1991-1994
In the fall of 1990, Mr. Crowley received notice that he had been chosen by the Career Board to take up a position at DEA headquarters as a Staff Coordinator. The move was part of a rotation policy by which all supervisors from the field to perform a tour of duty at DEA Headquarters. When Mr. Crowley first arrived at DEA headquarters, he was assigned to the Domestic Drug Investigations Unit within the Drug Operations Section. Mr. Crowley’s supervisor was Margaret Brophy. Ms. Brophy defined her duties as the unit chief at trial: “I was a unit chief that exercised oversight over all investigations being conducted by diversion investigators in the field. That could include as simple as a pre-registrant investigation to as complicated as a major criminal investigation.” Ms. Brophy described Mr. Crowley’s duties in the Domestic Drug Investigations Unit as follows:
*755 As a staff coordinator, he would have been responsible for a certain number of divisions, and that means he would be monitoring and coordinating their investigations; he would be available to support them in funding and deciding whether a case should be part of a special enforcement program; he would be available to give them advice and guidance; he would review cases and decide if they were going in the right direction or is there a better way, maybe, we can do this. Duties of that nature.
As a Staff Coordinator, Mr. Crowley gave advice to Diversion Group Supervisors, and on occasion, Special Agent Group Supervisors and Special Agent Investigators. Ms. Brophy also testified regarding the practical requisites for Mr. Crowley’s position:
Q____[D]o you think that the job that you just described that Mr. Crowley was performing for you, do you think that position could have performed if he had not had criminal investigative experience?
A. No, it could not.
Q. Okay. Would you consider it to be a mandatory prerequisite for the job?
A. Yes.
Q. Let me know, Ms. Brophy, was it important to you, in having Mr. Crowley in your unit, whether or not he had served a warrant, a search warrant, for example?
A. It made the difference, in my opinion. You can’t give advice if you haven’t done it.
Q. If you haven’t done it. Okay. Did it make any difference to you as to whether he had frequent and direct contact with criminals?
A. It made a difference. Again, he’s giving advice to people in the field, and you want the investigator to give competent advice.
Q. And did it make a difference to you, in the work that Mr. Crowley did, as to whether he interrogated witnesses and suspects?
A. Yes.
Q. Okay. Would it have been important to you that Mr. Crowley had given Miranda warnings, for example, in the field?
A. Yes.
Q. Why would that have been important?
A. Because you might have him giving advice to a relatively inexperienced field investigator on how to approach a particular instance, and he should have had that experience himself.
Q. How about experience with, say, undercover buys?
A. He should have been an expert on how you do an undercover buy from a registrant. You have to be very, very careful that you don’t make an undercover buy where you’re giving, say, a doctor a medical reason for selling you a prescription, and in the field, the diversion investigator is considered the expert, and the agent, in those instances, will discuss different scenarios with the investigator.
Q. Well, would it have been important to Mr. Crowley’s position that he have experience in, with participating in searches?
A. Yes, it would.
Q. Why would that be important?
A. To know what type of evidence is germane to the type of case that you’re hoping to have prosecuted, to have had the experience to. know exactly what was involved, to know how to handle various types of evidence, including seizures, for instance, of PCs or personal computer records and — I think that’s valid experience.
In the fall of 1991, a new unit, the International Drug Unit, was formed within the Drug Operations Section of the DEA. Larry Snyder, the chief of the new unit, selected Mr. Crowley from a group of Staff Coordinators to work in the new unit. Mr. Crowley began working as a Staff Coordinator in the International Drug Unit on October 1, 1991. According to Mr. Snyder, Mr. Crowley “coordinated criminal investigations that were ongoing in the International Drug Unit.” Mr. Snyder testified that Mr. Crowley’s background in criminal investigations was the “primary factor” in his decision to select Mr. Crowley for the International Drug Unit. Mr. Snyder testified that experience in criminal *756 investigations was a mandatory prerequisite for the position because, “the International Unit did not do any type of inspections or regulatory work. We only worked with drugs that were being smuggled in the United States, and you had to have a knowledge of criminal investigations to be able to coordinate other people who were conducting criminal investigations.”
IV. Diversion Group Supervisor Duty: 1994-2001
Mr. Crowley left DEA headquarters and returned to the DEA’s Boston, Massachusetts regional office as a Group Supervisor on October 31, 1994. Similar to his prior experience as a Group Supervisor, from June of 1986 until February of 1991, Mr. Crowley supervised Diversion Investigators who were investigating criminals. JoAnn Masar, a Diversion Investigator who worked under Mr. Crowley briefly in 1991, and then again from 1994 until the end of March, 2001, testified that, other than two to four cyclic inspections a year, her time was devoted to criminal investigations. Ms. Masar testified regarding the High Street Gang case, an investigation that began in the fall of 1999, while Mr. Crowley was her group supervisor, and was ongoing at the time of trial. The High Street Gang case was initiated after a person died from an overdose of cocaine and Oxy-Contin, a Schedule II narcotic. Ms. Masar investigated an organization that was purchasing OxyContin and distributing it throughout southern Maine and New Hampshire. The organization was washing prescriptions with acetone to take the writing off and then rewriting the prescriptions themselves.
The High Street Gang investigation was a joint investigation with the Department of Health and Human Services, the Maine Drug Enforcement Agency, the Biddeford Police Department and, to a lesser degree, the Sanford Police Department. Ms. Masar testified that “[a]s far as DEA was concerned, I was the case investigator.” Ms. Masar testified that the investigation began “with pharmacy records to see who was getting the OxyContin, and then we would go out and interview those people. All of those people had prior records of, of drug offenses or they were known to the local departments as being involved in drug activity.” In addition to interviews, Ms. Masar used undercover buys to investigate the High Street Gang case. “We, DEA supplied the money, which was me, paid the person who was making the buy, whether it was a police officer or an informant, and organized the buy with whoever was handling the informant.” Ms. Masar also used confidential informants in the case. Due to a change in DEA policy, Ms. Masar was authorized to register informants,, meaning she could recruit, pay and control the informants. Most of the informants that Ms. Masar used were suspected of having committed a federal crime. Finally, Ms. Masar used surveillance during the High Street Gang case. According to Ms. Masar, “some of the surveillance was in conjunction with the buy that was being done. It was a moving and stationary surveillance. It kind of changed in midstream, and I was in a vehicle with another, with a police officer.”
