appellant or whether the court of cultural claims erred in dismissing a claim for breach of employment contract by ruling that there was not enough evidence presented at the outset of the case to rebut the presumption of employment by appointment and to whether the court or federal individuals and what's presented in the briefing is that in this very situation if the presumption is regarded that there was a contract between ms miller and the u government for her employment that she was a radiological technologist starting in one thousand nine hundred eighty eight her employment with the government started prior to that but her new current position as a technologist started in eighty eight and at that time there was a standby program in place because it was determined by the v a that actually having a written contract in place with the problem that's presented here is that this was now fifteen or sixteen years ago and the written document has been lost with considering the circumstances here the fact that two supervisors including the head of the v a department in baltimore went down to the central office here in d c went to an appeal a specifically secured this a not just for ms miller but for other employees as well take it does take that out of appointments and out of the realm of stand by or on call me to strew that what they were following was the standby but standby was being phased out and the whole point was that it was to be able to attract enough technologist to come to the v hospital that there had to be something different than appointment and so this program stayed in place and even though it was being phased out it was specifically approved for ms miller and at least one other employees who were not grandfathered in under the standby pay can i can i ask you is it your view that the contract that was a entered into was essentially of indefinite duration that for as long as she chose to stay in the job she had a contract with the government that it would pay her according to this twenty five percent shop and yes there was nothing in the discovery that indicated that there was any starting point to the carjack i mean is that a guess that strikes me as sort of surprising that there would be the employee contract or just the contract for employment that lasted for the working wife of the employee but ending against the government not terminable by the united states should i not be surprised at the kind of country well that was what was in place for the other employees who were ultimately stayed until they retired but considering that there was such a need for the technologists i don't think it would be surprising that there wasn't a set date that says this contract and is two years from now and no big surprise that it wouldn't be terminable at least as to the term as to the the pay provision by the united states of the united states is binding itself to religious whom she had twenty five years or more of her career that had just entered into a contract that for the next twenty five years if she stayed in the job she would get a certain amount of of that is their practice i mean of that sort of thing i'm i'm not aware i'm just aware of this situation and how it worked for the other employees who were on the same program that they ultimately did stay until they retired but she was still subject to performance reviews of it and which was never an issue  but and that's i mean that's the working mechanism of the program that is as it was set up i mean unfortunately through time we no longer have the actual document and that was the problem for the outset of the case is that there is a  be a showing of jurisdiction to you know preponderance of the evidence but without them with a written document we had to piece together what we could including with with the supervisor test even if we completely agree with  that there was an obvious understanding and agreement with cox that she was going to make this money and that that that it was never going to add even if we agree with that how is that enough to to an understanding of a contract for nonfederal employees that that that would not be enough to transform an actual federal employee into a contract worker well first it wasn't just mr cox who was making a promise or you know creating a program it was approved by the agency itself and so although this was rather out of the ordinary the presumption that there was merely an appointment has been rebutted by the circumstances that of although although we don't have the written contract today what we do have is the fact we have the testimony that this appeal have been that that it was approved that this specific pay was provided proof for this employee and that it happened for thirteen years and that each through each payroll person there was an understanding that this was the agreement this was a contract that this employee was working under and it wasn't until there wasn't this perfect storm of robert cox retiring and a new payroll person coming in that we have a situation where the new payroll person just simply didn't understand what was happening and  this fall got into action so that to they unfortunately appellant is only receiving a fraction of what her salary actually was and yet so there was an agreement there was a contract in place between the government and miss miller and they both acted in accordance with the puir at least thirteen years before slowly hours and then her implied in fact contract based on the number of years are you just arguing a day just arguing that i was a contract and the contract the document that you've referenced a couple times that you say you no longer have what is the nature of your allegations about that document are you just referring to the memo that is discussed in the