[00:00:00] Speaker 02:
five zero six two miller versus united states miss king please proceed thank you may it please the court and i'm donna king and i represent the appellant ruth miller in this appeal she's appealed from a decision of the court of federal appeals and the two

[00:00:23] Speaker 02:
issues as framed by the appellant are whether the Court of Federal 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 two, whether the Court of Federal Claims erred in granting summary judgment on appellant's Federal Employee Pay Act claim, ruling that appellee can take away appellant's 25 percent stand-by pay.

[00:00:51] Speaker 03:
On the contract issue,

[00:00:53] Speaker 03:
Isn't 7401 that specifically provides for the appointment of these type of technologists your biggest problem here?

[00:01:03] Speaker 02:
That it provides for appointment.

[00:01:05] Speaker 02:
Appointment.

[00:01:06] Speaker 02:
That doesn't preclude a contract for these individuals.

[00:01:11] Speaker 02:
And what's presented in the briefing is that in this very situation, the presumption is rebutted that there was a contract

[00:01:22] Speaker 02:
between Ms.

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Miller and the U.S.

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government for her employment, that she was a radiologic technologist starting in 1998.

[00:01:32] Speaker 02:
Her employment with the government started prior to that.

[00:01:35] Speaker 02:
But her current position as a technologist started in 1998.

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And at that time, there was a standby program in place because

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It was determined by the VA that more had to be offered than the appointment.

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But the problem is that, as I understand the analysis we're supposed to do, an employee is either an appointee or a contract employee.

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And the mere fact that there might have been an agreement as to how much this person was going to make doesn't transform them from an appointee into a contract employee.

[00:02:20] Speaker 02:
If Your Honor is getting to the issue of actually having a written contract in place, the problem that's presented here is that this was now 15 or 16 years ago and the written document has been lost with time.

[00:02:39] Speaker 03:
No, that's not actually the point I'm making because even if you had a written agreement as to pay,

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Is that enough to transform someone from an appointee to a contract employee?

[00:02:51] Speaker 02:
Well, appellant states that considering the circumstances here, the fact that two supervisors, including the head of the VA department in Baltimore, went down to the central office here in D.C., went to an appeal, and specifically secured this pay

[00:03:12] Speaker 02:
not just for Ms.

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Miller, but for other employees as well, does take that out of appointment and out of the realm of standby or on call.

[00:03:24] Speaker 02:
I mean, it's true that what they were following was the standby, but standby was being phased out.

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And the whole point was that to be able to attract enough technologists to come to the VA hospital, that there had to be something different than appointment.

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And so this

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program stayed in place and even though it was being phased out, it was specifically approved for Ms.

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Miller and at least one other employee who were not grandfathered in under the standby pay.

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Can I ask you, is it your view that the contract that was entered into was essentially of indefinite duration that for as long as she chose to stay in the job,

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she had a contract with the government that it would pay her according to this 25% supplement?

[00:04:16] Speaker 02:
Yes, there was nothing in the discovery that indicated that there was any stopping point to the contract.

[00:04:26] Speaker 00:
I guess that strikes me as sort of surprising that there would be an employee contract or just a contract for employment

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that lasted for the working life of the employee, binding against the government, not terminable by the United States.

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Should I not be surprised at that kind of contract?

[00:04:49] Speaker 02:
Well, that was what was in place for the other employees who ultimately stayed until they retired.

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But considering that there was such a need for the technologists, I don't think it would be surprising that

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that there wasn't a set date that says this contract ends two years from now.

[00:05:11] Speaker 00:
No, but that it wouldn't be terminable, at least as to the term, as to the pay provision by the United States, that the United States is binding itself to, let's assume she had 25 years more of her career, that it just entered into a contract that for the next 25 years,

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If she stayed in the job, she would get a certain amount of pay.

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Is there practice in that sort of thing?

[00:05:43] Speaker 02:
I'm not aware.

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I'm just aware of this situation and how it worked for the other employees who were under the same program, that they ultimately did stay until they retired.

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But she was still subject to performance reviews.

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which were never an issue.

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And that's the working mechanism of the program as it was set up.

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Unfortunately, through time, we no longer have the actual document.

