[00:00:03] Speaker 01:
Is counsel for Dawson and the government in the room?

[00:00:07] Speaker 01:
Please come forward.

[00:00:20] Speaker 01:
Okay, the next case is number 14-51-15, Dawson against the United States.

[00:00:27] Speaker 01:
Mr. Burko, you're ready.

[00:00:29] Speaker 02:
Good morning, Your Honors.

[00:00:33] Speaker 02:
I think the first point I'd like to make is that the trial court's decision essentially was that there can never be a regulation ever passed by anybody which requires an employee to be regular and non-intermittent because by definition, according to the trial court, that would be invalid as conflicting with the intermittent statute.

[00:00:57] Speaker 02:
I don't believe that that could be the law.

[00:00:58] Speaker 02:
or is the law.

[00:01:01] Speaker 05:
Well, that wasn't the point of a lower court's decision, was it?

[00:01:05] Speaker 05:
Wasn't the point of a lower court's decision is that the request that it felt was before it was simply a request for reclassification, which it doesn't have the authority to do.

[00:01:15] Speaker 02:
Well, first of all, it did say that the regulations were wrong.

[00:01:20] Speaker 02:
It does actually specifically say that in the decision, that the regulation was wrong because it intimated more than could be delivered.

[00:01:28] Speaker 05:
Right, but that was dictum, right?

[00:01:29] Speaker 02:
No, no, that was the foundation of the decision, was that the regulation was wrong.

[00:01:35] Speaker 02:
That's the main point of his ruling.

[00:01:38] Speaker 02:
As far as whether or not there can be a reclassification, though, we would say that there absolutely, definitely there can.

[00:01:45] Speaker 02:
There's a money-mandating regulation, and therefore, the rule that there cannot be a reclassification clearly does not apply.

[00:01:53] Speaker 02:
I mean, you have like maybe eight cases that say that.

[00:01:56] Speaker 02:
So, to the extent that the trial court rules, if you want to take what you suggested, that the ruling is that you cannot reclassify, that is simply wrong.

[00:02:06] Speaker 02:
I mean, if you look at Benvenino, which we cite repeatedly, it's directly on points.

[00:02:12] Speaker 05:
Well, the court can't reclassify.

[00:02:14] Speaker 05:
That was the court point.

[00:02:15] Speaker 02:
Well, but Benvenino says it can.

[00:02:18] Speaker 02:
It says it right on point and it's absolutely clear cut that the Court of Federal Claims has jurisdiction without a doubt to reclassify as long as there's a money mandating statute or regulation.

[00:02:31] Speaker 02:
That's the exception to the Test and Rule.

[00:02:34] Speaker 02:
Test and says very clearly, we submit to it obviously, that a court cannot reclassify, but there's at least six or seven cases that I cite might bring.

[00:02:44] Speaker 02:
being the most reason, that says yes, but that's not true.

[00:02:49] Speaker 02:
That does not apply if there's a money-mandating regulation.

[00:02:54] Speaker 02:
So the first question you need to ask yourself is, is there a money-mandating regulation or source of entitlement?

[00:03:01] Speaker 02:
If there is, testing has no application anymore.

[00:03:04] Speaker 02:
You're no longer under testing.

[00:03:06] Speaker 02:
You're no longer dealing with the fact that the court cannot reclassify it.

[00:03:10] Speaker 02:
It absolutely 100% can.

[00:03:13] Speaker 02:
And so you would be going against at least six or seven precedents that we cite to you, including Bavino, which is recent, which say you can't reclassify.

[00:03:24] Speaker 01:
So what is the remedy that you're requesting, the value of the

[00:03:29] Speaker 01:
paid vacation that was not paid?

[00:03:32] Speaker 02:
It's more than paid vacation, but the benefits, right?

[00:03:34] Speaker 02:
The benefits that were not paid.

[00:03:36] Speaker 01:
But the missing benefits were vacation time and what, MCPs?

[00:03:42] Speaker 02:
I think there's a few different benefits.

[00:03:45] Speaker 02:
They equal about $10,000 or $15,000 a year, or about 15% of the salary were denied him.

[00:03:53] Speaker 02:
by the agency's action.

[00:03:56] Speaker 04:
It's annual leave, sick leave, and health benefits, right?

[00:04:00] Speaker 04:
Thank you very much.

[00:04:00] Speaker 04:
That were deprived.

[00:04:02] Speaker 02:
Right.

[00:04:02] Speaker 02:
I apologize.

[00:04:03] Speaker 02:
You're right.

