Dawson v. United States

In the United States Court of Federal Claims

No. 13-297C

(Filed: June 18, 2014)

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

LEE DAWSON,

Jurisdiction; Veterans

Plaintiff,

Administration; employment;

equitable remedies; intermittent

v.

schedule; fraud and coercion.

THE UNITED STATES,

Defendant,

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Daniel Berko, San Francisco, CA, for plaintiff.

Tanya Beth Koenig, Civil Division, Department of Justice, Washington,

DC, with whom are Stuart F. Delery, Assistant Attorney General, Bryant G.

Snee, Acting Director, and Reginald T. Blades, Jr., Assistant Director, for

defendant.

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OPINION

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BRUGGINK, Judge.

Plaintiff, Lee Dawson, is a former employee of the United States

Department of Veterans Affairs. In his complaint, he alleges that he, and

others similarly situated, were improperly denied certain employee benefits

when the agency began to treat them as intermittent, rather than full time

employees. Pending is defendant’s motion to dismiss for lack of subject

matter jurisdiction or in the alternative for failure to state a claim for which

relief may be granted. Oral argument was held on February 18, 2014, after

which the parties submitted supplemental briefing. The matter is now ready

for disposition. For the reasons described below, we grant defendant’s motion

to dismiss on jurisdictional grounds.

BACKGROUND1

Mr. Dawson was hired as an intern under the Student Educational

Employment Program (“SEEP”) by the United States Department of Veterans

Affairs, Veterans Administration Palo Alto Healthcare Services (“VAPAHCS”

or “VA”), in June of 2008. The SEEP program was established in 1977 and

provided authority for government agencies to hire students as part-time or

full-time employees. See Exec. Order No. 12,015, 42 Fed. Reg. 56,947 (Oct.

26, 1977); 5 C.F.R. § 213.3202 (2012). SEEP included two tracks by which

students could be employed. The first track, the Student Temporary

Employment Program (“STEP”), is governed by 5 C.F.R. § 213.3202(a) and

is specifically for temporary employment situations with the possibility of

conversion to the second internship track. The second track, the Student

Career Experience Program (“SCEP”), is governed by 5 C.F.R. § 213.3202(b)

and offers the possibility of a non-competitive conversion from an internship

to a term, career, or career-conditional appointment upon the satisfactory

completion of certain requirements. 5 C.F.R. § 213.3202(b)(10), (11).2

Neither the complaint nor the amended complaint clarify whether

plaintiff was originally employed under the STEP or SCEP program, or

whether his status may have changed from one to the other between 2008 and

2013, when his employment at the VA ended. Throughout his employment

1

We presume the facts in plaintiff’s complaint are correct, and draw all

reasonable inferences in plaintiff’s favor for the purposes of defendant’s

motion to dismiss. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).

We also rely on the VA Form 3497 attached to the motion to dismiss, which

plaintiff signed and which is referenced in the complaint.

2

Recently, SEEP was replaced by the Pathways Program pursuant to

Executive Order 13,562. 75 Fed. Reg. 82,585 (Dec. 27, 2010); see 5 C.F.R.

pt. 362 (2013). Both “programs are designed to provide clear paths to federal

internships and later careers in Government for students and recent graduates.”

Pl.’s Am. Compl. ¶ 5; see 5 C.F.R. § 362.201 (2013) (“The Internship Program

provides students in high schools, colleges, trade schools and other qualifying

educational institutions . . . the opportunity to explore Federal careers as paid

employees while completing their education.”).

2

with VAPAHCS, Mr. Dawson maintained the same forty-hour work week

schedule.

On January 14, 2009, Mr. Dawson signed a form entitled, “employee

request for change to part-time employment” that adjusted his work schedule

from full-time to intermittent, effective February 1, 2009. Attach. to Def.’s

Mot. to Dismiss Am. Compl. (“VA Form 3467”); see Pl.’s Am. Compl. ¶ 6.

The form recites the following as the “reason for requesting change to part-

time employment:” “In lieu [sic] of Budget constraints, as instructed by

Workforce Development Coordinator on 1/14/09.” As a consequence of his

change in schedule, VA treated plaintiff, and others who went through the

same schedule change, as no longer eligible for health benefits, sick leave, or

annual leave.