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And that was the problem for the outset of the case, is that there's a requirement that there must be a showing of jurisdiction to preponderance of the evidence.

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But without the written document, we had to piece together what we could

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including with the supervisor's testimony.

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Even if we completely agree with you that there was an obvious understanding and agreement with Cox that she was going to make this money and that it was never going to end, even if we agree with that, how is that enough to transform her into a contract employee?

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I mean, you agree that she's a federal employee, correct?

[00:06:57] Speaker 02:
Yes.

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Under Adams,

[00:06:59] Speaker 03:
it doesn't the court expressly state that even in circumstances that might give rise to an understanding of a contract for non-federal employees that that would not be enough to transform an actual federal employee into a contract worker?

[00:07:21] Speaker 02:
Well, first it wasn't just Mr. Cox who was making a promise or, you know,

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creating a program.

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It was approved by the agency itself.

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Although this was rather out of the ordinary, the presumption that there was merely an appointment has been rebutted by these circumstances.

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Although

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Although we don't have the written contract today, what we do have is the fact that we have the testimony that this appeal happened, that it was approved, that this specific pay was approved for this employee, and that it happened for 13 years, and that through each payroll person there was an understanding that this was the agreement, this was a contract that this employee was working under,

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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 this situation where the new payroll person simply didn't understand what was happening and this ball got into action so that today, unfortunately, Appellant is only receiving a fraction of what her salary actually was.

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an agreement, there was a contract in place between the government and Ms.

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Miller and they both acted in accordance with that for at least 13 years before slowly hours and then her standby pay in totality was taken away.

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You can see that you're not arguing a promissory estoppel theory.

[00:09:18] Speaker 03:
No.

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Are you arguing an implied and fact contract based on the number of years or are you just arguing a factual contract?

[00:09:26] Speaker 01:
Just arguing that there was a contract.

[00:09:29] Speaker 01:
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?

[00:09:38] Speaker 01:
Are you just referring to the memo?

[00:09:41] Speaker 01:
that is discussed in the definition 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 witness document between government officials and signed witness by your client as well.

[00:10:00] Speaker 01:
What is the nature of the document you say has disappeared and no longer exists but once did exist?

[00:10:06] Speaker 02:
Mr. Cox believed that there was a written document.

[00:10:11] Speaker 01:
He referred to it as a memo.

[00:10:13] Speaker 01:
That's why I'm trying to understand.

[00:10:14] Speaker 01:
Are you saying, because his deposition testimony is at page 188 to 192 if you want to look at it in the appendix, but my recollection is he says it's a memo and he said he signed it, but he says he signs all of his memos and it was the memo that he submitted requesting and seeking and then ultimately obtaining approval to pay her the higher rate.

[00:10:32] Speaker 01:
Is that

[00:10:33] Speaker 01:
Is that memo the document that you're saying constitutes a contract?

[00:10:39] Speaker 02:
No, that there should be something else that would have been within Mr. Cox's files that was lost or destroyed over time.

[00:10:47] Speaker 01:
Is there some evidence of that from your standpoint?

[00:10:51] Speaker 01:
I mean, are you telling me the testimony at 188 and 192?

[00:10:57] Speaker 01:
I'm trying to understand what this document is that you're calling a contract.

[00:11:03] Speaker 01:
what your allegations are with regard to it.

[00:11:06] Speaker 02:
Well, that there would have been a document that would have come from the central office after the appeal that would memorialize.

[00:11:14] Speaker 01:
After his memo requesting approval to pay her a higher amount.

[00:11:19] Speaker 02:
Yes, and then unfortunately when he retired the contents of his office were thrown away and so we no longer have that.

[00:11:26] Speaker 03:
So you think he didn't just get an oral approval, I mean, he clearly testified that he got the approval.

[00:11:31] Speaker 03:
Correct.

[00:11:32] Speaker 03:
And so what you're saying is that there should have been some kind of document that he would have kept in his files reflecting that approval.

[00:11:40] Speaker 02:
Yes, it's now unfortunately gone.

[00:11:44] Speaker 02:
But I see my time is up.

[00:11:48] Speaker 01:
We'll save the rest for rebuttal.

[00:11:51] Speaker 01:
Council for the government.

[00:11:59] Speaker 04:
Good morning, Your Honor.

