Athey v. United States
908 F.3d 696
Fed. Cir.2018Background
- A class of former VA employees (Appellants) retired or separated 1993–1999 with accrued unused annual leave; they received lump-sum payments under the Lump Sum Pay Act (LSPA), 5 U.S.C. §§ 5551–52, plus later supplemental payments reflecting pay increases.
- The class sued in the Court of Federal Claims alleging the VA omitted certain pay components (COLAs, locality pay, Sunday premium pay, and evening/weekend “additional pay” under 38 U.S.C. § 7453) from supplemental lump-sum payments and sought pre-judgment interest under the Back Pay Act (BPA), 5 U.S.C. § 5596.
- The Court of Federal Claims held (Athey I) that § 7453(i) prohibits including § 7453 additional pay in lump-sum payments and dismissed that claim; (Athey II) initially found jurisdiction under the Tucker Act and that lump sums could be “pay” under the BPA as defined by OPM’s 1981 regulations; (Athey III) later granted summary judgment for the government, ruling lump-sum leave payments are not "pay, allowances, or differentials" for BPA interest purposes and thus BPA does not waive sovereign immunity for interest on these lump sums.
- The parties settled other claimed omissions (COLAs, locality pay, Sunday premium) but not evening/weekend additional pay or BPA interest; final judgment incorporated the Athey I and Athey III rulings.
- On appeal to the Federal Circuit, the court reviewed statutory interpretation de novo and affirmed the Court of Federal Claims on both issues: exclusion of evening/weekend additional pay and denial of pre-judgment interest.
Issues
| Issue | Appellants' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether evening/weekend “additional pay” under 38 U.S.C. § 7453 must be included in LSPA lump-sum payments | LSPA’s phrase that lump sum "shall equal" compensation forecloses excluding premium/additional pay; "pay" in § 5551(a) includes premium pay | § 7453(i) expressly provides additional pay "shall not be considered as basic pay for the purposes of" Subchapter VI of chapter 55 (LSPA); title 38 controls when inconsistent with title 5 | Affirmed: § 7453(i)’s language and legislative history bar including § 7453 additional pay in LSPA lump sums |
| Whether lump-sum payments for accrued leave qualify as "pay, allowances, or differentials" under the BPA for pre-judgment interest | BPA’s remedial purpose and OPM’s 1981 regulations define "pay" broadly to include monetary benefits like lump sums, so interest is authorized | LSPA expressly says lump-sum is "considered pay for taxation purposes only"; BPA does not expressly waive sovereign immunity for interest on lump sums; ambiguities construed for the sovereign | Affirmed: lump-sum leave payments are not "pay, allowances, or differentials" for BPA interest; no express waiver of sovereign immunity for interest |
Key Cases Cited
- United States v. Sherwood, 312 U.S. 584 (U.S. 1941) (sovereign immunity principle)
- Lane v. Peña, 518 U.S. 187 (U.S. 1996) (waiver of sovereign immunity must be unequivocal)
- Library of Congress v. Shaw, 478 U.S. 310 (U.S. 1986) (no-interest rule against implied waiver of interest)
- Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (U.S. 1988) (limitations on retroactive application of regulations)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (U.S. 1984) (two-step test for agency deference)
- Nordic Village, Inc. v. United States, 503 U.S. 30 (U.S. 1992) (legislative history cannot supply waiver of sovereign immunity)
- Behrens v. Pelletier, 516 U.S. 299 (U.S. 1996) (law-of-the-case principles)
- West v. Gibson, 527 U.S. 212 (U.S. 1999) (statutory waiver of sovereign immunity required in text)