[00:00:32] Speaker 04:
Our next case is Athay versus United States, 17-2277.

[00:00:38] Speaker 04:
Mr. Lector.

[00:00:42] Speaker 03:
May it please the court.

[00:00:44] Speaker 03:
This case has been a litigation tragedy.

[00:00:49] Speaker 03:
This is 19 years pending in the Court of Federal Claims.

[00:00:56] Speaker 03:
There are 3,167 nurses from the VA.

[00:01:01] Speaker 03:
were systematically underpaid when they separated or retired from the federal government between 1993 and 1999.

[00:01:14] Speaker 03:
There were COLAs that should have, by law, under five years code, 5551, been applied to their unused annual leave.

[00:01:27] Speaker 03:
And it wasn't.

[00:01:29] Speaker 03:
Similarly,

[00:01:30] Speaker 03:
Locality payments in lieu of college weren't applied.

[00:01:35] Speaker 03:
And in a number of those cases as well, people who had worked on Sunday and had a Sunday premium, that should have been applied as part of their pay up through 1997 when Congress took that benefit away on leave.

[00:01:53] Speaker 04:
but just only for the Sunday premium.

[00:01:56] Speaker 04:
Mr. Leckner, where in the BPA or the Lumpsum Payment Act does it show that lump sum payments constitute pay and that they're entitled to prejudgment interest?

[00:02:11] Speaker 03:
Congress, after a number of years, the modern BPA came into effect in 1966.

[00:02:18] Speaker 03:
And then over a period of years, with the question in Congress

[00:02:22] Speaker 03:
as to whether or not to apply interest.

[00:02:25] Speaker 03:
And during that period, Congress wrestled with to whom do we apply interest and how specific do we get.

[00:02:35] Speaker 03:
And in fact, the chairman of the committee said, we're not going to specify, it was very particular in the testimony of the chairman, we're not going to specify which particular pay

[00:02:51] Speaker 03:
premiums, allowances, differentials.

[00:02:56] Speaker 03:
The code is filled with them.

[00:02:58] Speaker 03:
They're all over the place in various agencies.

[00:03:01] Speaker 03:
Expense allowance, travel allowances, education allowances, Sunday premium, Saturday premium, night premium, et cetera.

[00:03:10] Speaker 03:
And so they expanded it.

[00:03:11] Speaker 04:
Sir, there's some payments that do qualify as for prejudgment and interest under the BPA.

[00:03:17] Speaker 04:
And you refer to some of them, allowances.

[00:03:19] Speaker 04:
Pay and allowances.

[00:03:21] Speaker 04:
So they expanded.

[00:03:22] Speaker 04:
But we're talking about lump sum payments qualified as that.

[00:03:25] Speaker 02:
Yes.

[00:03:26] Speaker 02:
That's an unused argument.

[00:03:26] Speaker 04:
First I'd qualify a lump sum payment as an allowance or a differential.

[00:03:30] Speaker 03:
Yes.

[00:03:31] Speaker 03:
Well, the question arises in the BPA, what did Congress mean when it said pay, allowances, or differentials?

[00:03:47] Speaker 03:
Now, three things.

[00:03:49] Speaker 03:
standard in this court in terms of statutory construction.

[00:03:54] Speaker 04:
But wouldn't it just say lump sum payments qualify as those type of payments?

[00:03:59] Speaker 04:
Yes.

[00:04:00] Speaker 03:
That's your challenge here.

[00:04:02] Speaker 03:
Yes.

[00:04:02] Speaker 03:
The OPM, of course, has the right to interpret that language.

[00:04:09] Speaker 03:
And OPM interpreted the language very specifically in the 1981 regulation, which applies to these plans.

[00:04:18] Speaker 03:
retired or separated while the 1981 regulation of the BPA was in effect.

[00:04:25] Speaker 03:
And what the OPM said was that pay allowances and differentials covers all monetary benefits or employment benefits that federal employees have pursuant to their federal function.

[00:04:46] Speaker 03:
So there was very broad

[00:04:48] Speaker 03:
but very specific interpretation by OPM that all monetary benefits and employment benefits would be applicable to the interest provision.

[00:05:04] Speaker 03:
Now, in addition, we have the history of what is the lump sum payment.

[00:05:12] Speaker 02:
Mr. Lechner, could I just ask you two questions, please?

