NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-5055

ROBERT O. MUDGE, Plaintiff-Appellant,

v.
UNITED STATES, Defendant-Appellee.

_________________________ DECIDED: November 10, 2005

_________________________

Before SCHALL, GAJARSA, and PROST, Circuit Judges

. PER CURIAM.

DECISION Robert O. Mudge appeals from the final deci sion of the United States Court of Federal Claims that granted su mmary judgment in favor of the United States and dismissed his back pay claim seeking a 12 % pay differential and pay retention based upon his employment with the F ederal Aviation Administration (“FAA” or “agency”) in thestates of Alaska and Nevada. Mudge v. United States , 63 Fed. Cl. 363 (2004). We affirm

. DISCUSSION
I

. The pertinent facts are not in dispute. Prior to his reti rement from federal serv ice, Mr. Mudge was employed as a main tenance mechanic with the FAA. In April of 2000, acting pro se , he filed suit in the Cour t of Federal Claims, allegin g that he was entitled t o back pay based on two periods of employm ent with the agency. These periods of employment covered his transfer from Ne vada to Alaska and then his reassignment back to Nevada. Mr. Mudge first asserted that he was entitled to a 12% pay differential for the period from January 1, 1990, until March 21, 1992, when he was stationed in King Salm on, Alaska. Second, he asserted t hat he was entitled to pay retention from March 22, 1992, when he was r eassigned from King Salmon, Alaska, to Reno, Nevada, to December 31, 1995, when he retired. During both of these pe riods, Mr. Mudge was paid at the rate of wage grade 11, step 5. Mr. Mudge’s claim for a pay differentia l was based upon the ar gument that, over and above the higher rate of pay its wage-grade employees in Alaska receive d , the FAA was requir ed to pay all of it s wage-grade employees in Ala ska the 12% pay differential listed in Appendix V of the Federal Personn el Manual (“FPM”) S ystem, Federal Wage System, Supplement 532-1. At the same time, Mr. Mudge argued that, following his reassignm ent to Nevada in March of 1992, he wa s entitled to retention of the higher rate of pay that he had received while he was in Alaska.

05-5055 2Ruling on c r oss-motions for summary judgm ent, the Court of Federal Claims held that, under the applic able statut es and regula tions, M r . Mudge was entitled to neither a pay differential nor pay retention. The c ourt therefore granted su mmary judgment in favor of the United St ates on both parts of Mr. Mudge’s back pay claim and dismissed his complaint. This appeal followed. We have jurisd iction pursuant to 28 U.S.C. § 1295(a)(3).
I I

. We review the Court of Federal Claims’ grant of summary judgment de novo

. Scott Timber Co. v. United Stat es , 333 F.3d 1358, 1364 (Fed. Cir. 2003). Summary judgment in the Court of Federal Claims is appropriate if ther e is “no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Court of Federal Claims Rule 56(c). As noted above, the pertinent facts are not in dispute. Under these circumstances, the question of whether the Court of Federal Claims erred in granting summary judgment turns on whether the court erred in interpreting the pertinent stat utes and regulations, an iss ue of law that we review de

novo

. Boyle v. United States , 200 F.3d 1369, 1372 (Fed. Cir. 2000).
I I I

. We turn first to the pay differential is s ue. The Court of Federal Cla ims rejected Mr. Mudge’s argument that he wa s entitled to a 12% pay di fferential during the perio d that he worked in Alaska. It did so on the ground that the Office of Personnel Management (“OPM”) has never approved a s pecial wage rate for FAA employees in Alaska. Mudge , 63 Fed. Cl. at 367-68. That ruling was correct.

05-5055 3The Prevailing Rate Systems Act, 5 U. S.C.A §§ 5341- 5349 (2005), requires that OPM issue regulations providing for the establishment and development of wage schedules and rates, for both prevailing wage employees paid under regular wage schedules and rates, and for prevailing w age emplo y ees paid under special wa ge schedules and rates. 5 U.S.C. § 5343(c) (2000). As far as special wa ge sc hedules and rates are concerned, as of 1992 when Mr. Mudge was transferred from Alaska to Nevada, O P M had pr omulgated a regulation codified at 5 C. F.R. § 532.251. That regulation provided that “[a] lead agency, with the approval of [OPM],” based on certain findings, c ould “establish special rates or special schedules for use within an area for specific oc cupations which are critical to the mission of a [f]e deral activity.” 5 C.F.R. § 532.251 (1992). Among the findi ngs that would permit the establishment of special rates were the findings that serious recr uit m ent and r e tention pr oblems existed for an agency or that wage r a tes on the regular authorized sc hedule were inadequate for the recruitment and retention of qualified employ ees. Id. Pursuant to section 532.251, in FPM Supplement 532-1, Subc hapter S11, OPM established “special wage schedules and pr actice s applicable to specific occ u pations or positions under the F ederal Wage System.” FPM Supplement at 11-1. The FPM Supplement later became known as the Oper ating Manual, Federal Wage System. In the 1996 Update to the Oper ating Manual, OPM added Subc hapt er S12, Special Rates or Rate Ranges under the F eder al Wage System. The pur pose of Subchapter S12 wa s “to establis h special r a tes and r a te ranges for Federal Wage Sy stem employees bas ed on recruitment or retention difficulties.” Id. at 12-1. The phrase “special rate range” was defined in that subc hapter as “a rate or range of rates authorized by OPM for