deposition testimony that was the memo signed by her supervisor seeking permission that was ultimately granted to give her this higher pay or are you suggesting there at some point existed like a signed witnessed document between government officials and signed witnessed by your client as well what is the nature of the document you say has disappeared and no longer exists but wants to access what he said he signed it but he says he signed all of this memo said it was the memo that he submitted requesting and seeking and then ultimately obtaining approval to pay her the higher rate is that is that memo the document that you are  saying constitutes a contract and know that there should be something else that would have been within mr cox's files that was lost or destroyed over time is there some evidence of that from your standpoint i mean i but are you telling me the testimony of one eighty eight and one ninety two is that i'm trying to understand what this documents that you're calling a contract what if your allegations are with regard to  wall that there would have been a document that would have come from the central office after the appeal that would that with memorial or his memo requesting approval to pay her higher amount yes and then unfortunately when he retired the contents of his office were thrown away and so we no longer so you think that he didn't just get an oral approval when he clearly testified that he got the approval correct and so what you're saying is that there should have been a some kind counsel for the government good morning your honor sneer please the court federal employees do not have contractual relationships with the government barring an explicit agreement otherwise the part of the problem for me here is that i've really see the equities go so far against the government i mean you don't really dispute that that mr cox got the approval to pay her in this fashion right your honor we do not dispute that and it it's you know it wasn't an administrative error to pay her that way despite the fact that the later employee that adjusted her pay called it that right well it was an error because she is not entitled to this pay under the statute  the statute five u s c seventy four fifty five allows for the secretary and the agency to increase basic rates of pay at their discretion yes your honor so but why are you saying it was an error do you agree that approval was sought in obtained all the way up to the levels of the chain of command within the agency there's a statute that expressly authorizes at not only this statute which was put into effect in two thousand and ten but its predecessor which was put into effect in ninety two which is virtually identical so there is a statute that allows for increasing basically the pay if necessary that's what it says if necessary at the discretion of the secretary so why would it have been administrative error for them to have paid her that additional premium added to her basic pay doesn't under the language of the statute increase and says increase rates of basic pay so it does not those are two separate two separate ways of in increasing a person's pay overall but for example if she came in at a g s eight and her salary was forty thousand dollars they would say under seventy four fifty five instead of it being forty thousand we're going to make it forty five thousand five as a result of the forty five i don't know pension contributions or something is keyed to that rather than the forty plus the twenty percent of the well that would result in different amounts of  total salary it would just be it was just supposed to post the same dollar amount that per year resulted in what's the difference between that dollar amount coming from your percent basic pay they the v a is not entitled to enter into contractual agreements that are contrary to law and for stand by pay there is a stair was specific criteria that the employee must meet the v has no discretion with respect to whether it pays that type of pay either be fit within the criteria you need to meet the criteria or you don't and ms miller does not meet the criteria i could only speculate that the v a could have stopped some sort of recruitment bonus on her behalf but according to the facts of this case they did not they only sought standby pay for her because that is what the stand by pay because they needed to recruit because they didn't have enough technologists stand by pay because that's what the other technologists were receiving right so they were all illegally being paid to know those employees were grandfathered that they were receiving standby pay before the law had changed when miss miller came in the lot had changed for us had been changed for many right and they said this was and all the supervisors all the way up so that they would grant one more exception because the government needed to hire and recruit this person that is correct but would they should have because it was also illegal then why is she trying to recapture all the money that was paid to her over the years and by the way i certainly hope that you're not planning on doing that we are not the v a has decided that it will not  to recoup this money and as far as we know there is no law that requires the v a to seek to recoup this money i do know for example there are instances in which for credit to hardships for example  employees can ask for waivers so it does seem to suggest that the is totally within its rights to decide not to seek to recoup that money is your argument depend on the premise th this extra goes on well from the get go essentially yes i mean you could because we're not disputing that there was that it was authorized we do not dispute that but that she is not entitled under the statute that she seeks for