[00:05:16] Speaker 02:
Sure.

[00:05:17] Speaker 02:
The first question is,

[00:05:18] Speaker 02:
What additional, and I'm using that as the term of R here, what, quote, additional pay is still at issue under 70, in other words, there are two issues here.

[00:05:28] Speaker 02:
What goes in as additional pay under 74.53, and then there's the Beep Back Pay Act issue.

[00:05:35] Speaker 02:
But what additional pay is still at issue?

[00:05:40] Speaker 02:
The government says, I think that at page five of its brief,

[00:05:46] Speaker 02:
that only weekend additional pay is at issue?

[00:05:48] Speaker 03:
Saturday additional pay and night additional pay.

[00:05:52] Speaker 02:
OK, Saturday.

[00:05:53] Speaker 03:
It's strictly for nurses, Your Honor.

[00:05:55] Speaker 03:
Only nurses and employees specific scientific and qualified employees under Title 38 at the VA get Saturday.

[00:06:12] Speaker 02:
So only Saturday, you're saying that only Saturday

[00:06:15] Speaker 02:
and night pay is at issue.

[00:06:19] Speaker 02:
The second question I had is, the August 31, 2015, Court of Federal Claims decision denied Back Pay Act pre-adjustment interest on monies that were improperly omitted from the supplemental payments, correct?

[00:06:41] Speaker 02:
And from the supplemental lump sum payment.

[00:06:46] Speaker 02:
What exact items are you claiming back to pay interest on as a component of the lump sum payment?

[00:06:55] Speaker 03:
The colas that were not paid between 1993 and 1999.

[00:07:01] Speaker 03:
But you eventually got them.

[00:07:04] Speaker 03:
The cola itself, but not the interest.

[00:07:07] Speaker 02:
OK, no, I understand.

[00:07:08] Speaker 02:
So the COLA is not initially paid.

[00:07:10] Speaker 03:
No, the pay is not an issue here.

[00:07:14] Speaker 03:
It's the interest only.

[00:07:15] Speaker 03:
It's only the interest that's an issue in this case.

[00:07:17] Speaker 02:
Right.

[00:07:18] Speaker 02:
So first of all, interest on the COLAs that weren't properly paid.

[00:07:23] Speaker 03:
Correct.

[00:07:23] Speaker 03:
And the interest on locality.

[00:07:27] Speaker 03:
There are certain people who get, nurses who get locality pay in lieu of a COLA.

[00:07:33] Speaker 03:
And then Sunday premium pay that people earned

[00:07:38] Speaker 03:
and accrued and were paid, but not the interest.

[00:07:43] Speaker 02:
So it was eventually determined that these sums or amounts should have been included in the lump sum payment.

[00:07:52] Speaker 02:
And that's the reason you're seeking interest.

[00:07:54] Speaker 03:
And it was finally settled last year after 18 years at that point.

[00:08:00] Speaker 02:
So what you would say is you're seeking interest because of the late inclusion

[00:08:06] Speaker 02:
of those items in the lump sum?

[00:08:09] Speaker 03:
Only 18 years worth.

[00:08:10] Speaker 03:
OK.

[00:08:11] Speaker 03:
And the issue here is it has very broad implications.

[00:08:18] Speaker 03:
The court below acknowledged, and the government acknowledges in its brief, that all of this money is accrued while an employee is working.

[00:08:32] Speaker 03:
And if you go on the LPM's website under pay and leave,

[00:08:36] Speaker 03:
It says very clearly that when you earn and you accrue annual leave, you accrue it every single pay period.

[00:08:45] Speaker 03:
Depending on your years of service, you either get four hours of annual leave, eight hours of annual leave, et cetera.

[00:08:52] Speaker 03:
You accrue it, and it is yours.

[00:08:54] Speaker 03:
You can use the leave, or you can get paid at the end of your service.

[00:09:00] Speaker 03:
Now, 200,000 federal employees retire or separate every single year.

[00:09:06] Speaker 03:
It's almost impossible not to have unused annual leave and a lump sum.

[00:09:12] Speaker 03:
The reason being, in the final pay period, even if you're on leave, you earn more leave because you are a federal employee for that pay period.

[00:09:23] Speaker 03:
So it's almost impossible not to have unused annual leave.

[00:09:28] Speaker 03:
And many, many people, of course, bank annual leave rather than use it.

