DAVIS v. United States

In the United States Court of Federal Claims

No. 24-364

(Filed: September 27, 2024)

(Reissued Following Motion to Certify for Interlocutory Appeal:

February 4, 2025)

*************************

RODNEY L. DAVIS, et al.,

Plaintiffs,

v.

THE UNITED STATES,

Defendant.

*************************

Kenneth T. Cuccinelli, II, Spotsylvania, VA, for plaintiff. Earl

Mayfield, III, Fairfax, VA, of counsel.

Galina I. Fomenkova, Trial Attorney, United States Department of

Justice, Commercial Litigation Branch, Civil Division, Washington, DC,

with whom were Brian M. Boynton, Principal Deputy Assistant Attorney

General, Patricia M. McCarthy, Director, L. Misha Preheim, Assistant

Director, for defendant.

OPINION

BRUGGINK, Judge.

This is a lawsuit by current and former members of Congress

protesting that they have not received a cost-of-living adjustment (“COLA”)

since 2009. They assert that this circumstance violates the Twenty-Seventh

Amendment to the United States Constitution. An unsympathetic observer

might note that this predicament is of Congress’ own making; after all,

Congress sets its own pay, and the fact that there has been no COLA in fifteen

years is due to its intentional rejection of what would otherwise have been an

automatic COLA comparable to that received by other federal employees.

1

Indeed, as defendant points out, virtually all of the named plaintiffs have

voted to cancel some or all of those annual pay raises. Nevertheless, the

government has not argued that plaintiffs have waived their right to claim

entitlement to those COLAs. Instead, it has moved to dismiss the complaint

as beyond the court’s subject matter jurisdiction. The matter is fully

briefed, and oral argument was heard on August 23, 2024. For the reasons

set out herein, we reject defendant’s motion in part and grant it in part.

BACKGROUND

Article I, Section 6, Clause 1 of the Constitution provides that “The

Senators and Representatives shall receive a Compensation for their

Services, to be ascertained by Law, and paid out of the Treasury of the United

States.” U.S. Const. art. I, § 6, cl. 1. Until 1992, that provision was the

only instruction the Constitution offered concerning congressional pay. On

May 7 of that year, however, Michigan’s approval of the proposed Twenty-

Seventh Amendment supplied the necessary 38th state to bring about

ratification, officially enshrining James Madison’s compensation

Amendment two hundred years after he had proposed it. The Amendment

provides that “No law, varying the compensation for the services of the

Senators and Representatives, shall take effect, until an election of

Representatives shall have intervened.” U.S. Const. amend. XXVII.

Because each Congress has a two-year duration, the Amendment ensures that

no particular Congress can increase or decrease its own pay. The change in

compensation must await the seating of a new Congress.

In addition to these constitutional provisions, there are two pieces of

legislation that control congressional pay. The first is found at

2 U.S.C. § 4501. In bare terms, it provides that:

(1) The annual rate of pay for [members of Congress]–

....

shall be the rate determined for such positions under chapter

11 of this title, as adjusted by paragraph (2) of this section.

(2)(A) Subject to subparagraph (B), effective at the beginning

of the first applicable pay period commencing on or after the

first day of the month in which an adjustment takes effect under

section 5303 of title 5 in the rates of pay under the General

2

Schedule . . . as determined under section 704(a)(1) of the

Ethics Reform Act of 1989. The appropriate date under this

sentence is the first day of the fiscal year in which such

adjustment in the rates of pay under the General Schedule takes

effect.

2 U.S.C. § 4501(1), (2)(A). Section 4501 thus ties congressional pay

increases to the automatic COLA process implemented by § 704(a)(1) of the

Ethics Reform Act of 1989 (“ERA”), which applies more generally to

civilian employees, including members of the Judiciary. See Ethics Reform

Act of 1989, Pub. L. No. 101-194, § 704(a)(1), 103 Stat. 1716, 1768.

Section 4501, then, dictates that each year’s COLA, calculated using the

formula in the ERA, shall take effect “at the beginning of the first applicable

pay period commencing on or after the first day of the month in which an

adjustment” of the General Schedule (“GS”) rate of pay for federal

employees vests. § 4501(2)(A). The percentage change of COLAs for

members of Congress in a given year may not exceed the percentage increase

in the GS pay rate for that year. 1 § 4501(2)(B).

Annual adjustments of the GS pay rate, in turn, are set by

5 U.S.C. § 5303. That act, in its essential terms, provides that the GS rates

shall automatically increase “by the percentage (rounded to the nearest one-

tenth of 1 percent) equal to one-half of 1 percentage point less than the

percentage by which the ECI[ 2] for the base quarter of the year before the

preceding calendar year exceeds the ECI for the base quarter of the second

year before the preceding calendar year (if at all).” 5 U.S.C. § 5303(a). The

official table of GS rates (reflecting the changes under § 5303) is announced

in an executive order in the December preceding the January in which the

new rates take effect. This increase vests on the “first day of the first

applicable pay period beginning on or after January 1 of each calendar year.”

Id. The congressional COLA thus takes effect automatically each year

following the above steps unless Congress abrogates or modifies it

1

The president may modify the annual GS increase if “because of national

emergency or serious economic conditions affecting the general welfare, the

President should consider” the adjustment “to be

inappropriate.” 5 U.S.C. § 5303(b)(1). This may affect congressional

COLAs because their amount is capped by the percentage of GS increases.

2

The ECI, or Employment Cost Index, is a measure of employee wages and

benefits on a national scale. It is reported quarterly by the Department of

Labor.

3

statutorily.

The ERA was the long-sought mechanism by which it was hoped

politics would be taken out of the messy process for determining pay for

Congress, the Judiciary, and all civilian federal employees. The hope was

that, by using an automatic, objective device for determining COLAs, there

would be no occasion for salaries to trigger political debate on an annual

basis. With respect to members of Congress, the law eliminated many

alternative sources of income. See Ethics Reform Act § 601, 103 Stat. at

1760–61. The exchange was that congressional compensation would at

least keep pace with inflation through virtually guaranteed COLAs.

See id. § 704, 103 Stat. at 1768. This removed the necessity of members

casting public votes to set their own salary because the ERA would

automatically adjust member pay each year according to its COLA formula.