During the High Street Gang investigation, Ms. Masar also assisted in making arrests and presenting information to the Grand Jury. Ms. Masar testified:
When we were effecting arrests, we did it early in the morning. A lot of times, it was around 5:00 in the morning. When we were getting ready for Grand Jury, because it was an ongoing process, we started Grand Jury in the beginning of last year and haven’t stopped yet. Every couple of weeks, we indict more people.
Ms. Masar also testified about a case known as Operation Ox. The case began with a rash of pharmacy burglaries which appeared to be linked. A number of states were involved in the investigation: Maine, Massachusetts, Rhode Island, New York, New Jersey, Pennsylvania, Ohio and New Hampshire. The information collected by Ms. Masar indicated that a group of people in Lynn, Massachusetts were involved in the burglaries. Ms. Masar testified that “[s]ome of those drugs would, would be paid to the Hell’s Angels Motorcycle Gang for, it’s called ‘tribute.’ For tribute for doing business in their town; so that these burglars could sell *757 then- drugs, and the rest of the drugs were going on the street.”
The break in the ease came when Ms. Masar was informed by a local police officer of a tip he received from a person who had been involved with a number of break-ins in the area. The informant was able to identify the individuals involved in the pharmacy burglaries from a security video tape taken during one of the break-ins in Rhode Island. The Rhode Island state authorities acquired search and arrest warrants, arrested the individuals, and incarcerated them. One of the defendants cooperated with Ms. Masar, and gave her additional information, which, when combined with the information she had already collected, lead her to a number of other targets. Ms. Masar testified with regard to the arrest of two of the suspects:
[W]e also had another video tape of one of the burglaries, and we identified the person in that tape as being one of our suspects. We obtained a search warrant — it was a state search warrant — and an arrest warrant for those two individuals. We coordinated with New York, the local department. They came out, and we arrested the two individuals and conducted the searches of their residences.
Ms. Masar was the affiant for the search warrant, and physically conducted the search. Ms. Masar testified as to the general procedure she uses when conducting a search:
I organize whoever I’m working with on a particular ease. I organize them, give everybody jobs to do at the scene of the search, tell them what we need to locate. Have them, they have a copy of the affidavit so they can see what it is we’re looking for. We go to the location, a warrant is handed to a law enforcement person to actually] hand over, and they go in and secure the building, and then we conduct the search.
'Ms. Masar testified that there were dangerous aspects to the investigation given that one of the main targets in the pharmacy burglaries was an enforcer for the Hell’s Angels Motorcycle Gang who was on probation for assault. Ms. Masar arranged for this suspect’s arrest with his probation officer and, while she did not actually arrest him, she was present at the time. Ms. Masar also interrogated the suspect for a long period of time following the arrest. Furthermore, Ms. Masar testified that she worked long hours on Operation Ox and that she was on call twenty-four hours a day, due to the nature of the burglaries, which often occurred at night and during storms.
On April 1, 2001, Mr. Crowley was redesignated as a “Special Assistant.” Mr. Crowley’s duties as a “Special Assistant” were not discussed at trial.
V. Mr. Crowley’s Administrative Appeals
The Office of Personnel Management (OPM) has credited Mr. Crowley with primary Law Enforcement Officer coverage under 5 U.S.C. § 8331 (20) from June 15, 1974 to June 15, 1986, secondary supervisory credit from June 16, 1986 to February 24, 1991, and secondary administrative credit from February 25, 1991 to September 30, 1991. This period includes Mr. Crowley’s time as a Diversion Investigator, as a Diversion Investigator Group Supervisor and his time as a Staff Coordinator at the Domestic Drug Investigations Unit within the Drug Operations Section at DEA headquarters. By letter dated September 22, 1992, Mr. Crowley requested Law Enforcement Officer retirement coverage from October 1, 1991 to September 30, 1992. A year later, the government had not acted on Mr. Crowley’s request for retirement coverage. By letter dated September 23, 1993, Mr. Crowley expanded his request for retirement coverage to include October 1, 1992 to September 30, 1993. In December 1993, the responsibility for determining creditable service was transferred from OPM to the relevant employing agency. In Mr. Crowley’s case, the Justice Management Division (JMD), a division of the DOJ, acquired the responsibility for credit determinations. Also in 1993, the Merit Systems Protection Board, the Board responsible for reviewing JMD’s decisions, adopted what it defined as a “significantly narrower” standard for defining Law Enforcement Officer credit. See Bingaman v. Dep’t of Treasury, 127 F.3d 1431, 1438 (Fed.Cir.1997). The Board established a six part *758 test for determining whether an employee meets the definition of achieving Law Enforcement Officer status for purposes of entitlement to Law Enforcement Officer retirement credit. See Hobbs v. OPM, 58 M.S.P.R. 628 , 633 n. 5 (1993). The MSPB published a number of subsequent decisions utilizing the narrower approach to determine eligibility for Law Enforcement Officer retirement credit. See, e.g., Bremby v. Dep’t of the Navy, 81 M.S.P.R. 450 , 453 (1999); Taylor v. Dep’t of Treasury, 68 M.S.P.R. 693 , 696 (1995), 106 F.3d 427 (Fed.Cir.1997); Ferrier v. OPM, 66 M.S.P.R. 241 , 244 (1995); Peek v. OPM, 63 M.S.P.R. 430 , 432 (1994), affd 59 F.3d 181 (Fed.Cir.1995) (table); Sauser v. OPM, 59 M.S.P.R. 489 , 492 (1993). In Bingaman v. Department of Treasury, the United States Court of Appeals for the Federal Circuit affirmed the MSPB’s adoption of the narrower standard, noting that “the set of factors the [MSPB] has developed captures the essence of what Congress intended.” Bingaman v. Dep’t of Treasury, 127 F.3d at 1436, 1438 .