The complaint alleges that Mr. Dawson and the putative class were not

informed until after they executed forms requesting a part-time or intermittent

schedule “that [] VAPAHCS would take the position that this [change] would

result in a loss of leave benefits . . . , which included annual and sick leave, as

well as eligibility for health care and other federal insurance benefits programs

for [SEEP] employees.” Pl.’s Am. Compl. ¶ 6. It further characterizes

VAPAHCS’s actions as fraudulent and “underhanded” in that the agency

“obtained the consent of approximately 150 SEEP employees to a personnel

action which purported to change their work schedules from part-time to

‘intermittent’ . . . by causing them to fear loss of their jobs if they did not agree

to the personnel action.” Id. Despite the nominal change in schedule, plaintiff

continued to work the same hours and schedule as he had previously. Instead

of being assigned an altered work schedule as the result of the change in

schedule, “[Mr.] Dawson and all class members were required to continue to

work their regular full-time or part-time schedule.” Id.

Mr. Dawson worked for VAPAHCS until January 22, 2013. He filed

suit here on April 29, 2013, on his own behalf and on behalf of approximately

300 other similarly-situated individuals.

Plaintiff asks us to find that VAPAHCS withheld benefits from him and

the potential class members to which they were entitled by statute or

regulation. He seeks the monetary equivalent of at least 36 days of sick and

annual leave, along with other employee benefits, which he believes total over

$10,000. He also seeks back pay for the entire class in an amount greater than

$5 million, attorneys fees pursuant to 5 U.S.C. § 7701(g), and an injunction to

prohibit VAPAHCS from denying interns benefits to which they are allegedly

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entitled by labeling them intermittent employees. We are unable to grant

plaintiff the relief he seeks for the reasons explained below.

DISCUSSION

I. Regulatory Background

Key to plaintiff’s argument is the language in the regulations applicable

to SEEP employees prior to July 10, 2012. Until July 9, 2012,3 when the

SEEP program was replaced by the Pathways Program, benefits for SEEP

interns were fixed by two sets of regulations. Applicable to STEP employees

was 5 C.F.R. § 213.3202(a)(13), which provided:

(13) Benefits. (i) Students under this program are eligible for

annual and sick leave and are generally ineligible for retirement

coverage. Refer to § 831.201 [Exclusions from retirement

coverage] and § 842.105 [Regulatory exclusions from retirement

annuity] of this chapter for specific information. (ii) For rules

on health and life insurance coverage refer to § 870.202 [Basic

insurance amount for life insurance], § 890.102 [Health

insurance coverage], and § 890.502 [Contributions and

withholdings] of this chapter.

Id. (emphasis added).

The regulation governing SCEP interns during the same time period

provides the following:

(16) Benefits. (i) Students appointed under this program earn

annual and sick leave and with no prior service or with less than

5 years of prior civilian service, are generally covered by the

Federal Employees Retirement System (FERS) (see part 842 of

this chapter). (ii) For life insurance and health benefits coverage

3

On this date, the Pathways Program Regulations became effective. Excepted

Service, Career and Career-Conditional Employment; and Pathways Program,

77 Fed. Reg. 28,194 (May 11, 2012) (“Agencies, however, shall have a 6-

month transition period following the effective date of the final rule to convert

to the Internship Program any students serving under appointments made

pursuant to the Student Educational Employment Program [SEEP].”).

4

refer to § 870.202 [Basic insurance amount for life insurance]

and § 890.102 [Health insurance coverage] of this chapter.

5 C.F.R. § 213.3202(b)(16) (2012) (emphasis in original).

In the case of STEP employees, therefore, plaintiff can point to

language in the appointment regulations making them “eligible” for certain

benefits. In the case of SCEP employees, plaintiff can point to language

stating that they “earn” annual and sick leave.

Defendant, however, points to other regulations as well as statutory

provisions that it contends made plaintiff ineligible for benefits both before

and after July 9, 2012. Both SCEP and the current Pathways Program provide

that “[a]ppointments are subject to all the requirements and conditions

governing term, career, or career-conditional employment . . . .” 5 C.F.R. §

362.105(c)(3) (2013); 5 C.F.R. § 213.3202(b)(10)(i) (2012). Defendant also

points out that all leave entitlement ultimately finds its source in Title 5,

Chapter 63 of the United States Code, which provides that only “employees”

are entitled by law to sick leave and annual leave. See 5 U.S.C. §§ 6303, 6307

(2012). An employee, for purposes of Chapter 63 benefits, however, “does not

include . . . a part time employee who does not have an established regular tour

of duty during the administrative workweek.” 5 U.S.C. § 6301(2)(b)(ii). An

intermittent employee, in turn, is defined as one who does not have a

“regularly scheduled tour of duty.” 5 C.F.R. § 340.401(b) (2012); 5 C.F.R. §

340.401(b) (2013). In short, defendant contends that, when plaintiff became

an interim employee, he lost whatever entitlement he might have had to annual

and sick leave.

