[00:00:00] Speaker 03: Our next case is Cummings versus United States 24-2166. [00:00:07] Speaker 03: Mr. Muller-Dorey, you have reserved five minutes of your time for rebuttal. [00:00:13] Speaker 03: Yes. [00:00:13] Speaker 03: OK, you may begin, sir. [00:00:15] Speaker 03: Good morning, Your Honors. [00:00:16] Speaker 04: May it please the court? [00:00:20] Speaker 04: As you know from the brief, this is a very comprehensive and complex case of great interest to approximately 100,000 federal employees and federal retirees in the non-foreign areas of the United States. [00:00:40] Speaker 04: since since the federal since the Pay Comparability Act was passed in 1990 and implemented in 1994 their salaries including all components of their salaries have increased by [00:01:04] Speaker 04: 21.75% less than the salaries of all other federal employees in the United States. [00:01:14] Speaker 04: There was a chart in the brief. [00:01:18] Speaker 02: What is the money-mandating source of law that you identify for jurisdictional purposes here? [00:01:27] Speaker 04: Well, we think there are three. [00:01:29] Speaker 04: There are clearly three money-mandating sources of law. [00:01:36] Speaker 04: The FEPCA itself in section [00:01:44] Speaker 04: FIPCA itself is a money-mandating statute, and there's only one provision in the entire enactment that prevented it from applying in the non-foreign areas. [00:02:01] Speaker 04: And that provision was a parenthetical phrase that was inserted [00:02:06] Speaker 04: Toward the end of the process, no one has been able to identify a reason for that insertion. [00:02:16] Speaker 04: We believe that that parenthetical phrase was misinterpreted by the Office of Personnel Management and didn't really require the exclusion of non-foreign areas from the locality pay program. [00:02:33] Speaker 04: But if it was correctly interpreted, it was unconstitutional as a denial of due process and as a bill of attainder. [00:02:48] Speaker 04: And there are cases cited in other groups. [00:02:51] Speaker 03: To do what you're arguing, it would require that we modify the statute, correct? [00:02:57] Speaker 04: It would require that you disregard a phrase in a very long, complicated statute, a very small, parenthetical phrase. [00:03:07] Speaker 03: This was done in many other... You want us to disregard that phrase. [00:03:12] Speaker 03: Pardon me? [00:03:13] Speaker 03: You want us to disregard that phrase. [00:03:17] Speaker 04: Yeah, I think that phrase should be disregarded because I believe it was misinterpreted, and I believe that if it was correctly interpreted, it was unconstitutional. [00:03:26] Speaker 03: What is it exactly that you want? [00:03:29] Speaker 03: What's your prayer for relief? [00:03:32] Speaker 04: Well, we would like to have this court primarily reverse the claims court and hold that it did have jurisdiction over all six claims. [00:03:45] Speaker 04: But in the process of that reversal and remanding to the claims court for further proceedings, [00:03:52] Speaker 04: We believe that this court should take the opportunity to issue certain holdings on the applicable law that would be for the guidance of the claims court upon remand. [00:04:07] Speaker 03: You're referring now to a declaratory judgment. [00:04:10] Speaker 03: No. [00:04:11] Speaker 03: We've not asked for a declaratory judgment. [00:04:13] Speaker 03: It sounds like that's just what you said just now. [00:04:16] Speaker 03: No. [00:04:16] Speaker 03: No. [00:04:17] Speaker 03: You want us to declare a certain part of the statute to be void. [00:04:23] Speaker 04: Well, we've cited several cases in the brief in which the Federal Circuit has disregarded unconstitutional or illegal ultra-virus provisions in law, statutory or regulatory law. [00:04:43] Speaker 04: There's nothing new or unusual about allowing a claims court judge [00:04:49] Speaker 04: to read a money-mandating statute. [00:04:53] Speaker 03: Well, I guess that's the point. [00:04:55] Speaker 03: We have and we do interpret statutes to a point to where we can reverse a statute or things like that. [00:05:02] Speaker 03: But for good reason, I don't see the good reason in your argument. [00:05:08] Speaker 04: You don't see it? [00:05:09] Speaker 04: Well. [00:05:10] Speaker 03: No, sir. [00:05:10] Speaker 03: This is the way I'm asking you. [00:05:12] Speaker 03: What is it that you want? [00:05:14] Speaker 03: It's monetary relief. [00:05:16] Speaker 03: How much money? [00:05:17] Speaker 03: And where's it coming from? [00:05:21] Speaker 04: the United States Judgment Fund, Your Honor, is a continuing appropriation to pay claims against the United States that are upheld or settled through the judicial process. [00:05:35] Speaker 04: And I don't think there's any question about the availability of money to