Following 1993, Mr. Crowley expanded his request to include each subsequent year. In a memorandum dated August 19, 1994, Jean D. Mathis, the Deputy Assistant Administrator for Personnel at the time, advised Stephen R. Colgate, the Assistant Attorney General for Administration, that Mr. Crowley’s position as Staff Coordinator “has been determined by OPM to meet the law enforcement criteria; that is, it is an administrative position for which primary law enforcement experience is the prerequisite. Therefore, continued law enforcement coverage in the secondary category is recommended for DI Crowley.” On July 9, 1999, Retha Fulmore, the' Deputy Assistant Administrator for Personnel at the time, reversed the decision from OPM and advised that Mr. Crowley’s position as a Staff Coordinator was not approved for Law Enforcement Officer credit. On August 16, 1999, JMD issued a final decision denying Mr. Crowley’s requests for Law Enforcement Officer credit from October 1,1991 through June 15,1997.
Mr. Crowley did not receive overtime pay from 1974 to April of 1995. Mr. Crowley testified that he did not record the amount of overtime he was working because:
The overtime budget for the rest of the employees [below GS-10] was very, very small, and if I, if I wrote down the hours for overtime, I wouldn’t be paid anyways. So, it was, it was discouraged. I was told not to do it, and the same would hold true for compensatory time. There was, I was told there was no such thing.
In April of 1995, Mr. Crowley began receiving a limited amount of overtime, five hours of overtime pay a week, ten hours a pay period. Mr. Crowley testified, however, that he “worked a lot more than 10 hours per pay period overtime, but since I was used to doing that for so many years, I, I didn’t, I didn’t claim, you know, anything over and above what I could get under the system that we setup.” Ms. Fulmore testified that within DEA, only Special Agents received AUO “because it has been determined that the nature of them work is uncontrollable. We cannot control when they will be required to work, and they receive AUO.” Mr. Crowley, however, testified that “because of the nature of the investigations and the work that had to be done,” the overtime he worked was uncontrollable. Diversion Investigators have never received availability pay.
Plaintiff currently seeks Law Enforcement Officer credit in the secondary administrative category from October 1,1991 to October 30, 1994 and Law Enforcement Officer credit in the secondary supervisory category from October 31,1994 to October 1, 2001. According to the briefs submitted by the plaintiff on the pre-trial motion, plaintiff argues that OPM’s previous decision granting Mr. Crowley primary credit is sufficient to satisfy plaintiffs burden of demonstrating, for purposes of obtaining secondary Law Enforcement Officer credit, that he previously occupied a primary Law Enforcement Officer position. In support of Mr. Crowley’s claim for Law Enforcement Officer credit, the plaintiff argues that “Mr. Crowley satisfies the condition in 5 U.S.C. § 8331 (20) [ (2000) ] in that he was a law enforcement officer in a primary position as a Diversion Investigator in the Boston Diversion regional office from June 15, 1974 to June 15,1986 and the duties of his position *759 were primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States.” In addition, the plaintiff contends that if OPM’s previous decision granting Mr. Crowley primary credit is not given preclusive effect, the plaintiff still meets the new standard as expressed by the United States Court of Appeals for the Federal Circuit. Finally, plaintiff argues that because Mr. Crowley meets the definition of a “Law Enforcement Officer” under 5 U.S.C. § 8331 (20), Mr. Crowley is entitled to the benefits which flow from Law Enforcement Officer status, including enhanced rates of pay pursuant to FLEPRA §§ 403 and 404. In addition, Mr. Crowley seeks overtime pay under 5 U.S.C. § 5542 (a)(4), AUO pay under 5 U.S.C. § 5545 (c)(2) from August 2, 1985 14 to October 1, 2001, and availability pay under 5 U.S.C. § 5545a from 1994 to October 1, 2001.
In response, defendant argues that “Mr. Crowley is neither entitled to LEO credit nor to FLEPRA benefits.” Regarding the plaintiffs claims for pay in excess of the forty hour work week, defendant contends that the plaintiff is not entitled to overtime pay pursuant to 5 U.S.C. § 5542 (a)(4) (2000), AUO under 5 U.S.C. § 5545 (c)(2), or availability pay pursuant to 5 U.S.C. § 5545a.
DISCUSSION
As an initial matter, the court considers the issue raised by the parties’ briefs submitted prior to trial. The parties jointly stipulated to the issue regarding what the plaintiff must prove to meet the transfer requirement of 5 C.F.R. § 831.904 (2001) as follows:
[wjhether the previous decision of the Office of Personnel Management to grant plaintiffs primary law enforcement officer credit is sufficient to satisfy plaintiffs’ burden of demonstrating, for purposes of obtaining secondary law enforcement officer credit, that they previously occupied a primary law enforcement officer position or whether plaintiffs must demonstrate, through evidence of their primary job activities, that the primary position they occupied was a law enforcement officer position.
The parties each have raised several arguments to resolve this issue.
I. TRANSFER REQUIREMENT
The defendant argues that:
the plain language in 5 C.F.R. § 831.904 (a)(1), (2) (2001) requires, for entitlement to secondary coverage, that an employee have transferred into the secondary position from, a primary LEO position (the transfer requirement). Thus, it is necessary to consider whether [Mr. Crowley was] in [a] primary LEO position[], and, under Bingaman , 15 this inquiry must be made using the current legal standard without regard to an earlier determination made under a previous standard. In short, OPM’s decision to grant primary LEO credit to these individuals was based upon a legal standard that is no longer current, and that decision is not tantamount to a finding that they were primary LEOs under current law, which Bingaman requires.
(emphasis in original).
In contrast, the plaintiff argues that:
The issue of primary time is not open on direct review. OPM long ago determined that the plaintiffs, Buckley and Crowley, had demonstrated that their duties in their primary positions were those of law enforcement officers. The plaintiffs should not be required to make that demonstration again under a standard that was not applicable at the time the decision was made____
On this basis the OPM decision may not be re-litigated.
