[00:00:00] Speaker 04:
Our next case is Demetria Brown versus GSA, 2021, 1996.

[00:00:07] Speaker 04:
Ms.

[00:00:10] Speaker 04:
Riggs, we're ready when you are.

[00:00:13] Speaker 01:
Good morning, and may it please the court.

[00:00:15] Speaker 01:
This case is about holding the government to its promises.

[00:00:19] Speaker 01:
Demetria Brown devoted 30 years of federal service to federal service.

[00:00:23] Speaker 01:
She started working for the federal government when she was 19 years old.

[00:00:26] Speaker 04:
Not to cut short your argument, but isn't this case simply about the meaning of the word initiated?

[00:00:35] Speaker 01:
Yes, I believe it does come down to that.

[00:00:38] Speaker 01:
And that initiate payment term

[00:00:40] Speaker 01:
as a term of art used in the federal sector for the MSPB and the EEOC, as the cases we've cited in our brief point out.

[00:00:49] Speaker 01:
And it's repeatedly used as it is to put the check in the mail to tell the bank to make the payment, here to tell the third party vendor to make the payment.

[00:00:56] Speaker 01:
And that deadline to initiate payment was 30 days after the agreement was signed.

[00:01:02] Speaker 01:
So it was August 30 of 2019.

[00:01:06] Speaker 04:
And that payment.

[00:01:06] Speaker 04:
The agreement doesn't say payment shall be made.

[00:01:11] Speaker 04:
Initiate, it's a simple word, it means to begin.

[00:01:15] Speaker 01:
And maybe in other circumstances it does, but in this situation, initiate payment, the term of art means to make the payment, to tell the party that is making the payment, whether it's the bank, DFAS, USDA, whoever the third party may be that's making the payment, to put forth the payment.

[00:01:32] Speaker 01:
And in this case, that's clear from the agreement.

[00:01:36] Speaker 01:
In paragraph two of the agreement, it requires Ms.

[00:01:39] Speaker 01:
Brown and our firm to have

[00:01:41] Speaker 01:
provided paperwork, the ACH vendor form, within five days of the effective date of the agreement in order to process the payment.

[00:01:49] Speaker 01:
And then the very next sentence says, payment shall be initiated within 30 days of receipt of those forms.

[00:01:54] Speaker 01:
The agency had 30 days to process the paperwork from the receipt of that initial paperwork from Ms.

[00:02:02] Speaker 04:
Brown.

[00:02:02] Speaker 04:
You think that means completed?

[00:02:04] Speaker 01:
It means completed on their end.

[00:02:06] Speaker 01:
It means they needed to do all conditions precedent on their end to make the payment and send the payment forth to the third party for payment.

[00:02:16] Speaker 01:
Yes.

[00:02:17] Speaker 01:
And that is what the MSPB has held and found in other cases.

[00:02:21] Speaker 01:
And that is what the EEOC generally takes the meaning of the payment to be, initiate payment.

[00:02:27] Speaker 02:
So if I pay my phone bill by putting a check in the mail,

[00:02:32] Speaker 02:
Did I call my phone company and say I've initiated payment?

[00:02:37] Speaker 01:
If the check is in the mail, that is initiating payments.

[00:02:39] Speaker 02:
I mean, it's just not the way I talk, so it doesn't sound natural to say it like that.

[00:02:44] Speaker 01:
And it's not natural, but it's the way these cases work as many times these agencies use third-party vendors such as DFAS and USDA to make the payments, and so they won't guarantee

[00:02:54] Speaker 01:
the date the payment will be made.

[00:02:56] Speaker 01:
Many times when it's being processed, such as back pay, they will tell DFAS or USDA to make the payment and it will come through on the next pay date, particularly when the payee is an employee.

[00:03:08] Speaker 01:
It won't go through on a random date.

[00:03:10] Speaker 01:
It'll go through on the next pay date, whenever that is after they are told to make the payment.

[00:03:14] Speaker 04:
Now you say, this is a word of off.

[00:03:19] Speaker 04:
Is there a case that interprets the word initiating

[00:03:24] Speaker 04:
as meaning completed?

[00:03:25] Speaker 01:
There's no case that interprets it as such, but there are cases that assume it is such.

[00:03:32] Speaker 01:
And that's the estate of Mary Aldred.

[00:03:34] Speaker 01:
versus Department of Veterans Affairs.

[00:03:37] Speaker 01:
They use the exact same language that we use, agency shall initiate payment.