pay these back pay claims. [00:05:43] Speaker 04: I've never been aware of the availability of funds to be relevant to a court [00:05:51] Speaker 04: decision on the merits of a claim, the cost of the claim to the government, is completely up in the air. [00:06:01] Speaker 04: There's no certainty now about what that would be. [00:06:06] Speaker 01: Let me ask you. [00:06:08] Speaker 01: Normally, when we have a case brought to us under the Tucker Act, it's a situation where the appellant is saying, the statute in provisions A, B, and C [00:06:21] Speaker 01: entitles me to money and the Court of Federal Claims said I wasn't entitled to money under those provisions and that determination by the Court of Federal Claims was wrong but what you what you seem to be saying is in response to just looking at your brief and in response to your colloquy with Judge Raina is that yes the provision says I'm not entitled to money but the provision is wrong [00:06:51] Speaker 01: And you're complaining. [00:06:53] Speaker 01: You're not saying I'm entitled to money under the provision. [00:06:56] Speaker 01: You're saying the provision doesn't entitle me to money, and that's a wrong provision. [00:07:01] Speaker 01: I don't think that's the kind of thing, respectfully, that we can really address. [00:07:08] Speaker 01: So that's why I guess you bring in your constitutional arguments, correct? [00:07:13] Speaker 04: Well, this subject has been litigated, as you may know from the briefs, [00:07:21] Speaker 04: since 2009. [00:07:22] Speaker 04: Look at the Matsuo, the Cruz, the Velasquez, and the Rodriguez cases. [00:07:27] Speaker 04: Yes, those cases, however, were... The Matsuo cases, I treat them separately because they were filed on behalf of... Excuse me, but I understand what you're saying, but I want to just make... Am I wrong in saying that you're complaining about the language of the statute? [00:07:51] Speaker 01: You're saying that language is wrong. [00:07:54] Speaker 01: You're not saying I'm entitled under that language. [00:08:00] Speaker 04: That's what you're saying? [00:08:01] Speaker 04: I'm saying that the provisions in question, in constitutional question in this case, are invalid and have to be disregarded. [00:08:13] Speaker 01: But you would say that if they're not determined to be unconstitutional, I lose. [00:08:23] Speaker 01: Well, that seems to be what you're saying respectfully. [00:08:27] Speaker 01: I mean, you make your constitutional argument, but you don't seem to be saying that the language of the statute as it exists entitles me to compensation, or my clients to compensation. [00:08:41] Speaker 04: Well, the court should distinguish between claims one through five and claims six. [00:08:48] Speaker 04: Claims one through five raise constitutional issues. [00:08:53] Speaker 04: They point out that the money-mandating statutes applicable to salaries as opposed to retirement benefits, that the money-mandating statutes applicable to salaries have within them certain provisions which are a denial of due process and a bill of attainder. [00:09:24] Speaker 04: The sixth claim is for retirement benefits under existing statutory law. [00:09:32] Speaker 01: That's the provision with respect to which the court below said that's only for OPM to decide. [00:09:38] Speaker 01: And then go to the Merit Systems Protection Board. [00:09:41] Speaker 04: Yeah. [00:09:43] Speaker 04: The MSPB does not have jurisdiction over that claim. [00:09:48] Speaker 04: I would like to be very clear about this. [00:09:51] Speaker 04: There are a lot of cases which hold that claims that actions [00:10:13] Speaker 04: and decisions, actions and personnel decisions, are required to go to the Merit Systems Protection Board. [00:10:24] Speaker 04: But there are no cases saying that rulings on the validity of a statute or the validity of an interpretation [00:10:42] Speaker 04: are necessarily actions and decisions by OPM that are appealable to the MSPB. [00:10:51] Speaker 04: There was no action or decision, personnel order of any kind, by OPM that could have been appealed to MSPB. [00:11:01] Speaker 02: So counsel, if we disagree with you and think that this should first go with respect to claim six to OPM and then to the MSPB, [00:11:10] Speaker 02: Would you agree that we should dismiss the respect to Claim Six? [00:11:14] Speaker 02: Or what would be the relief that you think would be appropriate? [00:11:17] Speaker 04: I think that the Court should reach the merits of Claim Six without remanding that question to the Claims Court. [00:11:26] Speaker 04: I think that the merits are fully briefed in the plaintiff's opening brief. [00:11:32] Speaker 04: And there are additional arguments in the reply brief. [00:11:36] Speaker 04: Those same arguments can be made all over again at the claims court