In the controlling statute, a Law Enforcement Officer is defined as “an employee, the duties of whose position are primarily the investigation, apprehension, or detention of *760 individuals suspected or convicted of offenses against the criminal laws of the United States, including an employee engaged in this activity who is transferred to a supervisory or administrative position.” 5 U.S.C. § 8331 (20) (2000). Pursuant to 5 U.S.C. § 8347 , OPM has issued regulations providing guidelines for determining entitlement to Law Enforcement Officer credit. See 5 C.F.R. §§ 831.901-831.914 (2002). The regulations at 5 C.F.R. § 831.904 (a)(1) establish the transfer requirement for secondary credit eligibility as follows: “Employee is' transferred directly (i.e., without a break in service exceeding 3 days) from a primary position to a secondary position .... ” 5 C.F.R. § 831.904 (a)(1). Thus, despite the fact that the plaintiff seeks only secondary credit, the conditions for earning secondary credit include a determination regarding whether the employee occupied a primary position.
Upon review of the plain language of the regulation, it is unclear whether the transfer requirement of § 831.904(a)(1) (2002) must be met each time an employee submits an application for Law Enforcement Officer credit to OPM, even if the employee has previously been deemed to have met the transfer requirement in prior determinations regarding eligibility for Law Enforcement Officer credit. Plaintiff argues that:
once Mr. Crowley was credited with having transferred to a supervisory position as defined by 5 C.F.R. § 831.903 (c)(3)(i) (1986), he should have been “deemed to have met the transfer requirements for all subsequent employment in supervisory/administrative law enforcement positions” pursuant to 5 C.F.R. § 831.903 (d) (1986). The Court must therefore find that Mr. Crowley’s service subsequent to 1986 is covered as a law enforcement officer pursuant to 5 C.F.R. § 831.903 (c)(3)(i) (1986).
In response, defendant argues that:
[T]he provision Mr. Crowley relies upon, o C.F.R. § 831.903(d), was last in effect in 1987 and therefore was never in effect at any time Mr. Crowley occupied the positions for which he currently seeks LEO credit (Mr. Crowley began his employment as Staff Coordinator of the International Drug Unit in October 1991). Accordingly, former 5 C.F.R. § 831.903 (d), at no time applied to Mr. Crowley’s pending LEO claims, and there is no issue concerning applicability of retroactive regulations.
(Emphasis in original.) A review of the history of the regulation at issue shows that a previous determination that the employee has met the transfer requirement does not preclude the subsequent review of the transfer requirement for later applications. The version of 5 C.F.R. § 831.903 (c)-(d) in effect from 1981 until 1987 provides:
(c) “Law enforcement officer” also includes an employee who is transferred to a position the primary duties of which are not the investigation, apprehension, or detention of persons suspected or convicted of offenses against the criminal laws of the United States, ... if-
(1) Service in the position transferred to follows service in a law enforcement position without-
(1) A break in service of more than three days; or
(ii) Intervening employment that was not as a law enforcement officer;
(2) The duties of the position transferred to are in the law enforcement line of work in an organization with responsibility for the investigation, apprehension, or detention of persons suspected or convicted of offenses against the criminal laws of the United States; and
(3) The position transferred to is-
(i) Supervisory — one which requires a duty of supervising subordinate employees who are directly engaged in the investigation, apprehension, or detention of persons suspected or convicted of offenses against the criminal laws of the United States; or
(ii) Administrative — one which includes an executive or managerial position and may include a clerical, technical, semiprofessional, or professional position of a type also found in organizations with no law enforcement responsibilities: Provided, That experience as a law enforcement officer is a basic qualification for the administrative position.
*761 (d) A law enforcement officer, as defined in section 8331(20) of title 5, United States Code, who has transferred to a position identified by paragraph (c) of this section [which defines supervisory and administrative positions], under the conditions described in this paragraph, shall be deemed to have met the transfer requirements for all subsequent employment in supervisory/administrative law enforcement positions, except for any period of reemployment as an annuitant under title 5, United States Code, section 8335 (b) or section 8336(c).
See, e.g., 5. C.F.R. § 831.903(c)-(d) (1987). The applicable regulations issued after 1987 to the present do not contain the same transfer provisions or the provision which waives consideration of the transfer requirement when reviewing future applications for secondary credit if the employee has already met the transfer requirement.
The United States Supreme Court, in Bowen v. Georgetown University Hospital, 488 U.S. 204 , 109 S.Ct. 468 , 102 L.Ed.2d 493 (1988), discussed the time period during which regulations should be given effect. The Bowen Court stated: “Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.” Id. at 209 , 109 S.Ct. 468 . However, an earlier case issued by the Supreme Court held that “a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711 , 94 S.Ct. 2006 , 40 L.Ed.2d 476 (1974). The United States Court of Appeals for the Federal Circuit has considered the apparent inconsistency between Bowen and Bradley and decided to follow Bowen , stating that “[w]e prefer the longer-standing rule that retroactivity is not presumed.” Sargisson v. United States, 913 F.2d 918, 923 (Fed.Cir.) reh’g denied (1990).