[00:12:01] Speaker 04:
Federal employees do not have contractual relationships with the government, barring an explicit agreement otherwise.

[00:12:11] Speaker 03:
Part of the problem for me here is that I've rarely seen a case where the equities go so far against the government.

[00:12:18] Speaker 03:
You don't really dispute that Mr. Cox got the approval to pay her in this fashion, right?

[00:12:26] Speaker 04:
Your Honor, we do not dispute that.

[00:12:29] Speaker 03:
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?

[00:12:39] Speaker 04:
Well, it was an error because she is not entitled to this pay under the statute.

[00:12:43] Speaker 01:
Wait, the statute 5 USC 7455 allows for the secretary and the agency to increase basic rates of pay at their discretion.

[00:12:55] Speaker 01:
Yes, Your Honor.

[00:12:58] Speaker 01:
But why are you saying it was an error?

[00:12:59] Speaker 01:
You agree that approval was sought and obtained all the way up the levels of the chain of command within the agency.

[00:13:05] Speaker 01:
There's a statute that expressly authorizes not only this statute, which was put into effect in 2010, but its predecessor, which was put into effect in 92, which is virtually identical.

[00:13:15] Speaker 01:
So there's a statute that allows for increasing basic rate of pay if necessary.

[00:13:20] Speaker 01:
That's what it says, if necessary, at the discretion of the secretary.

[00:13:24] Speaker 01:
So why would it have been an administrative error

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for them to have paid her that additional amount?

[00:13:29] Speaker 04:
Well, section 7455 does permit the VA to increase her basic pay, but that's not what happened here.

[00:13:36] Speaker 04:
What they did instead was to, Mr. Cox sought an exception to the... Right, and it went all the way up the chain and it was approved, right?

[00:13:48] Speaker 04:
Right, but only pursuant to 5545,

[00:13:52] Speaker 04:
which doesn't increase her basic pay.

[00:13:53] Speaker 04:
It's a 25% premium that's added to her basic pay.

[00:13:57] Speaker 01:
A 25% premium added to her basic pay doesn't, under the language of the statute, increase rates of basic pay.

[00:14:06] Speaker 04:
So it does not.

[00:14:08] Speaker 04:
Those are two separate ways of increasing a person's pay overall.

[00:14:14] Speaker 04:
But for example, if she came in at a GS8 and her

[00:14:20] Speaker 04:
salary was $40,000.

[00:14:21] Speaker 04:
They would say, under $74,000 or $55,000, instead of it being $40,000, we're going to make it $45,000 to recruit you.

[00:14:31] Speaker 04:
Under $54,000 or $55,000, instead, they would say, we're going to add 20% to the $40,000 that we're offering you as your salary.

[00:14:40] Speaker 04:
And that's what happened here.

[00:14:42] Speaker 00:
It seems like a distinction without a difference.

[00:14:45] Speaker 00:
Is there some objective consequence that differentiates those two things?

[00:14:49] Speaker 00:
That is that basic pay is used for some purpose so that it would remain, in your example, the 45.

[00:14:59] Speaker 00:
And as a result of the 45, I don't know, pension contributions or something is keyed to that rather than the 40 plus the 20% of that.

[00:15:08] Speaker 04:
Well, it would result in different amounts of her total salary.

[00:15:13] Speaker 00:
It would just be... Suppose the same dollar amount.

[00:15:18] Speaker 00:
net per year resulted.

[00:15:20] Speaker 00:
What's the difference between that dollar amount coming from 100 percent basic pay and some amount basic pay plus a 25 percent kicker?

[00:15:31] Speaker 04:
Well, there would be no difference, but that's not what happens here, and that's not what Ms.

[00:15:35] Speaker 04:
Miller is claiming that she's entitled to.

[00:15:37] Speaker 04:
Are you saying Cox and everybody up the chain broke the law?

[00:15:40] Speaker 04:
Yes, Your Honor.

[00:15:42] Speaker 04:
They did.

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The VA is not entitled to enter into contractual agreements that are contrary to law.

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And for standby pay, there is a specific criteria that the employee must meet.

[00:15:56] Speaker 04:
The VA has no discretion with respect to whether it pays up that type of pay.

