OPINION AND ORDER
Plaintiffs
On April 3, 1995, defendant filed a motion to dismiss the complaint (D’s Mot.) under Rules of the Court of Federal Claims (RCFC) 12(b)(1) and (4). Defendant argues that the complaint should be dismissed because the hazardous duty pay statute, 5 U.S.C. § 5545(d), does not mandate the hazardous duty pay plaintiffs seek. D’s Mot. at 11. In defendant’s view, .§ 5545 either barred payment or commits the decision to make payment to the discretion of the agency. Id. Following a dispute regarding the propriety of engaging in discovery, the court issued an order on August 20, 1997 granting plaintiffs’ motion to compel discovery before responding to defendant’s motion to dismiss. Discovery was completed on November 10, 1999.
On February 10, 2000, defendant filed its reply to plaintiffs’ opposition, as well as a supplemental motion to dismiss (D’s Supp.). As the basis for its supplemental motion to dismiss, defendant contends that this court lacks jurisdiction over plaintiffs’ claims because plaintiffs’ claims are governed by a negotiated grievance procedure in a collective bargaining agreement between the INS and the National Border Patrol Council. D’s Supp. at 2-3. Plaintiffs filed an opposition to defendant’s supplemental motion to dismiss
I. Background
A. Statement of the Case
Plaintiffs are current and former employees of the INS at the San Diego and the El Centro sectors of the United States Border Patrol in California.
B. Standard of Review
Defendant bases its Motion to Dismiss on Rules of the Court of Federal Claims (RCFC) 12(b)(1) and 12(b)(4). Rule 12(b)(1) provides for dismissal of a claim based on a “lack of jurisdiction over the subject matter.” RCFC 12(b)(1). See also Fed.R.Civ.P. 12(b)(1). Whether a court possesses subject matter jurisdiction over a claim depends upon the “court’s general power to adjudicate in specific areas of substantive law.” Palmer v. United States,
The Supreme Court has stated that in weighing evidence in evaluating a motion to dismiss, “whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes,
The Supreme Court restated in Steel Co. v. Citizens for a Better Env’t,
A. The Civil Service Reform Act Does Not Bar a Judicial Remedy in This Case
The government argues that this court lacks subject matter jurisdiction to hear this case because the Civil Service Reform Act (CSRA) bars judicial remedies for claims that are “grieveable.” D’s Supp. at 2. The Civil Service Reform Act states, in relevant part:
Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d), (e), and (g) of this section, the procedures [set out in the collective bargaining agreement] shall be the exclusive administrative procedures for resolving grievances which fall within its coverage.
See 5 U.S.C. § 7121(a)(1) (1996) (emphasis added).
The government further argues that Carter v. Gibbs,
Plaintiffs counter that this case is governed by Abramson v. United States,
Plaintiffs urge the court to follow the Abramson interpretation, stating that “[wjhen interpreting a statute, the court must assume that Congress did not mean to pass meaningless legislation, but rather acted with a purpose.” Ps’ Opp. II at 15 (citing Coyne & Delany Co. v. Blue Cross and Blue Shield of Virginia,
The government argues that the amendment is not as clear as Abramson suggests, stating that “[t]hree years after the 1994 amendment, the Federal Circuit explicitly reaffirmed its holding in Carter v. Gibbs in
Dunklebarger involved the question of whether an employee covered by a collective bargaining agreement could appeal an employment related claim to the Merit Systems Protection Board. See Dunklebarger,
Carter v. Gibbs stands for the proposition that under section 7121, a collective bargaining agreement that includes particular matters within the grievance process has the effect of depriving employees of recourse to alternative remedies to which they otherwise would have access. Nothing in the Carter decision, or in any other decision of this court, supports the proposition that Congress intended to permit collective bargaining agreements to enlarge the rights of employees to choose among alternative remedies for disputes falling outside the specific subject matters designated in sections 7121(d), (e), and (g).
Dunklebarger,
The government also points to legislative history to support its contention that Congress did not intend to enlarge the rights of employees, but rather “simply to permit the parties to collective bargaining agreements to elect whether to exclude particular subject matters from the coverage of the negotiated grievance procedures.” Dunklebarger,
The purpose of S. 622 is to reauthorize OSC [Office of Special Counsel] for three years and to ensure that OSC functions, as intended, to protect federal employee whistleblowers from on-the-job harassment, negative job ratings, unfavorable transfers, denial of promotions and other retaliation for their efforts to uncover waste and mismanagement in their agencies.
D’s Reply, Ex. 2 at 1.
