Background
A class of current and retired federal employees who lived and worked in non-foreign areas outside the contiguous United States sued the federal government for allegedly underpaying their salaries and retirement benefits. They challenged their historical exclusion from locality pay, the phaseout of cost-of-living allowances under the Non-Foreign AREA Act of 2009, and the exclusion of those allowances from retirement-benefit calculations.
The employees alleged that the relevant statutory provisions violated the Fifth Amendment’s guarantees of due process and equal protection and constituted unconstitutional bills of attainder. The Court of Federal Claims dismissed all six claims for lack of subject-matter jurisdiction, concluding that the employees had not identified a money-mandating source for their salary claims and that challenges to OPM’s retirement calculations belonged in the Civil Service Reform Act’s administrative-review process.
The Court’s Holding
The Federal Circuit affirmed in a nonprecedential opinion. It held that neither the Federal Employees Pay Comparability Act nor the Non-Foreign AREA Act mandated presently due money damages to the plaintiffs, even if the challenged provisions were disregarded as unconstitutional. Striking those provisions would leave no formula or data from which a court could calculate locality pay for 1994 through 2009 or post-2009 cost-of-living allowances. Awarding relief would therefore require prospective administrative action and equitable remedies beyond the Court of Federal Claims’ jurisdiction.
The court also affirmed dismissal of the retirement claims. The claim for increased benefits based on historical locality pay depended entirely on salary claims over which the Court of Federal Claims lacked jurisdiction. The separate challenge to OPM’s exclusion of cost-of-living allowances from retirement calculations had to proceed first through OPM and then the Merit Systems Protection Board under the statutory review scheme for CSRS and FERS claims; neither the Court of Federal Claims nor the Federal Circuit could decide it in the first instance. Because jurisdiction was absent, the court did not address the merits of the employees’ constitutional challenges.
Key Takeaways
- Tucker Act jurisdiction requires a source of law that mandates monetary compensation presently due to the claimant; the possibility that government action could eventually produce a payment is insufficient.
- A court cannot create a calculable pay entitlement merely by severing a challenged statutory exclusion when doing so would leave missing surveys, formulas, or administrative determinations.
- Challenges to OPM’s calculation of CSRS or FERS benefits must follow the prescribed route through OPM and the MSPB before Federal Circuit review.
Why It Matters
The decision illustrates the jurisdictional obstacles federal employees face when compensation claims require agencies to reconstruct historical pay data or alter future administrative practices. Framing such claims as constitutional challenges does not establish Tucker Act jurisdiction unless the remaining law itself mandates a presently calculable payment.
It also reinforces the exclusivity of the federal civil-service retirement review system: disputes over OPM’s treatment of compensation in retirement calculations cannot bypass OPM and the MSPB by beginning in the Court of Federal Claims or the Federal Circuit.