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In the United States Court of Federal Claims 

No. 13-258C 

(Filed: August 29, 2013) 

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ALICIA CONNOLLY-LOHR, 

 Plaintiff, 

 v. 

UNITED STATES, 

 Defendant. 

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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, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, Washington, D.C., for defendant. With him on the briefs 

were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, 

Director, and Reginald T. Blades, Jr., Assistant Director, Commercial 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 United 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 entitled to compensation at the GS-9, Step 10 level 

but was paid at the GS-9, Step 1 rate. The government has moved to dismiss Ms. ConnollyLohr’s complaint pursuant to Rule 12(b)(6) of the Rules of the Court of Federal Claims 

(“RCFC”). That motion has been fully briefed and was argued by the parties at a hearing held on 

August 21, 2013.1

 

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The government also requested dismissal pursuant to RCFC 12(b)(1). This aspect of the 

government’s motion has been abandoned. Counsel for the government acknowledged during 

the hearing on its motion that the regulation on which plaintiff relies, 5 C.F.R. § 531.211, 
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 BACKGROUND 

 Ms. Connolly-Lohr worked as a civilian federal employee during three separate periods 

of time. First, she was a litigation attorney in the Navy’s Office of General Counsel for three 

years. Compl. ¶ 17. She left the Navy in September 1997, having attained a pay grade of GS-14. 

Id. ¶¶ 17-18; Compl. Ex. A. Her next federal 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, she was being compensated at the GS-13, Step 7 

level. Id. ¶ 22; Compl. Ex. B. 

Ms. Connolly-Lohr’s final period of federal employment began in January 2011, when 

she accepted a job at the VA as a veterans service 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 federal service in February 2012, Ms. Connolly-Lohr 

served at the GS-9, Step 1 level, with 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 construe 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 facts 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 regulations of the Office of Personnel Management 

(“OPM”) that govern the rates of pay for General 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 the 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 jurisdiction over her claims. See 28 U.S.C. § 1491(a)(1) (“The 

United States Court of Federal Claims shall have 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). 
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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–grade position at the Navy. Subsection 531.211(b) 

provides in pertinent part: 

Reemployment. For an employee who has previous civilian service in the 

Federal Government, an agency must set the payable rate of basic pay upon 

reemployment at the minimum rate of the highest applicable rate range for 

the employee’s position of record unless — [one of two provisos apply, each 

of which calls for a higher 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 record” to calculate her 

minimum rate of pay under Subsection 531.211(b) rather 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 position 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 defined term in OPM’s regulations. See 5 C.F.R. § 531.203. 

According to Section 531.203, “position of record” 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 means an employee’s official position . . . as 

documented on the employee’s most recent Notification of Personnel Action (Standard Form 50 

or equivalent) and current position description.”). By specifying 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 official 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 period 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 Rep[resentative].” See Compl. Ex. C.3

 Accordingly, the government was 

required to set her pay at the minimum rate of the highest applicable rate range for veterans 

service representative. See 5 C.F.R. § 531.211(b). Veterans service representative is a GS-9 

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The first exception authorizes an agency to set the payable rate at a higher level for 

employees who have superior qualifications or who satisfy special needs. See 5 U.S.C. 

§ 531.211(b)(1) (referring to 5 U.S.C. § 531.212, which is entitled “Superior qualifications and 

special needs pay-setting authority.”). The second 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). 

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

2011. 
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position. Ms. Connolly-Lohr was therefore 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 enter judgment in accord with this disposition. 

No costs. 

 It is so ORDERED. 

s/ Charles F. Lettow 

Charles F. Lettow 

Judge