Moreover, the United States Supreme Court recently considered whether a statute may be given retroactive effect and, after explicitly citing Bowen , held that “[a] statute may not be applied retroactively, however, absent a clear indication from Congress that it intended such a result.” INS v. St. Cyr, 533 U.S. 289, 316 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001). The St. Cyr Court also adopted a two-step analysis for determining whether a statute has an impermissible retroactive effect. Id. The first step involves ascertaining “whether Congress has directed with the requisite clarity that the law be applied retrospectively. The standard for finding such unambiguous direction is a demanding one.” Id. (citation omitted). The second step “demands a commonsense, functional judgment about Vhether the new provision attaches new legal consequences to events completed before its enactment.’ ” Id. at 321 , 121 S.Ct. 2271 (quoting Martin v. Hadix, 527 U.S. 343, 357-358 , 119 S.Ct. 1998 , 144 L.Ed.2d 347 (1999) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270 , 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994))). Rejecting retroactivity, the St. Cyr Court adopted the principle that “ ‘the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place Id. at 316 , 121 S.Ct. 2271 (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 , 110 S.Ct. 1570 , 108 L.Ed.2d 842 (1990) (Scalia, J., concurring)). The St. Cyr Court pointed out that: “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly .... ” Id. Although the question presented by Mr. Crowley’s employment history is more strictly one of prospectivity, instead of retroactivity, the underlying theories of how to achieve notice to all parties and, therefore, fairness, apply in both situations. The change in 5 C.F.R. § 831.903 (d) after the revisions in 1988, so that the regulation no longer waived consideration of the transfer requirement when reviewing future applications for secondary credit if the employee already had met the transfer requirement, suggests a change in status regarding which provisions both parties had notice and under which provisions their conduct should be judged. Compare 5 C.F.R. § 831.903 (c)-(d) (1987) with 5 C.F.R. § 831.904 (1988).
*762 “In determining the meaning of such regulations, rules of interpretation applicable to statutes are appropriate tools of analysis.” Gen. Elec. Co. v. United States, 221 Ct.Cl. 771, 778 , 610 F.2d 730, 734 (1979); accord Wronke v. Marsh, 787 F.2d 1569, 1574 (Fed.Cir.) (stating that for the interpretation of regulations, just as in the interpretation of statutes, courts must begin with their plain language), cert. denied, 479 U.S. 853 , 107 S.Ct. 188 , 93 L.Ed.2d 121 (1986); see also Rice v. Martin Marietta Corp., 13 F.3d 1563, 1568 (Fed.Cir.1993) (noting that the canon of statutory construction which states that “where the text permits, statutes dealing with similar subjects should be interpreted harmoniously” is “equally applicable” to regulations).
In the present case, neither the regulations at issue nor the authorizing statute discuss the time period during which the regulation will be applicable. In addition, the regulations from 1988 onward may deprive Mr. Crowley of the benefits of being deemed to have met the transfer requirements for the purposes of earning credit for future supervisory or administrative positions. Thus, applying a binding retroactive overlay from regulations issued after 1987 “ ‘takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past ....’ ” INS v. St. Cyr, 533 U.S. at 321 , 121 S.Ct. 2271 (quoting Landgraf v. USI Film Prods., 511 U.S. at 269 , 114 S.Ct. 1483 (quoting Soc’y for Propagation of the Gospel v. Wheeler, 22 F.Cas. 756, 767 (C.C.D.N.H. 1814) (Story, J.))). However, even if the regulations at issue for 1988 to 2002, which do not contain the waiver provision, should not be applied retroactively, the benefits of the 1981 and 1987 regulations, which contain the provision waiving the consideration of the transfer requirements, would not apply to the present case because the transfer requirements were changed from 1988 forward.
Mr. Crowley’s conduct which triggers the legal consequences imposed by the regulations occurs at multiple points in time. Mr. Crowley transferred into a supervisory or an administrative position in 1986 (to group supervisor), in 1991 (to staff coordinator), and in 1994 (to group supervisor) pursuant to the regulations in effect during those periods of time. The times of the transfers are relevant to determine which regulations govern and if these transfers are sufficient for meeting the transfer requirement for all future applications for credit in supervisory or administrative positions. In 1988, the substance of the regulations was significantly revised. The 1988 version of the C.F.R. established and defined “primary positions” and “secondary positions” and set forth a different transfer requirement as follows: “Employee is transferred directly (i.e., without a break in service exceeding 3 days) from a primary position to a secondary position ..'..” 5 C.F.R. § 831.904 (a)(1) (1988).
From 1988 through 2002, the regulations define a “primary position” as “a position whose primary duties are ... investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States.” Compare 5 C.F.R. § 831.902 (1988) with 5 C.F.R. § 831.902 (2002). A “secondary position” is defined as a position that:
(1) Is clearly in the law enforcement or firefighting field;
(2) Is in an organization having a law enforcement or firefighting mission; and
(3) Is either-
(i) Supervisory; i.e. a position whose primary duties are as a first-level supervisor of law enforcement officers or firefighters in primary positions; or
(ii) Administrative; i.e., an executive, managerial, technical, semiprofessional, or professional position for which experience in a primary law enforcement or firefighting position, or equivalent experience outside the Federal government, is a prerequisite.
Compare 5 C.F.R. § 831.902 (1988) with 5 C.F.R. § 831.902 (2002). 16
Although the provision applicable before 1988, waiving consideration of the transfer *763 requirements for “all subsequent employment in supervisory/administrative law enforcement positions,” should apply prospectively once Mr. Crowley had transferred into a supervisory or administrative position, the transfer requirements which were imposed pre-1988, and which could be waived, were changed resulting in a new transfer requirement included in the regulations from 1988 to the present. Compare 5 C.F.R. § 831.903 (d) (1987) with 5 C.F.R. 904(a)(1) (2002). From 1988 to the present, a different transfer requirement has been established — transfer from a primary position to a secondary position. See, e.g., 5 C.F.R. 904(a)(1) (2002). The new definitions of primary and secondary positions result in different transfer requirements. For example, the new definition of a secondary position requires a transfer into a position that “[i]s clearly in the law enforcement or firefighting field” and is “in an organization having a law enforcement or firefighting mission.” See 5 C.F.R. § 831.902 . Moreover, the definition of an administrative secondary position significantly changed in 1988. Because of the changes in the transfer requirement in 1988, any waiver of the previous transfer requirement cannot fulfill the plaintiffs obligation to satisfy the current transfer requirement. The C.F.R. after 1988 has never contained a provision waiving the consideration of this new transfer requirement. Even if the waiver provision in effect from 1981 until 1987 applied to Mr. Crowley’s applications for credit during that time period, this waiver provision does not permit Mr. Crowley to escape the current transfer requirement, and Mr. Crowley has the burden to prove that he meets the current transfer requirement, unless specifically grandfathered by statute or regulation.
