1 

# I n the United States Court of Federal Claims

No. 13-258C

(Filed: August 29, 2013)

**************************************

ALICIA CONNOLLY-LOHR,

Plaintiff,

v.

UNITED STATES,

Defendant.

************************************** ) ) ) ) ) ) ) ) ) ) ) Civilian pay claim; application of the regulations of the Office of Personnel Management that govern the rates of pay for General Schedule employees; 5 C.F.R. § 531.211(b)

Steven H. Jesser, Attorney at Law, P.C., Skokie, IL, for plaintiff.

Douglas G. Edelschick, Trial Attorney, Co mmercial Litigation Branch, Civil Division, United States Department of Jus tice, Washington, D.C., for defendant. With him on the briefs were Stuart F. Delery, Princi pal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blad es, Jr., Assistant Director, Comme rcial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel was Erin Buck Kaiser, Office of Regional Counsel , United States Department of Veteran Affairs, Milwaukee,

WI.

OPINION AND ORDER

LETTOW, Judge.

Alicia Connolly-Lohr, a former employee of the Department of Veterans Affairs (“VA”), seeks to recover unpaid wages from the Unite d States (“the government”) for the period beginning January 31, 2011 and ending February 20, 2012. Compl. at 1. Ms. Connolly-Lohr alleges that for those thirteen months she was en titled to compensation at the GS-9, Step 10 level but was paid at the GS-9, Step 1 rate. Th e government has moved to dismiss Ms. ConnollyLohr’s complaint pursuant to Ru le 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”). That motion has been fully briefed a nd was argued by the parties at a hearing held on August 21, 2013. 1

1 The government also requested dismissal pursuan t to RCFC 12(b)(1). This aspect of the government’s motion has been abandoned. C ounsel for the government acknowledged during the hearing on its motion that the regulation on which plaintiff relie s, 5 C.F.R. § 531.211,2 BACKGROUND

Ms. Connolly-Lohr worked as a civilian fede ral employee during three separate periods of time. First, she was a litigation attorney in the Navy’s Office of Ge neral Counsel for three years. Compl. ¶ 17. She left the Navy in Sept ember 1997, having attained a pay grade of GS-14.

Id. ¶¶ 17-18; Compl. Ex. A. Her next federa l position was with the Naval Judge Advocate General’s Office as a civilian tort claims attorney from September 2002 until July 2005. Id. ¶ 19. At the time she concluded this appointment, sh e was being compensated at the GS-13, Step 7

level. Id. ¶ 22; Compl. Ex. B.

Ms. Connolly-Lohr’s final period of federa l employment began in January 2011, when she accepted a job at the VA as a veterans servic e representative, compensated at a GS-9 pay grade. Compl. ¶¶ 25, 27. Ms. Connolly-Lohr acknowledges that “[t]he VA did not hire her based upon superior qualifications for the job, or due to the agency’s special needs.” Id. ¶ 28. From January 2011 until she retired from federa l service in February 2012, Ms. Connolly-Lohr served at the GS-9, Step 1 level, wi th a payable rate of $49,086 per year. Id.

STANDARD FOR DECISION

A complaint will survive a motion to dismiss for failure to state a claim if it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). When considering such a motion, “the court must accept as true the complaint’s undisputed factual allegations and should constr ue them in a light most favorable to the plaintiff.” Cambridge v. United States , 558 F.3d 1331, 1335 (Fed. Cir. 2009) (citing Papasan v.

Allain , 478 U.S. 265, 283 (1986); Gould, Inc. v. United States , 935 F.2d 1271, 1274 (Fed. Cir. 1991)). If the plaintiff has not alleged a set of f acts constituting a claim to relief, the complaint will be dismissed for failure to state a claim upon which relief can be granted. See RCFC 12(b)(6).