[00:09:33] Speaker 03:
And it is their right, according to OPM.

[00:09:37] Speaker 03:
And so the notion then that all of these federal employees who now are paid exclusively by electronic means, by law, you only get paid when you separate or when you finish your pay period.

[00:09:54] Speaker 03:
So the government's argument seems to be that you're no longer an employee because

[00:10:01] Speaker 03:
You're now retired.

[00:10:02] Speaker 03:
You're now separated.

[00:10:04] Speaker 03:
Therefore, when you get your money, you're not a federal employee.

[00:10:08] Speaker 03:
Therefore, the law doesn't apply to you.

[00:10:09] Speaker 02:
As I understand it, that's a back-up government to government, an argument to government.

[00:10:13] Speaker 02:
Yes.

[00:10:13] Speaker 02:
They make two back-up arguments that these weren't the kind of personnel actions that implicate the Back Pay Act and that they weren't employees.

[00:10:25] Speaker 03:
Right.

[00:10:25] Speaker 03:
Now, at the claims court, it held that in itself, by itself,

[00:10:31] Speaker 03:
The lump sum payment act, perhaps, they said, is not subject to the back pay act.

[00:10:39] Speaker 03:
Now, there's not a single word of legislative history that would indicate that.

[00:10:45] Speaker 03:
Not one word of legislative history.

[00:10:47] Speaker 01:
What about the language that says, I think this is in the lump sum payment act, it says the lump sum payment is considered pay for taxation purposes only.

[00:10:58] Speaker 01:
Yes.

[00:11:00] Speaker 01:
Court of Claims relied on that language to support its view that prejudgment interest wasn't appropriate.

[00:11:09] Speaker 03:
I don't believe so, Your Honor.

[00:11:11] Speaker 03:
I think that what the claims court relied on because the, well, let me go backwards.

[00:11:17] Speaker 03:
The Back Pay Act expands the notion of pay and adds allowances and differentials to the coverage of the Back Pay Act.

[00:11:27] Speaker 03:
The lump sum payment act said

[00:11:29] Speaker 03:
It is not paid for the purposes of the lump sum payment.

[00:11:34] Speaker 03:
In other words, you couldn't also use it with retirement pay.

[00:11:38] Speaker 03:
That's what they meant by that.

[00:11:40] Speaker 03:
But when Congress, many years later, the Lump Sum Act came in effect 1944 in order to accommodate trying to get federal employees into the armed services.

[00:11:51] Speaker 03:
1966, the Back Pay Act came in.

[00:11:55] Speaker 03:
The interest part came in in the 70s.

[00:11:57] Speaker 03:
with a much more expanded definition of pay, allowances, differentials, which, one, no legislative history says that lump sum payment is excluded from it.

[00:12:09] Speaker 03:
Number two, the attorney general said, well, you earn your pay, your annual leave, and it is yours.

[00:12:19] Speaker 03:
And when you retire, you use it, and you could get cash for it.

[00:12:25] Speaker 03:
And virtually every employee does.

[00:12:28] Speaker 03:
The Comptroller General did the same.

[00:12:32] Speaker 03:
It accrues, it is earned, and it is vested while you are an employee.

[00:12:38] Speaker 03:
Therefore, you carry that amount for payment, and the payment necessarily has to happen within 10 days, two weeks, three weeks after an employee retires or separates, because for the convenience of the government, by electronic means.

[00:12:57] Speaker 03:
So the implications of affirming the court of the federal claims' opinion are very broad.

[00:13:03] Speaker 03:
It would affect every single federal employee when they retire or separate.

[00:13:07] Speaker 03:
Not that the government intentionally makes errors, but unfortunately, as is in this case, for years and years, they just didn't apply the law correctly.

[00:13:17] Speaker 03:
And they didn't pay the COLA with the lumps on which they should have, clearly in the statute.

[00:13:23] Speaker 03:
They didn't pay the Sunday premium pay, a differential,

[00:13:27] Speaker 03:
And they should have.

[00:13:29] Speaker 03:
And they didn't pay the faculty pay.

[00:13:32] Speaker 03:
So the court also below never even discussed Chevron.

[00:13:39] Speaker 04:
Not a word.

[00:13:40] Speaker 04:
Mr. Lector, you're into your rebuttal time.

[00:13:42] Speaker 04:
Do you want to reserve?

[00:13:43] Speaker 04:
I would like to.