[00:03:41] Speaker 01:
And the judge there found that the agency was in breach of its obligation to make that payment by the date as it did not fulfill all conditions precedent prior to that date.

[00:03:52] Speaker 01:
There is a similar use of it in an EEOC case.

[00:03:56] Speaker 02:
You say it did not fulfill all conditions precedent to that date.

[00:04:03] Speaker 02:
There's a fog behind that language that I can't see through.

[00:04:09] Speaker 01:
So in a state of Mary Aldred, the agency in that case needed to vendorize the payee and they didn't do that in time to initiate payment.

[00:04:18] Speaker 02:
When you say vendorize the payee.

[00:04:23] Speaker 01:
So vendorizing the payee is the ACH form that we submitted needs to be submitted.

[00:04:27] Speaker 01:
They need to process that so that the payee is in their system so that the

[00:04:32] Speaker 01:
person can be paid.

[00:04:34] Speaker 02:
I guess what we're talking about here are situations where the actual receipt of payment to the recipient isn't

[00:04:45] Speaker 02:
That date of receipt is not fully within control of the government here.

[00:04:50] Speaker 02:
And there's a third party in the middle.

[00:04:52] Speaker 02:
There's an intermediary.

[00:04:54] Speaker 02:
And so the government or GSA couldn't possibly know exactly how much time it's going to take the intermediary to actually push the button to transmit the money over into Ms.

[00:05:10] Speaker 02:
Brown's account.

[00:05:12] Speaker 01:
The agency chooses to use a third party to conduct these transactions.

[00:05:18] Speaker 01:
It has been held by the board that there should be a reasonable standard, a reasonable time, and it should be conducted for

[00:05:24] Speaker 01:
within a reasonable time is their agent.

[00:05:26] Speaker 01:
And as the principal, they are responsible for making sure that it's done in a reasonable time.

[00:05:30] Speaker 02:
And here, you know... Is there some understanding of normal course of dealings, how long these vendors take to actually transmit the funds once they get whatever paperwork they need to get?

[00:05:44] Speaker 01:
It's usually almost immediately or the next pay date.

[00:05:46] Speaker 01:
And as the example here, once...

[00:05:49] Speaker 01:
In October 30th, once the GSA told the vendor to make the payment, it was paid the very next day on November 1st.

[00:06:01] Speaker 03:
Well, there's actually a fourth party.

[00:06:05] Speaker 03:
OPM is in here too, isn't it?

[00:06:07] Speaker 03:
OPM had to get it all.

[00:06:07] Speaker 03:
They're not going from the GSA to the Defense Finance Agency to go on through.

[00:06:14] Speaker 03:
So you've got two other outfits that have

[00:06:18] Speaker 01:
participate in this exercise.

[00:06:33] Speaker 01:
by November 1st or payment was initiated October 30th is when they actually told DFAS to make the payment.

[00:06:41] Speaker 01:
They never actually completed the process until over a year later when they finally gave OPM back the annuity repayment that was due to OPM that had to be withheld from the back pay.

[00:06:54] Speaker 01:
And because they did not do that for over a year, Ms.

[00:06:57] Speaker 01:
Brown could not actually re-retire while she had submitted her retirement paperwork pursuant to the settlement agreement.

[00:07:04] Speaker 01:
She could not re-retire until OPM obtained those funds.

[00:07:08] Speaker 01:
obtained all the documentation from GSA that it was needed to process her additional retirement annuity.

[00:07:17] Speaker 01:
And she was not even offered the opportunity to re-retire until, I believe it was November of this last year, 2021 is when she eventually got her annuity updated to reflect the additional year of service.

[00:07:30] Speaker 01:
It took two years from the time the agency made the back pay payment

[00:07:34] Speaker 01:
until they actually completed the process.

[00:07:36] Speaker 02:
So I guess that's also an aside from trying to understand what does it mean for a payment to be initiated, what does initiate payment mean.

[00:07:44] Speaker 02:
There's also the question of even if there was a conclusion that they didn't initiate the payment by August 30th,

[00:07:56] Speaker 02:
Ms.

[00:07:56] Speaker 02:
Brown did get paid eventually.

[00:07:59] Speaker 02:
So, two questions.

[00:08:02] Speaker 02:
One is, can it said to be a material breach or maybe the whole thing has been mooted because

[00:08:10] Speaker 02:
It was a little bit tardy, but the payment obligation had been fulfilled.