ANALYSIS

This case turns on application of the regula tions of the Office of Personnel Management (“OPM”) that govern the rates of pay for Gene ral Schedule employees, found at 5 C.F.R. Part 531, §§ 531.201-531.611. Ms. Connolly-Lohr contends that under 5 C.F.R. § 531.211(b), she

requires an agency to set an employee’s pay at th e minimum rate of the highest applicable rate range for the employee’s position of record. See 5 C.F.R. § 531.211(b) (quoted infra ). Because the regulation mandates the payment of money to reemployed workers like Ms. Connolly-Lohr, the court has subject matter ju risdiction over her claims. See 28 U.S.C. § 1491(a)(1) (“The

United States Court of Federal Claims shall ha ve jurisdiction to render judgment upon any claim against the United States founded . . . upon . . . any regulation of an executive department.”); see also United States v. Bormes , __ U.S. __, __, 133 S. Ct. 12, 18- 20 (2012) (addressing a moneymandating statutory source of law); Holmes v. United States , 657 F.3d 1303, 1309 (Fed. Cir. 2011); Jan’s Helicopter Svc., Inc. v. Federal Aviation Admin. , 525 F.3d 1299, 1306 (Fed. Cir. 2008).3 was entitled to compensation at the GS-9 grade, Step 10 level, the GS-9 step closest to the rate of pay she received in her previous GS-13–grad e position at the Navy. Subsection 531.211(b) provides in pertinent part:

Reemployment. For an employee who ha s previous civilian service in the Federal Government, an agency must se t the payable rate of basic pay upon reemployment at the minimum rate of the highe st applicable rate range for the employee’s position of record unless — [one of two provisos apply, each

of which calls for a hi gher rate of pay].

5 C.F.R. § 531.211(b) (emphasis added). Ms. Connolly-Lohr asserts that the government was incorrect in using her new position at the VA as her “position of reco rd” to calculate her minimum rate of pay under Subsection 531.211(b) rath er than her previous position at the Navy.

See Pl.’s Resp. to Def.’s Mot. to Dismiss (“Pl.’ s Opp’n”) at 3. Ms. Connolly-Lohr does not contend that her previous posit ion at the Navy was her current position in January 2011, nor that she met either of the exceptions found in 5 C.F.R. § 531.211(b). 2 Instead, she contends that when a former federal employee is re-hired, Subsection 531.211(b) requires the government to use that employee’s previous position as her “position of record.” See Pl.’s Resp. at 3.

“Position of record” is a define d term in OPM’s regulations. See 5 C.F.R. § 531.203. According to Section 531.203, “position of reco rd” refers to the employee’s current—not former—position as it is listed on the employee’s most recent appointment form, Standard Form

50. See 5 C.F.R. § 531.203 (“Position of record mean s an employee’s official position . . . as documented on the employee’s most recent Notifi cation of Personnel Action (Standard Form 50 or equivalent) and current positi on description.”). By specifyi ng that an employee’s “current” position on her “most recent” Standard Form 50 controls, the regulation explicitly provides that an employee’s position of record is the one that the employee has most recently accepted, not a position she left possibly years earlier. Cf

. Wadhwa v. Merit Sys. Protection Bd. , 296 Fed. Appx. 17, 19 (Fed. Cir. 2008) (“An employee’s offici al position under RIF [reduction-in-force] regulations [, found in 5 C.F.R. Part 351,] is defined by grade as documented on the employee’s

most recent Notification of Personnel Action (Standard Form 50 or ‘SF 50’).”).

On January 31, 2011, the first day of the peri od at issue and the date her appointment affidavit was executed, the position listed on Ms. Connolly-Lohr’s Standard Form 50 was that of

“Veterans Service Re p[resentative].” See Compl. Ex. C. 3 Accordingly, the government was required to set her pay at the minimum rate of the highest applicable ra te range for veterans service representative. See 5 C.F.R. § 531.211(b). Veterans se rvice representa tive is a GS-9

2 The first exception authorizes an agency to set the payable rate at a higher level for employees who have superior qualificat ions or who satisfy special needs. See 5 U.S.C. § 531.211(b)(1) (referring to 5 U.S.C. § 531.212, whic h is entitled “Superior qualifications and special needs pay-setting authority.”). The seco nd exception pertains to an “employee [who] is eligible for a higher payable rate under the maximum payable rate rule in § 531.221 and [for whom] the agency chooses to apply that rule.” 5 U.S.C. § 531.211(b)(2).

3 Ms. Connolly-Lohr’s Standard Form 50 was co mpleted one day earlier, on January 30,

2011.4 position. Ms. Connolly-Lohr was ther efore entitled to be paid at Step 1 of GS-9, the rate at which she was indeed compensated. Id.

CONCLUSION

For the reasons set forth above, defendant’s motion to dismiss pursuant to RCFC 12(b)(6)

is GRANTED. The Clerk’s Office is directed to en ter judgment in accord w ith this disposition.

No costs.

It is so ORDERED

.

s/ Charles F. Lettow

Charles F. Lettow Judge