[00:13:44] Speaker 04:
OK, thanks, Ron.

[00:13:45] Speaker 04:
All right, thank you.

[00:13:52] Speaker 04:
Counselor Cotet.

[00:13:54] Speaker 00:
Ms.

[00:13:54] Speaker 00:
Cotet, thank you, Your Honor.

[00:13:57] Speaker 00:
May it please the court?

[00:13:59] Speaker 00:
We respectfully request that the court affirm both of the trial court's judgments from below.

[00:14:05] Speaker 00:
Retired or separated individuals are not entitled to interest under the lump sum act or under the back pay act for lump sum payments that are paid to them subsequent to their employment.

[00:14:22] Speaker 00:
Indeed, they don't vest or entice

[00:14:26] Speaker 00:
for any entitlement until the day of separation.

[00:14:33] Speaker 00:
The Lumpsum Act expressly provides that it is pay for tax purposes only.

[00:14:42] Speaker 00:
Therefore, under the Lumpsum Act, lump sum amounts only constitute pay for purposes of paying the amounts that are due for the hours of unused annual leave.

[00:14:57] Speaker 00:
The Lumpsum Act also does not provide for interest at all, either expressly or otherwise.

[00:15:08] Speaker 01:
Do you agree that the Court of Claims actually relied on the very portion of the statute that you just cited to us in reaching its determination that prejudgment interest was not appropriate here?

[00:15:21] Speaker 00:
In part, yes, Your Honor.

[00:15:22] Speaker 00:
Because the appellants are not claiming that they're entitled to interest under the Lumsum Act.

[00:15:28] Speaker 00:
They can't, because the statute simply does not provide for interest.

[00:15:33] Speaker 00:
And the Interest Act provides that if the statute doesn't provide for interest, then you're not entitled to interest.

[00:15:41] Speaker 00:
The Supreme Court has stated, if the statute does not apply for interest, then you're not entitled to interest.

[00:15:47] Speaker 00:
And if a statute is ambiguous, you're also not entitled to interest.

[00:15:52] Speaker 00:
The appellants, therefore, seek interest on their lump sum claims under the Back Pay Act.

[00:16:01] Speaker 00:
Now, that is why we discuss whether or not they're employees, whether or not there were any adverse personnel actions, and whether or not the lump sum payment itself constitutes pay, allowances, or differentials.

[00:16:17] Speaker 01:
Now, the Court of Claims didn't rely on the employees argument, correct?

[00:16:22] Speaker 00:
The court did not.

[00:16:24] Speaker 00:
However, we are presenting the court with full arguments.

[00:16:29] Speaker 00:
We're not requesting anything from the court except that it affirmed the trial court's judgments.

[00:16:34] Speaker 00:
But the trial court made a determination that lump sum payments themselves do not constitute pay, allowances, or differentials.

[00:16:45] Speaker 00:
And that makes sense.

[00:16:47] Speaker 00:
And this court should affirm that for the following reason.

[00:16:50] Speaker 02:
Mr. Tate, let me interrupt you there.

[00:16:53] Speaker 02:
Mr. Lechner contends, as I understand it, that there are certain components that he's claiming interest on, the colas that were denied, that were paid late, and the other items he mentions.

[00:17:07] Speaker 02:
And he's saying that these components being paid late is what triggers the overall entitlement to interest.

[00:17:18] Speaker 02:
Do you understand that to be his contention?

[00:17:21] Speaker 00:
That is his contention, and we respectfully disagree with it.

[00:17:26] Speaker 02:
All of the... I'm sorry to jump in on you, but time is short.

[00:17:34] Speaker 02:
Let me ask you, if a component, say component A, is not properly included in the lump sum calculus, for whatever reason, why then should there not be backpacked interest on that?

[00:17:50] Speaker 00:
Because that's not what happened here.

[00:17:52] Speaker 00:
What happened here is that the appellant received payment.

[00:17:57] Speaker 00:
Well, I should say in part that's not what happened here.

[00:18:00] Speaker 00:
The vast majority of the appellant in this particular case received exactly the amount of money that they were entitled to receive in lump sum payment upon their separation.

[00:18:14] Speaker 00:
What they did not receive were supplemental payments

[00:18:20] Speaker 00:
on lump sums that came into effect as a direct result of pay increases that became effective.

[00:18:26] Speaker 02:
While they were on leave.