[00:04:03] Speaker 02:
That's exactly what it is.

[00:04:06] Speaker 02:
But I do want to stress that you would be making new law and going against all sorts of precedents if you said you could not reclassify, that the court below could not reclassify because there's case after case after case.

[00:04:19] Speaker 02:
So in my brief that says that's not true.

[00:04:21] Speaker 05:
Well, isn't really the distinction whether or not we are talking about a situation where someone comes in and asks for relief that is in the form of a reclassification versus someone that comes in and asks for relief saying, my classification, my original classification was improperly changed.

[00:04:42] Speaker 05:
Isn't that the distinction that you're going to be making?

[00:04:46] Speaker 02:
Well, our claim is that he was appointed.

[00:04:48] Speaker 02:
The appointing regulations classify him, if you want to use that word, as a regular employee.

[00:04:54] Speaker 02:
Nothing the Veterans Administration in Palo Alto could do could change that.

[00:04:58] Speaker 02:
They don't have the power to change that.

[00:05:00] Speaker 02:
And so when they did purport to change that and stop paying him the benefits he was entitled to, that is not enforceable in the court of federal claims.

[00:05:10] Speaker 05:
That's the distinction, right?

[00:05:13] Speaker 05:
what the court of federal claims said is the court of like if you came in and you were classified as X originally and you went into the court of federal claims and I said I should have been classified as Y. The court of claims is correct that they would not be able to reclassify in those circumstances.

[00:05:29] Speaker 05:
Absolutely.

[00:05:29] Speaker 05:
So the court of federal claims holding was it didn't believe it had the authority to reclassify.

[00:05:36] Speaker 05:
What your argument is, as I understand it, is that I was classified as X originally

[00:05:42] Speaker 05:
that I got reclassified and that is an adverse personnel decision and I should have the benefit of my original classification.

[00:05:50] Speaker 02:
Definitely.

[00:05:51] Speaker 05:
So that's different than being a reclassification.

[00:05:53] Speaker 05:
You're seeking back pay, right?

[00:05:55] Speaker 02:
Well, that's true.

[00:05:56] Speaker 02:
But the court below classified or called that a reclassification because they said the Veterans Administration classified him as intermittent.

[00:06:05] Speaker 02:
and that we were asking that he be put back.

[00:06:07] Speaker 05:
Right.

[00:06:07] Speaker 05:
And that's my point, isn't it?

[00:06:09] Speaker 05:
The Court of Federal Claims seemed to misunderstand the nature of the relief that you were seeking under the Back Pay Act.

[00:06:14] Speaker 02:
Yes, I think they did.

[00:06:15] Speaker 02:
I think the Court did.

[00:06:17] Speaker 02:
But the key point, though, is the appointing... I'm beginning to understand why they were confused, though.

[00:06:22] Speaker 05:
Because you're not articulating it exactly as I just did, or you didn't originally.

[00:06:29] Speaker 02:
Well, our position has always been that the appointing regulations required him to be a regular employee, and that anything the Veterans Administration did to try to change that is unenforceable, and that we can enforce the original appointing regulations.

[00:06:45] Speaker 02:
And they trumped anything that the Veterans Administration did in Palo Alto.

[00:06:49] Speaker 02:
That has always been our position.

[00:06:51] Speaker 01:
So for you to prevail, we would have to conclude that the,

[00:06:57] Speaker 01:
government agency had no right, no authority to reclassify the position under any circumstance.

[00:07:04] Speaker 01:
Is that right?

[00:07:05] Speaker 02:
Well, certainly under the circumstances that we have here.

[00:07:07] Speaker 02:
I don't want to speak to any possibilities, but they certainly, under the facts before you, they had no right to do what they did.

[00:07:14] Speaker 02:
And the money-mandating regulations

[00:07:17] Speaker 02:
Trump, anything that the Veterans Administration did in Palo Alto.

[00:07:21] Speaker 02:
And as I said before, if you're going to go against that, then you're just going to ignore five or six precedents that I cite in my brief, because that is clear-cut law.

[00:07:30] Speaker 04:
The regulation that the government, that you're relying on the government says is, well, it says that an employee is eligible to get all these different benefits.

[00:07:41] Speaker 04:
It doesn't use the word entitled to get all these different benefits.

[00:07:46] Speaker 04:
I guess the point the government is trying to make is that maybe you don't have a clear-cut right to get all these annual leave and sick leave under the regulations.