level. [00:11:41] Speaker 04: But those issues, the issues arising under claim six, are entirely ones of law. [00:11:48] Speaker 04: There are no factual matters in dispute. [00:11:52] Speaker 04: Any decision by the claims court on those matters would come back to this court for review de novo. [00:12:00] Speaker 04: We don't see a need for a dress rehearsal in the claims court on claims that have been in litigation since 2009 in several different cases. [00:12:13] Speaker 03: Sir, you're into your rebuttal time. [00:12:15] Speaker 03: You're into your rebuttal time. [00:12:16] Speaker 03: Would you like to reserve it? [00:12:18] Speaker 04: I think I would. [00:12:19] Speaker 03: You can continue if you want. [00:12:23] Speaker 04: Yeah, I'll stop at this point, and I'll reserve the rest of it. [00:12:27] Speaker 04: OK. [00:12:35] Speaker 03: Councillor Keefe. [00:12:38] Speaker 02: Sorry, what? [00:12:39] Speaker 03: Yes, you may proceed. [00:12:43] Speaker 03: Oh, Fomenkoa, sorry. [00:12:47] Speaker 00: Good morning, Your Honors. [00:12:48] Speaker 00: May it please the court? [00:12:50] Speaker 00: The Court of Federal Claims correctly dismissed this case, and this court should affirm that dismissal. [00:12:56] Speaker 00: Plaintiffs do not state a claim for actual presently due money damages from the United States. [00:13:03] Speaker 00: Rather, what they're seeking is for the court to create a new entitlement, one that has never existed for, frankly, anyone, any federal employees. [00:13:13] Speaker 00: And that is fundamentally not a Tucker Act claim that belongs in the court of federal claims. [00:13:21] Speaker 00: Maybe that can be addressed in a district court somewhere, but the court of federal claims correctly dismissed it. [00:13:27] Speaker 00: in terms of claim six specifically. [00:13:30] Speaker 00: That is the one that was dismissed because it belongs through the exclusive judicial review under Title V. And as I understand, the response in the reply brief and reiterated this morning is that before you can go to the MSPB, you have to have an OPM decision. [00:13:46] Speaker 00: The MSPB doesn't have jurisdiction in the absence of a decision from OPM. [00:13:54] Speaker 00: And I agree with that. [00:13:55] Speaker 00: And my answer to that is, [00:13:57] Speaker 00: they have to go to OPM first. [00:14:00] Speaker 00: It does not mean that they can just skip the OPM process and the MSPB process entirely and go either to the court of federal claims that never has any role to play in that process or ask this court to issue what essentially would amount to an advisory opinion on that legal question. [00:14:21] Speaker 02: Do you agree with counsel's kind of division of the claims? [00:14:24] Speaker 02: He said treat claims one through five one way, [00:14:26] Speaker 02: and then claims it's a different way. [00:14:28] Speaker 02: Do you agree with that distribution or do you have something different or a different gloss to give us? [00:14:37] Speaker 00: I think offhand I'm probably okay with that division. [00:14:42] Speaker 00: Sort of it was a little bit blurry, I think, below how much the retirement claims are really sort of entirely derivative of the salary claims. [00:14:52] Speaker 00: But even if I sort of take them at their word today and treat claim six as purely an argument that sort of under the existing statute, that allowance should be factored into the retirement annuity. [00:15:05] Speaker 00: That still is a claim that has to go to OPM and the MSPB and doesn't belong in the court of federal claims. [00:15:17] Speaker 04: Thank you. [00:15:32] Speaker 04: These claims under the Claim 6, the attempts to include COLA as a part of base pay for retirement purposes, were presented to OPM. [00:15:48] Speaker 04: And OPM decided that it did not have power [00:15:58] Speaker 04: except the arguments that the plaintiffs were making in that submission to OPM. [00:16:07] Speaker 04: They said, we feel your pain, but our hands are tied. [00:16:11] Speaker 04: And they felt that OPM had no discretion but to exclude the COLA from retirement calculations. [00:16:21] Speaker 04: We took the position, and still do, that there is no discretion, [00:16:27] Speaker 04: OPM is required by Congress to include COLA in the retirement base. [00:16:34] Speaker 04: And the arguments in favor of the appellant's position are set forth in the opening brief, and they're somewhat buttressed in the reply brief. [00:16:47] Speaker 04: Those arguments do not involve questions of fact. [00:16:51] Speaker 04: They involve OPM's misunderstanding [00:16:55] Speaker 04: of a 1948 act of Congress. [00:16:59] Speaker 04: OPM decided that the use of the term allowance in the US code, which in that term began to be used as a result of a code revision in 1966, decided the matter