[00:08:17] Speaker 02:
And then secondly, when she did get the money, and we understand that whole purpose of getting that back pay was so that she could turn right around and redeposit it so that she could get a bigger annuity.

[00:08:33] Speaker 02:
Why didn't she just do that at that time whenever she did get the money, which I think was November?

[00:08:39] Speaker 01:
And so this goes directly to the heart of it.

[00:08:41] Speaker 01:
She could not make the redeposit on November 1st or any time thereafter in the near future after that because OPM did not have the records and did not have the repayment from GSA because GSA's repayment to OPM was so belated because it wasn't timely done.

[00:09:00] Speaker 01:
in August or before her retirement, Ms.

[00:09:03] Speaker 02:
Brown did not have the option to make that repayment.

[00:09:16] Speaker 02:
I'm talking about that part and you're now talking about some other locus of money.

[00:09:23] Speaker 01:
There's the redeposit, which is what Ms.

[00:09:24] Speaker 01:
Brown had to pay.

[00:09:25] Speaker 01:
And there's the repayment to OPM by the agency, which was due for her annuity that she received during the back pay period.

[00:09:33] Speaker 01:
The newity to OPM had to be repaid and the retirement records had to be corrected in order for her to re-retire and to receive an updated benefit.

[00:09:43] Speaker 01:
She had no idea how much money she owed.

[00:09:47] Speaker 01:
OPM had to update the records and tell her how much money she owed for her to make the re-deposit.

[00:09:54] Speaker 01:
And they didn't do that until July of 2020 because they did not have the information from GSA

[00:10:00] Speaker 02:
To the extent there was some kind of mix up on the government's end for that, that's outside the terms of the settlement agreement, right?

[00:10:09] Speaker 01:
It is actually, the terms of the settlement agreement require the back pay to be processed pursuant to 5 CFR 550, which requires the repayment of the annuity to OPM.

[00:10:22] Speaker 01:
So that was required as part of processing the back pay.

[00:10:25] Speaker 01:
And that's required, again, for Ms.

[00:10:27] Speaker 01:
Brown to have retired under the settlement agreement.

[00:10:30] Speaker 01:
The settlement agreement required her to retire.

[00:10:32] Speaker 01:
And she could not actually retire, even though she was no longer working there.

[00:10:36] Speaker 01:
She could not retire and get her annuity until the agency completed all actions on its end, which it did not do for over a year.

[00:10:42] Speaker 02:
I'm afraid to ask more questions.

[00:10:44] Speaker 02:
The more questions I ask, the more confusing this gets.

[00:10:47] Speaker 01:
It's very convoluted.

[00:10:48] Speaker 01:
I would like to reserve my time for rebuttal, if I may.

[00:10:51] Speaker 04:
We will do that.

[00:10:57] Speaker 04:
Ms.

[00:10:57] Speaker 04:
Fleming?

[00:11:07] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:11:10] Speaker 00:
Today we are here to

[00:11:13] Speaker 00:
consider a case not about a series of missteps by the government as Ms.

[00:11:19] Speaker 00:
Brown alleges, but in fact, because Ms.

[00:11:22] Speaker 00:
Brown

[00:11:23] Speaker 00:
wants to remake her bargain with the government under the guise of... Well, I wouldn't go this far.

[00:11:29] Speaker 02:
To pin everything here on Ms.

[00:11:33] Speaker 02:
Brown is a bit unfair.

[00:11:35] Speaker 02:
Can we get to the meaning of initiate payment or payment shall be initiated?

[00:11:40] Speaker 00:
Certainly, Your Honor.

[00:11:41] Speaker 02:
Did the board here actually do an interpretation of that phrase?

[00:11:46] Speaker 00:
It did.

[00:11:47] Speaker 00:
The board actually...

[00:11:54] Speaker 00:
On appendix page 8, Your Honor, at the top of the page, the board discusses the terms of the agreement, finds that they're unambiguous, and goes on to discuss the petitioner's argument that Larry applied and explain why it does not.

[00:12:16] Speaker 04:
But the word initiated doesn't seem to be there.

[00:12:20] Speaker 04:
What kind of a construction is that?

[00:12:27] Speaker 04:
The board found the case moot, right?

[00:12:31] Speaker 00:
The board found that all performance had been delivered, Your Honor.

[00:12:34] Speaker 00:
And that is why it found that it was moot.

[00:12:36] Speaker 00:
But the court also specifically discussed the term initiate payment.

