Athey v. United States

United States Court of Appeals

for the Federal Circuit

______________________

ROBERT M. ATHEY, MICHAEL R. CLAYTON,

THELMA R. CURRY, RICHARD S. DROSKE,

RALPH L. FULLWOOD, PAUL D. ISING, CHARLES

A. MILBRANDT, TROY E. PAGE,

Plaintiffs-Appellants

v.

UNITED STATES,

Defendant-Appellee

______________________

2017-2277

______________________

Appeal from the United States Court of Federal

Claims in No. 1:99-cv-02051-PEC, Judge Patricia E.

Campbell-Smith.

______________________

Decided: October 31, 2018

______________________

IRA MARK LECHNER, Washington, DC, argued for

plaintiffs-appellants.

MIKKI COTTET, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washing-

ton, DC, argued for defendant-appellee. Also represented

by HILLARY STERN, CHAD A. READLER, ROBERT E.

KIRSCHMAN, JR., REGINALD T. BLADES, JR.

______________________

2 ATHEY v. UNITED STATES

Before REYNA, SCHALL, and STOLL, Circuit Judges.

SCHALL, Circuit Judge.

Robert M. Athey, Michael R. Clayton, Thelma R. Cur-

ry, Richard S. Droske, Ralph L. Fullwood, Paul D. Ising,

Charles A. Milbrandt, and Troy E. Page (“Appellants”) are

former employees of the Department of Veterans Affairs

(“VA”). Appellants were employed by the VA under title

38 of the United States Code. 1 During the period from

1993 through 1999, Appellants retired or separated from

their positions with the VA with accrued but unused

leave.

The Lump Sum Pay Act (“LSPA”), 5 U.S.C.

§§ 5551-5552, which covers Appellants, provides that an

employee “who is separated from the service . . . is enti-

tled to receive a lump-sum payment for accumulated and

current accrued annual or vacation leave to which he is

entitled by statute.” 5 U.S.C. § 5551(a). The lump-sum

payment must be equal to the pay the separated employee

would have received had he or she remained in federal

service until the expiration of the period of annual or

vacation leave. Id. It is undisputed that Appellants

received lump-sum payments for their accrued and un-

used annual leave pursuant to the LSPA. It also is un-

disputed that, after Appellants left the VA, they received

supplemental lump-sum payments. These supplemental

lump-sum payments reflected statutory pay increases and

general system-wide pay increases that became effective

1 Appellants fall into one of three categories of em-

ployees under the title 38 system: registered nurses and

nurse anesthetists under 38 U.S.C. § 7401(1); physicians

assistants and expanded-function dental auxiliaries under

38 U.S.C. § 7401(1); and so-called “hybrid” employees

under 38 U.S.C. §§ 7401(3) and 7403(f)(1)(a).

ATHEY v. UNITED STATES 3

prior to the expiration of Appellants’ accrued annual

leave.

Appellants are members of a class of former VA em-

ployees. On June 21, 2006, the class filed a complaint in

the United States Court of Federal Claims, alleging that

the VA improperly omitted certain pay increases from

class members’ supplemental lump-sum payments. The

allegedly omitted increases included Cost of Living Ad-

justments (“COLAs”) and Locality Pay Adjustments. The

complaint additionally alleged that lump-sum payments

made to certain members of the class improperly omitted

non-overtime Sunday premium pay that the members

would have received had they remained in federal service

until the expiration of their periods of annual or vacation

leave. Certain class members also alleged that their

lump-sum payments improperly omitted evening and

weekend “additional pay” that they would have received

had they remained in federal service until the expiration

of their periods of annual or vacation leave. 2 Finally, all

members of the class sought pre-judgment interest on

their claims under the Back Pay Act (“BPA”), 5 U.S.C.

§ 5596, as in effect during the years 1993 through 1999.

In pertinent part, the BPA provides that interest is au-

thorized for “an amount equal to all or any part of the

pay, allowances, or differentials” lost by an “employee”

2 Section 7453(a) of title 38 of the United States

Code states that, “[i]n addition to the rate of basic pay

provided for nurses, a full-time nurse or part-time nurse

shall receive additional pay as provided by this section.”

Evening and weekend “additional pay” are provided for in

38 U.S.C. § 7453(b) and (c), respectively.

4 ATHEY v. UNITED STATES

who has been subjected to “an unjustified or unwarranted

personnel action.” Id. 3

Appellants’ claims for additional COLAs, Locality Pay

Adjustments, and non-overtime Sunday premium pay

have been resolved. Before us now is Appellants’ appeal

of two decisions of the Court of Federal Claims. In those

decisions, the court held that, as members of the class,

Appellants were not entitled to have evening and week-

end “additional pay” included in their lump-sum pay-

ments. The court also held that Appellants were not

entitled to receive pre-judgment interest on amounts

improperly withheld from their lump-sum payments. 4

Appellants have timely appealed. We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(3). For the reasons set

forth below, we affirm.

BACKGROUND

Proceedings in the Court of Federal Claims

Three decisions of the Court of Federal Claims are

relevant to this appeal. In the first decision, Athey v.

United States, 78 Fed. Cl. 157, 161 (2007) (“Athey I”), the

court addressed the claim that additional pay, in the form

of evening and weekend pay, should have been included

in lump sum payments received pursuant to 5 U.S.C.

§ 5551(a). On this issue, the government moved for

dismissal pursuant to Rule 12(b)(6) of the Rules of the

U.S. Court of Federal Claims (“RCFC”) for failure to state

a claim upon which relief could be granted. The govern-

ment argued that title 38 entitles Appellants to a lump-

sum payment of accrued annual leave, calculated based

3 The present version of the BPA is the same as the

version in effect during the period of 1993–1999.