[00:07:59] Speaker 04:
Maybe you're in the game, you're in the arena where you could be eligible for it.

[00:08:04] Speaker 04:
different circumstances might warrant not granting those benefits?

[00:08:09] Speaker 02:
Well, first of all, the trial court rejected that.

[00:08:12] Speaker 02:
The trial court specifically said that the government correctly withdrew that argument, although here we are back to it again.

[00:08:19] Speaker 02:
But the trial court rejected that.

[00:08:21] Speaker 02:
And we do cite several cases there as well that say it's true.

[00:08:26] Speaker 02:
Once you perform the duties that are required, you're no longer eligible.

[00:08:30] Speaker 02:
You're now entitled.

[00:08:31] Speaker 02:
In other words, when he gets hired, today he's hired, he's eligible, but now he's performed a full work week and done what he's supposed to do, he's now entitled because he's performed all of the necessary prerequisites to get to be entitled.

[00:08:45] Speaker 02:
Don't forget also that there's a second regulation that says he earns.

[00:08:49] Speaker 02:
annual and sickly, not just eligible, but earns.

[00:08:52] Speaker 02:
Also, we put in our brief, OPM uses the word itself in this very example, uses the words eligible and entitled interchangeably, because here they are.

[00:09:02] Speaker 02:
He was eligible for benefits, but once he performed all the work he was required to perform, he became entitled to it once he did that.

[00:09:12] Speaker 02:
We cite several cases that discuss that.

[00:09:14] Speaker 02:
In fact, one case that discusses the fact that eligible and entitled are used interchangeably in some portions of a statute and other portions not.

[00:09:23] Speaker 02:
You can be eligible and not entitled, but there becomes a point where you're eligible and entitled.

[00:09:29] Speaker 02:
He reached that point because he did every single thing he was supposed to do in order to become entitled.

[00:09:35] Speaker 02:
He worked the job.

[00:09:36] Speaker 05:
he did what the Appointment Regulations said he had to.

[00:09:52] Speaker 05:
If what you're just pointing out, all of those factual distinctions with respect to what he did or didn't do are relevant to the analysis over whether there's jurisdiction, doesn't that affect your ability to pursue a class action?

[00:10:10] Speaker 02:
Well, no, because every single member of the class did exactly what he did.

[00:10:14] Speaker 02:
They all worked a regular schedule.

[00:10:17] Speaker 02:
So you have commonality.

[00:10:18] Speaker 02:
Everyone has the exact same issue.

[00:10:21] Speaker 02:
Every single person worked a regular schedule.

[00:10:24] Speaker 02:
Every single person was eligible for benefits and became entitled to them once they worked a regular schedule.

[00:10:30] Speaker 02:
Every single person earned annual and sick leave.

[00:10:35] Speaker 02:
By the way, what you would be holding if you agree with the trial court is

[00:10:38] Speaker 02:
The regulations state are eligible for annual and sick leave, but he ruled that they weren't.

[00:10:43] Speaker 02:
So that's directly contrary to what the regulation specifically says.

[00:10:47] Speaker 01:
To prevail, would you have to show I realize it raises a tort issue, but you make much of the

[00:10:56] Speaker 01:
representation that your client was coerced into signing this document that changed his classification and either did not understand or if he did understand, had no choice but to sign it.

[00:11:14] Speaker 01:
In order to prevail, would that have to be established?

[00:11:18] Speaker 02:
Absolutely not.

[00:11:18] Speaker 02:
That's a second alternative holding.

[00:11:20] Speaker 02:
That's a second alternative basis.

[00:11:22] Speaker 01:
The first basis is... But then you'd have to say that there's no way

[00:11:25] Speaker 01:
that the government can reclassify a position?

[00:11:29] Speaker 02:
Well, yes.

[00:11:32] Speaker 02:
The Veterans Administration in Palo Alto cannot violate the regulations.

[00:11:34] Speaker 02:
Yes, I say that.

[00:11:37] Speaker 02:
They cannot go against the regulations that were passed by the OPM.

[00:11:40] Speaker 02:
If the OPM passes a regulation that says you must be X, the Veterans Administration in Palo Alto cannot say, well, you're B, because there's a regulation that requires you be X.

[00:11:52] Speaker 02:
So yes, I am saying that.

[00:11:54] Speaker 02:
The regulation trumps anything the Veterans Administration tries to do in Palo Alto.

[00:12:00] Speaker 02:
Some agent or bureaucrat in Palo Alto does not prevail over a regulation that was passed pursuant to law, published in the Federal Register, and passed.

