ROBERT M. ATHEY, MICHAEL R. CLAYTON, THELMA R. CURRY, RICHARD S. DROSKE, RALPH L. FULLWOOD, PAUL D. ISING, CHARLES A. MILBRANDT, TROY E. PAGE, Plaintiffs-Appellants
UNITED STATES, Defendant-Appellee
from the United States Court of Federal Claims in No.
1:99-cv-02051-PEC, Judge Patricia E. Campbell-Smith.
Mark Lechner, Washington, DC, argued for
Cottet, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, argued for
defendant-appellee. Also represented by Hillary Stern, Chad
A. Readler, Robert E. Kirschman, Jr., Reginald T. Blades, Jr.
Reyna, Schall, and Stoll, Circuit Judges.
SCHALL, CIRCUIT JUDGE.
M. Athey, Michael R. Clayton, Thelma R. Curry, Richard S.
Droske, Ralph L. Fullwood, Paul D. Ising, Charles A.
Milbrandt, and Troy E. Page ("Appellants") are
former employees of the Department of Veterans Affairs
("VA"). Appellants were employed by the VA under
title 38 of the United States Code. During the period from 1993
through 1999, Appellants retired or separated from their
positions with the VA with accrued but unused leave.
Lump Sum Pay Act ("LSPA"), 5 U.S.C. §§
5551-5552, which covers Appellants, provides that an employee
"who is separated from the service . . . is entitled to
receive a lump-sum payment for accumulated and current
accrued annual or vacation leave to which he is entitled by
statute." 5 U.S.C. § 5551(a). The lump-sum payment
must be equal to the pay the separated employee would have
received had he or she remained in federal service until the
expiration of the period of annual or vacation leave.
Id. It is undisputed that Appellants received
lump-sum payments for their accrued and unused annual leave
pursuant to the LSPA. It also is undisputed that, after
Appellants left the VA, they received supplemental lump-sum
payments. These supplemental lump-sum payments reflected
statutory pay increases and general system-wide pay increases
that became effective prior to the expiration of
Appellants' accrued annual leave.
are members of a class of former VA employees. On June 21,
2006, the class filed a complaint in the United States Court
of Federal Claims, alleging that the VA improperly omitted
certain pay increases from class members' supplemental
lump-sum payments. The allegedly omitted increases included
Cost of Living Adjustments ("COLAs") and Locality
Pay Adjustments. The complaint additionally alleged that
lump-sum payments made to certain members of the class
improperly omitted non-overtime Sunday premium pay that the
members would have received had they remained in federal
service until the expiration of their periods of annual or
vacation leave. Certain class members also alleged that their
lump-sum payments improperly omitted evening and weekend
"additional pay" that they would have received had
they remained in federal service until the expiration of
their periods of annual or vacation leave. Finally, all
members of the class sought pre-judgment interest on their
claims under the Back Pay Act ("BPA"), 5 U.S.C.
§ 5596, as in effect during the years 1993 through 1999.
In pertinent part, the BPA provides that interest is
authorized for "an amount equal to all or any part of
the pay, allowances, or differentials" lost by an
"employee" who has been subjected to "an
unjustified or unwarranted personnel action."
claims for additional COLAs, Locality Pay Adjustments, and
non-overtime Sunday premium pay have been resolved. Before us
now is Appellants' appeal of two decisions of the Court
of Federal Claims. In those decisions, the court held that,
as members of the class, Appellants were not entitled to have
evening and weekend "additional pay" included in
their lump-sum payments. The court also held that Appellants
were not entitled to receive pre-judgment interest on amounts
improperly withheld from their lump-sum
payments.Appellants have timely appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). For the
reasons set forth below, we affirm.
in the Court of Federal Claims
decisions of the Court of Federal Claims are relevant to this
appeal. In the first decision, Athey v. United
States, 78 Fed.Cl. 157, 161 (2007) ("Athey
I"), the court addressed the claim that additional
pay, in the form of evening and weekend pay, should have been
included in lump sum payments received pursuant to 5 U.S.C.