[00:18:27] Speaker 00:
Well, while they were separated.

[00:18:29] Speaker 02:
Yeah, while they were using up what they had left.

[00:18:33] Speaker 00:
No, after they were retired or separated from civil service.

[00:18:37] Speaker 01:
But they still would have been, had they not been retired, they would have been using their unpaid leave.

[00:18:46] Speaker 00:
I want to be very clear here.

[00:18:50] Speaker 00:
an active employee, you are entitled to use your annual leave and be paid for it.

[00:18:59] Speaker 00:
As an active employee, you are not entitled to receive payment for unused annual leave.

[00:19:07] Speaker 00:
And so what we're talking about in this case is unused annual leave and the only way that any person who worked for the government can receive it

[00:19:20] Speaker 00:
is to separate from government service.

[00:19:23] Speaker 00:
That is when your entitlement to be paid under the Lump Sum Act vests.

[00:19:30] Speaker 00:
And so what we're talking about here is not an adverse personnel action that occurred while people were employed with the United States.

[00:19:39] Speaker 00:
What we're talking about here is a failure to compute or pay an additional amount of money

[00:19:47] Speaker 00:
that came into effect during a lump sum period subsequent to separation.

[00:19:54] Speaker 02:
Let me ask you, is there any component of the final lump sum payment?

[00:19:59] Speaker 02:
I understand what you're saying on the COLA issue.

[00:20:01] Speaker 02:
It came into effect while in that final period.

[00:20:06] Speaker 02:
But is there any component of the final lump sum payment here that was determined to have been erroneously not included?

[00:20:16] Speaker 02:
I'm thinking, I guess, about you've answered the COLA point, I guess.

[00:20:19] Speaker 02:
But what about the Sunday?

[00:20:20] Speaker 00:
I believe that the Sunday premium pay.

[00:20:22] Speaker 00:
I apologize, Your Honor.

[00:20:24] Speaker 00:
I don't know the answer to that question directly.

[00:20:26] Speaker 00:
But I believe the Sunday premium pay and the Saturday night pay.

[00:20:31] Speaker 02:
And the locality pay?

[00:20:32] Speaker 00:
No.

[00:20:33] Speaker 00:
Locality pay would have come into effect at the same time that the COLAs would come into effect, the increases.

[00:20:41] Speaker 00:
And for those, we're just talking about the difference between what they were paid

[00:20:45] Speaker 00:
and what they would have been paid once they got it in the supplemental payment.

[00:20:50] Speaker 00:
That's correct.

[00:20:51] Speaker 02:
So that's what I'm just trying to get a fix on.

[00:20:54] Speaker 02:
Is there anything here that was received as a component of the lump sum payment that should have been paid at a certain time that wasn't afterward?

[00:21:05] Speaker 02:
I guess you were talking about what was in the settlement, right?

[00:21:12] Speaker 00:
In the settlement,

[00:21:14] Speaker 00:
The parties agreed that the appellants would receive the difference between what they received and what they should have received in terms of lump sum payments.

[00:21:28] Speaker 02:
And what was the subject of that?

[00:21:32] Speaker 02:
Was the Sunday premium?

[00:21:35] Speaker 00:
That was included, yes, Your Honor.

[00:21:38] Speaker 00:
Yes, Your Honor.

[00:21:38] Speaker 02:
But was there anything else in it?

[00:21:40] Speaker 00:
I don't have a copy of the settlement agreement in front of me.

[00:21:46] Speaker 02:
No, no, don't worry.

[00:21:47] Speaker 02:
The record is, you've got to fish through the record here.

[00:21:52] Speaker 02:
I understand.

[00:21:53] Speaker 02:
I think the settlement agreement is, we maybe not have all of it, but I think we've got at least part of it, maybe we do have all of it, at A, 90th, appendix 90th and 92th.

[00:22:07] Speaker 00:
Yes, I'm there, Your Honor.

[00:22:16] Speaker 00:
Sunday premium pay, night premium pay, weekend additional pay were the three categories that were in addition to the COLAs and locality pay adjustments.

[00:22:29] Speaker 02:
And prior to that time, the parties had been disputing that issue?

[00:22:34] Speaker 00:
Is that correct?

[00:22:40] Speaker 00:
Yes, until a determination was made by the VA that these amounts had not been made.