[00:12:11] Speaker 02:
That trumps what the agency wants to do, which is illegal.

[00:12:15] Speaker 02:
It's a second thing, though.

[00:12:16] Speaker 02:
I do want to point out, though, there is a second totally separate issue, which is that he was downgraded.

[00:12:22] Speaker 02:
that that was illegal and the trial court says well that's a claimant tort but we're not claiming tort we're claiming a right to a benefit from the appointed regulations that he was deprived of wrongfully and the trial court cites Massey versus the United States but Massey says that you can the equitable jurisdiction to strike something that the agency did is allowed as long as it falls within 28 USC 1491 B2 which this does

[00:12:52] Speaker 02:
The very site that he makes, to the very case he makes, says, but there's an exception to the rule that you cannot accept in strictly limited circumstances, Massie says.

[00:13:05] Speaker 02:
The court does not have equitable jurisdiction, but it says one of those strictly limited circumstances is something that fits within 28 USC 1491 B2, which this case does.

[00:13:16] Speaker 02:
Even if you use his citation and the case that he cites, it says the same thing.

[00:13:23] Speaker 02:
It says what we're saying, which is that under these facts that they can.

[00:13:27] Speaker 02:
What about Fisher?

[00:13:28] Speaker 02:
That's an in-bank decision of this court.

[00:13:31] Speaker 02:
They do exactly there what the trial court says you can't do.

[00:13:34] Speaker 02:
Are you familiar with Worthington versus United States?

[00:13:38] Speaker 04:
I didn't see you cite it, but it's a back pay act case from this court.

[00:13:44] Speaker 02:
Okay, I'm not sure I am.

[00:13:47] Speaker 02:
It's in neither brief?

[00:13:48] Speaker 02:
No, I'll ask the government about it.

[00:13:50] Speaker 05:
Okay.

[00:13:50] Speaker 05:
Do you think there's any distinction between the STEP program and the SCEP program?

[00:13:56] Speaker 02:
Not for purposes of what we're dealing with here.

[00:13:58] Speaker 02:
The government hasn't argued that, and we haven't argued that.

[00:14:02] Speaker 02:
So we don't see the distinction that matters here.

[00:14:05] Speaker 01:
Okay, let's hear from the government.

[00:14:06] Speaker 01:
You have some rebuttal time left, Mr. Berko.

[00:14:13] Speaker 01:
you're going.

[00:14:23] Speaker 00:
Good morning may be the court.

[00:14:26] Speaker 00:
This case concerns whether the Court of Federal Claims has jurisdiction to grant the release that Mr. Dawson seeks.

[00:14:32] Speaker 00:
And as the trial court found in this case, the answer to that question is no.

[00:14:36] Speaker 00:
The basis of Mr. Dawson's claim is that he was improperly classified as intermittent, that classification should be changed, and that he should thus be granted the benefit of full-time employment.

[00:14:46] Speaker 01:
Let's say that, for the sake of my question, that this is a valid claim.

[00:14:52] Speaker 01:
If there's no jurisdiction in

[00:14:54] Speaker 01:
This court is a claim against the government.

[00:14:56] Speaker 01:
Where is the jurisdiction?

[00:14:59] Speaker 00:
Well, Your Honor, to the extent that Mr. Dawson is arguing that he should not be classified as intermittent, Mr. Dawson can go to OPM and request reclassification under the Classification Act.

[00:15:11] Speaker 00:
That would be the correct avenue for relief or for requesting a reclassification.

[00:15:17] Speaker 01:
Except that they've classified it.

[00:15:19] Speaker 01:
So let's say that that's fruitless.

[00:15:21] Speaker 01:
We don't require people to take fruitless positions.

[00:15:25] Speaker 00:
I'm sorry, Your Honor.

[00:15:28] Speaker 01:
You're saying the only remedy available would have been to go to LPM, supposing LPM says go away.

[00:15:34] Speaker 01:
We've done our job.

[00:15:37] Speaker 01:
Where is he entitled to go for remedy?

[00:15:40] Speaker 00:
How about MSPB?

[00:15:44] Speaker 00:
The nature of Mr. Dawson's allegations have, I think, evolved over time or shifted over time.

[00:15:49] Speaker 00:
But to the extent that Mr. Dawson is alleging that his reclassification was a downgrade, that would be a personnel action over which the MSPB would have jurisdiction.

[00:16:00] Speaker 00:
Or to the extent that he's arguing this was a coerced reclassification, he could potentially pursue federal court claims back.