§ 5551(a). On this issue, the government moved for
dismissal pursuant to Rule 12(b)(6) of the Rules of the U.S.
Court of Federal Claims ("RCFC") for failure to
state a claim upon which relief could be granted. The
government argued that title 38 entitles Appellants to a
lump-sum payment of accrued annual leave, calculated based on
the basic rate of pay they were earning prior to separation,
but that 38 U.S.C. § 7453(i) prohibits the inclusion of
"additional pay" (pay for evening and weekend work)
in the payout amount. 78 Fed.Cl. at 161. Section 7453(i)
Any additional pay paid pursuant to this section shall not be
considered as basic pay for the purposes of the following
provisions of title 5 (and any other provision of law
relating to benefits based on basic pay):
(1) Subchapter VI of chapter 55.
(2) Section 5595.
(3) Chapters 81, 83, 84, and 87.
38 U.S.C. § 7453(i). Relevant to this appeal, subchapter
VI of Chapter 55 encompasses 5 U.S.C. §§ 5551-52,
the LSPA. Section 5595 covers severance pay.
countered with the argument that the term "pay" in
5 U.S.C. § 5551(a) is not limited to "basic
pay" (referenced in § 7453(i)), but also includes
premium pay. 78 Fed.Cl. at 161. They further argued that
§ 7453(i) is properly understood to simply mean that
"additional pay" is not part of "basic
pay" rather than as excluding it from the calculation of
"pay" under the LSPA for purposes of a lump-sum
payment. Id. at 162.
granting the government's motion, the court held that
"additional pay" as part of a lump-sum payment is
prohibited under 38 U.S.C. § 7453(i). As seen, §
7453(i) states in pertinent part that "[a]ny additional
pay paid pursuant to this section shall not be considered as
basic pay for the purposes of . . . Subchapter VI of chapter
55 [LSPA] [and] Section 5595 [Severance Pay]." Citing
§ 7453(i), the court stated that, in § 7453(i),
Congress determined "with clarity" that lump-sum
separation pay should not include "additional pay,"
even if title 5 pro- vides it to other civil service
employees. Athey I, 78 Fed.Cl. at 163.
Athey v. United States, 108 Fed.Cl. 617 (2013)
("Athey II"), the Court of Federal Claims,
in an opinion by the same judge who had issued the
court's opinion in Athey I, determined that it
had jurisdiction over Appellants' claims for interest and
that, in seeking interest under the BPA, Appellants had
stated a claim upon which relief could be granted. The court
thus denied the government's motion to dismiss under RCFC
12(b)(1) for lack of jurisdiction or, in the alternative,
under RCFC 12(b)(6) for failure to state a claim upon which
relief could be granted.