The government argues that in neither the Senate nor House reports is there any mention of Carter v. Gibbs, let alone an explicit statement claiming to overturn it. D’s Reply at 4-5. The government claims that:
the legislative history of the 1994 amendment is totally devoid of even the slightest support for the plaintiffs contention that Congress intended to overrule Carter v. Gibbs and its progeny by amending 5 U.S.C. § 7121(a)(1) ____ If Congress had intended to overrule Carter v. Gibbs it could have done so explicitly ____ Congress would not intend such a fundamental change to the CSRA without any discussion in the legislative history of the 1994 amendment.
Id. at 5.
Plaintiffs and the NTEU argue that the plain language of the statute effectively overrules Carter. The NTEU argues in its amicus brief that “where statutory language is plain, only an ‘extraordinary’ or ‘compelling’ indication of contrary legislative intent can overcome the conclusion the language requires.” Memorandum of the National Treasury Employees Union as Amicus Curiae in Support of Plaintiffs (NTEU Brief) at 10 (citing Glaxo Operations U.K. Ltd. v. Quigg,
Plaintiffs also argue that Dunklebarger is inapposite to this case. Plaintiffs point out that Dunklebarger never addressed the amendment to § 7121(a)(1) at issue here, Ps’ Opp. II at 18, but rather addressed “whether a union and agency can agree, under section 7121(a)(2), to provide employees with the option of pursuing a claim through the grievance procedure or with the Merit Systems Protection Board.” Id. (citing Dunklebarger,
The court finds the reasoning in Abramson applicable as well to this case. “Statutory interpretation begins with the language of the statute,” and here the language is clear. Hemscheidt Corp. v. United States,
Absent guidance on the current dispute from the Federal Circuit, the court relies on basic principles of statutory interpretation. Under basic principles of statutory interpretation, undefined terms are understood to have their ordinary meaning. See Abramson,
Connotes of or pertains to administration, especially management, as by managing or conducting, directing, or superintending, the execution, application, or conduct of persons or things____Particularly, having the character of executive or ministerial action ____ In this sense, administrative functions or acts are distinguished from such as are judicial.
Black’s Law Dictionary 42 (5th ed.1979) (quoted in Abramson,
B. Plaintiff Has Stated a Claim under 5 U.S.C. § 5545(d) and Disputed Issues of Material Fact Exist
The principal jurisdictional issue argued in the government’s original April 3, 1995 motion to dismiss, that the hazardous duty pay statute, 5. U.S.C. § 5545(d), was not money mandating, was conceded by the government at oral argument. Transcript of Oral Argument on April 10, 2000(Tr.) at 5. The govern
For the plaintiffs to prevail in this case, they must have been exposed to hazards and the government must have failed to take those hazards into account in classifying their positions. The statute which governs hazardous duty pay differential, 5 U.S.C. § 5545(d), states:
The Office shall establish a schedule or schedules of pay differentials for duty involving unusual physical hardship or hazard ____ However, the pay differential—
(1) does not apply to an employee in a position the classification of which takes into account the degree of physical hardship or hazard involved in the performance of the duties thereof, except in such circumstances as the Office may by regulation prescribe ....
5 U.S.C. § 5545(d) (1996).
The government argues that the INS did take into account the hazards to which plaintiffs were exposed when the positions were classified and, therefore, that plaintiffs are not entitled to hazardous duty pay. To support this contention, the government cites the deposition of Richard Loerch, the INS classifier who was responsible for classifying the plaintiffs’ positions. In his deposition testimony, Mr. Loerch stated:
Categorically, I believe that was a, a known historical condition, that the river was a polluted river. Whether one actually used the term sewage, polluted, toxic or whatever is, you know, is hard to remember after this number of years, but it was a known fact that we are, we are dealing with a polluted river situation where the Border Patrol Agents operated, just as we had some very dangerous hillsides and things of that nature, and it was considered a, the common nature of the job and we accounted for it in the physical demands and work environment parts of the classification.
D’s Supp. at 12-13. The government also points to classification guidelines regarding hazards in border patrol work, which include a description which states:
Other hazards that involve Border Patrol Agents include operating automobiles in high-speed chases, attempting to stop fleeing vehicles, and working in a hazardous environment, e.g., extremes of climate and unfavorable terrain.
D’s Supp. at 15. The government also argues that Border Patrol Agents can exercise their knowledge to reduce risk by wearing protective gear, quoting Office of Personnel Management (OPM) classification guidance that states:
In OPM’s view, a hazardous duty is taken into account in the classification of a position when the duty is a part of knowledge, skills, and abilities required of the incum*589 bent in the position. In other words, the incumbent of the position is able to influence the hazardous duty — i.e., exercise knowledge, skill and ability to reduce the risk of the hazard.