The application of the ERA to Congress was challenged in Boehner

v. Anderson, 809 F. Supp. 138 (D.D.C. 1992). The Speaker of the House

and other members of Congress questioned the law in light of the newly

adopted Twenty-Seventh Amendment. They argued that the ERA went

into effect before the next election of Representatives, thereby violating the

Twenty-Seventh Amendment. Id. at 139. Judge Sporkin, after a paean to

the “incredible piece of legislation” that was the ERA, 3 disposed of the

challenge to the ERA on the ground that an election had, in fact, intervened.

Id. at 142. Lawmakers also challenged the specific COLA increase for

1991. Judge Sporkin rejected that challenge as well on the ground that the

annual increase was not new “legislation” within the meaning of the Twenty-

Seventh Amendment. Id. at 143.

On appeal, after dismissing all plaintiffs except the Speaker of the

House, the D.C. Circuit affirmed Judge Sporkin’s conclusion that the

Twenty-Seventh Amendment did not invalidate either the ERA in general or

the subsequent COLA in particular. Boehner v. Anderson, 30 F.3d 156,

160–62 (1994). It then dealt with a new argument raised on appeal; one that

is tantalizingly close to the issue before this court, namely, that the 1993

legislation cancelling the upcoming 1994 COLA violated the Twenty-

Seventh Amendment. Unfortunately for us and Speaker Boehner, the D.C.

Circuit declined to allow the new argument on appeal, noting that the mental

3

“The Court finds that the Ethics Reform Act of 1989 was as salutary a piece

of government legislation as any enacted in modern times.”

809 F. Supp. at 143.

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gymnastics of simultaneously maintaining that a COLA raising one’s salary

was an injury, while also arguing that legislation voiding such a COLA was

also an injury was a bit too much. Id. at 161–62.

Alas, the hope that the ERA would de-politicize the setting of

Congressional pay was not to be. Neither Judge Sporkin’s encomium nor

the benediction given by the D.C. Circuit to the operation of the ERA

precluded what followed. In 1993, Congress rejected for itself the COLA

scheduled for 1994. Between then and 2024, it has rejected congressional

COLAs twenty-one times. IDA A. BRUDNICK, CONG. RSCH. SERV., 97-

1011, SALARIES OF MEMBERS OF CONGRESS: RECENT ACTIONS AND

HISTORICAL TABLES 2 (May 10, 2024), https://sgp.fas.org/crs/misc/97-

1011.pdf. Congress has blocked members’ COLAs every year since 2009,

meaning that congressional pay has been frozen at $174,000 per year since

then. Id. at 1. In that time, civilian federal employees have seen their pay

go up twelve times, for a total of 27.8%. See FED. SALARY COUNCIL, U.S.

OFF. OF PERS. MGMT., LEVEL OF COMPARABILITY PAYMENTS FOR JANUARY

2025 AND OTHER MATTERS PERTAINING TO THE LOCALITY PAY PROGRAM

27–29 tbl.7 (Feb. 9, 2024), https://www.opm.gov/policy-data-oversight/pay-

leave/pay-systems/general-schedule/federal-salary-

council/recommendation25.pdf.

Congress’ abrogation of its own COLAs has used different language

over the years. At first, Congress often directed that the COLA be calculated

as if the GS increase had not occurred (capping the COLA at zero). E.g.,

Treasury, Postal Service, and General Government Appropriations Act,

1995, Pub. L. No. 103–329, § 630(2), 108 Stat. 2382, 2424. Later, it simply

declared that “no adjustment shall be made.” E.g., Consolidated

Appropriations Act, 2023, Pub. L. No. 117–328, § 6, 136 Stat. 4459, 4462.

The typical practice for abrogating COLA increases can be seen with

respect to 2024. The executive order setting the GS pay rates for 2024 was

issued on December 21, 2023. Exec. Order No. 14,113, 88 Fed. Reg.

89,259 (Dec. 21, 2023). Next, the new pay rates contained therein took

effect on January 14, 2024. KIRAN A. AHUJA, U.S. OFF. OF PERS. MGMT.,

CPM 2023–20, MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS

AND AGENCIES—JANUARY 2024 PAY ADJUSTMENTS 1 (2023),

https://chcoc.gov/sites/default/files/January-2024-Pay-Adjustment-Memo-

Attachments.pdf. Finally, Congress enacted the statute abrogating the 2024

congressional COLA on March 23, 2024. Consolidated Appropriations

Act, 2024, Pub. L. No. 118–47, § 7, 138 Stat. 460, 461. Since 2009, the

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timing of the executive orders setting the GS rates and the effective date of

those rates has remained relatively consistent, with the order issued in

December and the rates taking effect the following January. The timing of

legislation abrogating congressional COLAs, however, has varied widely—

being enacted as early as March 2009 to prevent the January 2010 COLA,

for instance, or as late as March 2018 to prevent the January 2018 COLA.

See Omnibus Appropriations Act, 2009, Pub. L. No. 111–8, 123 Stat. 524;

Consolidated Appropriations Act, 2018, Pub. L. No. 115–141, 132 Stat. 348.

These congressional annulments of member COLAs form the

keystone of this case. On March 7, 2024, four current and former members

of Congress 4 filed the present complaint, alleging that the timing of many of

these annulments violated the Twenty-Seventh Amendment because they

took effect without an intervening election of representatives. The

complaint consists of three separate claims. Count I asserts a failure to pay

plaintiffs’ correct salary. Pls.’ Am. Compl. ¶¶ 48–51. Count II asserts a

failure to pay retirement benefits in the correct amount. Id. ¶¶ 52–54.

Count III asserts that plaintiffs were not credited with the correct Thrift

Savings Plan (“TSP”) contributions under the Federal Employees’

Retirement System (“FERS”). Id. ¶¶ 55–57. Plaintiffs intend to seek

certification of a class action.

Defendant filed a motion to dismiss under Rule of the Court of Federal

Claims (“RCFC”) 12(b)(1) for lack of jurisdiction, to which plaintiffs

responded on July 23, 2024. Defendant filed a reply on August 9, 2024,

and plaintiffs filed a sur-reply on August 14, 2024. The court held oral

argument on August 23, 2024.