[00:12:43] Speaker 00:
And it discussed.

[00:12:48] Speaker 04:
Well, that was Judge Cheney's question.

[00:12:50] Speaker 04:
And what's the answer?

[00:12:55] Speaker 04:
Your answer was referring to a couple of sentences that didn't mention the word.

[00:13:10] Speaker 02:
The closest I could find is that A5 in the middle of the page.

[00:13:18] Speaker 02:
Where the paragraph begins, the agency argues that it agreed to, quote unquote, initiate the payment of back pay interest and benefits by August 30th, 2019.

[00:13:30] Speaker 02:
It complied with this provision by taking steps to initiate payment prior to August 30th, 2019.

[00:13:36] Speaker 00:
Yes, Your Honor, thank you.

[00:13:37] Speaker 02:
To me, these sentences look to me more like a summary of the agency's position in response to Ms.

[00:13:47] Speaker 02:
Brown's argument.

[00:13:48] Speaker 02:
I mean, it's underneath the heading of agency's response.

[00:13:52] Speaker 02:
So I don't know if I could go so far as to say

[00:13:58] Speaker 02:
I should understand this summary of the agency's response as being the board's interpretation of this key phrase of the settlement agreement.

[00:14:12] Speaker 00:
I think, Your Honor, if I could refer you again back to the top of Appendix 8, the Court is then summarizing

[00:14:20] Speaker 00:
the position and finding that the parole evidence argument, which is the only argument that was being made by Ms.

[00:14:28] Speaker 00:
Brown regarding the term initiate and how to interpret it, didn't have any basis.

[00:14:36] Speaker 00:
And I think that is where the court loops back to the issue and concludes that, in fact, that the terms of the agreement, including initiate payment, were clear, recognizing that they don't actually repeat the phrase in that particular part of the opinion.

[00:14:49] Speaker 02:
All right.

[00:14:50] Speaker 02:
Well, I guess we can decide for ourselves whether or not the board did what it was supposed to do.

[00:14:55] Speaker 02:
That's a matter.

[00:14:57] Speaker 02:
But can you tell us what is the government's interpretation of what it means to initiate payment?

[00:15:03] Speaker 02:
I mean, the phrase in the settlement agreement isn't initiating the processing of the payment.

[00:15:15] Speaker 02:
beginning the process of the payment.

[00:15:21] Speaker 02:
It says initiate payment and payment is a certain kind of action.

[00:15:26] Speaker 02:
I mean payment is money transfer and so you're initiating the money transfer.

[00:15:34] Speaker 02:
I mean that sounds a lot more proactive than

[00:15:38] Speaker 02:
I don't know, opening up the file and shuffling a few papers around and then declaring on August 30, 2019, aha, I fulfilled my obligations.

[00:15:49] Speaker 02:
We'll see how long it takes before I fulfill all the paperwork duties so that the third party payer vendor can actually transmit the funds.

[00:16:00] Speaker 02:
It might take days, it might take weeks, it might take years.

[00:16:04] Speaker 02:
That doesn't sound like a reasonable interpretation at all and doesn't seem like any reasonable understanding of what the parties contemplated in a contract that was supposed to begin on July 31 and completely end by September 30th.

[00:16:16] Speaker 02:
It was a 60-day agreement.

[00:16:19] Speaker 02:
Everything was supposed to be done fast.

[00:16:21] Speaker 02:
You had 30 days to initiate payment, whatever that means, and then 30 days after that, she was supposed to retire.

[00:16:29] Speaker 02:
I mean, it's quite clear everything was supposed to be done quite swiftly.

[00:16:32] Speaker 02:
Everybody was supposed to get in, get out.

[00:16:34] Speaker 02:
This was a settlement.

[00:16:36] Speaker 02:
The government didn't want any more of this case.

[00:16:38] Speaker 02:
It wanted to put Miss Brown where she was entitled to be and then be done with it.

[00:16:45] Speaker 02:
And same with her.

[00:16:47] Speaker 02:
She didn't want to be employed.

[00:16:48] Speaker 02:
Everybody understood it was a bit of a fiction to re-employ her, but that was to

[00:16:54] Speaker 02:
put her into the position so that she could get the back pay that she deserves so that she could get the annuity that she deserved.

[00:17:00] Speaker 02:
So all of this is quite confusing to me.

[00:17:03] Speaker 02:
Well, Your Honor, I think that to turn... Let's begin with the understanding of what does it mean to initiate payment in the government's view.