4 Hereafter, for ease of reference in discussing Ap-

pellants’ BPA claim, we refer to “Appellants’ claims to

interest on their LSPA claims.”

ATHEY v. UNITED STATES 5

on the basic rate of pay they were earning prior to separa-

tion, but that 38 U.S.C. § 7453(i) prohibits the inclusion of

“additional pay” (pay for evening and weekend work) in

the payout amount. 78 Fed. Cl. at 161. Section 7453(i)

states:

Any additional pay paid pursuant to this section

shall not be considered as basic pay for the pur-

poses of the following provisions of title 5 (and any

other provision of law relating to benefits based on

basic pay):

(1) Subchapter VI of chapter 55.

(2) Section 5595.

(3) Chapters 81, 83, 84, and 87.

38 U.S.C. § 7453(i). Relevant to this appeal, subchapter

VI of Chapter 55 encompasses 5 U.S.C. §§ 5551–52, the

LSPA. Section 5595 covers severance pay.

Appellants countered with the argument that the

term “pay” in 5 U.S.C. § 5551(a) is not limited to “basic

pay” (referenced in § 7453(i)), but also includes premium

pay. 78 Fed. Cl. at 161. They further argued that

§ 7453(i) is properly understood to simply mean that

“additional pay” is not part of “basic pay” rather than as

excluding it from the calculation of “pay” under the LSPA

for purposes of a lump-sum payment. Id. at 162.

In granting the government’s motion, the court held

that “additional pay” as part of a lump-sum payment is

prohibited under 38 U.S.C. § 7453(i). As seen, § 7453(i)

states in pertinent part that “[a]ny additional pay paid

pursuant to this section shall not be considered as basic

pay for the purposes of . . . Subchapter VI of chapter 55

[LSPA] [and] Section 5595 [Severance Pay].” Citing

§ 7453(i), the court stated that, in § 7453(i), Congress

determined “with clarity” that lump-sum separation pay

should not include “additional pay,” even if title 5 pro-

6 ATHEY v. UNITED STATES

vides it to other civil service employees. Athey I, 78 Fed.

Cl. at 163.

In Athey v. United States, 108 Fed. Cl. 617 (2013)

(“Athey II”), the Court of Federal Claims, in an opinion by

the same judge who had issued the court’s opinion in

Athey I, determined that it had jurisdiction over Appel-

lants’ claims for interest and that, in seeking interest

under the BPA, Appellants had stated a claim upon which

relief could be granted. The court thus denied the gov-

ernment’s motion to dismiss under RCFC 12(b)(1) for lack

of jurisdiction or, in the alternative, under RCFC 12(b)(6)

for failure to state a claim upon which relief could be

granted.

On the jurisdictional issue, the Court of Federal

Claims rejected the government’s argument that Appel-

lants had failed to plead a money-mandating statute that

would provide the court with jurisdiction under the Tuck-

er Act, 28 U.S.C. § 1491. The court held that, when pled

together, the LSPA and the BPA provided the court with

jurisdiction to hear Appellants’ claims. See 108 Fed. Cl.

at 619 (citing Worthington v. United States, 168 F.3d 24,

26 (Fed. Cir. 1999) (stating that, in order to “fall within

the Tucker Act’s jurisdictional grant, a claim must invoke

a statute that mandates the payment of money damages”

and that the BPA is such a “money-mandating” statute

when based on violations of statutes or regulations cov-

ered by the Tucker Act)). The court reasoned that, in this

case, Appellants’ claims under the BPA were based upon

the LSPA, which the court found to be a money-

mandating statute providing “separated federal employ-

ees accumulated annual pay when entitled by law.” Id.

The Court of Federal Claims next addressed the gov-

ernment’s argument that Appellants had failed to state a

claim upon which relief could be granted because Appel-

lants had not suffered a loss of “pay” as required by the

BPA and were not “employees” for purposes of the BPA.

ATHEY v. UNITED STATES 7

The court turned first to the question of whether Appel-

lants could satisfy the definition of “pay” under the BPA

and under the accompanying regulations promulgated by

the Office of Personnel Management (“OPM”) that were in

effect during the period 1993–1999. 108 Fed. Cl. at 620. 5

The court noted that, in December 1981, OPM promulgat-

ed regulations interpreting the BPA and authorizing the

payment of back pay, mandatory pre-judgment interest,

and reasonable attorney fees “for the purpose of making

an employee financially whole (to the extent possible).”

46 Fed. Reg. 58,271, 58,273 (Dec. 1, 1981); see 5 C.F.R.

§ 550.801 (1981). The court also noted that the 1981

regulations defined “pay” broadly as “monetary and

employment benefits to which an employee is entitled by

statute or regulation by virtue of the performance of a

Federal function.” 46 Fed. Reg. at 58,272; see 5 C.F.R.

§ 550.803 (1981). The court determined that because the

1981 regulation defined “pay” so broadly and because

OPM comments specifically excluded from that broad

definition only retirement benefits and not lump-sum

payments, lump-sum payments constituted pay under the

BPA. 108 Fed. Cl. at 620 (citing 46 Fed. Reg. 58,271–02).

Acknowledging that later OPM regulations, which became

effective in 2000, narrowed the definition of “pay,” the

court found that using the 2000 definition to retroactively

modify the 1981 regulations would be impermissible. Id.

(citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,

208 (1988)). 6 Accordingly, the court concluded that Appel-

5 5 U.S.C. § 5596(c) authorizes OPM to promulgate

regulations implementing the BPA.

6 5 C.F.R. § 550.803 (2000) defines pay, allowances,

and differentials as “pay, leave, and other monetary

employment benefits to which an employee is entitled by

statute or regulation and which are payable by the em-

ploying agency to an employee during periods of Federal

employment. Agency and employee contributions to a

8 ATHEY v. UNITED STATES

lants’ claims for payments under the LSPA fell within the

applicable statutory and regulatory definitions of “pay”

under the BPA.

The court also found that Appellants qualified as

“employees” for purposes of the BPA. Id. at 620–22. The

court thus denied the government’s alternative motion to

dismiss pursuant to RCFC (12)(b)(6). Id. at 622.

After the decision of the Court of Federal Claims in

Athey II, the government and Appellants cross-moved for

summary judgment on the issue of entitlement to interest

under the BPA on class members’ lump-sum payments.

These motions were decided in Athey v. United States, 123

Fed. Cl. 42 (2015) (“Athey III”). In Athey III, a Court of

Federal Claims judge different from the judge who had

decided Athey I and Athey II granted the government’s

motion for summary judgment that Appellants were not

entitled to interest under the BPA. As seen, the BPA

provides that interest is authorized for “an amount equal

to all or any part of the pay, allowance, or differentials”

lost by an “employee” who has been subjected to “an

unjustified or unwarranted personnel action.” 5 U.S.C.

§ 5596. The court held, among other things, that lump-

sum payments do not, in fact, qualify as “pay, allowance,

or differentials” under the BPA, so as to entitle Appel-

lants to pre-judgment interest. 123 Fed. Cl. at 59–61.

The Court of Federal Claims first addressed Appel-

lants’ argument that Athey II, which denied the govern-

ment’s earlier 12(b)(6) motion to dismiss, ipso facto also

retirement investment fund, such as the Thrift Savings

Plan, are not covered. Monetary benefits payable to sepa-

rated or retired employees based upon a separation from

service, such as retirement benefits, severance payments,

and lump-sum payments for annual leave, are not cov-

ered.” (Emphasis added.)

ATHEY v. UNITED STATES 9

found liability to Appellants for BPA interest without the

need for further argument or decision. Id. at 50. The

court rejected this argument, pointing out that “[a]n

initial denial of a motion to dismiss does not foreclose, as

the law of the case, the court’s later consideration of those

claims on summary judgment.” Id. (first citing Behrens v.

Pelletier, 516 U.S. 299, 309 (1996); then citing Gould, Inc.

v. United States, 66 Fed. Cl. 253, 266 (2005)).

“In any event,” the court continued, “whether BPA in-

terest is available for violations of the lump-sum payment

statute is an issue of largely first impression; thus, this

court will not so woodenly apply the law of the case doc-

trine to preclude a thorough review of the claim.” Id. at

51 (citing Jamesbury Corp. v. Litton Indus. Prods., Inc.,

839 F.2d 1544, 1551 (Fed. Cir. 1988)). The court stated

that this was “especially true” in the instant case because

the court found “clear error in one of Athey II’s principle

findings that otherwise might have qualified for deference

as law of the case.” Id. Specifically, the court concluded

that “Athey II erroneously held that the lump-sum pay-

ment for annual leave was ‘pay’ for purposes of the Back

Pay Act.” Id.

Pointing to the language of 5 U.S.C. § 5551(a), which

states that “[t]he lump-sum payment is considered pay for

taxation purposes only,” the court observed that the LSPA

“plainly and unambiguously states that the ‘lump-sum

payment is considered pay for taxation purposes only.’”

123 Fed. Cl. at 51. Further, the court noted that Appel-

lants conceded that, by virtue of the specific limitation to

taxation included in § 5551(a), a lump-sum payment does

not constitute “pay.” Id. The court also noted that the

LSPA has defined the lump sum as “pay for taxation

purposes only” since lump-sum payments were first

authorized by Congress in 1944. Id. at 52 (citing Act of

Dec. 21, 1944, ch. 632 § 1, 58 Stat. 845). The clear com-

mand of the LSPA, the court concluded, could not be

10 ATHEY v. UNITED STATES

overcome by the reference in the BPA to “pay, allowances,

or differentials.”

First, relying upon the rule that “[s]pecific terms pre-

vail over the general in the same or another statute which

otherwise might be controlling,” the Court of Federal

Claims reasoned that “even if the lump-sum payment

statute and the BPA were found to be in conflict, . . . the

lump-sum payment statute’s specific definition of the

lump sum would take precedence over the Back Pay Act’s

more general use of the term ‘pay.’” Id. (quoting Thiess v.

Witt, 100 F.3d 915, 919 (Fed. Cir. 1996)). Second, the

court stated that “[t]he later-adopted BPA cannot be

interpreted to supersede the earlier lump-sum payment

statute because the law is clear that ‘repeals by implica-

tion are not favored’ absent clear congressional intent, . . .

and there is no evidence of such intent here.” Id. at 52

(quoting Canadian Lumber Trade All. v. United States,

517 F.3d 1319, 1343 (Fed. Cir. 2008)).

Having concluded that a lump-sum payment for an-

nual leave is not “pay” for purposes of the BPA, the court

stated that it could not “defer to Athey II’s contrary con-

clusion as the law of the case.” Id. 7 The court, however,

did rule that Athey II’s conclusion that Appellants were

“employees” for purposes of the BPA was law of the case.

Id. at 52–53.