Defendant in effect is arguing that the two regulatory provisions

allowing the appointment of SCEP or SEEP interns were wrong to the extent

they suggested that all interns automatically were either eligible or would earn

sick and annual leave. The SEEP regulations intimated more than could have

been delivered, because the statutory and regulatory provisions actually

controlling sick and annual leave made it clear that interns were ineligible if

they worked an “intermittent” schedule. Presumably the intimation would not

have been inaccurate if the interns had been treated as having a regularly

scheduled tour of duty.

With respect to his claim for the period between January 14, 2009 and

July 8, 2012, plaintiff does not question the limitations on leave applicable to

intermittent employees. Instead, he contends that his change from full time to

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intermittent status was bogus because the agency did not explain the

consequences of his signing VA Form 3497, and in fact fraudulently deceived

him. Plaintiff thus argues that it was improper for the VA to ask him to

“request” a change to an intermittent schedule. He also contends, and for

purposes of its motion defendant does not challenge the assertion, that plaintiff

in fact did not work an intermittent schedule and did work a regular 40-hour

schedule. The change from full time to intermittent status is void, according

to plaintiff, and the court has the power to declare it so and order repayment

to plaintiff of the value of his lost leave.

For the period after July 9, 2012, plaintiff contends that the agency

violated its own policy by treating interns as intermittent employees. Plaintiff

relies on 5 C.F.R part 362, which, unlike its predecessor regulations, does not

mention whether interns are eligible for or earn benefits. Instead, 5 C.F.R. §

362.203(g) (2013) gives the following guidance about intern scheduling:

There are no limitations on the number of hours an Intern can

work per week (so long as any applicable laws and regulations

governing overtime and hours of work are adhered to).

Agencies and students should agree on a formally-arranged

schedule of school and work so that:

(1) Work responsibilities do not interfere with academic

schedule;

(2) Completion of the educational program . . . and the

Internship Program is accomplished in a reasonable and

appropriate timeframe;

(3) The agency is informed of and prepared for the

student’s periods of employment;

Plaintiff urges the court to read the regulation quoted directly above with the

notes and comments that preceded its adoption in 2012 by the Office of

Personnel Management (“OPM”):

Two agencies commented on work schedules. One

suggested OPM amend the final rule by specifying the number

of hours a student may work. We did not amend the final rule

because the regulations specify an Intern may work a full or

part-time schedule. Interns agreeing to work a full-time

schedule must work 40 hours per week. Part-time schedules are

generally considered to fall between 16 and 32 hours per week.

6

Interns are covered by the same rules for hours of duty

contained in part 610 of the CFR.

Another agency suggested we modify the final rule to

include an intermittent work schedule. We did not modify the

final rule because we do not believe an intermittent work

schedule is appropriate for an Intern. Employees on an

intermittent work schedule do not have a regularly-scheduled

tour of duty; they have no set hours of duty or days of work

every week. This is not conducive for students with a set

academic schedule or for Intern appointments intended to train

an employee for permanent employment.

Excepted Service, Career and Career-Conditional Employment; and Pathways

Program, 77 Fed. Reg. at 28,208 (emphasis supplied). Based on this language,

plaintiff asks us to conclude that the agency violated 5 C.F.R. § 362.203(g)

when its interns were assigned intermittent schedules.4 In other words,

plaintiff, and others in his situation, should not have been reclassified as

intermittent.

Plaintiff also asks the court to take judicial notice of advice given on the

OPM website that

an intermittent schedule is appropriate only when the nature of

the work is so sporadic and unpredictable that a regularly

scheduled tour of duty cannot be scheduled in advance. In

establishing the [STEP] program, OPM did not intend to have

STEP or SCEP students working on intermittent schedules.

Students may work full- or part-time schedules, however, as best

meets their needs and the needs of the agency.

Https://www.opm.gov/faqs/topic/employment/index.aspx?cid=b9efecc7-acdf-

4b54-8958-3c29a97b5c8f (last visited June 16, 2014).5

4

Mr. Dawson worked for a full twelve days under the new regulations because

the Pathways Program regulation became effective July 10, 2012 and gave a

6-month transition period for compliance. See 77 Fed. Reg. at 28,194.