Defendant advances three arguments in support of its motion. First,

defendant contends that this court lacks subject matter jurisdiction over the

pay claims advanced in Count I. The Tucker Act requires that a complaint

be based on a money-mandating source of law, and, because the Twenty-

Seventh Amendment is not, according to defendant, money-mandating, we

may not exercise jurisdiction. Second, defendant asserts that we lack

jurisdiction over plaintiffs’ Count II and III claims related to their retirement

benefits and TSP employer matching because 5 U.S.C. § 8461 mandates that

such cases be adjudicated by the Office of Personnel Management, the Merit

4

Plaintiffs amended their complaint to add one more plaintiff on June 20,

2024, but added no new substantive arguments.

6

Systems Protection Board, and ultimately, the U.S. Court of Appeals for the

Federal Circuit. Third, defendant argues that any pay or retirement claim

that accrued before March 7, 2018, is barred by this court’s six-year statute

of limitations. See 28 U.S.C. § 2501.

Plaintiffs insist that we may exercise jurisdiction over their case.

They respond to the government’s first argument by asserting that the ERA,

when enforced in compliance with the Twenty-Seventh Amendment, affords

a money-mandating source of law. As to the second argument, they contend

that this is the proper forum for their retirement and TSP-related claims

because the agencies to which the government directs them do not have the

authority to determine the substantive validity of plaintiffs’ claims with

respect to the Twenty-Seventh Amendment. Finally, plaintiffs contend that

the judicially-created “continuing claims doctrine” means that their salary

claims, claims for retirement benefits, and entitlement to TSP contributions

for the past six years should reflect, not just those COLAs improperly

nullified within the past six years, but also those improperly nullified more

than six years ago.

For the reasons set out below, we agree with plaintiffs that we have

jurisdiction over their Count I pay claims. We agree with defendant,

however, that we lack jurisdiction over the Count II retirement benefit claims

and Count III TSP contribution claims. With respect to the limitations

period, we agree with defendant that plaintiffs’ pay claims cannot reflect

COLAs that took effect before March 2018.

DISCUSSION

The United States, as a sovereign, is immune from suit unless it has

waived its immunity. Ins. Co. of the W. v. United States, 243 F.3d 1367,

1372 (Fed. Cir. 2001). The lack of a waiver is a jurisdictional bar if the

United States has not consented to be sued with respect to the particular type

of claim brought. RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461

(Fed. Cir. 1998). Because Counts II and III are derivative of Count I, we

address principally the basis, if any, for plaintiffs’ pay claim.

Plaintiffs here rely on the Tucker Act, which grants the Court of

Federal Claims jurisdiction to hear claims for money damages against the

United States founded upon the United States Constitution, federal statutes,

executive regulations, or government contracts. 28 U.S.C. § 1491(a)(1);

United States v. Mitchell, 463 U.S. 206, 215–18 (1983). Our jurisdiction

7

over a case may only be exercised, however, when a plaintiff identifies “a

separate source of substantive law that creates the right to money damages.”

Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc)

(citing Mitchell, 463 U.S. at 216). “When a complaint is filed alleging a

Tucker Act claim based on a Constitutional provision, statute, or regulation,

[we must] at the outset [] determine . . . whether the Constitutional provision,

statute, or regulation is one that is money-mandating.” Id. at 1173.

A provision of law “is money-mandating for jurisdictional purposes

only if it ‘can fairly be interpreted as mandating compensation for damages

sustained as a result of the breach of the duties [it] imposes.’” Id. at 1172

(quoting Mitchell, 463 U.S. at 217). In meeting this test on a motion to

dismiss, plaintiffs need only make a non-frivolous allegation that the statute

or regulation may be interpreted as money-mandating. “The non-frivolous

allegation satisfies the jurisdictional requirement.” Fisher, 402 F.3d at

1172.

Defendant’s principal argument is that the Twenty-Seventh

Amendment is not money-mandating. In defendant’s view, it is merely a

“timing” provision that controls when legislation takes effect; it cannot

correctly be construed as a direction to pay money. Mot. to Dismiss 8. In

response to plaintiffs’ argument that the ERA serves as a money-mandating

source of law, defendant asserts that plaintiffs may not rely on it alone, but

also must prove that the Twenty-Seventh Amendment itself is independently

money-mandating. We disagree.

I. This Court Has Subject Matter Jurisdiction Over Plaintiffs’ Count I

Pay Claims

This court and the Federal Circuit have long held that federal pay

statutes create substantive entitlements to money that support Tucker Act

jurisdiction. See, e.g., Beer v. United States, 696 F.3d 1174, 1186 (Fed. Cir.

2012) (judicial pay); Fisher, 402 F.3d at 1174 (military retirement pay); Bobo

v. United States, 136 F.3d 1465, 1467 (Fed. Cir. 1998) (Fair Labor Standards

Act); Collins v. United States, 101 Fed. Cl. 435, 455 (2011) (military

separation pay). We have no difficulty concluding that the combined effect

of 2 U.S.C. § 4501, the Ethics Reform Act of 1989, and 5 U.S.C. § 5303 is

to give specificity to the language of the Constitution that “The Senators and

Representatives shall receive a Compensation for their Services, to be

ascertained by Law.” U.S. Const. art. I, § 6, cl. 1. There is no question

that if those were the only applicable statutes, they would constitute “money-

8

mandating” provisions of law. If, for example, a Congresswoman did not

receive her salary, she could bring a claim under the Tucker Act in this court,

even if that claim included an asserted non-payment of a COLA.

Those are not the only relevant legal provisions, however. As

explained above, Congress has repeatedly passed legislation nullifying the

effect of COLAs that would have otherwise automatically gone into effect

under the ERA. There is no question that Congress had the legal right to

adopt such blocking legislation, and plaintiffs do not argue to the contrary.

It is only the relatively recent adoption of the Twenty-Seventh Amendment

that gives any traction to plaintiffs’ claim that compensation to which they

would otherwise be legally entitled has been improperly withheld.

Defendant’s principal response is that the Twenty-Seventh

Amendment is not money-mandating. But we need not decide whether the

Twenty-Seventh Amendment—standing alone—is money-mandating. The

direction of payment comes from the ERA. The Amendment furnishes the

means for not enforcing the nullification legislation, leaving in place the

presumption that the ERA entitles plaintiffs to money.