After addressing the question of law of the case with

regard to Athey II, the Court of Federal Claims turned to

the government’s motion for summary judgment. The

court began by considering principles of sovereign immun-

ity. Those principles are well-settled.

7 On appeal, Appellants do not challenge the ruling

of the Court of Federal Claims on the law-of-the-case

issue.

ATHEY v. UNITED STATES 11

“The United States, as sovereign, is immune from suit

save as it consents to be sued.” United States v. Sher-

wood, 312 U.S. 584, 586 (1941). Further, “[a] waiver of

the Federal Government’s sovereign immunity must be

unequivocally expressed in statutory text, and will not be

implied. Moreover, a waiver of the Government’s sover-

eign immunity will be strictly construed, in terms of its

scope, in favor of the sovereign.” Lane v. Pena, 518 U.S.

187, 192 (1996) (citations omitted). Arising from this

latter principle is the corollary “no-interest rule[,] . . . to

the effect that interest cannot be recovered in a suit

against the Government in the absence of an express

waiver of sovereign immunity from an award of interest.”

Library of Congress v. Shaw, 478 U.S. 310, 311 (1986);

Doyle v. United States, 931 F.2d 1546, 1550 (Fed. Cir.

1991). “Thus,” the Court of Federal Claims observed, “the

waiver [of sovereign immunity] as to interest must be

separate from the waiver as to underlying liability.”

Athey III, 123 Fed. Cl. at 54 (first citing Shaw, 478 U.S. at

314; then citing England v. Contel Adv. Sys., Inc., 384

F.3d 1372, 1379 (Fed. Cir. 2004)). The court concluded

that “while it is plain that the lump-sum payment statute

lacks a waiver [of sovereign immunity] for pre-judgment

interest, the question remains whether the Back Pay Act

might provide the requisite waiver based on the facts of

this case.” Id. at 55 (citations omitted). Noting that

interest under the BPA could be available to Appellants if

the statutory requirements were met, the Court of Feder-

al Claims turned to the task of “analyz[ing] liability under

the [BPA] element by element.” Id.

The Court of Federal claims noted that the BPA al-

lows interest on an amount payable to “[a]n employee of

an agency who . . . is found by appropriate authority . . . to

have been affected by an unjustified or unwarranted

personnel action which ha[s] resulted in the withdrawal or

reduction of all or part of the pay, allowances, or differen-

tials of the employee.” Id. at 55 (quoting 5 U.S.C.

12 ATHEY v. UNITED STATES

§ 5596(b)(1)(A), (2)(A)). The court found that, for the

reasons set forth in Athey II, Appellants met the defini-

tion of “employee” for purposes of the BPA. Id. at 55–56

(citing Athey II, 108 Fed. Cl. at 620–22). The court also

found that, for purposes of the BPA, it (the Court of

Federal Claims) was an “appropriate authority” to consid-

er Appellants’ claims that they had suffered an unjusti-

fied or unwarranted personnel action by being improperly

deprived of supplemental lump-sum payments for annual

leave. Id. at 57. In addition, the court found that the “the

government’s failure to properly calculate lump-sum

payments for annual leave qualifies as an ‘unjustified or

unwarranted personnel action’ within the meaning of the

[BPA].” Id. at 59.

However, referring to Appellants, the Court of Federal

Claims stated that “[e]ven if plaintiffs qualify as ‘employ-

ee[s]’ who suffered an ‘unjustified or unwarranted per-

sonnel action,’ they can only recover under the Back Pay

Act if they also establish that the result was a ‘withdraw-

al or reduction of all or part of [their] pay, allowances, or

differentials.’” Athey III, 123 Fed. Cl. at 59 (quoting 5

U.S.C. § 5596(b)(1)). The court, citing DeOcampo v.

Department of the Army, 551 F. App’x 1000, 1003 (Fed.

Cir. 2014), noted that the Federal Circuit has held that

lump-sum payments for annual leave do not qualify as

“pay, allowances, or differentials” for purposes of the BPA

based upon the OPM revisions to the BPA regulations

that took effect in 2000. Id. at 59. The court pointed out,

though, that the Federal Circuit has not “directly consid-

ered whether the lump-sum payment for annual leave

qualified as ‘pay, allowances, or differentials’ before

[the] . . . 2000 amendments took effect.” Id.

Ultimately, the Court of Federal Claims determined

that it could not conclude that Appellants’ lump-sum

payments fell within the BPA’s definition of “pay, allow-

ances, or differentials.” Id. at 61. The court rested its

determination on several grounds.

ATHEY v. UNITED STATES 13

The court began by examining American Federation of

Government Employees, AFL-CIO v. United States, 622 F.

Supp. 1109, 1115 (N.D. Ga. 1984), aff’d sub nom. Am.

Fed’n of Gov’t Employees v. United States, 780 F.2d 720

(Fed. Cir. 1986). Id. at 59–60. In that case, the United

States District Court for the Northern District of Georgia

considered “whether the lump-sum payment for military

leave,” payable under 37 U.S.C. § 501(b)(1), “constitute[d]

deferred compensation, or [was] an ancillary fringe bene-

fit afforded to persons employed by the military.” 622 F.

Supp. at 1115. Recognizing the similarities between

§ 501(b)(1) and the civilian equivalent at 5 U.S.C.