[00:17:10] Speaker 00:
Opening up a file?

[00:17:12] Speaker 00:
It begins to begin the process of making the payment possible.

[00:17:16] Speaker 02:
So paint a picture for me.

[00:17:17] Speaker 02:
What does that look like?

[00:17:18] Speaker 00:
Well, as some of the documents in this case make clear, there is a process within the human resources department that the documentation of the plaintiffs... So paint a picture.

[00:17:28] Speaker 02:
There's an HR employee sitting at his or her desk.

[00:17:32] Speaker 00:
pulling documents from a file, but also reviewing them.

[00:17:36] Speaker 02:
And that fulfills the obligation under the settlement agreement?

[00:17:38] Speaker 02:
I believe that that first step goes... They need to pull a file by August 30th, 2019.

[00:17:43] Speaker 00:
Well, I think you need to begin the process of calculating the payment, and that necessarily begins with pulling the file certainly.

[00:17:50] Speaker 02:
Right, so in the government's view, all they had to do by August 30th was pull a file.

[00:17:55] Speaker 00:
I think they had to begin by pulling the file.

[00:17:57] Speaker 00:
That's correct, Your Honor.

[00:17:58] Speaker 00:
But looking at the agreement, it's clear.

[00:18:00] Speaker 02:
What if I think that's an unreasonable interpretation?

[00:18:03] Speaker 02:
Doesn't this need to go back?

[00:18:06] Speaker 00:
Certainly the only remedy available, if in fact the court concluded that it was necessary, then it should be remanded.

[00:18:12] Speaker 00:
However, in this case, even if the court finds that the word initiate required some sort of payment, an interpretation that is not really consistent with

[00:18:22] Speaker 00:
what actually happened in this case that was expected in this case, then there still is a question of whether the breach was material.

[00:18:29] Speaker 00:
And in this case, we say that it is not.

[00:18:32] Speaker 00:
In fact, what happened, Your Honor, the reason why Ms.

[00:18:34] Speaker 00:
Brown is in an unfortunate situation of being on retirement and relying upon a reduced retirement payment is that she elected to retire

[00:18:44] Speaker 00:
before these issues had been resolved, before the payment had been completed.

[00:18:48] Speaker 00:
And she knew that she was taking that risk.

[00:18:49] Speaker 02:
She was required to retire under the settlement agreement by September 30, 2019.

[00:18:52] Speaker 02:
She was.

[00:18:54] Speaker 02:
She was required.

[00:18:55] Speaker 02:
And if she did not, then the government was going to terminate her.

[00:18:59] Speaker 02:
That's what it says in the settlement agreement.

[00:19:01] Speaker 00:
Actually, Your Honor, as you point out, the settlement agreement specifically provides a reaction to a lack of retirement, which did not happen here.

[00:19:09] Speaker 00:
So the remedy was not to

[00:19:12] Speaker 00:
to stop any other activity aside from the government issuing a resignation announcement.

[00:19:19] Speaker 00:
But in this case, Ms.

[00:19:21] Speaker 00:
Brown did not retire on September 30.

[00:19:23] Speaker 00:
Rather, starting on September 25, her attorney and GSA were engaged.

[00:19:27] Speaker 02:
They were trying to work it out.

[00:19:29] Speaker 02:
Where is the money?

[00:19:30] Speaker 02:
Where is the money?

[00:19:31] Speaker 00:
They were trying to work it out, Your Honor.

[00:19:33] Speaker 02:
And the GSA person said, we believe that payment has been initiated.

[00:19:37] Speaker 02:
It should be arriving at the next payment cycle.

[00:19:42] Speaker 02:
And then that obviously didn't happen.

[00:19:44] Speaker 00:
That obviously did not happen.

[00:19:45] Speaker 00:
And it's clear that there were some mistakes and misinformation that GSA conveyed to Ms.

[00:19:50] Speaker 00:
Brown.

[00:19:50] Speaker 02:
However... And then in October, the GSA point person said, oh, we need lots of information out of you before we're going to cough up the money.

[00:19:58] Speaker 02:
You've got to fill out a lot of forms.

[00:20:01] Speaker 02:
We never told you that, but that's what you had to do.

[00:20:05] Speaker 02:
In order for us to fulfill our obligations that were due by August 30th, we're now telling you all this interesting stuff about what you've got to do in order to get the money.

[00:20:14] Speaker 00:
GSA had reached the point in their process where they had gotten to the need for Ms.