Defendant further objects that plaintiffs’ relief is predicated on first

obtaining a declaratory judgment that the COLA-nullifying laws violate the

Twenty-Seventh Amendment. And because Congress has not authorized

this court to provide declaratory relief, defendant reasons, we must dismiss

plaintiffs’ claim as their claim for money damages is contingent on first

acquiring declaratory relief.

We cannot provide plaintiffs with declaratory relief, but their pay

claim does not hinge on obtaining a declaratory judgment. If the alleged

constitutional violation forms part of a plaintiff's claim that he has been

illegally deprived of money, the claim actually is based on a money-

mandating statute, even if the constitutional provision itself does not mandate

the payment of money. For example, in Gentry v. United States, the Court

of Claims held that a provision of the Civil Service Retirement Act (“CSRA”)

violated equal protection under the Fifth Amendment because it prevented

illegitimate children from collecting CSRA benefits. 546 F.2d 343, 354

(1976). The CSRA entitled a deceased annuitant’s survivor to benefits

unless the survivor did not live with the annuitant “in a regular parent-child

relationship.” Id. at 344 (quoting 5 U.S.C. § 8341(e) (1970)). The

plaintiff—the illegitimate child of a Navy welder—sued after he was denied

CSRA benefits. Id. He argued that he was entitled to damages and a

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declaratory judgment that the CSRA “live-in” requirement violated the Fifth

Amendment. Id.

The government objected that the court lacked jurisdiction. It argued

that the court would have to issue a declaratory judgment that the “live-in”

requirement was unconstitutional before it could rule that the CSRA

mandated payments to the plaintiff. Id. at 345–46. And, because the court

had no authority to issue declaratory judgments, the government contended

that the plaintiff’s case had to be dismissed for lack of jurisdiction. Id. at

346.

The court denied plaintiff’s request for a declaratory judgment but

clarified that the award of money did not require declaratory relief. “The

money claim is grounded . . . on the statute as it now exists—at least when

read in light of the Fifth Amendment—and thus states a claim for money

presently due . . . . This is exactly the kind of claim within our

jurisdiction . . . .” Id. Therefore, the “plaintiff asks us to do no more than

the [Supreme] Court in [United States v.] Lovett said that we could and must

do—read the relevant statute and award whatever payment it grants, omitting

from our interpretation of its effect any constitutionally void provision

contained in it.” Id.

The Court of Claims added that its decision did not necessitate

equitable relief. To the contrary, “this court is bound by oath to read and

give effect to the statute, but to do so only with regard to that portion that is

constitutional. It is well established that an unconstitutional enactment is void

ab initio.” Id. (first citing Norton v. Shelby Cnty., 118 U.S. 425 (1886), then

Younger v. Harris, 401 U.S. 37, 52 (1971)). If the court, then, “reads and

gives effect to all of a statute that it can without transgressing the oath of

loyalty to the Constitution . . . it is not issuing a declaratory judgment at any

time, or otherwise acting prior to judgment to create the entitlement upon

which the judgment is based.” Id. On that basis, the court held that it had

jurisdiction because the CSRA—when read in light of the Fifth

Amendment—was money-mandating. See id. at 346–47.

Later decisions by this court have relied on the holding in Gentry.

For example, in Bevevino v. United States, we noted that “[a]s we recognized

in Gentry v. United States . . . merely because the court must make a ruling

of law (in Gentry, declaring a statutory provision unconstitutional) in order

to arrive at a money judgment does not render this Court’s decision a

‘declaratory judgment’ . . . .” 87 Fed. Cl. 397, 407 (2009) (quoting Pauley

10

Petroleum, Inc. v. United States, 591 F.2d 1308, 1315 (Ct. Cl. 1979)). We

concluded that, although the Court could not grant the plaintiffs’ request for

declaratory relief, their claim for back pay under the Prevailing Rates System

Act “necessarily require[d] a determination of plaintiffs’ rights” and was

“therefore within this court’s jurisdiction.” Id. at 406–07 (“This court must

necessarily decide the rights of a plaintiff before awarding a monetary

judgment in a suit for back pay; the court’s declaration of rights in such a

dispute, however, does not exceed this court’s jurisdiction, because no ultra

vires declaratory judgment or equitable relief is thereby granted.”).

Other cases are to similar effect. See, e.g., Kanemoto v. Reno, 41

F.3d 641, 644 (Fed. Cir. 1994) (claim for restitution by Japanese internees

included argument that failure to pay violated the Equal Protection and Due

Process Clauses); Jackson v. United States, 428 F.2d 844, 446–48 (Ct. Cl.

1970) (pay claim in which the plaintiff alleged discharge in violation of the

First Amendment); Swaaley v. United States, 376 F.2d 857, 858 (Ct. Cl.

1967) (plaintiff’s involuntary military discharge allegedly was caused by his

exercise of First Amendment right to petition for grievances); Walker v.

United States, 11 Cl. Ct. 77, 79 (1986) (“[The] Federal Circuit . . . . has

expressly determined that jurisdiction in Jackson and Swaaley was based not

on constitutional grounds, but rather on a statutory entitlement to pay

provided in the basic pay statute.”).

The general proposition that this court does not have authority to issue

declaratory judgments is therefore not triggered when the court simply

applies existing law to claims for money presently due, as we explained in

Lummi Tribe of Lummi Reservation v. United States. 99 Fed. Cl. 584, 603

(2011), overruled on other grounds by Lummi Tribe of the Lummi Rsrv. v.

United States, 870 F.3d 1313 (Fed. Cir. 2017). There, we rejected the

argument that this court is always without authority to declare a regulation

invalid. Instead, “[w]here the relief sought is enforcement of a claimed

right to money pursuant to a money-mandating statute and the challenge is

to a regulation interpreting that statute, our jurisdiction may be invoked.”

Id. at 603; see also id. at 601 (“Indeed, in [Gentry], this court concluded that

the plaintiff had asserted a claim for money presently due . . . despite the fact

that the entitlement depended on the court’s first finding that a provision of

the statute was unconstitutional.”). Ultimately, we concluded that whether

the regulation at issue was valid was a question of law that is “tied and

subordinate to a monetary award” and falls within our jurisdiction. Id.