§ 5551(a), the district court compared the two statutes

and concluded that they both authorized “a benefit, and

not deferred compensation, to government and military

employees.” 123 Fed. Cl. at 59–60. First, the district

court noted that, per the terms of § 5551(a), a lump-sum

payment is “pay for taxation purposes only.” Id. Second,

the district court pointed out that both § 501(b)(1) and

§ 5551(a) provide that the lump-sum amount may be paid

only upon discharge or separation and that, in that sense,

both statutes are unlike salary. Id. And third, the dis-

trict court observed that “[b]oth statutes provide limita-

tions, 37 U.S.C. § 501(b)(3) (payment for no more than

sixty days); 5 U.S.C. § 5551(a) (period of leave not extend-

ed due to post-separation holiday),” and that salary is not

generally subject to such limitations or potential for

reduction. See id.

The Court of Federal Claims also considered the deci-

sion of the Court of Claims in Polos v. United States, 231

Ct. Cl. 929 (1982). Athey III, 123 Fed. Cl. at 60. In Polos,

the Court of Claims ruled that the plaintiff before it was

not entitled to recover under the BPA for lost opportuni-

ties to life and disability insurance because these were not

“allowance[s]” to which he was entitled while an employ-

ee. 231 Ct. Cl. at 931. In arriving at its decision, the

court reasoned that lost opportunities for insurance

14 ATHEY v. UNITED STATES

benefits “fall[ ] within the general category of claims for

the monetary equivalent of annual leave, or for per diem

expenses, or for interest, which have been denied in other

cases as not being lost ‘pay, allowances, or differentials’

the employee would have earned, but for the wrongful

personnel action.” Athey III, 123 Fed. Cl. at 60 (quoting

Polos, 231 Ct. Cl. at 931).

Next, the Court of Federal Claims turned to the 1981

OPM regulations, which broadly define “pay, allowances,

or differentials” as “monetary and employment benefits to

which an employee is entitled by statute or regulation by

virtue of the performance of a Federal function.” See 5

C.F.R. § 550.803 (1981). The court noted that, in com-

ments accompanying the 1981 regulations, “OPM express-

ly excluded retirement benefits, but made no mention of

lump-sum payments (either including them or excluding

them from ‘pay, allowances or differentials’).” Athey III,

123 Fed. Cl. at 60; see also 46 Fed. Reg. at 58,271–72.

The court observed that Athey II “construed this silence

and potential ambiguity in favor of including lump-sum

payments within the BPA.” 123 Fed. Cl. at 60. The court

continued, however, that, “on further reflection, . . . the

better interpretation excludes lump sums from coverage

under the BPA.” Id. “Under well-established principles

of sovereign immunity,” the court stated, “waivers of

sovereign immunity cannot be implied, and ambiguities

must be construed in favor of the United States.” Id.

The Court of Federal Claims concluded its analysis by

stating that the BPA “itself distinguishes annual leave

and the lump-sum payment for annual leave from ‘pay,

allowances, and differentials.’” Id. In that regard, the

back payment of “pay, allowances, and differentials” is

covered in 5 U.S.C. § 5596(b)(1)(A)(i). That provision

authorizes a monetary benefit in “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

ATHEY v. UNITED STATES 15

action had not occurred.” Payments due under paragraph

(b)(1)(A)(i) “shall be payable with interest.” 5 U.S.C.

§ 5596(b)(2)(A). Annual leave lost as a result of an ad-

verse personnel action, on the other hand, is addressed in

a separate paragraph, at 5 U.S.C. § 5596(b)(1)(B). That

paragraph “authorizes a re-crediting or restoration of that

leave to an employee’s leave account following correction

of the adverse personnel action if the individual is still

employed, or a lump-sum payment for annual leave

pursuant to the lump-sum payment statute if and when

[the individual] separate[s] from federal civilian service.

Athey III, 123 Fed. Cl. at 61. “No interest is authorized on

payments of [that] lump sum,” the court pointed out. Id.

Having explained why it could not conclude that Ap-

pellants’ lump-sum payments fell within the BPA’s defini-

tion of “pay, allowances or differentials,” the court stated

that, “since plaintiffs fail to meet one of the essential

criteria for relief under the Back Pay Act, their claim for

interest under the BPA must fail.” Id. Accordingly, the

court entered summary in favor of the government on

Appellants’ claim for interest under the BPA. Id. at 62.

In due course, the class and the government negotiat-

ed a settlement agreement providing that the government

would pay “one-hundred percent (100%) of the govern-

ment’s estimated exposure of back lump-sum pay as

calculated by the VA.” J.A. 5. The settlement amount

included COLAs, Locality Pay Adjustments, and differen-

tial Sunday premium pay owed to the class members. It

did not, however, include evening and weekend “addition-

al pay” under 38 U.S.C. § 7453(a). Nor did it include

interest under the BPA on their LSPA claims. After

conducting a fairness hearing, the Court of Federal

Claims approved the agreement on June 28, 2017, and on

June 30, the court entered final judgment. J.A. 1–11.

16 ATHEY v. UNITED STATES

Appellants now appeal from the Court of Federal

Claims’s final judgment insofar as it incorporates the

court’s decisions in Athey I and Athey III.

DISCUSSION

I.

Standard of Review

In Athey I, the Court of Federal Claims granted the

government’s motion to dismiss pursuant to RCFC

12(b)(6). “This court reviews the grant of a motion to

dismiss de novo.” Call Henry, Inc. v. United States, 855

F.3d 1348, 1354 (Fed. Cir. 2017) (citing Bell/Heery v.

United States, 739 F.3d 1324, 1330 (Fed. Cir. 2014)). “To

survive a motion to dismiss, a complaint must contain

sufficient factual allegations that, if true, would ‘state a

claim to relief that is plausible on its face.’” Id. (quoting

Bell/Heery, 739 F.3d at 1330). “The court must accept

well-pleaded factual allegations as true and must draw all

reasonable inferences in favor of the claimant.” Id.