Thus, the transfer requirement for obtaining secondary credit must include a determination that the employee previously occupied a primary position and had been transferred directly (within three days) from that primary position. Mr. Crowley’s applications submitted in 1992 for secondary credit for work starting in 1991 until the present have not been decided and remain open on direct review. Mr. Crowley’s occupation of a primary position is a requirement for obtaining secondary credit and interpretations of federal law apply retroactively to all open cases. Therefore, the pertinent statutes and regulations and, if applicable, the factors discussed in recent cases including Hall v. Department of the Treasury, 264 F.3d 1050 (Fed.Cir.2001), Watson v. Department of the Navy, 262 F.3d 1292 (Fed.Cir.2001) and Bingaman v. Department of the Treasury, 127 F.3d 1431 (Fed.Cir.1997), which offer guidance on how to determine Law Enforcement Officer status, and which are discussed more fully below, are to be considered to determine whether Mr. Crowley was in an Law Enforcement Officer creditable primary position and, therefore, satisfies the transfer requirement for eligibility for secondary credit.
II. JUDICIAL ESTOPPEL
Plaintiff argues that the principle of judicial estoppel should apply to preclude the government from taking the position that he is not entitled to primary Law Enforcement Officer credit, a position that he alleges is inconsistent with defendant’s prior position regarding crediting primary time. Mr. Crowley previously was awarded and received primary Law Enforcement Officer credit from 1974 to 1986 and secondary credit from 1986 to 1991. The United States Court of Appeals for the Federal Circuit has explained the doctrine of judicial estoppel as follows:
where a party successfully urges a particular position in a legal proceeding, it is estopped from taking a contrary position in a subsequent proceeding where its interests have changed. Davis v. Wakelee, 156 U.S. 680, 689 , 15 S.Ct. 555, 558 , 39 L.Ed. 578 (1895); Wang Lab., Inc. v. Applied Computer Sciences, Inc., 958 F.2d 355, 358 (Fed.Cir.1992). Judicial estoppel is designed to prevent the perversion of the judicial process and, as such, is intended to protect the courts rather than the litigants. See, e.g., Wang Lab., Inc., 958 F.2d at 359 ; In re Cassidy, 892 F.2d 637, 641 (7th Cir.), cert. denied, 498 U.S. 812 , 111 S.Ct. 48 , 112 L.Ed.2d 24 (1990) ....
Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1565 (Fed.Cir.) reh’g denied, en banc suggestion declined (1996). A party has successfully asserted a position when that party has:
*764 received a benefit from the previously taken position in the form of judicial success. See Jackson Jordan, Inc. v. Plasser Am. Corp., 747 F.2d 1567 , 1579, 224 USPQ 1, 10 (Fed.Cir.1984) (“In all precedent cited to us and which we have researched independently, the party against whom estoppel is invoked received some benefit from the previously taken position, i.e., he ‘won’ because of it.”) ....
Water Techs. Corp., v. Calco, Ltd., 850 F.2d 660 , 665-66 (Fed.Cir.) cert. denied 488 U.S. 968 , 109 S.Ct. 498 , 102 L.Ed.2d 534 (1988).
In the present case, the government received no benefit from taking the position that the plaintiff was entitled to primary credit. The DEA and the OPM agreed with the plaintiffs application of the law, and the plaintiff was the one who benefitted from obtaining Law Enforcement Officer coverage. Furthermore, the defendant has not “urge[d] a particular position in a legal proceeding.” Data Gen. Corp. v. Johnson, 78 F.3d at 1565. The plaintiff applied to the OPM through the DEA for Law Enforcement Officer credit, the DEA reviewed the plaintiffs request and recommended that the plaintiffs request be granted and the OPM determined that the plaintiff met the standard for receiving credit. At no point during this process regarding the plaintiff did the DEA or the OPM assert a position in a legal proceeding. The defendant also has asserted a good faith argument that the change in the legal position of the MSPB, as affirmed by the United States Court of Appeals for the Federal Circuit, supported the same change in position regarding the plaintiffs entitlement to primary Law Enforcement Officer credit. Accordingly, defendant’s positions are not inherently contradictory because the change in the interpretation of the law "regarding primary time by the MSPB, as affirmed by the Federal Circuit, was the DOJ’s justification for adjusting its position at the administrative level. Thus, judicial estoppel does not preclude the defendant from taking the position that the plaintiff did not occupy a primary position under the current standard.
III. COLLATERAL ESTOPPEL
Plaintiff also argues that “[cjollateral estoppel requires that the Department of Justice be held to the decision recommended by the Department and made by OPM to grant plaintiffs primary law enforcement credit.” In response, defendant contends that “actual litigation is necessary for the doctrine of collateral estoppel to be applicable” and that “the plaintiffs here received them primary credit without litigation; OPM voluntarily granted the plaintiffs’ application for LEO credit without litigating the matter.” (Emphasis in original).
Defendant argues that “the Supreme Court’s decision in [Commissioner v.] Sunnen unequivocally states that collateral estoppel does not apply for future purposes when there has been a change in controlling legal principles.” In Commissioner v. Sunnen, 333 U.S. 591 , 68 S.Ct. 715 , 92 L.Ed. 898 (1948), the Court considered whether a 1935 determination of tax liability on royalties from a 1928 license contract would preclude the determination of tax liability on royalties based on the 1928 contract and other contracts, all distributed after a change in the law. In finding that collateral estoppel would not preclude the re-litigation of tax liability on royalties distributed after the change in law, the Court held that “a subsequent modification of the significant facts or a change or development in the controlling legal principles may make [a previous] determination obsolete or erroneous, at least for future purposes.” Id. at 599 , 68 S.Ct. 715 . However, the Court also acknowledged that an issue that was essential to the previous judgment and actually determined in the previous proceeding will bind a court in a subsequent proceeding even under a different cause of action. Id. at 601 , 68 S.Ct. 715 . Regarding a change in the facts, the Sunnen Court detailed the situations in which collateral estoppel would not apply:
[i]f the relevant facts in the two cases are separable, even though they be similar or identical, collateral estoppel does not govern the legal issues which recur in the second case. Thus the second proceeding may involve an instrument or transaction identical with, but in a form separable *765 from, the one dealt with in the first proceeding. In that situation, a court is free in the second proceeding to make an independent examination of the legal matters at issue. It may then reach a different result ....