(quoting Gentry, 546 F.2d at 355).

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For the same reason, plaintiffs’ right to money damages here is not

contingent on declaratory relief. Plaintiffs assert that the ERA and Twenty-

Seventh Amendment work in tandem. But for the allegedly

unconstitutional effect of the nullifying legislation, the money-mandating

source of jurisdiction remains the ERA. We may enforce the ERA COLAs,

in other words, and award whatever payment they grant while “omitting” any

“constitutionally void” provisions. Gentry, 546 F.2d at 346. We therefore

conclude that we have jurisdiction under the Tucker Act to enforce a pay

claim based on the ERA, even when that involves determining whether the

COLA legislation complies with the Twenty-Seventh Amendment.

The District Court of Hawaii had occasion to provide a detailed

description of the relationship between a money-mandating statute and non-

money-mandating constitutional provision. In Matsuo v. United States, a

group of federal employees alleged that the Federal Employees Pay

Comparability Act of 1990 (“FEPCA”) violated the Equal Protection Clause

of the Fifth Amendment by providing increased locality pay only to federal

employees in the contiguous United States (thereby excluding employees in

Alaska and Hawaii) and sought the pay that statute denied them. 416 F.

Supp. 2d 982, 985–86. (D. Ha. 2006). That discussion was triggered by a

government motion to transfer the case to this court. Defendant argued that

the District Court should transfer the case here because we would have

exclusive jurisdiction under the Tucker Act to hear money claims in excess

of $10,000. Id. at 987.

The court recognized that most constitutional provisions—including

those that the Matsuo plaintiffs invoked—are not money-mandating. Id. at

991. The court held, however, that a claim is based on a money-mandating

statute if an “alleged constitutional violation forms part of the plaintiff's

claim that he has been illegally deprived of money.” Id. Put simply, if a

plaintiff alleges that a money-mandating statute has been unconstitutionally

thwarted, the claim is based on the statute, not the Constitution. See id.

The statute thus acts in concert with the constitutional provision to satisfy the

Tucker Act’s money-mandating requirement.

The court went on to hold that the Court of Federal Claims would not

have jurisdiction over the Matsuo plaintiffs’ claims because they specifically

alleged that the pay comparability statute itself excluded them from the

possibility of being paid locality pay. Id. at 992. In other words, they

were alleging that FEPCA was unconstitutional precisely because it did not

mandate the payment of money to plaintiffs.

12

Defendant’s further arguments about the Twenty-Seventh

Amendment involve consideration of the merits. For example, it contends

that the Amendment cannot “constrain the choices Congress can make with

respect to the quantum of its pay.” Mot. to Dismiss 4. The “quantum”

that plaintiffs seek to obtain is furnished by the basic pay legislation, which

clearly dictates a COLA. In effect, defendant seems to be arguing that the

decision to nullify a COLA cannot be trumped by the Twenty-Seventh

Amendment. But, in evaluating the effect of the blocking legislation, we

must give the Amendment effect according to its terms. See Gentry, 546

F.2d at 346. Blocking legislation plainly consists of laws “varying the

compensation for the services of the Senators and Representatives.” U.S.

Const. amend. XXVII. If the Amendment, for example, provided that

legislation affecting the pay of Congress can only be adopted in odd-

numbered years, then a COLA nullification adopted in an even-numbered

year would itself be a nullity.

The D.C. Circuit appeared to recognize the Amendment’s substantive

effect when it explored its operation in Boehner. There, the court explained:

[I]n essence [the Amendment] conditions the operation of a

law varying congressional compensation upon an election of

Representatives and the expiration of the Congress that voted

for it. The law may be enacted at any time; when an election

has been held the first condition is fulfilled; when the new

Congress is seated the second condition is fulfilled.

Therefore, the law, although duly enacted pursuant to Article

I, does not “take effect” at the earliest until the new Congress

has been seated. Accordingly, the present Congress could

specify the salary of the next Congress or of any Congress after

that. For example, the COLA provision became law in 1989

but the first COLA would not be made until more than a year

later, on January 1, 1991—pursuant to the Congress's decision,

prior to but in the spirit of the Madison amendment, to defer

implementation of the COLA until after the 1990

congressional election. See Ethics Reform Act, § 704(b)

(codified at 5 U.S.C. § 5318 note) (COLA provisions “shall

take effect on January 1, 1991”).

30 F.3d at 161–62.

13

Defendant also attempts to minimize the import of the Amendment by

characterizing it as “merely a timing provision that specifies when certain

compensation laws shall take effect.” Mot. to Dismiss 1. One might as

well say that the precise date of one’s birth is “merely a matter of timing,”

with no substantive import. As any youth who has unsuccessfully tried to

use a fake ID could attest, however, timing can be a matter of great substance.

The contention here is that the efforts to preclude COLAs were inconsistent

with the Twenty-Seventh Amendment and therefore of no effect precisely

because they purported to immediately block the accrual of the pay raises,

whereas such laws could only be effective if there had been an intervening

election.

Richard B. Bernstein has written a comprehensive and scholarly

examination of the Amendment, including the concerns that led to it being

proposed. In The Sleeper Wakes: The History and Legacy of the Twenty-

Seventh Amendment, he explains that, when the Twenty-Seventh

Amendment was proposed, the Constitution’s framers were keenly aware of

legislative pay issues in England that had been festering for centuries. 61

FORDHAM L. REV. 497, 501 (1992). The Founders were deeply concerned

about how congressional compensation would be fixed, both to prevent self-

enrichment and also performative self-impoverishment. See id. at 503–05,

526–27. The timing of increases or decreases in pay is the mechanism by

which the Amendment tests the validity of legislation affecting

compensation. Timing is anything but incidental.

Nevertheless, it is unnecessary to wrestle with precisely how the

Amendment operates. We are content for the moment to say that plaintiffs

have advanced a plausible interpretation of the Amendment—that it voids in

whole or in part the blocking legislation. 5

II. We Have No Jurisdiction Over Count II, Plaintiffs’ Retirement

Claims, and Count III, Plaintiffs’ TSP Claims

Alongside their allegations that Congress has unconstitutionally

reduced their salaries, plaintiffs allege that this reduced salary also resulted

in diminished TSP and retirement benefits. Defendant argues that we must

dismiss these claims because they are directed by statute to a different review

process, precluding jurisdiction here. Defendant points out that 5 U.S.C.

