**United States Court of Appeals for the Federal Circuit**

03-5120

JERRY TODD, BENJAMIN E. ABEYTA, CHRISTOPHER BLAS ABEYTA, RICHARD ACKER,
LARRY ALLRED, DAVID LIND AUSHERMAN, RICHARD SEVERN BOATMAN, RUSSELL T.
BOWLIN, LARRY ALLAN BRAATEN, LINDA KAYE BROWN, WILLIAM DUANE BRYAN,
JENNIFER LEE CEITHAML, RICHARD CHAVEZ, OLIVER DALLAS, LARRY DAVID DUKE,
BRENT LEE EBERHART, WILLIAM J. FOLEY, PETER B. FREDRIKSON, WILLIAM L.
GONZALES, MODESTO R. GUTIERREZ, RAY MARTIN HELMAN, MAURICE HOWLAND,
STEVEN GERARD KUBALA, CAROL ANN LATHAM, LARRY LAYDEN, TERRY L. LOCKE,
KENT T. MACKENZIE, ROGER ANTHONY MANDEVILLE, JOAN M. MALLEN, DALE E.
MCCABE, JOEL D. MCCOY, DONALD E. MCFARLAND, HOLLY L. MINGS, JAMES P.
MORGAN, DAVID CARL MOTT, JANET LOUISE MOULD, GLEN R. NICOLET, PHILLIP
CHARLES OLIVER, TERRY PEREZ, GARY CLYDE PERRIN, BRENDA LOUISE PERRY,
GARY ALBERT POSTLEWAIT, ANDREW PAUL RANKIN, JAMES M. REEVES, LARRY ROY
ROLLS, DONALD ALAN SCHLOSSER, ROGER CRAIG SCHLOTTERBACK, JON LESLIE
SEMANEK, LIBRADO SILVA, MARK SPAULING, JEFFREY L. SPROUL, RICHARD ALAN
SUTTON, MICHAEL S. SZUCS, GREGORY TINGLEY, RICHARD ALAN UNDERWOOD, LARRY
M. UTTERBACK, STEPHEN PRICE VAN SICKLE, DEBORAH T. VIBBERT, LOIS J.
WARWICK, DAVID BRUCE WINGERT, and CRAIG L. YORK ,

> Plaintiffs-Appellants,

v\.

UNITED STATES,

> Defendant-Appellee.

[George M. Chuzi]{.underline}, Kalijarvi, Chuzi & Newman, P.C., of
Washington, DC, argued for plaintiffs-appellants.

[Thomas D. Dinackus]{.underline}, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Justice, of
Washington, DC, argued for defendant-appellee. With him on the brief
were [Peter D. Keisler]{.underline}, Assistant Attorney General; [David
M. Cohen]{.underline}, Director; and [Brian M. Simkin]{.underline},
Assistant Director. Of counsel on the brief was [Peter J.
Hannums]{.underline}, Senior Attorney, Federal Aviation Administration,
of Washington, DC.

[William W. Osborne, Jr.]{.underline}, Osborne Law Offices, P.C., of
Washington, DC, for amici curiae.

Appealed from: United States Court of Federal Claims.

Judge Robert H. Hodges, Jr.

**United States Court of Appeals for the Federal Circuit**

03-5120

JERRY TODD, BENJAMIN E. ABEYTA, CHRISTOPHER BLAS ABEYTA, RICHARD ACKER,
LARRY ALLRED, DAVID LIND AUSHERMAN, RICHARD SEVERN BOATMAN, RUSSELL T.
BOWLIN, LARRY ALLAN BRAATEN, LINDA KAYE BROWN, WILLIAM DUANE BRYAN,
JENNIFER LEE CEITHAML, RICHARD CHAVEZ, OLIVER DALLAS, LARRY DAVID DUKE,
BRENT LEE EBERHART, WILLIAM J. FOLEY, PETER B. FREDRIKSON, WILLIAM L.
GONZALES, MODESTO R. GUTIERREZ, RAY MARTIN HELMAN, MAURICE HOWLAND,
STEVEN GERARD KUBALA, CAROL ANN LATHAM, LARRY LAYDEN, TERRY L. LOCKE,
KENT T. MACKENZIE, ROGER ANTHONY MANDEVILLE, JOAN M. MALLEN, DALE E.
MCCABE, JOEL D. MCCOY, DONALD E. MCFARLAND, HOLLY L. MINGS, JAMES P.
MORGAN, DAVID CARL MOTT, JANET LOUISE MOULD, GLEN R. NICOLET, PHILLIP
CHARLES OLIVER, TERRY PEREZ, GARY CLYDE PERRIN, BRENDA LOUISE PERRY,
GARY ALBERT POSTLEWAIT, ANDREW PAUL RANKIN, JAMES M. REEVES, LARRY ROY
ROLLS, DONALD ALAN SCHLOSSER, ROGER CRAIG SCHLOTTERBACK, JON LESLIE
SEMANEK, LIBRADO SILVA, MARK SPAULING, JEFFREY L. SPROUL, RICHARD ALAN
SUTTON, MICHAEL S. SZUCS, GREGORY TINGLEY, RICHARD ALAN UNDERWOOD, LARRY
M. UTTERBACK, STEPHEN PRICE VAN SICKLE, DEBORAH T. VIBBERT, LOIS J.
WARWICK, DAVID BRUCE WINGERT, and CRAIG L. YORK ,