Id. (footnote omitted). Thus, the Court reasoned that separable facts or instruments or transactions in separable form would defeat the application of collateral estoppel in a subsequent proceeding.
The defendant relies on the United States Court of Appeals for the Federal Circuit decision in Bingaman v. Department of Treasury, 127 F.3d 1431 (Fed.Cir.1997) in support of its argument that collateral estoppel does not apply in this case. In Bingaman, the plaintiff received primary Law Enforcement Officer credit for his services from February 28, 1989 through July 15, 1993. He subsequently filed a request for primary Law Enforcement Officer credit for his services from July 15, 1993 through July 13, 1994. The United States Court of Appeals for the Federal Circuit in Bingaman v. Department of Treasury affirmed the MSPB’s decision upholding the agency’s denial of Bingaman’s claim for primary Law Enforcement Officer credit, even though the plaintiff had previously received primary Law Enforcement Officer credit for services performed as a Customs Service employee during an earlier time period. Id. at 1436-38. The Bingaman court held that the previous grant of Law Enforcement Officer credit to the plaintiff did not serve to bar the consideration of primary credit during a subsequent time period. Id. at 1436-38. In holding that collateral estoppel did not apply, the Bingaman court relied on an exception to the collateral estoppel principle which arises when “there has been a change in the applicable law between the time of the original decision and the subsequent litigation in which collateral estoppel is invoked.” Id. at 1437. Referring to changes in MSPB case law, the Bingaman court wrote that “there has been a sufficient change in the ‘legal atmosphere’ with respect to the issue of LEO retirement credit that the bar of collateral estoppel should not be applied in this case.” Id. at 1438.
“The doctrine of collateral estoppel, or issue preclusion, serves to bar the revisiting of issues that have already been litigated by the same parties or their privies based on the same cause of action.” Banner v. United States, 238 F.3d 1348, 1354 (Fed.Cir.2001). Collateral estoppel “relieve[s] parties of the cost and vexation of multiple lawsuits, conservéis] judicial resources, and, by preventing inconsistent decisions, eneourage[s] reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980) (citing Montana v. United States, 440 U.S. 147, 153-54 , 99 S.Ct. 970 , 59 L.Ed.2d 210 (1979)). “Collateral estoppel requires four factors: (1) the issues are identical to those in a prior proceeding, (2) the issues were actually litigated, (3) the determination of the issues was necessary to the resulting judgment, and (4) the party defending against preclusion had a full and fair opportunity to litigate the issues.” Banner v. United States, 238 F.3d at 1354 (citing Jet, Inc. v. Sewage Aeration Sys., 223 F.3d 1360, 1365-66 (Fed.Cir.2000)).
Previously determined agency decisions may be given preclusive effect in subsequent lawsuits brought in federal courts. United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 , 86 S.Ct. 1545 , 16 L.Ed.2d 642 (1966). “When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” Id. (citing Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 , 60 S.Ct. 907 , 84 L.Ed. 1263 (1940)). The United States Supreme Court also endorsed giving collateral estoppel effect to administrative factfinding in University of Tennessee v. Elliott, 478 U.S. 788 , 106 S.Ct. 3220 , 92 L.Ed.2d 635 (1986). The Court stated:
Thus, Utah Construction, which we subsequently approved in Kremer v. Chemical Construction Co[rp]., 456 U.S. [461], 484-485, n. 26, 102 S.Ct. [1883], 1899, n. 26, 72 L.Ed.2d 262 [(1982)], teaches that giving preclusive effect to administrative factfinding serves the value underlying general principles of collateral estoppel: enforcing *766 repose. This value, which encompasses both the parties’ interest in avoiding the cost and vexation of repetitive litigation and the public’s interest in conserving judicial resources, Allen v. McCurry, 449 U.S., at 94 , 101 S.Ct., at 414 , is equally implicated whether factfinding is done by a federal or state agency.
Id. at 798, 106 S.Ct. 3220 ; see also Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 , 111 S.Ct. 2166 , 115 L.Ed.2d 96 (1991). “An issue on which relitigation is foreclosed may be one of evidentiary fact, of ‘ultimate fact’ (i.e., the application of law to fact), or of law.” Restatement (Second) of Judgments, § 27 cmt. c (1982).
In determining whether an agency has acted in a judicial capacity, the United States Court of Appeals for the Seventh Circuit has offered useful guidance to identify the safeguards which indicate the requisite judicial capacity: “(1) representation by counsel, (2) pretrial discovery, (3) the opportunity to present memoranda of law, (4) examinations and cross-examinations at the hearing, (5) the opportunity to introduce exhibits, (6) the chance to object to evidence at the hearing, and (7) final findings of fact and conclusions of law.” Reed v. AMAX Coal Co., 971 F.2d 1295, 1300 (7th Cir.1992) (per curiam). Other courts have held that an agency decision will not be given collateral estoppel effect if the agency proceeding lacked certain characteristics utilized in court proceedings. See also Delamater v. Schweiker, 721 F.2d 50, 53-54 (2d Cir.1983) (finding that “[a]n action taken by an administrative agency to grant or deny a benefit is not an adjudicated action unless the agency has made its decision using procedures substantially similar to those employed by the courts” and that an administrative decision in which “[tjhere was no hearing, no testimony, no subpoenaed evidence, no argument, no opportunity to test any contention by confrontation” would not be given preclusive effect); Howard v. United States, 497 F.2d 1270, 1272 (7th Cir.1974) (finding that the Internal Revenue Service’s (IRS) determination which failed to result in a disallowance of the plaintiffs’ claimed theft loss was not “judicial in nature but administrative” and did not preclude the IRS from reconsidering the taxpayer’s liability). In Nasem v. Brown, 595 F.2d 801 (D.C.Cir.1979), the United States Court of Appeals for the District of Columbia Circuit considered whether to give collateral estoppel effect to an agency decision regarding a reprisal claim. The complainant had filed a written charge containing all facts pertinent to the alleged reprisal within fifteen days of the alleged occurrence and within fifteen days thereafter, the employer agency had investigated the charge and filed its response with the agency pursuant to 5 C.F.R. § 713.262 (b)(1). Id. at 806-07 . Based on the procedures established at the administrative level, particularly the inability of the parties to present live witness testimony in a case which turned on retaliatory motivation, the Nasem court found that the administrative decision did not collaterally estop the District Court from reconsidering the plaintiffs reprisal claim because the procedures involved did “not provide procedural safeguards contemplated by Utah Construction.” Id. at 807.