5

Plaintiffs contend that the blocking legislation is always a complete nullity.

We do not reach that question today.

14

§§ 7703 and 8461 vest the Office of Personnel Management (“OPM”), Merit

Systems Protection Board (“MSPB”), and Federal Circuit with exclusive

jurisdiction over retirement benefit claims and that 5 U.S.C. § 8477 vests the

district courts with exclusive jurisdiction over TSP benefit claims.

While recognizing that retirement and TSP disputes normally should

be routed to the statutorily specified review procedures, plaintiffs argue that

calculations of retirement benefits and TSP contributions are joined at the

hip to plaintiffs’ pay claims. If plaintiffs’ COLAs were improperly

nullified, then their retirement benefits and the government’s TSP

contributions were also incorrectly calculated. This court has jurisdiction,

as we have found above, to make the initial determination that plaintiffs’ pay

was illegally impacted by the nullification legislation, and, as defendant

concedes, “plaintiffs’ retirement claims are wholly derivative of their salary

claims.” Def.’s Reply 5. Plaintiffs therefore urge us to treat as ancillary

to that determination the claims for adjusted retirement and TSP benefits.

In addition, plaintiffs argue that raising these claims before the agencies

would be inherently futile because of the agencies’ inability to enforce the

Twenty-Seventh Amendment; the agencies would simply apply whatever

calculation reflects the nullification legislation.

We agree with defendant. Unlike pay claims, which default to this

court because of the Tucker Act, with respect to retirement and TSP claims,

we must enforce the clear jurisdictional restriction spelled out in the law.

Title Five of the U.S. Code prescribes the review process under FERS.

5 U.S.C. § 5304. And a claim regarding the amount of retirement benefits

must first be adjudicated by OPM. 5 U.S.C. § 8461(c). A claimant may

then appeal OPM’s decision to the MSPB, and that decision may in turn be

appealed to the Federal Circuit. Id. §§ 8461(e), 7703(b)(1)(A). Even if

the agencies involved were unable or unwilling to enforce the Twenty-

Seventh Amendment, those cases eventually would be heard by an Article

III court that has the authority to declare plaintiffs’ rights vis-a-vis that

Amendment.

This court’s recent decision in Cummins v. United States is

instructive. In that case, plaintiffs sued for back pay. 171 Fed. Cl. 527,

531 (2024). They alleged that their exclusion from locality pay pursuant to

FEPCA violated the Due Process and Equal Protection Clauses of the Fifth

Amendment and Article I’s Bill of Attainder Clause. Alongside these pay

claims, plaintiffs sought the return of retirement benefits under either the

CSRA or Federal Employees Retirement System Act (“FERSA”), which

15

they contended had been illegally withheld due to their exclusion from

locality pay. Id. at 535.

The Cummins court held that it lacked jurisdiction over plaintiffs’

retirement claims because of the statutorily prescribed review procedures.

Id. at 535–36. In doing so, it explained that “OPM has statutory authority

to adjudicate in the first instance all claims arising under the statutory

provisions establishing the CSRS and FERS” even though plaintiffs claimed

that the statute underlying the calculation of their retirement benefits was

unconstitutional. Id. at 535. In a claim for retirement benefits under these

statutes, the court recognized, “a plaintiff ‘must follow the exclusive

procedures provided for in the CSRA [and FERSA] in order to obtain the

relief they seek.’” Id. (quoting Ferreiro v. United States, 72 Fed. Cl. 1, 4–

5 (2006)).

Cummins is directly related to the claims brought in Matsuo, discussed

above, and involves the same statutory scheme. The Matsuo plaintiffs also

asserted entitlement to additional pay under FEPCA and retirement pay

claims under either the CSRA or FERSA, although they attempted to obtain

declaratory and injunctive relief from the District Court. As explained

above, with respect to the FEPCA claims, the Matsuo court held that the

premise behind plaintiffs’ claim (that FEPCA was unconstitutional precisely

because it did not include them) was inconsistent with the assertion that the

statute was money-mandating. 416 F. Supp. 2d at 992. As to their

retirement claims, the court held that the employees’ claim that the OPM

decision not to include COLA payments as “basic pay” for retirement

calculations for Alaskan and Hawaiian employees fell within the exclusive

jurisdiction of the MSPB. Id. at 998–99 (citing 5 U.S.C. §§ 7701, 8339,

8347(a), 8415, 8461(b)).

The court explained that retirement computation:

[I]s a matter within OPM’s administration, and exclusively

reserved for appeal to the MSPB, with judicial review available

in the Federal Circuit. This Court does not have jurisdiction

over Plaintiffs’ claims regarding the Government's failure to

include COLA payments in Plaintiffs’ retirement calculations

because such a question would fall within the computation of

retirement, a matter within the CSRA and FERSA’s exclusive

review procedures.

16

Id.

The cases plaintiffs cite to overcome this requirement are inapposite.

They point to Baird v. United States, 114 Fed. Cl. 580 (2014), for the

proposition that we have jurisdiction over cases involving retirement claims

involving a constitutional question. But that case concerned the retirement

annuities of Article III federal judges, which operate under a separate system

not subject to the OPM-MSPB-Federal Circuit review process. Id. at 581–

82. The CSRA and FERSA systems are applicable to plaintiffs here, but

not to the plaintiffs in Baird. See U.S. OFF. OF PERS. MGMT., CSRS/FERS

HANDBOOK, Ch. 10 – Coverage, § 10A1.3-5 (last visited Sept. 20, 2024),

https://www.opm.gov/retirement-center/publications-

forms/csrsfershandbook/c010.pdf.

Likewise, Mobility Workx, LLC v. Unified Patents, LLC is of no

assistance to plaintiffs. Mobility Workx concerned the decisions and

structure of the Patent Trial and Appeal Board (“PTAB”). On appeal from

the PTAB in that case, the plaintiff, for the first time, raised a constitutional

challenge to the structure of the PTAB itself. 15 F.4th 1146, 1150 (Fed.