[00:16:02] Speaker 04:
Either you fit within the criteria or you don't.

[00:16:06] Speaker 04:
And Ms.

[00:16:06] Speaker 04:
Miller does not meet the criteria.

[00:16:09] Speaker 04:
I could only speculate that the VA could have possibly sought

[00:16:12] Speaker 04:
some sort of recruitment bonus on her behalf, but according to the facts of this case, they did not.

[00:16:19] Speaker 04:
They only sought standby pay for her because that is what the other... Standby pay because they needed to recruit her because they didn't have enough technologists.

[00:16:29] Speaker 04:
Standby pay because that's what the other technologists were receiving.

[00:16:33] Speaker 04:
Right, so they were all illegally being paid too?

[00:16:37] Speaker 04:
No, those employees were grandfathered.

[00:16:39] Speaker 04:
They were receiving standby pay before the law had changed.

[00:16:43] Speaker 04:
When Ms.

[00:16:43] Speaker 03:
Miller came in, the law had been changed for many years.

[00:16:48] Speaker 03:
And all the supervisors all the way up said that they would grant one more exception because the government needed to hire and recruit this person.

[00:16:56] Speaker 03:
That is correct.

[00:16:58] Speaker 03:
If this was also illegal, then why aren't you trying to recapture all the money that was paid to her over the years?

[00:17:04] Speaker 04:
And by the way, I certainly hope that you're not planning on doing that.

[00:17:07] Speaker 04:
We are not.

[00:17:07] Speaker 04:
The VA has decided that it will not seek

[00:17:12] Speaker 04:
to recoup this money.

[00:17:13] Speaker 04:
And as far as we know, there is no law that requires the VA to seek to recoup this money.

[00:17:21] Speaker 04:
I do know, for example, there are instances in which for financial hardships, for example, employees can ask for waivers.

[00:17:28] Speaker 04:
So it does seem to suggest that VA is totally within its rights to decide not to seek to recoup the money.

[00:17:38] Speaker 00:
Does your argument depend on the premise

[00:17:42] Speaker 00:
this extra pay was unlawful from the get-go?

[00:17:51] Speaker 04:
Essentially, yes, because we're not disputing that it was authorized.

[00:17:57] Speaker 04:
We do not dispute that.

[00:17:58] Speaker 04:
But that she is not entitled under the statute that she seeks for this particular type of compensation.

[00:18:06] Speaker 03:
But isn't it a better argument to simply say that even if authorized, that the VA

[00:18:12] Speaker 03:
had the authority to unauthorize it at some point in time?

[00:18:18] Speaker 04:
The VA has a duty to follow the law.

[00:18:20] Speaker 04:
So when it recognized that it was acting in... It didn't really recognize it.

[00:18:26] Speaker 03:
I mean, the only real error was thinking that there had been an error, right?

[00:18:30] Speaker 03:
I mean, this was some new bookkeeper who came in and said this must be an administrative error, not recognizing that she had been receiving this with her supervisor's approval for years and years and years, right?

[00:18:42] Speaker 04:
According to one of the personnel's testimony, there was some type of error or something in the system, and that sort of was the catalyst that sort of made her go and double-check and see whether... But why don't you simply argue that at some point the VA had the right to revisit the understanding for the approval and to take it away?

[00:19:06] Speaker 04:
Well, that is true, Your Honor.

[00:19:08] Speaker 04:
The VA has a duty to correct any errors that it makes, and any agreements that they have that are contrary to the law must absolutely be corrected.

[00:19:18] Speaker 04:
So that is actually very true.

[00:19:22] Speaker 04:
But the basic premise is that she just has not rebutted the presumption that she is an appointee.

[00:19:30] Speaker 04:
All of the evidence here suggests that

[00:19:34] Speaker 04:
she is an employee by appointment.

[00:19:38] Speaker 00:
Can you say something if you know about the kind of real world practical question that I asked earlier about whether a kind of indefinite in time, perpetual government promise to an employee is the kind of contract that the government ever

[00:20:03] Speaker 00:
sometimes rarely enters into that says, we hereby guarantee that as long as you remain qualified for the job and we continue to need this job filled, as long as you're in it, we hereby contractually promise to pay you this for the next 25 or 30 years.