5

The comments in the federal register must be read in conjunction with 5

C.F.R. § 213.102(b)(3)(i) (2013), however, which provides, “Unless otherwise

(continued...)

7

On the assumption that his allegedly coerced, or in any event, unlawful

change to an intermittent schedule constitutes an unjustified or unwarranted

personnel action, plaintiff invokes the Back Pay Act, 5 U.S.C. § 5596(b)(1)

(2012), as a basis for recovering his lost benefits. The Back Pay Act provides

that

An employee of an agency who, on the basis of a timely appeal

or an administrative determination (including a decision relating

to an unfair labor practice or a grievance) is found by

appropriate authority under applicable law, rule, regulation, or

collective bargaining agreement, to have been affected by an

unjustified or unwarranted personnel action which has resulted

in the withdrawal or reduction of all or part of the pay,

allowances, or differentials of the employee--

(A) is entitled, on correction of the personnel action, to

receive for the period for which the personnel action was

in effect--

(i) an amount equal to all or any part of the pay,

allowances, or differentials, as applicable which

the employee normally would have earned or

received during the period if the personnel action

had not occurred, less any amounts earned by the

employee through other employment during that

period; and

(ii) reasonable attorney fees . . . .

5 U.S.C. § 5596(b)(1).

5

(...continued)

specified in a particular appointing authority, an agency may make Schedule

A, B, C, or D appointments on either a permanent or nonpermanent basis,

with any appropriate work schedule (i.e., full-time, part-time, seasonal, on-call,

or intermittent).” See 5 C.F.R. § 213.3401 (stating that Pathway Program

participants are appointed under Schedule D).

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II. Defendant’s Motions

Defendant has moved to dismiss the complaint for lack of subject

matter jurisdiction. The Tucker Act allows the court to adjudicate “any claim

against the United States founded either upon the Constitution, or any Act of

Congress or any regulation of an executive department, or upon any express

or implied contract with the United States, or for liquidated or unliquidated

damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2006). While

the Tucker Act constitutes a waiver of sovereign immunity, it does not give

rise to a substantive cause of action. See United States v. Mitchell, 463 U.S.

206, 216 (1983). “[I]n order to come within the jurisdictional reach and the

waiver of the Tucker Act, a plaintiff must identify 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). A source of law is

money-mandating if it is “reasonably amendable to the reading that it

mandates a right of recovery in damages.” United States v. White Mountain

Apache Tribe, 537 U.S. 465, 473 (2003). Additionally, a plaintiff must make

“a non-frivolous assertion that it is within the class of plaintiffs entitled to

recover under the money-mandating source.” Jan’s Helicopter Serv. Inc. v.

Fed. Aviation Admin., 525 F.3d 1299, 1307 (Fed. Cir. 2008).

Defendant’s initial focus in its briefing was on what is implied by the

words “earn” and “entitled” in the regulations. It argued that these regulations

are not money-mandating. Its more recent briefing disavows the importance

of that language and we agree it is irrelevant. The substance of plaintiff’s

claim is that on January 14, 2009, he was improperly moved by the VA Form

3497 from a full-time SEEP intern position, which had benefits, to an

intermittent position that did not include benefits. Plaintiff does not appear to

question the key assumption in defendant’s argument, namely, that, if the

January 14 change of plaintiff’s status from full time to intermittent was

proper, then he would not be entitled to the disputed benefits. We recognize

plaintiff’s argument to be that the change was of no effect, or fraudulent, or

both. The gist of it is that he should not have been changed to an intermittent

employee position. If he was not an intermittent employee, he would have a

claim to benefits. Plaintiff’s real argument is thus that the court should strike

VA Form 3497 from plaintiff’s personnel files on the ground that it is illegal

or coerced.

Defendant’s subsequent briefing shifted to a different jurisdictional

argument, a variant of a familiar theme in this court’s personnel decisions. We

have often held that the court cannot reclassify employees into different

9

positions, because, as the Supreme Court explained in United States v. King,

395 U.S. 1 (1969), a plaintiff must have a claim for “actual, presently due

money damages from the United States.” Id. at 3. An employee is entitled to

the pay of the position to which he or she is appointed. If it requires a

predicate determination that the employee should be in a different position,

pay grade, or classification, that predicate determination cannot be made by

this court. This court does not, at least insofar as this case is concerned, have

the type of general equitable powers necessary to declare a personnel action

illegal. As the Court in King held, what the employee there was requesting

was “essentially equitable relief of a kind that the Court of Claims has held

throughout its history . . . it does not have the power to grant.” Id. at 2-3.