In Athey III, the Court of Federal Claims granted the

government’s cross-motion for summary judgment. “We

review a grant of summary judgment by the Court of

Federal Claims de novo.” FastShip, LLC v. United States,

892 F.3d 1298, 1302 (Fed. Cir. 2018) (quoting Wells Fargo

& Co. v. United States, 827 F.3d 1026, 1032 (Fed. Cir.

2016)). Summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of

law.” Id. (quoting RCFC 56(a)). In this case, the perti-

nent facts are not in dispute. Consequently, our sole task

on review is to determine whether, in granting the gov-

ernment’s cross-motion, the Court of Federal Claims erred

as a matter of law. We review the Court of Federal

Claims’s legal conclusions de novo. Shell Oil Co. v. United

States, 896 F.3d 1299, 1306 (Fed. Cir. 2018) (citing John

ATHEY v. UNITED STATES 17

R. Sand & Gravel Co. v. United States, 457 F.3d 1345,

1353 (Fed. Cir. 2006) aff’d, 552 U.S. 130 (2008)).

We address in turn the issues of evening and weekend

additional pay and interest under the BPA.

II.

Evening and Weekend Additional Pay

A.

Appellants contend that the LSPA mandates that a

lump-sum payment for unused annual leave “shall equal”

the entire compensation an employee would have received

while at work until the expiration of his or her leave.

Appellants Br. 14–21. In that connection, Appellants

argue that additional pay is part of an employee’s entire

compensation. Id. at 46–52. Thus, Appellants urge, to

equal the compensation they would have received, the

government must pay them evening and weekend addi-

tional pay. Id.

Appellants also argue that a lump-sum payment un-

der the LSPA should include “additional pay” for evening

and weekend work because of the interplay between 5

U.S.C. § 5551(a) and 38 U.S.C. § 7453(i). As they did in

the Court of Federal Claims, Appellants argue that the

term “pay” in § 5551(a) is not limited to “basic pay” (refer-

enced in § 7453(i)), but also includes premium pay.

According to Appellants, neither § 5551(a) nor § 7453(i)

contemplates that the generic term “pay” found in the

LSPA should not include additional pay. Appellants Br.

49–50.

The government responds that Appellants are not en-

titled to have “additional pay” included in their lump-sum

payments. It argues that the “plain language and legisla-

tive history of 38 U.S.C. [§] 7453(i) clearly indicate[ ]

Congress’s intention to limit the lump sum pay of title 38

and hybrid employees by excluding ‘additional pay.’”

18 ATHEY v. UNITED STATES

Gov’t Br. 39. In addition, the government urges that, in

the event of any conflict between § 5551 of title 5 and

§ 7453(i) of title 38, the latter controls, because Congress

has made clear that title 38 overrides title 5 unless oth-

erwise stated. See 38 U.S.C. § 7425(b) (“Notwithstanding

any other provision of law, no provision of title 5 or any

other law pertaining to the civil service system which is

inconsistent with any provision of section 7306 of this title

or this chapter shall be considered to supersede, override,

or otherwise modify such provision of that section or this

chapter except to the extent that such provision of title 5

or of such other law specifically provides, by specific

reference to a provision of this chapter, or such provision

to be superseded, overridden, or otherwise modified.”).

B.

The pertinent rules of statutory construction are well-

settled. “Our review of questions of statutory interpreta-

tion is de novo, except to the extent deference to an agen-

cy’s construction of a statute it administers is required

under the two-step analysis set forth in Chevron . . . .”

NSK Ltd. v. United States, 390 F.3d 1352, 1354 (Fed. Cir.

2004) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Coun-

cil, Inc., 467 U.S. 837, 842–43 (1984)); see also Vassallo v.

Dep’t of Def., 797 F.3d 1327, 1330 (Fed. Cir. 2015) (ex-

plaining that we generally review an agency’s statutory

interpretation using the two-pronged framework estab-

lished by Chevron). The first prong of Chevron requires

us to assess “whether Congress has directly spoken to the

precise question at issue”; if so, we “must give effect to the

unambiguously expressed intent of Congress.” Chevron,

467 U.S. at 842–43. If the statute does not answer the

precise question at issue, however, meaning that it is

“silent or ambiguous,” then, under prong two of Chevron,

we must determine whether the agency provided “a

permissible construction of the statute.” Id. at 843;

Hymas v. United States, 810 F.3d 1312, 1318 (Fed. Cir.

2016). In this case, the “precise question at issue” is

ATHEY v. UNITED STATES 19

whether “additional pay” under 38 U.S.C. § 7453(a) in the

form of evening and weekend pay under § 7453(b) and (c)

is to be included in lump sum payments under 5 U.S.C.

§ 5551(a). “If the statute is clear and unambiguous, then

the plain meaning of the statute is generally conclusive,

and we give effect to the unambiguously expressed intent

of Congress.” Indian Harbor Ins. Co. v. United States, 704

F.3d 949, 954 (2013) (citing Sullivan v. Stroop, 496 U.S.

478, 482 (1990)). We agree with the parties that, in this

case, the statutory language is clear as to “the precise

question at issue,” so that resorting to step two of Chevron

is not necessary.

It is undisputed that the evening and weekend pay

that Appellants seek constitute “additional pay” under 38

U.S.C. § 7453(a), (b), (c). Section 7453(i), in turn, express-

ly states that “[a]ny additional pay paid pursuant to

[§ 7453] shall not be considered as basic pay for the pur-

poses of [5 U.S.C. § 5551 (the LSPA)].” This language is

clear. As the Court of Federal Claims stated in Curry v.