[00:16:10] Speaker 00:
in the district court, but the Court of Federal Claims doesn't have jurisdiction over tort, it doesn't have jurisdiction over personnel actions, nor does it have jurisdiction to reclassify.

[00:16:20] Speaker 01:
Well, why not?

[00:16:21] Speaker 01:
He's not working there anymore.

[00:16:23] Speaker 01:
Reclassification isn't going to do him any good.

[00:16:26] Speaker 01:
He says, I was damaged.

[00:16:27] Speaker 01:
You made a mistake.

[00:16:28] Speaker 01:
You did something wrong.

[00:16:30] Speaker 01:
Make me whole.

[00:16:31] Speaker 01:
Where is the claim against the United States?

[00:16:34] Speaker 01:
Is it not?

[00:16:36] Speaker 00:
Well, Your Honor, the claim to be reclassified cannot go through the Court of Federal Claims.

[00:16:44] Speaker 05:
Assuming he doesn't want to be reclassified, assuming all he wants is to say, you shouldn't have downgraded me, you shouldn't have reclassified me, and I'm entitled to back pay under the Back Pay Act.

[00:16:55] Speaker 05:
Why isn't that an appropriate claim in the Court of Federal Claims?

[00:16:58] Speaker 00:
Well, Your Honor, it's undisputed in this case that intermittent employees are not entitled to stick or annual leave.

[00:17:04] Speaker 00:
And so Mr. Dawson claimed that he would be entitled to those benefits despite his status.

[00:17:10] Speaker 05:
He was originally appointed under express regulations that gave him those benefits.

[00:17:17] Speaker 05:
And then he was reclassified.

[00:17:18] Speaker 05:
This is not a situation where he was originally classified as an intermittent employee.

[00:17:22] Speaker 05:
He's claiming that that downgrade

[00:17:25] Speaker 05:
was an illegal act, and that he's entitled to reimbursement, monetary reimbursement, for the period under which he was suffering from that illegal act.

[00:17:37] Speaker 00:
Well, Your Honor, we would dispute that the downgrade or that the reclassification was, in fact, illegal.

[00:17:44] Speaker 00:
Mr. Dawson points to no regulation that requires a classification of anything.

[00:17:48] Speaker 04:
But assume for the moment it's illegal.

[00:17:52] Speaker 04:
Why wouldn't it be a downgrade?

[00:17:56] Speaker 04:
uh... well you're an adverse personnel action unwarranted personal action or whatever the buzzword is from the fact-paying it negative things have happened to a federal employee once it gets

[00:18:11] Speaker 04:
its health benefits annually and sick leave taken away from it, right?

[00:18:16] Speaker 04:
That's a negative personnel action.

[00:18:19] Speaker 00:
Correct, Your Honor, although it's a personnel action that support lax jurisdiction to change.

[00:18:26] Speaker 00:
In Segal v. United States, the Court of Federal Claims found that even if the employee was denied a higher classification illegally, the court cannot change that classification.

[00:18:38] Speaker 01:
He doesn't want to change the classification.

[00:18:42] Speaker 01:
He wants the damages because they misclassified him.

[00:18:45] Speaker 00:
Well, Your Honor, Mr. Dawson or intermittent employees are not entitled to those benefits, thick and annually, that Mr. Dawson is seeking.

[00:18:54] Speaker 00:
So the essence of Mr. Dawson's claim must be that he requests the reclassification.

[00:19:00] Speaker 00:
And that's what the trial court found in this case, that at bottom, Mr. Dawson's argument is that he should not have been classified as intermittent.

[00:19:08] Speaker 00:
and until he is reclassified, he is not entitled to those benefits.

[00:19:14] Speaker 00:
Mr. Dawson's asset 50 reflects the fact that he was in fact classified as intermittent, which is something that Mr. Dawson, Councilor Mr. Dawson doesn't dispute.

[00:19:22] Speaker 04:
When I look at cases like the Testan and Anderson and Todd from this court, they all seem to be, and you know, they all said the court of federal claims did not have jurisdiction.

[00:19:32] Speaker 04:
Those were all claims about

[00:19:34] Speaker 04:
an employee who was getting back to Judge O'Malley's earlier question were at a certain level and the employee believed after performing the work for a time that the work deserved to be graded at a higher level and so therefore deserved some kind of promotion.

[00:19:55] Speaker 04:
and also back pay for all those heightened services that the employee performed.