D’s Reply at 18 (citing 59 Fed.Reg. 33416 (June 29, 1994)). The government suggests that the fact that approximately two-thirds of the Border Patrol Agents working around the Tijuana and New Rivers wear some type of gloves when apprehending aliens shows that agents were able to use their knowledge to reduce risk. Id. at 17-18. The government urges the court to conclude that the INS took the virulent biological hazards into account when classifying the plaintiffs’ positions, and therefore plaintiffs are not entitled to hazardous duty pay. D’s Supp. at 19. On the basis of these arguments, the government urges that summary judgment be granted in its favor. D’s Reply at 13.
Plaintiffs concede that they are not entitled to hazardous duty pay if the hazards were taken into account in the position classification, but argue that is not the case here. Ps’ Opp. I at 9-10. Plaintiffs first argue that Mr. Loerch had no “scientific knowledge” regarding pollution in the rivers. Id. at 5. In 1991 and 1995, the INS contracted with the Public Health Service to determine the extent of hazards in the rivers. These reports, prepared after the positions were classified,
confirmed that the Tijuana and New Rivers are heavily contaminated with fecal material. The report noted that the level of coliform in the rivers ranged from 5,000 and 20,000,000 CFU/100 ml. Swimming is unsafe at 1,000 CFU/100. The Public Health Service concluded that the unacceptably high coliform counts in the New and Tijuana Rivers, coupled with the nature of the border patrol agents’ work activities present a high probability of “diarrhea causing disease and hepatitis A.”
Id. at 3-4. Plaintiffs also point out that Mr. Loerch defined the term “unusual environmental stress” used in the position classification to mean “such things as operation of vehicles at high speeds, boarding moving trains and vessels, and being exposed to gunfire.” Id. at 7. Plaintiffs further argue that Border Patrol Agents do not have any knowledge, skill, or abilities that can be exercised that can reduce the risk of exposure to dangerous biological chemicals in the Tijuana and New Rivers. Id. at 32. Plaintiffs state:
The primary job duty of the border patrol agents and criminal investigators is to apprehend undocumented aliens, wherever the aliens go. The border patrol agents and criminal investigators are law enforcement employees. Them knowledge, skill and abilities concern law enforcement skills such as knowledge of intelligence-gathering techniques and skill in interrogation. There is nothing in the border patrol or criminal investigators’ position descriptions that could be even remotely considered a knowledge, skill or ability that could be used to reduce the risk of exposure to virulent biologicals found in rivers.
Id. at 32-33. Plaintiffs urge the court to consider these factors in support of their view that the INS did not take these hazards into account when classifying their positions. Plaintiffs’ Brief on Supplemental Issues (Ps’ Supp.) at 12. Therefore plaintiffs argue that they are entitled to hazardous duty pay under § 5545(d). Ps’ Opp. I at 31.
The court finds this matter to be primarily a factual dispute. Because of the material facts still in dispute, the court finds that it can neither dismiss the case nor grant summary judgment in favor of the government. In evaluating a motion to dismiss, “the allegations of the complaint should be construed favorably to the pleader.” Scheuer,
Summary judgment is also not appropriate at this time. Summary judgment is only appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule of the Court of Federal Claims (RCFC) 56(c); Southfork Sys., Inc. v. United States, 141 F.3d 1124, 1131 (Fed. Cir.1998) (quoting RCFC 56(c)). Here, the parties have presented conflicting evidence to sup
III. Conclusion
For the foregoing reasons, defendant’s motion to dismiss or, in the alternative, for summary judgment is DENIED.
The parties shall file a joint status report on or before September 7, 2000, proposing a schedule for resolution of the outstanding issues in this case.
IT IS SO ORDERED.
Notes
. As of July 7, 2000, there are 2546 plaintiffs in this matter.
. On January 27, 1999, the matter was transferred to Judge Hewitt.
. For purposes of its motion to dismiss, defendant treats as admitted the facts in plaintiff’s complaint. D’s Mot. at 2 n. 2.
. The Court of Appeals for the Federal Circuit has recently "cautioned that broad language in judicial opinions must be read in light of the issue before the court." Nippon Steel Corp. v. United States,
. The exceptions contained in subsections (d), (e), and (g) are not at issue in this case.
. The House Report stating the purpose of the bill contains similar language. D’s Reply at 4 (citing H.R.Rep. No. 103-769 (1994)).
. This late appearing issue has not been fully briefed by the parties and is not, in the court's view, ripe for disposition.