[00:20:19] Speaker 00:
Brown to have input, and they reached out to her for that input.

[00:20:22] Speaker 00:
Again, it was not an ideal timing, I'm sure.

[00:20:25] Speaker 00:
But regardless, it was the GSA's obligation to get some information from Ms.

[00:20:31] Speaker 00:
Brown in order to complete processing her payment.

[00:20:34] Speaker 00:
And instead of providing it, she elected to retire.

[00:20:36] Speaker 00:
Now, she was entitled to do that if she wanted to do so.

[00:20:39] Speaker 00:
There is no term in the agreement that required Ms.

[00:20:42] Speaker 00:
Brown to retire on October 19, 2019.

[00:20:46] Speaker 00:
That isn't there.

[00:20:47] Speaker 00:
So if one wants to rely on the plain language of the agreement, it says two things.

[00:20:51] Speaker 00:
One, yes, she should have retired on September 30, 2019.

[00:20:55] Speaker 02:
It doesn't say she should have.

[00:20:57] Speaker 02:
She agrees to resign effective September 30.

[00:21:01] Speaker 02:
And if she has not retired or resigned on or before September 30, the agency will process a notice of personnel action, standard form 50, indicating that the appellant has resigned September 30.

[00:21:15] Speaker 00:
except that the agreement also requires, in paragraph 12, that it may be modified in writing, in which both parties were engaged in that process.

[00:21:25] Speaker 00:
And I understand that there was some frustration on Ms.

[00:21:27] Speaker 00:
Brown's part, reasonably, that that wasn't accomplished more quickly.

[00:21:32] Speaker 00:
But instead of attempting to finish that process and execute the modification, she elected to retire.

[00:21:39] Speaker 00:
And it's that decision that led most directly to her having to subsist on

[00:21:44] Speaker 00:
a lesser retirement annuity than she would have preferred.

[00:21:47] Speaker 04:
Counsel, we're reviewing a decision.

[00:21:50] Speaker 04:
And the decision held that the appeal was moot, right?

[00:21:57] Speaker 04:
And it was moot if it was moot because she got her payment, right?

[00:22:06] Speaker 04:
Yes, Your Honor.

[00:22:06] Speaker 04:
And so is that the case before us?

[00:22:10] Speaker 00:
It is the case before, and that's why the petitioner's request for specific performance is so misplaced.

[00:22:15] Speaker 00:
In this case, the government has performed all... If it was a material breach, then is the case moot?

[00:22:23] Speaker 00:
No, it is not.

[00:22:23] Speaker 00:
If there's a material breach and the court finds that the government did not perform, then it is, in fact, not moot.

[00:22:30] Speaker 00:
However, again, assuming that the court agrees that either

[00:22:35] Speaker 00:
initiate payment was correctly interpreted by the agency or excuse me either there was substantial evidence supporting that interpretation or that the breach was not directly arising from GSA's failure to follow some part of the agreement then in fact we're back into the situation where the requested remedy cannot be conveyed because

[00:23:00] Speaker 00:
all of the performance due under the Four Corners of the Settlement Agreement has been performed.

[00:23:05] Speaker 04:
But this isn't a petition for enforcement of the Settlement Agreement, is it?

[00:23:12] Speaker 00:
Ms.

[00:23:13] Speaker 00:
Brown is seeking that the agreement be specifically performed.

[00:23:18] Speaker 00:
So that is the relief she's requesting.

[00:23:20] Speaker 00:
And that is the only relief really that the board could have delivered in this case.

[00:23:24] Speaker 00:
She chose not to go before the court of federal claims, but instead chose the board, and that limits the relief that she had an opportunity to seek.

[00:23:31] Speaker 00:
But in this case, she is seeking to be reinstated.

[00:23:34] Speaker 00:
Ms.

[00:23:34] Speaker 00:
Brown was already reinstated pursuant to the appropriate paragraph in the settlement agreement, and she retired.

[00:23:40] Speaker 00:
She did that voluntarily.

[00:23:41] Speaker 00:
Ms.

[00:23:42] Speaker 00:
Brown is seeking back pay.

[00:23:43] Speaker 00:
She has already been paid all of the back pay that the agreement required that she be given.

[00:23:48] Speaker 00:
She's actually seeking back pay for the period since she retired until complete performance.

[00:23:55] Speaker 00:
And what her view is, the annuity itself has been paid, a term that doesn't appear in the agreement at all.

[00:24:03] Speaker 00:
The goal of Ms.