[00:20:01] Speaker 04:
And in all those cases, it seems like the courts have said, no, you can't have that because when we look at the back pay act, the back pay act requires some kind of negative personnel action to happen to an existing employee.

[00:20:14] Speaker 04:
And that seems to be a much closer fit to what happened here than all the facts of those other cases.

[00:20:21] Speaker 04:
I'm talking about Testan, Todd, and Anderson.

[00:20:23] Speaker 04:
Do you see the distinction?

[00:20:25] Speaker 00:
Yes, Your Honor.

[00:20:26] Speaker 00:
The principal intent on it is that you're not entitled to the benefits of a position until you've been appointed to it.

[00:20:32] Speaker 04:
Right.

[00:20:33] Speaker 04:
And here, the employee, Mr. Dawson, was appointed to a particular position that, right from the starting gate, entitled him.

[00:20:43] Speaker 04:
He was receiving, in fact, for years the health benefits, the annual leave, and the sick leave until there was some kind of personnel action

[00:20:53] Speaker 04:
I won't call it negative, but all those benefits were taken away.

[00:20:57] Speaker 00:
Well, yes, Your Honor, although Mr. Dawson was originally classified to a full-time status, and then he was reclassified to an intermittent status.

[00:21:08] Speaker 00:
But once he's been reclassified, then the principle in Tucson applies the same.

[00:21:14] Speaker 00:
He's not entitled to the benefits of a position to which he's not appointed.

[00:21:18] Speaker 01:
But it's not disputed that he continued to work the same hours full-time,

[00:21:23] Speaker 01:
Same job.

[00:21:25] Speaker 01:
Jesse no longer had the benefits that went with the job when he was hired.

[00:21:30] Speaker 00:
Well, Your Honor, under our motion to dismiss, which is what was granted in this case, we assumed for purposes of this decision that he was still working a regular schedule.

[00:21:44] Speaker 01:
Right, that's what we were assuming.

[00:21:45] Speaker 01:
That was what I asked you.

[00:21:47] Speaker 00:
Correct, Your Honor, yes.

[00:21:48] Speaker 00:
However,

[00:21:50] Speaker 00:
However, his status was as an intermittent employee, regardless of what hours he's actually working.

[00:21:56] Speaker 00:
This court in Anderson v. United States was also considering a claim of intermittent employees who were alleging that they were, in fact, working a regular schedule.

[00:22:05] Speaker 05:
But they were appointed as intermittent employees day one.

[00:22:08] Speaker 05:
Correct.

[00:22:09] Speaker 05:
There was no personnel action that changed their status.

[00:22:12] Speaker 05:
Correct, Your Honor.

[00:22:13] Speaker 05:
Although... Under your theory, what point would there be for the back pay act if no one can ever come to court?

[00:22:22] Speaker 00:
Well, Your Honor, it's not that no one could ever come to court.

[00:22:24] Speaker 00:
It's that you can't come to court to request to be judicially reclassified.

[00:22:32] Speaker 05:
But that's not what he's asking for.

[00:22:34] Speaker 00:
That's for money.

[00:22:37] Speaker 00:
he's asking for money only which would be entitled as if he were reclassified.

[00:22:46] Speaker 01:
He isn't asking to be reclassified.

[00:22:51] Speaker 01:
He says that he was wrongly declassified to remove his benefits.

[00:22:58] Speaker 01:
He's not an employee anymore, so reclassification is going to do him any good.

[00:23:04] Speaker 00:
Well, Your Honor,

[00:23:07] Speaker 00:
Respectfully, although Mr. Dawson does not claim that he is asking for reclassification, what he is asking for is for his intermittent status to be changed from intermittent to full-time.

[00:23:20] Speaker 00:
Mr. Dawson does not contest the fact that he was in fact classified as intermittent.

[00:23:24] Speaker 00:
Maybe not from day one, but from February 1, 2009 he was classified as intermittent.

[00:23:30] Speaker 00:
asking the court to change that classification is what the trial court here and the court in Testons that the Court of Federal Claims can't do.

[00:23:40] Speaker 04:
The Sac Pay Act doesn't say anything about reclassification or declassification, right?

[00:23:47] Speaker 04:
It just talks about unjustified or unwarranted personnel actions.

[00:23:53] Speaker 00:
Well, in this case, Your Honor, the classification action is not unwarranted or unjustified.

[00:23:58] Speaker 00:
Mr. Dawson, although he states that there's a regulation which mandates... Right, okay.

[00:24:03] Speaker 04:
I think you're shifting on me.