United States, “Congress has ‘with clarity’ determined via

section 7453(i) that lump-sum separation pay should not

include additional pay.” 66 Fed. Cl. 593, 600 (2005),

(quoting Lanehart v. Horner, 818 F.2d 1574, 1582 (Fed.

Cir. 1987)). Appellants’ argument that we should draw a

distinction between “basic pay” in § 7453(i) and “pay” in 5

U.S.C. § 5551 and thereby prevent the application of

§ 7453(i)’s bar to their case is unavailing. Not only is the

argument not supported by the statutory language, but it

is contrary to the pertinent legislative history:

[Section 7453(i)] provides that additional pay un-

der this new subsection will not count as basic

compensation for lump-sum leave payments, sev-

erance pay, and other benefits relating to basic

compensation.

H.R.Rep. No. 93-368, at 1708 (1973), reprinted in 1973

U.S.C.C.A.N. 1688, 1708, 1973 WL 12602.

20 ATHEY v. UNITED STATES

In sum, the plain language of 38 U.S.C. §7453(i) com-

pels the conclusion that Appellants are not entitled to

have evening and weekend “additional pay” included in

their lump-sum payments under the LSPA.

III.

Pre-Judgment Interest

A.

Appellants contend that lump-sum payments consti-

tute “pay, allowances, or differentials” for purposes of the

BPA and its provision for pre-judgment interest. Appel-

lants argue that the legislative history of the BPA demon-

strates that Congress acted to ensure that federal

employees wrongly deprived of compensation through

unwarranted or unjustified personnel action be made

entirely “whole” as if the unlawful action had never

happened. See Appellants Br. 22–23 (citing Restoration of

Excess Annual Leave Lost Due to Certain Personnel

Action: Hearing Before the Subcomm. on Retirement and

Employee Benefits of the H. Comm. on Post Office and

Civil Service, 94th Cong. 1–2 (1975)). Appellants also

argue that Congress has come to realize that being made

“whole” includes interest on any back pay awarded. See

Appellants Br. 26–27 (quoting H. Comm. on Post Office

and Civil Service, 96th Cong. Legislative History of the

Civil Service Reform Act of 1978, Vol. I at 697–98, 1054

(Comm. Print 1979) (“As revised by the bill, section

5596(b)(1) of title 5 entitles the employee to the recovery

of an amount equal to all or any part of the pay, allowanc-

es, or differentials, as applicable[,] that the employee

normally would have earned or received if the personnel

action had not occurred, less any amounts earned by him

through other employment during that period[,] plus

interest on the amount payable.”)); see also 5 C.F.R.

§ 550.803 (1981).

ATHEY v. UNITED STATES 21

Appellants further contend that OPM’s 1981 regula-

tions support their claim. As seen, the regulation set

forth at 5 C.F.R. § 550.803 defined “[p]ay, allowances, and

differentials” to mean “monetary and employment bene-

fits to which an employee is entitled by statute or regula-

tion by virtue of the performance of a Federal function.”

46 Fed. Reg. 58,275 (1981). Appellants argue that the

1981 regulation demonstrates that OPM interpreted the

BPA as “making the employee financially whole,” which

includes interest on lump-sum payments. Appellants Br.

28 (quoting 5 C.F.R. § 550.801), 42–43. Appellants urge

that the Court of Federal Claims should have deferred to

OPM’s interpretation of the terms “pay, allowances, and

differentials” under Chevron step two. Id. at 33–40. The

relevant interpretation, according to Appellants, is in-

cluded in the 1981 regulations that defined “pay” much

more broadly than the 2000 revisions, so as to include

lump-sum payments. Id. at 38–39.

The government responds that the BPA itself bars the

payment of interest on lump-sum payments for accrued

and unused leave. Gov’t Br. 11–13. The government

points to the fact that the LSPA expressly states that a

lump-sum payment is considered pay for taxation purpos-

es only, and urges that any conflict between the LSPA

and BPA should be resolved by using the LSPA’s specific

reference to “lump sum” over the BPA’s general use of

“pay.” Id. at 14–15. To the extent that the BPA’s lan-

guage is ambiguous about whether lump-sum payments

are included in its coverage, the government argues,

Appellants’ claim must fail because, as Athey III stated,

123 Fed. Cl. at 54–55, a waiver of sovereign immunity to

consent to being sued cannot be ambiguous. Gov’t Br. 19–

20 (citing Shaw, 478 U.S. at 318). Finally, while the

government agrees with Appellants that OPM’s 1981

regulation is entitled to Chevron deference, it asserts that

OPM “has consistently defined [pay, allowances, and

22 ATHEY v. UNITED STATES

differentials] to exclude post-retirement payments such as

‘lump sum payments for accrued annual leave.’” Id. at 23.

In the alternative, the government argues that Appel-

lants are not entitled to interest on their lump-sum pay-

ments because the BPA covers only “employees” who have

been subjected to “unjustified or unwarranted personnel

actions.” According to the government, Appellants do not

qualify as “employees” under the statute. Id. at 27–34.

B.

We hold that the Court of Federal Claims did not err

in ruling that Appellants are not entitled to pre-judgment

interest on the lump-sum payments they received for

accrued and unused leave. As the Court of Federal

Claims recognized, the starting point in the analysis is

the proposition that “[t]he United States, as sovereign, is

immune from suit save as it consents to be sued.” Sher-

wood, 312 U.S. at 586. Moreover, “[a] waiver of the

Federal Government’s sovereign immunity must be

unequivocally expressed in statutory text and will not be

implied.” Lane, 518 U.S. at 192 (citations omitted).