[00:24:05] Speaker 00:
Brown to use her back pay in partial payment for her annuity payment is not contemplated as a purpose or expressly as a term in the settlement agreement at all.

[00:24:15] Speaker 00:
And yet she is asking the court

[00:24:17] Speaker 00:
to provide back pay until the time Ms.

[00:24:19] Speaker 00:
Brown makes whole the annuity payment she wished to do, which is entirely outside the court.

[00:24:23] Speaker 02:
Well, if we think there's a breach, I don't think this court would need to get to the remedy question.

[00:24:29] Speaker 02:
That's something that would be resolved on remand.

[00:24:32] Speaker 00:
Indeed.

[00:24:32] Speaker 00:
But I think the point, Your Honor, I'm trying to make is that even if the courts, provided the court is persuaded that there is not a breach, then it's

[00:24:43] Speaker 00:
it should also understand that specific performance in this ground request is simply not possible.

[00:24:49] Speaker 00:
And in fact, she's asking that this court deliver terms that have no place in the settlement agreement at all, including she's asking that this basically two years of back pay be added to her settlement that isn't part of the agreement.

[00:25:03] Speaker 00:
She's also asking that GSA somehow refund $8,000 that currently is in the custodianship of OPM.

[00:25:12] Speaker 00:
GSA cannot return that money.

[00:25:14] Speaker 00:
She must seek it from OPM.

[00:25:15] Speaker 00:
So she is not seeking relief from the appropriate agency.

[00:25:20] Speaker 02:
Why is it that OPM possesses $8,000 of her money?

[00:25:23] Speaker 00:
Because when the back pay was processed, the amount of annuity for the period in which she retired wasn't properly handled.

[00:25:35] Speaker 00:
And therefore, a check

[00:25:37] Speaker 00:
was delivered to OPM for greater than the amount then was actually owed.

[00:25:42] Speaker 00:
And as the administrative law judge concluded, the appropriate way to handle that was to reach out to OPM to address the return of that money.

[00:25:51] Speaker 00:
That was the path forward that Ms.

[00:25:53] Speaker 00:
Brown should have taken.

[00:25:54] Speaker 04:
Thank you, counsel.

[00:25:57] Speaker 04:
Thank you, Ernest.

[00:25:58] Speaker 04:
Ms.

[00:25:58] Speaker 04:
Riggs has some rebuttal time.

[00:26:08] Speaker 01:
Thank you.

[00:26:13] Speaker 01:
The government's argument that Ms.

[00:26:15] Speaker 01:
Brown elected to retire prior to receiving the back pay payment is a red herring in this matter.

[00:26:21] Speaker 01:
Even if she had retired on November 2nd, the day after receiving the back pay, we'd still be here today because GSA never fully processed the repayment to OPM as was required to do by the regulations and as it was laid out in the settlement agreement.

[00:26:36] Speaker 01:
It took them over a year to get that check, $32,000 for a check that was withheld from Ms.

[00:26:41] Speaker 01:
Brown's back pay back to OPM.

[00:26:44] Speaker 01:
It took them even longer to get the individual retirement records to OPM so that Ms.

[00:26:49] Speaker 01:
Brown could re-retire with even the slightly higher annuity that she'd earned from the year and a half of service provided under the settlement agreement.

[00:26:59] Speaker 01:
We would still be here today arguing about that, because OPM had no record on November 2 of Ms.

[00:27:04] Speaker 01:
Brown retiring, and she wasn't able to receive her updated annuity.

[00:27:08] Speaker 01:
And she wasn't able to make the payment, the redeposit.

[00:27:10] Speaker 01:
She wouldn't have been able to make the redeposit amount of the annuity at that date, because OPM had no record of it.

[00:27:16] Speaker 04:
Now, the agreement requires payment of $18,000.

[00:27:22] Speaker 04:
That was paid, right?

[00:27:23] Speaker 01:
For attorney's fees, yes.

[00:27:25] Speaker 01:
That was paid.

[00:27:26] Speaker 01:
The agency indicated that payment had been initiated on August 20 for both the back pay and the attorney's fees.

[00:27:35] Speaker 01:
And the attorney's fees were paid two days later.

[00:27:37] Speaker 01:
That was a reasonable expectation of initiate payment and that we would receive it within days of that initiation.

[00:27:43] Speaker 04:
What provision of the settlement agreement

[00:27:47] Speaker 04:
was not complied with other than your view of the word initiated.