[00:24:05] Speaker 04:
Let's stay with my question, which is they've alleged that there is an unjustified or unwarranted personnel action.

[00:24:14] Speaker 04:
That fits within the express terms of the Back Pay Act.

[00:24:18] Speaker 04:
The Back Pay Act doesn't say anything about

[00:24:21] Speaker 04:
reclassification or declassification, right?

[00:24:26] Speaker 00:
Well, correct your honor, the backpack isn't addressed that specifically.

[00:24:31] Speaker 00:
And the court in Anderson allowed or the court in Anderson discussed the possibility of there being a statute that mandates

[00:24:46] Speaker 00:
particular classification, but that's not the situation that we have here.

[00:24:49] Speaker 00:
There is no regulation for these employees which mandates any particular classification.

[00:24:55] Speaker 00:
The only regulation that Mr. Dawson cites to

[00:24:58] Speaker 05:
is 5 CFR 362 subsection 203 G. If it doesn't mandate a particular classification, it certainly mandates particular benefits, then why is it entitled to those benefits regardless of what we tried to call them?

[00:25:13] Speaker 00:
The regulation doesn't mandate any benefits either.

[00:25:18] Speaker 00:
I think there's two different regulations that we're talking about here.

[00:25:21] Speaker 00:
There's the regulation which Mr. Dawson alleges is money-mandating, which is the 213-3202, which states that students are eligible for leave, but then there's the regulation which he alleges mandates a classification, 203 subsection G, which

[00:25:39] Speaker 00:
simply states that there are no limitations on the number of hours that an intern can work per week as long as any applicable laws and regulations governing overtime and hours of work are adhered to.

[00:25:49] Speaker 00:
Agencies and students should agree on a formally arranged schedule of work in school.

[00:25:52] Speaker 00:
That regulation does not mandate any classification, particularly a non-intermittent classification.

[00:25:58] Speaker 04:
What about the OPM Federal Register notice that says students are not amenable to intermittent employee status?

[00:26:07] Speaker 00:
Your Honor, that

[00:26:10] Speaker 00:
That comes from OPM frequently asked questions on their website.

[00:26:13] Speaker 00:
It certainly doesn't have a fourth of a regulation.

[00:26:16] Speaker 04:
Is the government disclaiming that?

[00:26:18] Speaker 00:
I'm sorry?

[00:26:19] Speaker 04:
Are you standing in the shoes of the government today, disclaiming what the OPM said when it said that students should not be hired or placed into intermittent employee status?

[00:26:33] Speaker 00:
I'm stating that that OPM information on their website doesn't have the force of a regulation mandating a classification.

[00:26:43] Speaker 03:
They said something on the website, but didn't they also say something in the Federal Register?

[00:26:48] Speaker 00:
In the Federal Register, they discussed whether the Pathways Program, which was implemented in 2012, was intended to change the regulations that had previously been enforced and decided no, in fact,

[00:27:00] Speaker 00:
the program was supposed to continue as it was prior to 2012.

[00:27:05] Speaker 00:
But the only place in which intermittent status is discussed is in the frequently asked questions.

[00:27:11] Speaker 00:
Those don't have the force of a regulation and do not mandate any particular classification.

[00:27:17] Speaker 00:
So even if under Anderson or under Teston there was an allowance for

[00:27:27] Speaker 00:
for a regulation mandating a classification.

[00:27:30] Speaker 00:
That's not the situation that we have here.

[00:27:38] Speaker 04:
What about Worthington versus United States?

[00:27:41] Speaker 04:
That case that the Court of Federal Claims did have jurisdiction over that issue.

[00:27:46] Speaker 04:
Are you familiar with that case about the compressed work schedule?

[00:27:50] Speaker 04:
The federal employee was improperly placed into a compressed work schedule and the employee wanted overtime pay for that and ultimately this court held that the Court of Federal Claims have jurisdiction over that, not the MSPB.

[00:28:09] Speaker 00:
Your Honor, I am not familiar with that.

[00:28:11] Speaker 00:
Okay.

[00:28:11] Speaker 00:
Although the court would request briefing and I'd be happy to adjust it.

[00:28:20] Speaker 00:
If this court were to find that Mr. Dawson seeks equitable relief or reclassification, the jurisdictional inquiry should be over and the court, this court should affirm the trial court.

[00:28:34] Speaker 00:
Unless the judges have any further questions, we request this court to affirm the trial court.

[00:28:41] Speaker 01:
Okay.

[00:28:41] Speaker 01:
Thank you, Ms.