Cir. 2021). Defendant argued that plaintiffs had forfeited the constitutional

argument because they had not raised it before the PTAB. Id. The Federal

Circuit held that plaintiff had not done so because the PTAB had no authority

to declare its own authorizing statute unconstitutional. Id. Plaintiffs in

this case draw from Mobility Workx the principle that this court should ignore

the clear and exclusive grant of jurisdiction to OPM, the MSPB, and the

district courts to hear challenges to retirement pay issues because otherwise

plaintiffs are without a remedy. But Mobility Workx simply did not concern

any question of exclusive jurisdiction or a statutorily prescribed review

process. See id. at 1152–57. Plaintiffs, moreover, are not without a

remedy because the Federal Circuit can adjudicate their constitutional claims

after review by the OPM and MSPB.

Finally, plaintiffs cite Axon Enterprise, Inc. v. FTC. 598 U.S. 175

(2023). There, the plaintiffs sued in district court to enjoin SEC and FTC

administrative proceedings under the rationale that the structure of those

proceedings violated the constitutional separation of powers. Id. at 183.

The government argued that plaintiffs were required to bring their challenge

through the administrative review process of the respective administrative

body. See id. at 192–93. The Supreme Court held that “[t]he statutory

review schemes set out in the Securities Exchange Act and Federal Trade

Commission Act do not displace a district court’s federal-question

17

jurisdiction over claims challenging as unconstitutional the structure or

existence of the SEC or FTC.” Id. at 176. The Court reasoned that the

district court had jurisdiction because depriving the district court of

jurisdiction would deprive plaintiffs of meaningful judicial review, and the

plaintiffs’ claims were collateral to the powers of the administrative bodies

and wholly outside their expertise. Id. at 177–78.

Axon propounds a three-pronged test to determine “whether particular

claims concerning agency action are ‘of the type Congress intended to be

reviewed within’” a statutorily prescribed administrative review process.

Id. at 176 (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212

(1994)). In answering this question, a court must evaluate: (1) whether

precluding the court from exercising jurisdiction would deprive plaintiff of

“meaningful judicial review,” (2) whether plaintiff’s claim is “wholly

collateral to the statute’s review provisions,” and (3) whether plaintiff’s

claim is “outside the agency’s expertise.” Id. (quoting Thunder Basin, 510

U.S. at 212–13) (internal quotation marks omitted).

The Thunder Basin factors do not help plaintiffs in this case. First,

the statutorily prescribed review process for retirement benefits begins with

administrative proceedings at OPM and the MSPB, but it explicitly includes

appellate review by the Federal Circuit. In other words, an Article III

tribunal is part of the review process and affords plaintiffs an opportunity to

assert their constitutional argument. Second, although plaintiffs’ claim is

undergirded by a constitutional provision, plaintiffs’ primary objective is an

increase in retirement benefits. 6 Third, the claim for retirement benefits is

within the expertise of the agencies. We are unwilling to ignore an explicit

assignment of jurisdiction to agency review in the first instance. We

therefore may not adjudicate plaintiffs’ Count II retirement claims under the

CSRA and FERSA.

The same analysis applies to the TSP claims advanced in Count III.

5 U.S. Code Subchapter III outlines the TSP’s structure and the benefits

available to employees (including members of Congress) under that system.

5 U.S.C. §§ 8431–8440f. Section 8477 provides that “any participant or

6

Defendant also makes a relevant related point—if plaintiffs achieve a

favorable outcome on the merits of their salary claim in this court, they may

be able to use that judgment as the basis of a claim for additional retirement

benefits before OPM in the statutorily prescribed process.

18

beneficiary” may bring suit “to recover benefits of such participant or

beneficiary under the provisions of subchapter III of this chapter, to enforce

any right of such participant or beneficiary under such provisions, or to

clarify any such right to future benefits under such provisions.” 5 U.S.C.

§ 8477(e)(3)(C)(i). Section 8477 goes on to state that the district courts

“shall have exclusive jurisdiction to hear civil actions under this subsection.”

§ 8477(e)(7)(A).

Defendant’s argument on this point is straightforward: § 8477

provides exclusive jurisdiction over all justiciable TSP benefit claims—

including plaintiffs’ claim—to the district courts. Plaintiffs’ response is

less developed than on the question of retirement benefits. They assert that

§ 8477(e)(7)(A) covers only challenges to benefit calculations under the

controlling statutes, not claims ascertaining the statutes’ constitutionality.

Because the basis of their claim for increased retirement benefits is the

unconstitutionality of the COLA-abrogating statutes, plaintiffs argue, their

claim is not subject to § 8477. But plaintiffs here sue to increase their

benefits under the TSP. The law could not be clearer: the district courts—

Article III tribunals—have exclusive jurisdiction over such suits. Plaintiffs

are not without a remedy. We thus have no jurisdiction over plaintiffs’ TSP

claims. The result is that Counts II and III of the complaint must be

dismissed.

III. Claims Arising Before 2018 Are Barred by the Statute of Limitations

Defendant’s final argument is that most of plaintiffs’ backpay or

retirement claims are barred by this court’s six-year statute of limitations.

See 28 U.S.C § 2501. Because plaintiffs’ case was filed on March 7, 2024,

defendant argues that any claims accruing before March 7, 2018, are time

barred. This would include Congress’ 1994, 1995, 1996, 1997, 1999, 2007,

2008, 2010, 2012, 2013, 2014, 2015, 2016, and 2017 COLA annulments.

Defendant does not question plaintiffs’ entitlement, assuming jurisdiction, to

pursue salary and retirement benefits with respect to COLAs allegedly

improperly nullified after March 7, 2018.

Plaintiffs respond that all of plaintiffs’ claims are subject to the

“continuing claims doctrine,” citing Beer v. United States. In that case,

Article III judges were awarded only six years of back pay, but that backpay

reflected COLA nullifications that went back more than six years into the

past. 696 F.3d at 1186–87. We presume that plaintiffs do not contend that

they are entitled to recoupment of salary and retirement benefits for years

19

prior to 2018. Plainly, that would go beyond even Beer and be inconsistent

with 28 U.S.C. § 2501.