[00:27:57] Speaker 01:
The part where the payment shall be that the agency agrees to pay.

[00:28:03] Speaker 01:
This is, I'm sorry, the joint appendix at page 30, paragraph 2.

[00:28:07] Speaker 01:
The agency agrees to pay the appellant interest on back pay and other benefits in accordance with 5 CFR part 550.

[00:28:13] Speaker 04:
That was paid, right?

[00:28:15] Speaker 01:
It was paid, it was not properly processed in accordance with that regulation though.

[00:28:25] Speaker 01:
Ms.

[00:28:25] Speaker 01:
Brown fully expected to be able to retire on September 30th.

[00:28:31] Speaker 01:
2019 with her new annuity of approximately $4,000 a month because the GSA did not properly process that payment or the back pay or the repayment to OPM.

[00:28:44] Speaker 01:
She could not do that.

[00:28:46] Speaker 01:
That was a material breach of the agreement.

[00:28:48] Speaker 01:
This agreement was set up specifically.

[00:28:50] Speaker 01:
to promptly pay her, promptly have her retire again.

[00:28:53] Speaker 01:
This matter has always been about correcting her retirement.

[00:28:58] Speaker 01:
It has always been about correcting her retirement.

[00:28:59] Speaker 01:
When she was provided that opportunity where she would be able to make that repayment again before retiring, she settled the case.

[00:29:07] Speaker 01:
Had she and the agency not offered to settle it, she would have gone back to work and worked for another 10, 15 years, however long it took her to save that money.

[00:29:13] Speaker 01:
But when that opportunity came up, she took it.

[00:29:16] Speaker 01:
And she expected the agency to fulfill its promises here.

[00:29:19] Speaker 01:
She's not seeking back pay as the government alleges.

[00:29:24] Speaker 01:
She's merely seeking to be made whole and be put back in the position that she would have been had the agency complied with its obligations in a timely manner or pursuant to the agreement.

[00:29:33] Speaker 02:
And she merely asked that... She's not asking for back pay from...

[00:29:39] Speaker 02:
The present day back to when she retired in November 2019?

[00:29:43] Speaker 01:
She's asking for an amount in the difference between the annuity she should have received and what she did receive.

[00:29:48] Speaker 01:
She just wants the difference in the annuity that she should have been getting and reasonably expected to be getting after this settlement agreement.

[00:29:59] Speaker 01:
But if the court does not feel that it can craft that remedy or should craft that remedy, we request that the matter be remanded to the board to craft that remedy and will receive implementation of it.

[00:30:09] Speaker 01:
And I thank you for your time if there's no further questions.

[00:30:12] Speaker 04:
Well, you said if we don't agree, we should remand.

[00:30:16] Speaker 04:
If we don't agree, what would the basis for the remand be?

[00:30:21] Speaker 01:
To craft the remedy.

[00:30:24] Speaker 01:
It was not appropriate for this court to craft the remedy.

[00:30:26] Speaker 01:
We asked the board to remand it to the board for them to craft the remedy.

[00:30:30] Speaker 01:
But we think this court can craft the remedy, as it did in Larry, and it would ask for a similar.

[00:30:34] Speaker 02:
It seems like there's a handful of options before we can do it.

[00:30:38] Speaker 02:
One is to say there was never an actual meaningful interpretation of the key phrase of the contract.

[00:30:44] Speaker 02:
So it needs to go back to that, because we vacate and we remand everything.

[00:30:47] Speaker 02:
We can, on the other hand, option two is say, there was no interpretation, but what we do know is the government's interpretation is wrong and the right interpretation is something to do with getting all your ducks in a row with your third-party vendor.

[00:31:03] Speaker 02:
And now go back and figure out whether that's a material breach because that obligation was in fact breached.

[00:31:10] Speaker 02:
Option three is to say,

[00:31:12] Speaker 02:
That was a material breach here, because the whole point of this contract was to be over and done with within 60 days, and that clearly did not happen.

[00:31:22] Speaker 02:
But we then send it back for a remedy.

[00:31:26] Speaker 04:
Is that a question?

[00:31:28] Speaker 01:
And then that's what we do.

[00:31:29] Speaker 01:
Which one should we do?

[00:31:30] Speaker 01:
We submit that the court do option three, the latter option.

[00:31:34] Speaker 01:
Thank you.

[00:31:35] Speaker 04:
Thank you to both counsel and cases submitted.

[00:31:38] Speaker ?:
Thank you.