[00:22:45] Speaker 00:
OK.

[00:22:46] Speaker 00:
And then there was no dispute.

[00:22:48] Speaker 00:
The parties were in agreement.

[00:22:51] Speaker 00:
In any event, under the Back Pay Act, the Back Pay Act itself expressly provides that with respect to lump sum, I'll start with annual leave.

[00:23:04] Speaker 00:
With respect to annual leave, if a determination is made that someone, by an appropriate authority, that an employee which

[00:23:14] Speaker 00:
can include a current active employee or a former employee who is the subject of adverse personnel action is entitled to back pay, then under that statute they get back pay.

[00:23:29] Speaker 00:
But they have to repay if they were separated any lump sum amounts that they received.

[00:23:38] Speaker 00:
What they do get is credited for the amount of leave that they

[00:23:44] Speaker 00:
would have accrued during that period and credited for the leave that they had to repay the lump sum amount on.

[00:23:52] Speaker 00:
If they decide to separate, the Back Pay Act directs payment under the Lump Sum Act.

[00:24:03] Speaker 00:
It doesn't include payment within the Back Pay Act itself.

[00:24:08] Speaker 00:
Then beyond that, it expressly provides for interest, but it carves out

[00:24:14] Speaker 00:
payments lump sum for annual leave from payment of interest.

[00:24:22] Speaker 00:
And so under the Back Pay Act itself, an individual would not be entitled to payment for unused annual leave.

[00:24:33] Speaker 00:
In fact, would have to repay the money they received or had received under the Lump Sum Act to their agency

[00:24:43] Speaker 00:
be credited for the hours for that leave.

[00:24:48] Speaker 00:
And then once they decide to separate, those annual leave hours would be liquidated not under the Back Pay Act, but under the Lumpsum Act and not entitled to interest.

[00:25:02] Speaker 00:
And so the Back Pay Act doesn't provide for interest on lump sum payments.

[00:25:07] Speaker 00:
And so the trial court got it correct.

[00:25:10] Speaker 00:
The Lumpsum Act doesn't pay.

[00:25:12] Speaker 00:
out for interest.

[00:25:14] Speaker 00:
The trial court got that correct.

[00:25:16] Speaker 04:
What about the OPM opinion that your opponent cites to?

[00:25:21] Speaker 04:
Is it an OPM?

[00:25:24] Speaker 00:
The decision or the regulation regarding its definition of employees, pay, allowances, and differentials?

[00:25:33] Speaker 00:
Correct.

[00:25:35] Speaker 00:
Well, in Wallace, this court discussed

[00:25:38] Speaker 00:
that very OPM regulation.

[00:25:41] Speaker 04:
It excludes retirement benefits, but doesn't mention lump sum payments.

[00:25:46] Speaker 00:
And that's, I believe, the 1981 regulation, Your Honor.

[00:25:50] Speaker 00:
It did not mention lump sum payments.

[00:25:54] Speaker 00:
That's correct.

[00:25:56] Speaker 00:
And in 1999, those regulations were amended by OPM to clarify that lump sum payments are not included in the Back Pay Act.

[00:26:09] Speaker 00:
So under SMILEY, the court can still consider OPM's regulations and its interpretation of the statute that it's required to administer.

[00:26:20] Speaker 00:
However, what we're submitting to the court is that you don't need to go there.

[00:26:24] Speaker 00:
Just as this court determined in Wallace, the terms of the statute are clear and unambiguous on its face.

[00:26:32] Speaker 00:
Therefore, you don't need to look to OPM's regulations.

[00:26:36] Speaker 00:
And any of that that you decide that you must

[00:26:39] Speaker 00:
OPM's regulations are reasonable in their construction based upon the terms of the statute itself and the intent of Congress.

[00:26:47] Speaker 00:
And that is, under the Back Pay Act, an employee is entitled to have what the employee would have had but for an adverse personnel action.

[00:27:00] Speaker 00:
An employee would not be entitled to have pay for unused annual leave.

[00:27:08] Speaker 00:
And therefore, OPM's determination that lump sum payments do not fall within the scope of pay allowances and differentials under the Back Pay Act makes sense.

[00:27:21] Speaker 00:
It's reasonable.

[00:27:22] Speaker 00:
And it's consistent with the terms of the Back Pay Act itself.

[00:27:25] Speaker 00:
Are there any other questions?