Similarly, in United States v. Testan, 424 U.S. 392 (1976), the Court held that

our predecessor court, the Court of Claims, did not have jurisdiction to hear a

claim by two employees that the work they were doing deserved a higher pay

classification. Id. at 399.

The Back Pay Act allows the award of money damages in this court if

an appropriate authority has determined that, under applicable law, rule, or

regulation, an employee has been affected by an unjustified or unwarranted

personnel action resulting in the withdrawal or reduction of all or part of their

pay. Worthington v. United States, 168 F.3d 24, 26 (Fed. Cir. 1999). If the

claim in this court is that the employee did not receive the pay commensurate

with their appointed position, e.g., they were discharged improperly or had not

received correctly calculated overtime pay, then the court has independent

power to act. See Doe v. United States, 463 F.3d 1314, 1324 (Fed. Cir. 2006);

King v. United States, 81 Fed. Cl. 766 (2008); Power v. United States, 220 Ct.

Cl. 157, 163-64 (1979). If there must first be a predicate determination that the

agency has made a mistake in classifying the employee in some way for pay

purposes, then the court cannot, in the first instance, make that determination.

King and Testan dealt with mis-classification, and defendant repeatedly

characterizes what plaintiff is seeking here as “reclassification” of his position.

That is not what plaintiff is asking for, however. Reclassification, as plaintiff

correctly points out, has to do with the job classification and the pay grade to

which someone is appointed. See generally Anderson v. United States, 764

F.2d 849 (Fed. Cir. 1985). Unfortunately for plaintiff, however, we think the

distinction does not matter. Plaintiff’s position as a GS-303-5 Program

Support Assistant, STEP, does not automatically entitle him to the benefits he

seeks. For the reasons we set out above, when plaintiff’s schedule was

changed to “intermittent,” there were automatic consequences in terms of

benefits. Indeed, presumably that is why the VA sought the change. To

10

reverse that change in work schedule, however, would require the court to

declare that the action was improper, either because Mr. Dawson’s actual

schedule would not support the change or because the STEP program was not

intended for such purposes. We believe that determination was reserved to the

employing agency, and perhaps, if challenged, to review at OPM. It is not

within this court’s purview. As defendant correctly points out, we lack

jurisdiction to grant the equitable relief that plaintiff seeks. “Except in strictly

limited circumstances, see 28 U.S.C. § 1491(b)(2), there is no provision in the

Tucker Act authorizing the Court of Federal Claims to order equitable relief.”

Massie v. United States, 226 F.3d 1318, 1321 (Fed. Cir. 2000).

III. We Lack Jurisdiction Over Claims of Fraud or Coercion

Plaintiff’s secondary argument also falls outside of this court’s

jurisdiction. The following excerpt summarizes plaintiff’s claim:

Mr. Dawson and many class members (all hired before February

1, 2009) while full or part time employees and unquestionably

entitled to benefits, were tricked and coerced into signing

‘Employee Request for Change to Part-Time Employment’ . . .

which together with the Standard Form-50 . . . based on the

Request for Change deprived them of their benefits in violation

of 5 C.F.R. § 213.3202(a) and (a)(13)(i) and 5 C.F.R. §

213.3202(b) and (b)(16)(i)[] . . . which mandated that they get

the benefits. . . . [T]he Request for Change was knowingly false

and fraudulently obtained.

Pl.’s Mem. of P. & A. in Opp’n to Mot. to Dismiss 2. Plaintiff characterizes

the agency’s conduct as coercive and fraudulent and he asks that the court

intervene to undo the change to intermittent status. Such claims sound in tort,

however. See Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997).

The Tucker Act explicitly excludes causes of actions sounding in tort from its

waiver of sovereign immunity. 28 U.S.C. § 1491(a)(1). Thus, we do not have

jurisdiction to entertain plaintiff’s claims of fraud. Brown, 105 F.3d at 623.

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CONCLUSION

We agree with defendant that this is not the proper forum to hear

plaintiff’s claims. They do not originate in a money mandating statute or

regulation because plaintiff’s status during the relevant period was that of an

intermittent employee and he was therefore not entitled to annual or sick leave.

The court is not empowered to move plaintiff back into a position from which

he could make that argument. Defendant’s motion to dismiss, therefore, is

granted. The clerk is directed to enter judgment accordingly.

ERIC G. BRUGGINK

Judge

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