> Plaintiffs-Appellants,

v\.

UNITED STATES,

> Defendant-Appellee.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: October 5, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before MICHEL, [Circuit Judge]{.underline}, ARCHER, [Senior Circuit
Judge]{.underline}, and RADER, [Circuit Judge]{.underline}.

RADER, [Circuit Judge]{.underline}.

Jerry Todd, et al. (collectively, appellants) appeal their claim against
the United States for back pay, which claim the United States Court of
Federal Claims dismissed for failure to state a claim upon which relief
can be granted. [Todd v. United States]{.underline}, 56 Fed. Cl. 449,
453 (2003). Because the Court of Federal Claims did not err in
dismissing appellants' claims, this court affirms.

I.

Appellants are supervisors and managers at the Albuquerque Air Traffic
Control Center (Albuquerque Center) of the Federal Aviation
Administration (FAA). Supervisors and managers receive compensation
based, in part, on the volume and complexity of air traffic at the
Albuquerque Center. The FAA evaluates this volume and complexity factor
for each traffic control center and assigns each an ATC Classification
Level. The FAA designated the Albuquerque Center as an ATC
Classification Level 10 (ATC-10) facility in 1998. Appellants allege
that an increase in air traffic at the Albuquerque Center during 1999
qualified the Albuquerque Center for designation as an ATC-11 facility.

The FAA entered into a September 1998 Collective Bargaining Agreement
(CBA) and a November 1999 Memorandum of Understanding (MOU) with the
National Air Traffic Control Association (Union). Appellants, as
supervisors, are not members of the Union, but claim to be third party
beneficiaries of the CBA and MOU. Appellants allege that the CBA and MOU
obligated the FAA to reclassify the Albuquerque Center as an ATC-11
facility when the air traffic increased in 1999. Appellants further
allege that the FAA breached the CBA and MOU by refusing to reclassify
the Albuquerque Center.

An upgrade of the Albuquerque Center to an ATC-11 facility would give
appellants a higher salary. Appellants brought the present suit seeking
back pay, retroactive to June 1999, for the difference between their
salary and benefits working at an ATC-10 facility and the salary and
benefits at an ATC-11 facility. The FAA, however, has not reclassified
the Albuquerque Center as an ATC-11 facility.

II\.

Appellants brought the present suit in the Court of Federal Claims under
the Tucker Act. The Tucker Act grants the Court of Federal Claims
jurisdiction over actions "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 (2000). The jurisdiction of the Court of Federal Claims
under the Tucker Act is "limited to actual, presently due money damages
from the United States." [United States v. Testan]{.underline}, 424 U.S.
392, 398 (1976) (quoting [United States v. King]{.underline}, 395 U.S.
1, 3 (1969)). Thus, jurisdiction under the Tucker Act requires the
litigant to identify a substantive right for money damages against the
United States separate from the Tucker Act itself. [Id.]{.underline}

Appellants argue that the FAA's alleged breach of the CBA and MOU with
the Union supplies those substantive rights for money damages against
the United States. Appellants are not, however, parties to either the
CBA or the MOU. Consequently, appellants do not have a contract with the
United States and cannot base a claim for money damages against the
United States on a contract to which they are not a party.
[See]{.underline} [Chu v. United States]{.underline}, 773 F.2d 1226,
1229 (Fed. Cir. 1985) ("\[T\]here is a 'well-established principle that,
absent specific legislation, federal employees derive the benefits and
emoluments of their positions from appointment rather than from any
contractual or quasi-contractual relationship with the government.'");
[accord]{.underline} [Hamlet v. United States]{.underline}, 63 F.3d
1097, 1101 (Fed. Cir. 1995).