05-5055 4recruitment or retention purposes under subchapt er IV of chapter 53 of title 5, United States Code, and § 532.251 of part 532 of titl e 5, Code of Federal Regulations.” Id. It is undisputed that the FAA has never ex perienced difficulties in recruiting that would require a special pay s c hedule for Alaska. Consequently, the FAA nev er requested, and OPM never approved, special wage rates for the agency’s employees in Alaska. T h us, there was no authority under which the FAA coul d have paid Mr. Mudge the 12% pay differential to whic h he claim ed he was entitled. The Court of Federal Claims did not err in rejecting Mr . Mudge’s pay differential claim. As noted above, Mr. Mudge argues, however, that during his s e rvice in Alaska, he was entitled to the 12% pay differential specified in A ppendix V of FPM Supplement 532-1. We do not agr ee. The 12% differentia l wage r a te of Append ix V only applies t o certain agencies: the Departm ent of Defense, the Depart ment of the Interior, the National Park Service, and the Fish and Wildli fe Service. When the Prevailing Rat e Systems Act was enacted in 1972, these agenc ies already wer e paying their Alaska employees at the 12% differential wage rate . OPM allowed thos e agencies to continue that practice after the Act was passed. See Mudge , 63 Fed. Cl. at 367. As the Court of Federal Claims pointed out, Ap pendix V itself states: “Thi s appendix does not include special schedules or rates established by OPM under the Federal Wage System.” Se e id. (quoting FPM Supplement, A pp. V at V-1). The “Spec ial 12 percent Differentia l Wage Rat e for Alask a ” documented in Appendi x V was not es tablished pursuant to 5 C.F.R. § 532.251(b). The FA A therefore was not required to pay its employees that differential rate under 5 C.F.R. § 532.251(c).

05-5055 5IV. Although he did not receive the specia l 12% pay differential, while he was working in Alaska, Mr. Mudge was paid at a higher rate of pay than he had been paid in Nevada before he went to Alaska. Pursuant to t he authority granted in 5 U.S.C. §§ 5361-5366, OPM has promulga ted regulations providing for gr ade and pay retention in certain c i rcumstances and wi th certain exclusions. 5 C.F. R. Part 536 (1992). Befor e the Court of Federal Claims, Mr. Mudge, who at all pertinent times was employed at the wage grade 11, step 5 level, based his pay retention clai m on 5 C.F.R. § 536.104(a)(5) (1992), which provides: “Pay retention shal l apply to any employ ee whose r a te of basic pay would otherwise be r educed . . . [a]s a result of t he plac ement of an employee in a position in a lower wage area or in a position in a diffe rent pay sc hedule.” Howev e r, an

exc l usion t o grade and pay re tention states that “an employ ee serving under a temporary promotion or temporary reassignment may not re tain a grade or r a te of basic pay held during the temporary promot ion or temporary reassignment.” 5 C.F.R

. § 536.105(b) (1992). The Court of Federal Claims ruled t hat the section 536.105(b)

exc l usion to rate retention applied to Mr . Mudge because, while he was in Alaska and was paid at the higher wage rate, he was on a temporary reassignment, as defined in 5 C.F.R. § 536.102 (1992). Mudge , 63 Fed. Cl. at 368. The court therefore rejected Mr. Mudge’s pay retention claim. Id. We see no error in the court’s decision. The undisputed facts make it clear that Mr. Mudge’s tour of dut y in Alaska was a temporary reassignm ent, so that Mr. Mudge was not entitl ed to retain the higher rate of pay he received in Alaska when he returned to Nevada.

05-5055 6For the forgoing reas ons, the decision of the Court of Feder al Claims granting summary judgment in favor of the United St ates and di smissing Mr. Mudge’s back pay claim is affirmed. No costs.

05-5055 7