We are not persuaded that the continuing claims doctrine has any

applicability here. As defendant correctly states, the continuing claims

doctrine is merely an application of the six-year statute of limitations, rather

than an exception to it. “When a plaintiff pleads ‘a series of distinct

events—each of which gives rise to a separate cause of action—as a single

continuing event,’ the continuing claims doctrine operates to save the later-

arising claims even if the limitations period lapsed for the earlier-arising

claims.” Winnemucca Indian Colony v. United States, 167 Fed. Cl. 396,

417 (2023) (quoting Ariadne Fin. Servs. Pty. Ltd. v. United States, 133 F.3d

874, 879 (Fed. Cir. 1998)).

Claims within the six-year limitation period only need to be “saved,”

therefore, if they are arguably filed too late, i.e., if the defendant’s argument

is that the underlying delict occurred more than six years in the past and

should have been sued on earlier. The continuing claims doctrine then

might apply, as explained in the relevant cases. “In order for the continuing

claim doctrine to apply, the plaintiff's claim must be inherently susceptible

to being broken down into a series of independent and distinct events or

wrongs, each having its own associated damages.” Wells v. United States,

420 F.3d 1343, 1345 (Fed. Cir. 2005) (citing Brown Park Estates-Fairfield

Dev. Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997)). “On the

other hand, if there was only a single alleged wrong, even though the wrong

caused later adverse effects . . . the continuing claim doctrine is not

applicable.” Id. at 1345–46 (citing Hart v. United States, 910 F.2d 815

(Fed. Cir. 1990)).

The continuing claims doctrine thus only serves to save later-arising

claims in a string of multiple, related, but distinct, claims. It is not a

lengthening of the statute of limitations. Rather, it allows claims arising

within the six-year statute of limitations to continue even if identical in

substance to earlier claims that are barred by the statute of limitations.

Application of the doctrine was laid out in Hatter v. United States, 203 F.3d

795 (Fed. Cir. 2000). The court explained that:

The [plaintiffs] argue that this case is controlled by what is

known as the continuing claim doctrine. Under that doctrine,

each time moneys are deducted from the judges’ pay and paid

into the Treasury of the United States, a new cause of action

20

accrues. Thus, any judge whose salary was or is subject to the

unconstitutional imposition can file a claim for each deduction

within six years from the time the deduction is made; claims

for deductions made longer ago than six years from the time

suit is filed would be barred.

Id. at 797.

It is unnecessary here to be concerned with the continuing claims

doctrine, therefore, because defendant explicitly argues that each time a

COLA was nullified, a new cause of action arose. See Motion to Dismiss

at 15 (“[T]he fate of each prior COLA would need to be substantively

adjudicated separately.”) COLA nullifications within the six years

immediately prior to suit would thus continue to be fair game, even if similar

legislation had been adopted more than six years prior to suit.

So far so good. The more difficult question posed here is whether

plaintiffs are correct that their lost salary and retirement benefit claims within

the limitations period should reflect what their salaries and benefits would

have been if there had been no nullifying legislation for the entire period they

have been serving in Congress, irrespective of the limitations period.

Plaintiffs rely for support on Beer. Admittedly, that case does direct

calculation of six years of back pay for Article III judges by incorporating

“the base salary increases which should have occurred in prior years had all

the adjustments mandated by the 1989 Act [] actually been made.” Beer,

696 F.3d at 1187. It cites Hatter as permitting such an approach based on

the continuing claim doctrine. See id. at 1186.

Defendant apparently recognizes the tension between Beer and the

circuit’s prior applications of the continuing claim doctrine. It contends,

however, that the substantive basis for the court’s direction to bring the

judges’ salary and retirement benefits “up to date,” lies within the

compensation clause of Article III. “In Beer, the Federal Circuit held that

the Compensation Clause of Article III prohibited Congress from

withholding COLAs for sitting judges under all circumstances.” Mot. to

Dismiss 14–15 (emphasis in original). The compensation clause, in other

words, is a blanket, comprehensive prohibition against any reduction in

judicial compensation. The compensation clause of Article I and the

language of the Twenty-Seventh Amendment carry no comparable language.

Indeed, they plainly contemplate that Congress can, under the proper

circumstances, increase or decrease its own salary.

21

In any event, we decline to extend the continuing claims doctrine

beyond the Article III context of Beer. Any claim originating prior to

March 7, 2018 is barred and COLAs nullified more than six years earlier are

not resurrected for the 2018–2024 period.

CONCLUSION

For the reasons set out, defendant’s motion to dismiss Count I is

denied. Its motion to dismiss Counts II and III is granted. Its motion to

dismiss claims stale pursuant to 28 U.S.C. § 2501 is granted as detailed

above.

The court further finds that this opinion involves the following

controlling questions of law with respect to which there is a substantial

ground for difference of opinion and that an immediate 7 appeal from the

opinion pursuant to 28 U.S.C. § 1292(d)(2) may materially advance the

ultimate termination of the litigation:

1. Whether the Court of Federal Claims may exercise subject matter

jurisdiction over plaintiffs’ claims for salary payments in Amended

Complaint Count I under the Ethics Reform Act, 2 U.S.C. § 4501, and

the Twenty-Seventh Amendment of the U.S. Constitution?

2. Whether the Court of Federal Claims may exercise subject matter

jurisdiction over plaintiffs’ claims for retirement payments in

Amended Complaint Count II?

3. Whether the Court of Federal Claims may exercise subject matter

jurisdiction over plaintiffs’ claims for Thrift Savings Plan (“TSP”)

payments under the Federal Employees’ Retirement System in

Amended Complaint Count III?

4. Whether the “continuing claims doctrine” permits plaintiffs’ claims

for salary and backpay within the limitations period to be calculated

according to implementation of cost-of-living adjustments

7

“[T]he United States Court of Appeals for the Federal Circuit may, in its

discretion, permit an appeal to be taken from such order, if application is

made to that Court within ten days after the entry of such order.”

§ 1292(d)(2).

22

(“COLAs”) mandated by the Ethics Reform Act, 2 U.S.C. § 4501,

from prior to the beginning of the six-year statute of limitations period

for plaintiffs’ claims.

s/Eric G. Bruggink

ERIC G. BRUGGINK

Senior Judge

23