Appellants initiated suit in the United States Court of Federal Claims
to enforce the CBA as third party beneficiaries. The CBA, however,
includes its own enforcement provisions. Specifically, the CBA requires
grievance procedures for all disputes under that contract. Appellants
have not invoked those grievance procedures. Thus, appellants, in
essence, seek to gain the benefit of the CBA, and at the same time, to
circumvent the exclusive grievance procedures of the contract.
Ironically, the exclusive grievance procedures of the CBA preclude any
party from challenging the CBA in the Court of Federal Claims, thereby
providing an additional reason that the Court of Federal Claims lacks
jurisdiction. [See, e.g.]{.underline}, [Chin v. United
States]{.underline}, 890 F.2d 1143, 1144-47 (Fed. Cir. 1989); [Harris v.
United States]{.underline}, 841 F.2d 1097, 1098-1100 (Fed. Cir. 1988);
[Rinner v. United States]{.underline}, 50 Fed. Cl. 333, 335-36 (2001);
[Hayes v. United States]{.underline}, 20 Cl. Ct. 150, 151, 156 (1990)
(interpreting [Chin]{.underline} and [Harris]{.underline}).

Even assuming that a third party beneficiary could enforce the CBA and
MOU in the Court of Federal Claims, appellants cannot establish
jurisdiction under the Tucker Act for a claim for money damages against
the United States. Appellants essentially seek to use the CBA or the MOU
as leverage to obtain a reclassification of the Albuquerque Center to an
ATC-11 facility. Absent a prior reclassification, however, appellants
have no claim for back pay. In other words, appellants cannot show any
entitlement to an increased salary until the Albuquerque Center
qualifies as an ATC-11 facility. Even if the Albuquerque Center would
becomes an ATC-11 facility, appellants would have no claim for back pay
because they would not be eligible for an increase in salary for any
period before the Center's status adjustment. Thus, appellants are not
seeking presently due money damages, but instead seek the equitable
remedy of a reclassification of the Albuquerque Center to an ATC-11
facility and a salary increase based on that reclassification.

In [Testan]{.underline}, the United States Supreme Court expressly
addressed the jurisdiction of the Court of Federal Claims to provide
this type of equitable relief. 424 U.S. at 394. The similarly-situated
plaintiffs in [Testan]{.underline} sought both a retroactive promotion
from a pay-grade of GS-13 to GS-14 and back pay based upon that
promotion.[^1] [Id.]{.underline} The [Testan]{.underline} court held
that "federal agencies continue to have discretion in determining most
matters relating to the terms and conditions of federal employment," and
Government employees may not receive pay for positions to which they
have not been appointed. [Id.]{.underline} at 406. Without first
obtaining a retroactive promotion, the Court found, the plaintiffs in
[Testan]{.underline} lacked an entitlement to money damages against the
United States; the case was dismissed for lack of jurisdiction.
[Id.]{.underline} at 407-08.

The holding in [Testan]{.underline} governs this case. This court does
not read the holding in [Testan]{.underline} as limited to cases
involving the Classification Act or the Back Pay Act, as suggested by
appellants. [Testan]{.underline} confirms the long-standing rule that
"one is not entitled to the benefit of a position until he has been duly
appointed to it." [Id.]{.underline} at 402 (citing [United States v.
McLean]{.underline}, 95 U.S. 750, 752 (1878); [Ganse v. United
States]{.underline}, 376 F.2d 900, 902 (Cl. Ct. 1967)). This court also
declines appellants' invitation to draw a distinction between the
classification of a position and the classification of a facility.
Appellants seek a retroactive promotion or pay raise based on the
reclassification of the Albuquerque Center to an ATC-11 facility.
Without first obtaining the reclassification and retroactive promotion,
however, appellants have no claim for money damages against the United
States. Absent a claim for presently due money damages against the
United States, the Court of Federal Claims does not have jurisdiction
under the Tucker Act to entertain appellants' claims. Accordingly, this
court affirms the Court of Federal Claims' dismissal of appellants'
claims.

COSTS

Each party shall bear its own costs.

[AFFIRMED]{.underline}

[^1]: ^\*^ Mr. Todd attempts to distinguish [Testan]{.underline} by
    arguing that Mr. Todd seeks merely a reclassification of a facility
    and a pay raise, not a new position. However, the plaintiffs in
    [Testan]{.underline} likewise merely sought a pay raise from GS-13
    to GS-14 for the position they held at the time. [See]{.underline}
    [United States v. Testan]{.underline}, 424 U.S. 392, 393 (1976).