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The Drug Enforcement Administration reached a settlement agreement with an agent who claimed his supervisor retaliated against him for blowing the whistle on improper use of a government vehicle, the Office of Special Counsel announced on Wednesday.

The assistant special agent claimed that DEA officials retaliated against him because they believed that he had blown the whistle on his second-line supervisor for misusing a government vehicle. The office investigated the allegation and suspended the supervisor for 30 days. Two months later, the supervisor gave the agent an unsatisfactory performance rating and assigned him to a different job.

OSC looked into the supervisor's actions and decided there were reasonable grounds to believe the supervisor had violated the 1989 Whistleblower Protection Act, which prohibits supervisors from retaliating against whistleblowers. The supervisor had also violated Title 5, Section 2302(b)(9) of the United States Code, according to OSC. That section of the code says agencies cannot retaliate against workers for reporting fraud and abuse to the inspector general or an equivalent office.

In response to OSC's finding, the Drug Enforcement Administration, which is part of the Justice Department, agreed to settle the case by raising the agent's performance ratings to "outstanding," granting him eight days of leave that he had lost and expunging his supervisor's negative comments from his record. The settlement did not ask the agency to admit guilt, but did require DEA staff to be trained on the Whistleblower Act. The agent's first- and second-line supervisors resigned.

Office of Special Counsel case, March 5, 2003

Letter of the Law

The U.S. Court of Appeals for the Federal Circuit last month upheld a decision that said a police officer at the National Institutes of Health is not eligible for retirement benefits available to federal law enforcement officers.

Jody Luke has worked as a GS-083 level police officer at NIH for 14 years. After two years on the job, he joined the investigations section. In that position, he mostly follows up on criminal inquiries brought by patrol officers, and his investigations usually involve crimes such as theft and fraud, rather than violent crimes.

Luke's daily responsibilities include interviewing witnesses and suspects, visiting crime scenes, monitoring surveillance cameras and taking handwriting samples. He is authorized to carry a gun and gets regular training on how to use it, but has never fired his weapon at anyone.

In 1996, five years after Luke moved into the investigations section, the NIH director asked the agency's parent department, Health and Human Services, to classify its investigators as law enforcement officers so that they could receive more generous retirement benefits. Under the Federal Employee Retirement System, law enforcement officers receive a larger benefit package than other civil servants.

HHS denied his request to be reclassified, and Luke filed a complaint with the Merit Systems Protection Board. The board supported HHS' decision to deny Luke law enforcement officer status, ruling that he does not perform law enforcement officer-type duties on a regular basis. Even though Luke deals with criminals a couple of times a week, he usually meets with them in his office to conduct investigations. This is not the type of "frequent and direct contact" with criminal suspects necessary to classify Luke as a law enforcement officer, the MSPB administrative law judge said.

The Court of Appeals for the Federal Circuit upheld MSPB's decision. To qualify for law enforcement officer retirement benefits available under Title 5, Section 8412(d) of the United States Code, an officer must prove that his job is physically demanding and that his primary duties involve investigating, apprehending and detaining suspected criminals.

Luke was not able to show that his position demands rigorous physical activity, the Court of Appeals ruled. While his position description says he must go through a physical exam each year to ensure that he is fit for his job, he was not able to provide any evidence to prove his supervisor had actually enforced this job requirement.

Jody P. Luke v. Department of Health and Human Services, U.S. Court of Appeals for the Federal Circuit (02-3277), Feb. 26, 2003

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