entirely. [00:17:21] Speaker 02: And for that reason, because... So, counsel, just so I can clarify here, did you ever go the route of appealing from OPM to the MSPB? [00:17:33] Speaker 04: No, we do not believe that there was an action or a decision under the law. [00:17:39] Speaker 04: The jurisdiction of MSPB is limited to reviewing appeals of actions or decisions. [00:17:48] Speaker 04: And those actions or decisions are to be made in individual cases. [00:17:55] Speaker 04: And OPM never issued an order and never issued a decision of any kind that could be appealed. [00:18:05] Speaker 04: All it said was, by our interpretation of federal law, we don't have power to change our interpretation of the statute. [00:18:17] Speaker 04: We are saying that federal law requires COLA to be included, not excluded. [00:18:25] Speaker 04: OPM's interpretation back since 1948 has been wrong. [00:18:31] Speaker 03: Did you appeal that part of the OPM decision that they did not have authority? [00:18:37] Speaker 03: to entertain your claim? [00:18:41] Speaker 04: No, because we don't believe that MSPB has jurisdiction over questions of law that come up in the interpretation of federal statutes. [00:18:53] Speaker 04: This is the Alanis case all over again. [00:18:56] Speaker 04: If the court would refer to the graves, you'll find references to a case that I myself handled. [00:19:06] Speaker 04: in 1983. [00:19:07] Speaker 04: It was decided by this court, I believe, in the first year of your existence in 1984. [00:19:17] Speaker 04: And in that case, that case was filed in the federal district court. [00:19:23] Speaker 04: And the court held that OPM's order [00:19:28] Speaker 04: was invalid because it did not comply with law, namely the notice and comment requirements for issuing an order. [00:19:37] Speaker 01: In that order, you would agree, I would think, that MSPB can interpret a statute. [00:19:45] Speaker 01: Say there's a statute for retirement benefits, and there's a question as to what a provision of the statute means. [00:19:52] Speaker 01: Certainly, MSPB, in an appeal from a final action by OPM, is competent, is it not, to rule on the meaning of that statute? [00:20:05] Speaker 04: If there were a final decision or order by OPM, yes, but there has not been. [00:20:12] Speaker 04: OPM has refused to issue an order or decision saying that they have no power to interpret the law differently than the way they're interpreting it. [00:20:23] Speaker 04: They have expressed it. [00:20:24] Speaker 01: Well, isn't that a decision, though? [00:20:26] Speaker 01: I mean, if they're saying, we can't issue a decision because we don't have power to interpret the statute, isn't that something you could take to MSPB and say, look, we went to OPM. [00:20:40] Speaker 01: Here's what they said. [00:20:41] Speaker 01: They're wrong. [00:20:42] Speaker 01: Correct it. [00:20:47] Speaker 04: MSPB has jurisdiction to hold OPM regulations invalid. [00:20:54] Speaker 04: But that jurisdiction is permissive. [00:20:57] Speaker 04: It's available to be invoked by the director of OPM. [00:21:02] Speaker 04: We're not interested in having MSPB express an opinion, a declaratory judgment, as it were. [00:21:11] Speaker 03: But that's your path to this court. [00:21:14] Speaker 03: To get to this court, you had to have gone through MSPB, then through the claims court, directly here. [00:21:22] Speaker 04: But we didn't have to go through MSPB in the Alanis case. [00:21:27] Speaker 04: And this court existed at that time. [00:21:29] Speaker 04: The laws at that time were the same as they are today. [00:21:32] Speaker 04: The district court, the federal district court in Anchorage, held that a regulation issued by OPM lowering COLA rates for everybody in the Anchorage area [00:21:49] Speaker 04: was invalid as a matter of law because it violated the notice and comment requirements of the APA. [00:21:59] Speaker 04: And therefore, plaintiffs were entitled to back pay. [00:22:04] Speaker 04: The court realized that it was not dealing with a decision by OPM. [00:22:11] Speaker 04: It was dealing with an order. [00:22:13] Speaker 04: And in our brief, we've pointed out, [00:22:17] Speaker 04: that orders are completely different from decisions. [00:22:22] Speaker 04: And in the APA, that distinction is made crystal clear. [00:22:27] Speaker 04: And what the Merit Systems Protection Board has jurisdiction over are orders, actions, and orders. [00:22:37] Speaker 04: OPM does not have jurisdiction, MSPB does not have jurisdiction over rules. [00:22:46] Speaker 04: and the OPM. [00:22:48] Speaker 03: Your will over your rebuttal time. [00:22:52] Speaker 03: I'm sorry. [00:22:52] Speaker 03: So we thank you for your arguments, sir. [00:22:55] Speaker 03: We thank the parties for their arguments, and the case will be submitted.