this particular type of compensation but is it a better argument to simply say that that even if authorized that that the v had the authority to unauthorized that at some point in time the v a has a duty to follow the law so when it recognizes that it was acting in it didn't really recognize it was i mean the only real error was thinking that there had been an error right i mean this was some new book keeper who came in and said this must be an administrative error not recognizing that she had been receiving this with her supervisors approval for years and years and years right that at some point the v a had the right to revisit the understanding for the approval and to to take it away well that is true and of the v a up with the v a has a duty to correct any errors that it makes the any agreements that they have that are contrary to the law must absolutely be corrected that is actually very true but the basic premise is that she just has not rebutted the world practical question that i asked earlier about whether kind of indefinite in time for federal government promise to a n employee is the kind of contract that the government ever sometimes rarely enters into that says we here but i guarantee that is only if you remain qualified for the job that  so you sort of blended the merits with the jurisdictional question why isn't her allegation that she only agreed to accept the position of return for this payment that was clearly approved why is really any evidence that there was a contract here all her hiring documents you have to produce evidence on a motion to dismiss while she bear just conclusory allegations will not suffice i mean they're not that conclus when there's no doubt that she was getting that pay and there's no doubt that she was in that position that that the government was having trouble recruiting right yes that's correct if you're not disputing that  communicated to her in advance of her accepting the job by her supervisor and approved throughout the agency so why isn't that enough circumstantial evidence to create a cause hunter act i'm not saying it prevails at the end of the day but a motion to dismiss is a pretty low bar i understand your honor if and perhaps that was sufficient but if if that was air it was harmless error because she does not  written a memo that he had signed it they got approved all the way up and he says in his testimony there are documents to support this and he even identifies his secretary by dean and he said they probably her computer not his computer so why can't we think said ok there's something there it survives jurisdiction the jurisdictional claim that you've made against it and so allow discovery to dig into those files and see if there is written proof somewhere to the government is neither bound nor a step by x or agreement to do with the law does not permit and in this case the largest kalat out does not permit the government to pay her standby n for it yes he did seek out there was the i mean he did receive approval for the standby pay but that would be a very rare situation in which an employee a has this hybrid sort of federal employee appointment and then also has this sort of side contract for for salary that would be very very rare at it but it's not impossible it's not impossible but it's really no different than any of us who are federal employees we come in we're offered a salary perhaps we ask for more based on our education or experience but that does not make contractors or that we have a contract we're still federal employees and our benefits come from statutes and regulations not from a contractual agreement  as to whether this miller is entitled to stand by pay under the federal employees pay act or liberal on our requirements are explicitly excluded from the definition of attitude within the confines of  document so what does that mean it means that she is confined only to a general geographical area like a husky she can as her testimony demonstrate fact that she might go to the doctor or for you know run an errand i mean how did is there any evidence that she ever did that outside the confines of baltimore no but she is allowed to be within a one hour radius of the city and that would actually allow her to sort of go outside of the city itself in and be back to the hospital within an hour but i mean you go back and forth in your brief sometimes saying she was confined to baltimore and other times saying she had to be within an hour radius of the hospital and so what is it she heard duty station is baltimore the way requires that she return to the hospital within an hour sometimes up to twelve ou right so she wasn't permitted to go an hour away from baltimore because that presumably would be farther than an hour away from the hospital right yet she's not allowed to go an hour well she should be within an hour  radius of her or her job at the hospital yes but generally she's confined to her duty station is well two more marilyn did i understand correctly that you said this  the earlier employees who miss miller claims she is was treated like were entitled to the twenty five percent premium pay but that mr miller was hired after the larcher is that what i understood you to say yes your honor and so that the new law which is what seventy four fifty seven governesses that the new will what is the new law that governs her that you said was passed after before she was hired that  her outside yes i have u s c fifty five forty five fifty five forty five yes well but first my question is it's my understanding that those employees who were hired before fifty five forty five went into effect were continued they were grandfathered they were allowed to keep receiving the twenty five percent even after fifty five forty five went into effect up until their