[00:20:22] Speaker 04:
Your Honor, I'm not aware of instances of that.

[00:20:25] Speaker 04:
I would presume that that's quite rare, if at all that happens with federal government employees.

[00:20:33] Speaker 03:
Regarding... Back to the posture of this case, basically your argument was that the Court of Federal Claims didn't have jurisdiction.

[00:20:41] Speaker 03:
So you sort of blended the merits with the jurisdictional question.

[00:20:46] Speaker 03:
Why isn't her allegation that she only agreed to accept the position and return for this payment that was clearly approved, why isn't that enough to at least get past a motion to dismiss?

[00:21:00] Speaker 04:
With respect to the

[00:21:02] Speaker 04:
merits or the jurisdictional argument?

[00:21:05] Speaker 03:
Your jurisdictional argument?

[00:21:08] Speaker 04:
Well, she hasn't produced really any evidence that there was a contract here.

[00:21:15] Speaker 04:
All of her hiring documents... Does she have to produce evidence on a motion to dismiss?

[00:21:19] Speaker 03:
Well, she bare just conclusory allegations will not suffice.

[00:21:24] Speaker 03:
I mean, they're not that conclusory when there's no doubt that she was getting that pay.

[00:21:28] Speaker 03:
And there's no doubt that she was in that position that the government was having trouble recruiting, right?

[00:21:34] Speaker 01:
Right, Your Honor.

[00:21:35] Speaker 01:
Yes, that is correct.

[00:21:37] Speaker 01:
And you're not disputing that all of this was communicated to her in advance of her accepting the job by her supervisor and approved throughout the agency.

[00:21:48] Speaker 01:
So why isn't that enough circumstantial evidence to create a contract?

[00:21:55] Speaker 01:
I'm not saying it prevails at the end of the day, but a motion to dismiss is a pretty low bar.

[00:21:59] Speaker 01:
I understand, Your Honor.

[00:22:01] Speaker 04:
And perhaps that was sufficient, but if that was error, it was harmless error, because she does not prevail on this claim at all.

[00:22:12] Speaker 04:
There is no evidence of a contract.

[00:22:14] Speaker 04:
So if the court erred, it was harmless error.

[00:22:17] Speaker 01:
To be clear, Mr. Cox testifies that he had written a memo, a page 185 or 188 through 192.

[00:22:25] Speaker 01:
that he had written a memo, that he had signed it, it got approved all the way up.

[00:22:28] Speaker 01:
And he says in his testimony, there are documents to support this.

[00:22:33] Speaker 01:
And he even identifies his secretary by name.

[00:22:36] Speaker 01:
And he said they'd probably be in her computer, not in his computer.

[00:22:39] Speaker 01:
So why can't we think that, OK, there's something here.

[00:22:43] Speaker 01:
It survives jurisdiction, the jurisdictional claim that you've made against it.

[00:22:49] Speaker 01:
And so allow discovery to dig into those files and see if there is written proof.

[00:22:54] Speaker 01:
somewhere.

[00:22:56] Speaker 04:
Your Honor, even if there is written proof, again, the government cannot enter into an agreement that is contrary to law.

[00:23:05] Speaker 04:
And OPM versus Richmond instructs us of that, that despite what may have been agreed to, the government is neither bound nor stopped by acts or agreements to do what the law does not permit.

[00:23:17] Speaker 04:
And in this case, the law just flat out does not permit

[00:23:23] Speaker 04:
the government to pay her standby.

[00:23:25] Speaker 04:
Unless she was a contract employee.

[00:23:27] Speaker 04:
Right, and she's not.

[00:23:28] Speaker 04:
And the VA could have done that.

[00:23:30] Speaker 04:
They do that all the time.

[00:23:31] Speaker 03:
But again, you're saying she's not, but we never got passed a motion to dismiss.

[00:23:36] Speaker 04:
She admits that she is a federal employee, and the presumption is that she is one by appointment rather than by contract.

[00:23:46] Speaker 04:
It's a presumption that's rebuttable, though, right?

[00:23:49] Speaker 04:
Yes, Your Honor.

[00:23:50] Speaker 04:
And it is our position that she has

[00:23:52] Speaker 04:
not rebutted this presumption because the hiring official sought authorization for this pay does not perforce make this a government contract that is enforceable or that the government is bound by.