[00:27:28] Speaker 04:
There's no question.

[00:27:28] Speaker 04:
Thank you.

[00:27:29] Speaker 00:
For all these reasons, Your Honor, we request and respectfully that the court affirm the trial court's judgments in this case.

[00:27:35] Speaker 00:
Thank you.

[00:27:41] Speaker 03:
I please the court, I'll be very brief.

[00:27:44] Speaker 03:
That's just not true.

[00:27:45] Speaker 03:
You are entitled to the cash.

[00:27:48] Speaker 03:
Every federal employee gets cash for their unused annual leave.

[00:27:54] Speaker 03:
There is no question about it.

[00:27:56] Speaker 03:
And the OPM regulation in 1981 said it includes all monetary and employment benefits that the employee has.

[00:28:08] Speaker 03:
at the time of their retirement or every pay period.

[00:28:12] Speaker 03:
But all that is paid.

[00:28:14] Speaker 04:
Let's call that generally pay, right?

[00:28:16] Speaker 04:
Yes.

[00:28:17] Speaker 04:
But where, and this is my first question to you, where in the Lumsum Act where the BPM doesn't say that pre-judgment interest is paid?

[00:28:28] Speaker 03:
But the Back Pay Act doesn't say that Saturday premium pay is entitled.

[00:28:36] Speaker 03:
It doesn't say that night premium pay is entitled.

[00:28:38] Speaker 03:
It doesn't say that standby premium pay is entitled.

[00:28:41] Speaker 03:
It doesn't say there are dozens of premium pays, dozens of allowances and differentials.

[00:28:47] Speaker 04:
Those other factors are defined as pay in other acts.

[00:28:52] Speaker 04:
But not, you still haven't shown me where in the law that you point to that you're entitled to the prejudgment interest.

[00:29:00] Speaker 04:
The OPM interprets the statute.

[00:29:03] Speaker 04:
The statutes had pay broadly.

[00:29:06] Speaker 04:
If we accept that, that the OPM interprets the statute, then we also have to accept that the OPM constitutes a waiver of sovereign immunity.

[00:29:16] Speaker 04:
Of course.

[00:29:18] Speaker 03:
I mean, if Chevron.

[00:29:20] Speaker 04:
That can only be done expressly.

[00:29:23] Speaker 04:
And where in the OPM regulations do we see an express statement, a waiver of sovereign immunity?

[00:29:30] Speaker 03:
Your Honor, the Back Pay Act

[00:29:33] Speaker 03:
is the waiver of sovereign immunity.

[00:29:36] Speaker 03:
Congress and the legislative history, there is a report from the Senate in the legislative history in which they were not going to list all of the pays.

[00:29:47] Speaker 03:
There are dozens and dozens of different pays.

[00:29:50] Speaker 03:
They used a general explanation.

[00:29:54] Speaker 03:
Pay, allowances, differentials.

[00:29:58] Speaker 03:
OPM then accepts its responsibility under Chevron

[00:30:03] Speaker 03:
to fill in those blanks.

[00:30:06] Speaker 03:
And OPM said in 1981, all monetary and employment benefits are covered.

[00:30:15] Speaker 03:
And employees, unlike what the government just said, employees get cash for their unused annual leave.

[00:30:21] Speaker 03:
And on the OPM website, if you look there today, it says every employee is entitled to all of the unused annual leave in cash.

[00:30:32] Speaker 03:
And so if you uphold the court below or adopt the government's argument, it emasculates Chevron.

[00:30:42] Speaker 03:
It emasculates Chevron and exposes every federal employee, whenever they retire or separate, that if the government makes a mistake and a serious mistake and doesn't pay them the right amount of money, that they're not owed any interest.

[00:31:00] Speaker 03:
When this settlement occurred here, these employees had to receive, as part of a settlement, after 18 years of litigation, $500,000, all told, for the 3,167 nurses.

[00:31:15] Speaker 03:
They were not paid the right amount of money when they separated, in some cases, 25 years ago.

[00:31:24] Speaker 03:
Would you like to conclude, Mr. Leckler?

[00:31:27] Speaker 03:
Yes, sir.

[00:31:27] Speaker 04:
Thank you, Your Honor.

[00:31:28] Speaker 04:
Thank you very much.

[00:31:30] Speaker 04:
Appreciate it.

[00:31:34] Speaker ?:
Thank you.