retirement is that correct that is correct and you don't view that as improper for them they had with ripens and your point to us is that you can't have any agreement that's inconsistent with the law so to the extent that they were grandfathered in by somebody other than congress itself why wasn't that all illegal to i don't know if there is some provision that would allow them to be grandfathered in i'm not aware of but i thought you mean the i think you actually made the argument that those people were grandfathered and that the difference with miss miller was that she started this job after fifty five forty five went into effect that i've heard you make that argument yes you're right did what i'm saying is i don't know what the situation was that allowed these so you'd like to retract your earlier statement that they were necessarily grandfather just by virtue of having started prior to act in a fifty five forty five whoa and they spoke your honor if i said that just by them working there that they were automatically entitled to it because they had been receiving it before but i do know that they were allowed to continue to receive standby pay even after the law had changed i don't know if the law had changed to say well if the going forward any employees hired after x date or no are not entitled there's just one section fifty five forty five that certainly doesn't have any language like that it doesn't have any grandfathering type language does not so if that's the case then all of those other employees that continued to receive the twenty five percent up until their retirement after fifty five forty five years and acted would likely have been wrongfully paid as well i mean there also could have been some opium it could have been the regulation or something i'm not aware of one but that does not mean that ms miller is does have a contractual agreement at all that she's entitled to thank you i would like to address for his last discussed which was the grandfathering issue and i believe there was testimony from mr cox that like ms miller and like the other employee that started after her  these other employees who were on the twenty five percent premium paid he also went to the central office and got that specifically approved to be able to keep those individuals on because there is a big difference between the twenty five percent premium pay and the ten percent on call pay up and i also like to have to address the other we can are you aware of anything in this new statute like an effect of a provision or  background practice that o p m follows that a new regime like this doesn't necessarily or even ever applied to existing employees are not aware i mean  texas to me is seventy four fifty seven allows an employee who was hired before to maintain the greater the rate there there was that turns out ok i think you are glad and i also like to time in which there was no other person on standby and she was the only person on standby so much so that she unfortunately missed her father's funeral in west virginia because she couldn't travel hour outside of the hospital so although the government's notes oshie went to one time she went to a child's ball game in a row you know she ran to the grocery store if you can see it was thirteen years of significant restrictions on what she can do and so that clearly doesn't put her on the on call system well but ok the government has said they're not going to go after her for any sort of money that she had already been paid and so this case is really only about the period of time going forward yes and i'd like to make two points about that one she did receive a letter saying that the government will and incredible amounts of money back from her but then the government reconsidered fortunately and so that's and i wonder in issue is it this is very important going forward with regard to her pension because if she makes this much look i'm not suggesting it's not important but your idea but your claim about what she was doing or how she was restricted i mean now if she's going to be in the on call section and she's going to fall under fifty five forty five these are the restrictions on her to receive the ten percent and that's that's it right well i don't i don't i don't i guess i don't understand we're starting to suggest that there were a lot of very onerous burdens placed on her in the past when she was receiving twenty five percent but now going forward she has to perform the obligations heard her job hasn't changed so it's not as if she's on call now and she has less restrictions on what she can do it's this she's still on the same standby obligations that she always was on now there's one other person so she now splits the money so for you that she gets paid the ten percent for that time period that she's on call correct yes the twenty first person do you have any case for the proposition that that an employee can be a hybrid employee can be both a federal point and a contract employee i didn't located  any such cases the cases that were cited by the government were in a political type cases where somebody was hired on on call and wanted to move to stand by  t for get about that any case where any federal employee was deemed a hybrid employee i'm not aware i could look at it doesn't it seem that the supreme court conference an either or proposition that in other words the presumption is your appointee if you're working for a federal agency and and and that you can rebut it if you can establish that you are a pure contract employee but being both doesn't seem to be something i've ever seen authorized but it hasn't been not authorized and and i don't believe there are a lot of cases about these issues at all so i'm not sure that this particular kind of situation is ever come