[00:24:07] Speaker 04:
He didn't just seek it, right?

[00:24:08] Speaker 04:
He obtained authorization for it.

[00:24:12] Speaker 04:
Yes, he did seek authorization.

[00:24:13] Speaker 04:
I mean, he did receive approval for the standby pay.

[00:24:21] Speaker 04:
That would be a very rare situation in which an employee has this hybrid sort of federal employee appointment and then also has this sort of side contract for salary.

[00:24:36] Speaker 04:
That would be very, very rare.

[00:24:38] Speaker 04:
But it's not impossible.

[00:24:40] Speaker 04:
It's not impossible, but it's really no different than any of us who are federal employees.

[00:24:49] Speaker 04:
Come in, we're offered a salary.

[00:24:50] Speaker 04:
Perhaps we ask for more based on our education or experience, but that does not make us contractors or that we have a contract.

[00:24:59] Speaker 04:
We're still federal employees and our benefits come from statutes and regulations, not from a contractual agreement.

[00:25:09] Speaker 04:
As to whether Ms.

[00:25:11] Speaker 04:
Miller is entitled to standby pay under the Federal Employees Pay Act,

[00:25:16] Speaker 04:
her liberal on-call requirements are explicitly excluded from the definition of at or within the confines of her station.

[00:25:24] Speaker 04:
While on call, Ms.

[00:25:26] Speaker 04:
Miller is not required to remain at any particular location, her home or otherwise.

[00:25:32] Speaker 03:
It actually says that her duty station is Baltimore.

[00:25:35] Speaker 03:
It doesn't say her home.

[00:25:36] Speaker 03:
It doesn't say the hospital.

[00:25:38] Speaker 03:
I mean, that's what it says in the document.

[00:25:40] Speaker 03:
So what does that mean?

[00:25:43] Speaker 04:
It means that she is

[00:25:45] Speaker 04:
confined only to a general geographical area, like in Husky.

[00:25:50] Speaker 04:
She can, as her testimony demonstrates, she is basically on her personal time when she is on call.

[00:26:00] Speaker 04:
She's visiting family.

[00:26:02] Speaker 03:
But if her regular duty station is Baltimore, and your point is she's not confined to her regular duty station, that's a pretty, the fact that she might go to the doctor or run an errand,

[00:26:15] Speaker 03:
I mean, is there any evidence that she ever did that outside the confines of Baltimore?

[00:26:21] Speaker 04:
No, but she is allowed to be within a one-hour radius of the city.

[00:26:26] Speaker 04:
And that would actually allow her to sort of go outside of the city itself and be back to the hospital within an hour.

[00:26:36] Speaker 03:
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.

[00:26:44] Speaker 03:
So what is it?

[00:26:46] Speaker 04:
Her duty station is Baltimore.

[00:26:48] Speaker 04:
The VA requires that she return to the hospital within an hour, sometimes up to 12 hours.

[00:26:54] Speaker 03:
Right.

[00:26:55] Speaker 03:
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?

[00:27:03] Speaker 04:
Yes.

[00:27:03] Speaker 04:
She's not allowed to go an hour.

[00:27:06] Speaker 04:
Well, she should be within an hour, one hour radius of her job at the hospital, yes.

[00:27:14] Speaker 04:
generally she's confined to her duty station is Baltimore, Maryland.

[00:27:20] Speaker 01:
Did I understand correctly that you said this law changed and that the earlier employees who Ms.

[00:27:28] Speaker 01:
Miller claims she was treated like were entitled to the 25% premium pay but that Ms.

[00:27:36] Speaker 01:
Miller was hired after the law changed?

[00:27:39] Speaker 01:
Is that what I understood you to say?

[00:27:40] Speaker 04:
Yes, Your Honor.

[00:27:41] Speaker 01:
And so that the new law, which is what, 7457 governs, is that the new law?

[00:27:46] Speaker 01:
What is the new law that governs her that you said was passed after, before she was hired that puts her outside?

[00:27:55] Speaker 01:
Yes, ma'am.

[00:27:57] Speaker 01:
Oh, 5 USC 5545.

[00:27:59] Speaker 01:
Okay, 5545.