[00:28:42] Speaker ?:
Kenney.

[00:28:47] Speaker 02:
Well, first of all, I believe she's inaccurate about what's in the Federal Register.

[00:28:51] Speaker 02:
I believe the Federal Register specifically refers, just like the website does, but it's right in the Federal Register as well that they were asked.

[00:28:58] Speaker 02:
Agencies ask, can we classify people as intermittent?

[00:29:03] Speaker 02:
And they say, no, you can't.

[00:29:05] Speaker 02:
The program was never intended to allow for intermittent employees.

[00:29:09] Speaker 02:
I believe that's right in the Federal Register.

[00:29:11] Speaker 02:
Even if it wasn't, it is right on their website as their explanation, and I talk about the various levels of deference.

[00:29:18] Speaker 02:
Of course, it's not a regulation, but it is entitled to some deference that they're stating that themselves in their own website.

[00:29:25] Speaker 02:
I would also point out that the government's counsel says, well, he could go to the LPM or the merit board.

[00:29:32] Speaker 02:
But in the trial court below, they said, we don't know where he can go.

[00:29:37] Speaker 02:
We just know he can't go here.

[00:29:38] Speaker 02:
That's essentially what they said.

[00:29:40] Speaker 02:
And it's not true that he can go to the MSPB.

[00:29:45] Speaker 02:
What he's claiming is not subject to their jurisdiction.

[00:29:50] Speaker 05:
Is it true that he's seeking reclassifications or is he not seeking reclassifications?

[00:29:56] Speaker 02:
He's seeking the benefits of the position to which he was appointed.

[00:30:00] Speaker 02:
Okay.

[00:30:00] Speaker 02:
That's what he's seeking.

[00:30:02] Speaker 02:
And I do want to point out, because there seems to be some doubt here, the principle for, this is a quote, the principle for bidding judicial reclassification of federal employees has no application

[00:30:14] Speaker 02:
when the plaintiff's claim is based on a money-mandating statute or regulation.

[00:30:19] Speaker 02:
That's from Bevevino, citing Anderson, which is exactly what you have here.

[00:30:25] Speaker 02:
That's your case.

[00:30:27] Speaker 02:
It has no application.

[00:30:29] Speaker 02:
Otherwise, you're not going to follow those cases.

[00:30:34] Speaker 02:
My opposing counsel cites Siegel, but Siegel says,

[00:30:37] Speaker 02:
exactly what I just said, which is if there's no money mandating regulation or statute or source, there's no ability to reclassify, but otherwise there is.

[00:30:46] Speaker 02:
They all say that.

[00:30:47] Speaker 02:
I cite to you six or seven cases where lieutenants are paid the wages of a higher level person because that's how they were appointed.

[00:30:59] Speaker 02:
We are only seeking, you know, the whole thing here is the democratic process really when it comes down to it.

[00:31:04] Speaker 02:
The regulation which was passed through the democratic process says he's entitled to these benefits.

[00:31:10] Speaker 02:
Somebody in Palo Alto says he's not, which prevails.

[00:31:14] Speaker 02:
I think it's pretty obvious that the democratic process prevails over

[00:31:17] Speaker 02:
some rogue action by somebody in Palo Alto and that's all we're talking about is please enforce the promises that the government made in its regulations to him as to the understanding as to what the terms are of his employment and for sure without any doubt putting that aside when you were getting all these benefits and then you're tricked or coerced and now you're no longer getting them if that's not an unwarranted or negative you say you're not relying on

[00:31:47] Speaker 01:
trickery or coercion, is that right?

[00:31:49] Speaker 02:
I'm saying no, that's a second alternative basis for liability here.

[00:31:54] Speaker 02:
The first basis, the primary basis, is that he was appointed based on regulations that says he's eligible for benefits once he performs the work he does and that he earns benefits.

[00:32:05] Speaker 02:
End of story.

[00:32:07] Speaker 02:
But secondly, if you don't accept that, which would be going right against Bevovino and several other cases I cite, but if you don't accept that, then under Fisher, which is an in-bank decision of this court, then the improper reduction in his benefits and the reduction in his classification, if you want to call it that, is actionable in the court of federal claims because it's an unwarranted reduction that he was tricked and coerced into.

[00:32:35] Speaker 01:
Okay, so I think we have the arguments.

[00:32:38] Speaker 01:
Thank you, Mr. Berko.

[00:32:41] Speaker 01:
Ms.

[00:32:41] Speaker 01:
Kerr, I think the case is taken under submission.