Finally, as the Court of Federal Claims also recognized,

pertinent to this case is the “no-interest rule,” which

states that “interest cannot be recovered in a suit against

the Government in the absence of an express waiver of

sovereign immunity from an award of interest,” Shaw,

478 U.S. at 311. We agree with the Court of Federal

Claims that neither the LSPA nor the BPA provides the

required waiver of sovereign immunity for Appellants’

claims for interest on their lump-sum payments.

To begin with, the LSPA plainly and unambiguously

supports the Court of Federal Claims’s conclusion that

Appellants’ lump-sum payments are not “pay” under the

BPA. See Athey III, 123 Fed. Cl. at 52. As the Court of

Federal Claims pointed out in the portion of Athey III in

which it declined to accord law-of-the-case deference to

Athey II, see id. at 51, the LSPA states that only for the

ATHEY v. UNITED STATES 23

purposes of taxation will lump-sum payments be consid-

ered pay. In this case, the critical word “only” appears at

the end of the pertinent sentence in § 5551(a). Thus, the

unambiguous meaning is that for any purposes other than

taxation, a lump-sum payment is not considered pay, a

point Appellants conceded before the Court of Federal

Claims. Athey III, 123 Fed. Cl. at 51. There is no other

way to read the statute; this reading is conclusive. And

since the BPA is not for purposes of taxation, a lump-sum

payment is not considered “pay” under that statute, as the

Court of Federal Claims found.

Neither does the BPA itself provide the express waiv-

er of sovereign immunity required for an award of interest

on Appellants’ lump-sum payments. Though the Court of

Federal Claims found that the language of the LSPA

makes it clear that a lump-sum payment does not consti-

tute “pay” for purposes of the BPA, the court nevertheless

examined both the BPA and OPM’s 1981 regulations in

order to determine whether, for purposes of the BPA,

Appellants could establish that they had suffered a “with-

drawal or reduction of all or part of [their] pay, allowances

or differentials.” 123 Fed. Cl. at 59. We have recited at

length the court’s analysis.

As discussed above, the BPA waives sovereign im-

munity as to interest when “[a]n employee of an agen-

cy . . . is found by appropriate authority . . . 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.” 5 U.S.C. § 5596(b)(1)(A), (2)(A) (emphasis

added). Assuming without deciding that Appellants meet

the requirements of “employee,” “appropriate authority,”

and “unjustified personnel action,” we agree with the

Court of Federal Claims that they fail to meet the re-

quirement of “withdrawal or reduction of all or part of

[their] pay, allowances, or differentials.” Quite simply, as

the court’s thorough analysis demonstrates, there is

24 ATHEY v. UNITED STATES

nothing in the BPA that reveals the required express

waiver of sovereign immunity for an award of interest on

Appellants’ lump-sum payments. Appellants’ reliance on

general legislative history statements is misplaced. These

statements cannot alter the fact that the express waiver

required in the statutory language is missing. See Lane,

518 U.S. at 192 (“A statute’s legislative history cannot

supply a waiver that does not appear clearly in any statu-

tory text.”); United States v. Nordic Vill., Inc., 503 U.S.

30, 37 (1992) (“[T]he ‘unequivocal expression’ of elimina-

tion of sovereign immunity that we insist upon is an

expression in the statutory text. If clarity does not exist

there, it cannot be supplied by a committee report.”); De

Archibold v. United States, 499 F.3d 1310, 1313–14 (Fed.

Cir. 2007) (“We cannot resort to the legislative history to

find a waiver not otherwise unequivocally expressed in

the statute.”).

Also misplaced is Appellants’ reliance on its view of

OPM’s 1981 regulation defining “pay, allowances, and

differentials.” Language in a regulation cannot take the

place of the statutory language needed in order to meet

the requirement of an express waiver of sovereign immun-

ity. “Only an express statute suffices to waive the sover-

eign immunity of the United States.” Former Emps. of

Quality Fabricating, Inc. v. U.S. Sec’y of Labor, 448 F.3d

1351, 1354 (Fed. Cir. 2006) (emphasis added) (citing West

v. Gibson, 527 U.S. 212, 217 (1999)).

In any event, even if the 1981 regulation could, as a

matter of law, provide the required waiver, it fails to do

so. We agree with the Court of Federal Claims in Athey

III that while the 1981 OPM regulation defined “pay,

allowances, or differentials” broadly, a broad definition

cannot overcome the settled requirement that waivers of

sovereign immunity be explicit, with any ambiguity

construed in favor of the United States. See Shaw, 478

U.S. at 318. In this case, since the 1981 regulation never

explicitly mentioned lump-sum payments either way, we

ATHEY v. UNITED STATES 25

construe that ambiguity in favor of the United States and

conclude that the regulation did not authorize the pay-

ment of BPA interest.

In sum, since Appellants’ lump-sum payments do not

constitute “pay, allowances, or differentials,” Appellants

have failed to demonstrate the required waiver of sover-

eign immunity. We therefore affirm the Court of Federal

Claims’s holding that the United States is not liable for

pre-judgment interest under the BPA.

CONCLUSION

For the foregoing reasons, the decisions of the Court

of Federal Claims in Athey I and Athey III, as incorpo-

rated in the court’s final judgment of June 30, 2017, are

affirmed.

AFFIRMED

COSTS

No costs.