The OPM, a federal executive branch agency, credited Mr. Crowley with primary Law Enforcement Officer retirement coverage under 5 U.S.C. §§ 8331 (20) and 8336(c) from June 15, 1974 until June 15, 1986, and secondary Law Enforcement Officer retirement coverage from June 16, 1986 until September 30, 1991. Plaintiff currently seeks secondary administrative credit from October 1, 1991 to October 30, 1994 and secondary supervisory credit from October 31, 1994 to October 1, 2001.
In Mr. Crowley’s case, the procedures followed by OPM in granting primary and secondary credit to the plaintiff from 1974 until 1991 do not demonstrate that OPM acted in a judicial capacity. Under the Code of Federal Regulation sections in effect at the time that Mr. Crowley was granted Law Enforcement Officer credit, an employee could submit an individual request to the employing agency for a determination of whether the employee’s position qualified as a primary or secondary position. See 5 C.F.R. § 831.905 (b)(l)(ii) (1984); 5 C.F.R. § 831.908 (b) (1992). Once the employee submitted his or her application, a DEA official would review the employee’s application and *767 submit an advisory opinion to OPM. See 5 C.F.R. § 831.908 (b) (1992). After reviewing the employee’s application, including any documentary evidence and DEA’s recommendation, OPM would issue a final determination based on the papers, 5 C.F.R. § 831.909 . The plaintiff does not claim that either the employee or the DEA ever had the opportunity to conduct pretrial discovery, present memoranda of law, conduct examinations or cross-examinations of witnesses, introduce exhibits, or object to any evidence presented. In fact, the procedures employed at the administrative level to determine whether Mr. Crowley qualified for Law Enforcement Officer credit from 1974 until 1991 are similar to the procedures followed in Nasem v. Brown, which the Nasem court found inadequate to show that the agency had acted in a judicial capacity. 595 F.2d at 807 . Because the procedures employed at the administrative level did not contain judicial-type procedures, which ensure that the issues presented are fully explored or litigated, the court finds that OPM did not act in a judicial capacity and no judicial-like proceeding was held regarding Mr. Crowley’s claims. OPM’s decision granting Mr. Crowley primary and secondary credit from 1974 until 1991, nor MSPB’s dismissal of Mr. Crowley’s appeal to the MSPB without prejudice, and prior to any proceeding on the merits, does not preclude the court from reconsidering whether Mr. Crowley occupied a primary position when he served as a Diversion Investigator from 1974 to 1986 and whether he occupied secondary positions from 1986 until 1991.
In the present case, as part of the court’s consideration of the plaintiffs entitlement to secondary credit, the court must consider whether the plaintiff occupied a primary position for the purposes of the transfer requirement of 5 C.F.R. § 831.904 (2002). Thus, a change in the legal atmosphere regarding determinations of primary credit could effect a change regarding determinations of secondary credit. In Bingaman, the United States Court of Appeals for the Federal Circuit noted the significant change of standards at the MSPB and utilized in decisions issued by that Board regarding Law Enforcement Officer credit. 127 F.3d at 1437. The MSPB decisions, however, do not serve as binding precedent for this court, although, of course, decisions issued by the United States Court of Appeals for the Federal Circuit do bind this court. The MSPB decisions reviewed by the Federal Circuit were significantly fact bound and the appellate review by the Federal Circuit was focused on whether each of the decisions issued by the MSPB was arbitraiy, capricious or not in accordance with the law. In each of the key Federal Circuit cases reported, the appellate court held that the MSPB’s finding respecting eligibility for Law Enforcement Officer credit was not arbitrary, capricious or otherwise not in accordance with law. In other words, in each of those cases, based on the factual record, the plaintiff failed to meet the burden to establish reversible error by the Board. See, e.g., Hall v. Dep’t of the Treasury, 264 F.3d at 1054 .
Moreover, with respect to determining eligibility for Law Enforcement Officer credit, direction from the Federal Circuit on how to follow their guidance remains somewhat undefined. The key cases decided by the court in which opinions were issued appear to establish exemplary, non-binding guidelines from which the finder of fact can choose, depending on the individual facts of the ease, to assist in application of the statutory definition when determining eligibility for Law Enforcement Officer credit. The Federal Circuit decisions do not dictate that the factors considered in Bingaman, Hannon, Watson or Hall must be applied to every case considering an employee’s eligibility for Law Enforcement Officer credit, including eligibility in different work assignments or those arising in this court, as opposed to at the MSPB. In Hall v. Department of the Treasury, the court wrote:
[a]s we stated in Hannon, the evaluation of and weight to be given to the various Bingaman considerations and the other evidence in the record are judgment calls that rest primarily within the direction of the Board____ [I]t is not our function to substitute our judgment for that of the agency [finder of fact] regarding the weight to be given to those considerations.
264 F.3d at 1060 (citing Hannon v. Dep’t of Justice, 234 F.3d at 681 ). In Watson v. *768 Department of the Navy, 262 F.3d 1292 , the court explicitly held that “[t]his court, however, has never adopted the Bingaman factors; nor has the court held that federal employees are always entitled to LEO coverage so long as they satisfy the Bingaman factors.” Wai son v. Dep’t of Navy, 262 F.3d a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6651267. Public record. Not legal advice.