jurisdictional issue, the Court of Federal Claims rejected
the government's argument that Appellants had failed to
plead a money-mandating statute that would provide the court
with jurisdiction under the Tucker Act, 28 U.S.C. §
1491. The court held that, when pled together, the LSPA and
the BPA provided the court with jurisdiction to hear
Appellants' claims. See 108 Fed.Cl. at 619
(citing Worthington v. United States, 168 F.3d 24,
26 (Fed. Cir. 1999) (stating that, in order to "fall
within the Tucker Act's jurisdictional grant, a claim
must invoke a statute that mandates the payment of money
damages" and that the BPA is such a
"money-mandating" statute when based on violations
of statutes or regulations covered by the Tucker Act)). The
court reasoned that, in this case, Appellants' claims
under the BPA were based upon the LSPA, which the court found
to be a money-mandating statute providing "separated
federal employees accumulated annual pay when entitled by
Court of Federal Claims next addressed the government's
argument that Appellants had failed to state a claim upon
which relief could be granted because Appellants had not
suffered a loss of "pay" as required by the BPA and
were not "employees" for purposes of the BPA. The
court turned first to the question of whether Appellants
could satisfy the definition of "pay" under the BPA
and under the accompanying regulations promulgated by the
Office of Personnel Management ("OPM") that were in
effect during the period 1993-1999. 108 Fed.Cl. at
620.The court noted that, in December 1981, OPM
promulgated regulations interpreting the BPA and authorizing
the payment of back pay, mandatory pre-judgment interest, and
reasonable attorney fees "for the purpose of making an
employee financially whole (to the extent possible)." 46
Fed. Reg. 58, 271, 58, 273 (Dec. 1, 1981); see 5
C.F.R. § 550.801 (1981). The court also noted that the
1981 regulations defined "pay" broadly as
"monetary and employment benefits to which an employee
is entitled by statute or regulation by virtue of the
performance of a Federal function." 46 Fed. Reg. at 58,
272; see 5 C.F.R. § 550.803 (1981). The court
determined that because the 1981 regulation defined
"pay" so broadly and because OPM comments
specifically excluded from that broad definition only
retirement benefits and not lump-sum payments, lump-sum
payments constituted pay under the BPA. 108 Fed.Cl. at 620
(citing 46 Fed. Reg. 58, 271-02). Acknowledging that later
OPM regulations, which became effective in 2000, narrowed the
definition of "pay," the court found that using the
2000 definition to retroactively modify the 1981 regulations
would be impermissible. Id. (citing Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988)). Accordingly, the court concluded that
Appellants' claims for payments under the LSPA fell
within the applicable statutory and regulatory definitions of
"pay" under the BPA.
court also found that Appellants qualified as
"employees" for purposes of the BPA. Id.
at 620-22. The court thus denied the government's
alternative motion to dismiss pursuant to RCFC (12)(b)(6).
Id. at 622.
the decision of the Court of Federal Claims in Athey
II, the government and Appellants cross-moved for
summary judgment on the issue of entitlement to interest
under the BPA on class members' lump-sum payments. These
motions were decided in Athey v. United States, 123
Fed.Cl. 42 (2015) ("Athey III"). In
Athey III, a Court of Federal Claims judge different
from the judge who had decided Athey I and Athey
II granted the government's motion for summary
judgment that Appellants were not entitled to interest under
the BPA. As seen, the BPA provides that interest is
authorized for "an amount equal to all or any part of
the pay, allowance, or differentials" lost by an
"employee" who has been subjected to "an
unjustified or unwarranted personnel action." 5 U.S.C.
§ 5596. The court held, among other things, that
lump-sum payments do not, in fact, qualify as "pay,
allowance, or differentials" under the BPA, so as to
entitle Appellants to pre-judgment interest. 123 Fed.Cl. at
Court of Federal Claims first addressed Appellants'
argument that Athey II, which denied the
government's earlier 12(b)(6) motion to dismiss, ipso
facto also found liability to Appellants for BPA
interest without the need for further argument or decision.
Id. at 50. The court rejected this argument,
pointing out that "[a]n initial denial of a motion to
dismiss does not foreclose, as the law of the case, the
court's later consideration of those claims on summary
judgment." Id. (first citing Behrens v.
Pelletier, 516 U.S. 299, 309 (1996); then citing
Gould, Inc. v. United States, 66 Fed.Cl. 253, 266
any event," the court continued, "whether BPA
interest is available for violations of the lump-sum payment
statute is an issue of largely first impression; thus, this
court will not so woodenly apply the law of the case doctrine
to preclude a thorough review of the claim."
Id. at 51 (citing Jamesbury Corp. v. Litton
Indus. Prods., Inc., 839 F.2d 1544, 1551 (Fed. Cir.
1988)). The court stated that this was "especially
true" in the instant case because the court found
"clear error in one of Athey II's principle
findings that otherwise might have qualified for deference as
law of the case." Id. Specifically, the court