[00:28:00] Speaker 01:
Yes.

[00:28:01] Speaker 01:
Well, but here's my question.

[00:28:05] Speaker 01:
It's my understanding that those employees who were hired before 5545 went into effect.

[00:28:10] Speaker 01:
were continuing.

[00:28:11] Speaker 01:
They were grandfathered.

[00:28:12] Speaker 01:
They were allowed to keep receiving the 25% even after 55-45 went into effect up until their retirement.

[00:28:19] Speaker 01:
Is that correct?

[00:28:20] Speaker 01:
That is correct.

[00:28:20] Speaker 01:
And you don't view that as improper for them to have continued under some grandfathered theory, I mean, to have received that additional pay?

[00:28:32] Speaker 04:
Well, I'm not certain about their job duties or

[00:28:37] Speaker 04:
what agreements or anything that they had.

[00:28:39] Speaker 03:
But your point to us is that you can't have any agreement that's inconsistent with the law.

[00:28:43] Speaker 03:
So to the extent that they were grandfathered in by somebody other than Congress itself, why wasn't that all illegal too?

[00:28:52] Speaker 04:
I don't know if there is some provision that would allow them to be grandfathered in.

[00:28:59] Speaker 04:
I'm not aware of one.

[00:29:02] Speaker 01:
But I thought you made the

[00:29:03] Speaker 01:
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 5545 went into effect.

[00:29:13] Speaker 01:
I thought I heard you make that argument earlier.

[00:29:15] Speaker 04:
Yes, Your Honor, I did.

[00:29:16] Speaker 01:
What I'm saying is I don't know what the situation was that allowed these places to get... So you'd like to retract your earlier statement that they were necessarily grandfathered just by virtue of having started prior to the enactment of 5545?

[00:29:31] Speaker 04:
I misspoke, 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.

[00:29:40] Speaker 04:
But I do know that they were allowed to continue to receive stand-by pay even after the law had changed.

[00:29:49] Speaker 04:
I don't know if the law had changed to say, well, if going forward any employees hired after

[00:29:56] Speaker 04:
Ex-date are not entitled to it.

[00:29:59] Speaker 01:
There's just one section, 55-45.

[00:30:00] Speaker 01:
It certainly doesn't have any language like that.

[00:30:03] Speaker 01:
It doesn't have any grandfathering-type language.

[00:30:10] Speaker 01:
It does not.

[00:30:12] Speaker 01:
So if that's the case, then all of those other employees that continued to receive the 25% up until their retirement after 55-45 was enacted would likely have been wrongfully paid as well.

[00:30:24] Speaker 04:
I mean, there also could have been some OPM, it could have been a regulation or something.

[00:30:30] Speaker 04:
I'm not aware of one, but that does not mean that Ms.

[00:30:34] Speaker 04:
Miller does have a contractual agreement at all that she's entitled to.

[00:30:39] Speaker 04:
I see that.

[00:30:42] Speaker 01:
Okay, I think we have your argument.

[00:30:44] Speaker 01:
You have a few minutes of rebuttal time.

[00:30:47] Speaker 01:
For these reasons, we respectfully request that the board affirm the trial court's decisions.

[00:30:50] Speaker 04:
Thank you.

[00:30:57] Speaker 02:
Thank you.

[00:30:57] Speaker 02:
I would like to address what was last discussed, which was the grandfathering issue.

[00:31:03] Speaker 02:
And I believe there was testimony from Mr. Cox that, like Ms.

[00:31:08] Speaker 02:
Miller and like the other employee that started after her, these other employees who were on the 25% premium pay, he also went to the central office and got that specifically approved to be able to keep those individuals because there is a big difference between

[00:31:27] Speaker 02:
the 25% premium pay and the 10% on call pay.

[00:31:31] Speaker 00:
And I also would like to address the- Great.

[00:31:34] Speaker 00:
By the way, are you aware of anything in this new statute, like an effective date provision or a background practice that OPM follows that says a new regime like this doesn't necessarily or even ever apply to existing employees?

[00:31:54] Speaker 02:
I'm not aware.

[00:31:54] Speaker 01:
I mean, I think this is-

[00:31:56] Speaker 01:
My clerk just texted to me, 7457 allows an employee who was hired before to maintain the greater of the rate.

[00:32:06] Speaker 01:
So there was, it turns out.

[00:32:09] Speaker 01:
Sorry, go ahead.

[00:32:11] Speaker 02:
I'd also like to address the realities of Ms.

[00:32:15] Speaker 02:
Miller's duty station and the requirements of her.

[00:32:22] Speaker 02:
The on-call

[00:32:23] Speaker 02:
I don't believe that the on-call presumes the level of responsibilities and restrictions that the standby did.

[00:32:34] Speaker 02:
Because literally, Ms.

[00:32:36] Speaker 02:
Miller was on call for 24-7 for months.

[00:32:40] Speaker 02:
There were significant periods of time in which there was no other person on standby, and she was the only person on standby.

[00:32:47] Speaker 02:
So much so that she unfortunately missed her father's funeral in West Virginia.

[00:32:52] Speaker 02:
because she couldn't travel an hour outside of the hospital.

[00:32:56] Speaker 02:
So although the government notes, oh, one time she went to a child's ball game and she ran to the grocery store a few times, this was 13 years of significant restrictions on what she can do.

[00:33:10] Speaker 02:
And so that clearly doesn't put her under the on-call system.

[00:33:14] Speaker 01:
Well, but OK, the government has said they're not going to go after her for any sort of

[00:33:21] Speaker 01:
money that she had already been paid.

[00:33:25] Speaker 01:
And so this case is really only about the period of time going forward.

[00:33:30] Speaker 02:
Yes, and I'd like to make two points about that.

[00:33:32] Speaker 02:
One, she did receive a letter saying that the government wanted incredible amounts of money back from her.

[00:33:38] Speaker 02:
But then the government reconsidered, fortunately.

[00:33:40] Speaker 02:
And so that's no longer an issue.

[00:33:43] Speaker 02:
But this is very important going forward with regard to her pension.

[00:33:47] Speaker 01:
Because if she makes this much look, I'm not suggesting it's not important, but your I 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 gonna fall under 55 45.

[00:34:03] Speaker 01:
These are the restrictions on her to receive the 10% and that's That's it, right?

[00:34:11] Speaker 01:
I don't I don't I don't I guess I don't understand.

[00:34:14] Speaker 01:
We're starting to suggest that

[00:34:16] Speaker 01:
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.

[00:34:28] Speaker 02:
Well 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.

[00:34:37] Speaker 02:
She's still on the same standby obligations that she always was on.

[00:34:44] Speaker 02:
Now

[00:34:46] Speaker 02:
There's one other person, so she now splits the month.

[00:34:49] Speaker 01:
So for half the month.

[00:34:50] Speaker 01:
But she gets paid the 10% for that time period that she's on call, correct?

[00:34:56] Speaker 02:
Yes, as opposed to the 25%.

[00:34:58] Speaker 03:
Do you have any case for the proposition that an employee can be a hybrid employee, can be both a federal employee and a contract employee?

[00:35:10] Speaker 02:
I didn't locate

[00:35:11] Speaker 02:
any such cases.

[00:35:14] Speaker 02:
The cases that were cited by the government were inapplicable type cases where somebody was hired on on-call and wanted to move the stand-by.

[00:35:28] Speaker 03:
Forget about that.

[00:35:29] Speaker 03:
Any case where any federal employee was deemed a hybrid employee.

[00:35:33] Speaker 03:
I'm not aware.

[00:35:34] Speaker 02:
I could look.

[00:35:36] Speaker 03:
Doesn't it seem that the Supreme Court contemplates an either-or proposition?

[00:35:40] Speaker 03:
that in other words the presumption is you're appointee if you're working for a federal agency 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.

[00:35:58] Speaker 02:
But it hasn't been not authorized and I don't believe there are a lot of cases about these issues at all so I'm not sure that this

[00:36:09] Speaker 02:
particular kind of situation has ever come up when somebody is 13 years in a position and the government seeks to take away the heart of essentially of the salary, which is substantial amount of money.

[00:36:30] Speaker 02:
Okay, Ms.

[00:36:31] Speaker 02:
King, thank you.

[00:36:32] Speaker 02:
We thank both counsel for their argument.