United States Court of Appeals
for the Federal Circuit
__________________________
DAWN HALL,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-5021
__________________________
Appeal from the United States Court of Federal
Claims in 09-CV-239, Senior Judge Bohdan A. Futey.
__________________________
Decided: August 27, 2010
___________________________
RICHARD A. REGNIER, Law Offices of Richard A. Reg-
nier, of Camarillo, California, argued for plaintiff-
appellant.
ELIZABETH A. SPECK, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
FRANKLIN E. WHITE, JR, Assistant Director, and STEVEN J.
GILLINGHAM, Assistant Director.
__________________________
HALL v. US 2
Before RADER, Chief Judge, LOURIE and BRYSON, Circuit
Judges.
BRYSON, Circuit Judge.
In this case we address whether the Court of Federal
Claims has jurisdiction over a particular federal employee
pay claim or whether jurisdiction over that claim resides
exclusively in the Merit Systems Protection Board
(“MSPB”). The underlying dispute is whether the em-
ployee was entitled to be paid for time spent on jury duty,
instead of being placed on absent without leave (“AWOL”)
status and being denied pay for that time. The Court of
Federal Claims held that because the employee was
ultimately removed based on the AWOL charge, the
MSPB had exclusive jurisdiction over the employee’s pay
claim. We hold that the Court of Federal Claims had
jurisdiction over the employee’s pay claim and that the
fact that the employee was ultimately removed from her
position did not deprive the court of jurisdiction over her
claim for pay that accrued prior to her removal.
I
Dawn Hall was hired as an engineer for the Navy in
1984 and was stationed in California. In June 2002, she
agreed to transfer to Washington, D.C., but she was
allowed to delay the transfer until July 2003 due to the
poor health of her mother. In March 2003, Ms. Hall
submitted an application to serve as a grand juror for the
Ventura County Superior Court in California. She was
selected to serve a one-year term beginning on July 1,
2003. During that year, the Navy paid Ms. Hall in accor-
dance with 5 U.S.C. § 6322, which entitles federal em-
ployees to take court leave without any loss in pay.
On May 26, 2004, the Navy directed Ms. Hall to re-
port for duty in Washington, D.C., no later than July 14,
3 HALL v. US
2004. Meanwhile, Ms. Hall was also asked by the presid-
ing judge of the Ventura County Superior Court if she
would volunteer to stay for a second year and serve as the
foreman of the grand jury. Ms. Hall then contacted the
Office of Personnel Management (“OPM”) seeking advice
as to whether her employer could direct her not to serve
on the grand jury.
On June 28, 2004, Ms. Hall informed the Navy by let-
ter that she would be serving an additional year on the
grand jury. She stated, “In my recent contact with OPM I
was informed that as a summoned and sworn juror I am
entitled to court leave (5 U.S.C. 6322). I was also in-
formed that the employer cannot super[s]ede this entitle-
ment by ‘directing’ or ‘ordering’ an employee not to serve
on a jury.” On July 1, 2004, Ms. Hall was sworn in for her
second year of grand jury service.
Shortly thereafter, the Navy placed Ms. Hall on
AWOL status and suspended her pay. Ms. Hall appealed
the agency’s action to the MSPB in December 2004, but
the MSPB dismissed the appeal for lack of jurisdiction,
explaining that placement of an employee on AWOL
status is not within the limited set of adverse personnel
actions that are appealable to the MSPB.
In March 2005, shortly after the MSPB issued its de-
cision, Ms. Hall applied to OPM for a determination as to
whether she was entitled to court leave under section
6322(a). On June 29, 2005, while her request to OPM was
pending, the Navy removed Ms. Hall from her position.
The stated grounds for removal were (1) failure to report
for duty as directed, (2) failure to obey a proper order from
a supervisor, and (3) multiple days of absence without
leave. Ms. Hall timely appealed her removal to the
MSPB, but she then moved to delay adjudication of the
appeal pending the outcome of the OPM proceeding. The
HALL v. US 4
MSPB granted her motion and dismissed her case without
prejudice, with the instruction that “the appellant may
refile her appeal within 30 days after the date of receipt of
a final OPM decision regarding her pending claim of
entitlement to court leave, but in no event . . . later than
December 2, 2005.”
OPM issued its decision on January 12, 2006, finding
that Ms. Hall was not entitled to court leave. OPM inter-
preted section 6322(a) to apply only in the case of a com-
pulsory summons. Because Ms. Hall’s jury service was
voluntary, OPM concluded that she was not “summoned”
to serve as a juror within the meaning of section 6322(a).
Ms. Hall did not re-file her appeal with the MSPB follow-
ing the issuance of the OPM decision.
More than three years later, Ms. Hall filed this action
in the Court of Federal Claims, seeking back pay for the
pre-removal period during which she was still employed
but was designated as being on AWOL status. She also
sought ancillary relief in the form of reinstatement and
post-removal back pay. The court dismissed the action for
lack of jurisdiction, noting that the Civil Service Reform
Act (“CSRA”) places disputes regarding removal actions
within the exclusive jurisdiction of the MSPB, and stating
that all of Ms. Hall’s claims stemmed from her removal.
Ms. Hall appeals from that decision. She asserts that her
claims are not based on the removal action but are based
instead on section 6322(a) and the Back Pay Act, 5 U.S.C.
§ 5596.
II
It is well established that the Court of Federal Claims
lacks jurisdiction over personnel actions that are covered
by the CSRA. See United States v. Fausto, 484 U.S. 439,
449 (1988). The CSRA, however, does not encompass
every adverse personnel action against a federal em-
5 HALL v. US
ployee, and therefore does not preempt all employee pay
claims that would otherwise be within the jurisdiction of
the Court of Federal Claims. In determining whether the
Court of Federal Claims has jurisdiction over a federal
employee’s claim for pay arising from an adverse person-
nel action, the threshold question is whether the CSRA
“‘covers’ [the challenged] action.” Worthington v. United
States, 168 F.3d 24, 26 (Fed. Cir. 1999); Romero v. United
States, 38 F.3d 1204, 1211 (Fed. Cir. 1994) (“Fausto holds
that the CSRA provides ‘the only means of review as to
the types of adverse personnel action specifically covered
by the CSRA.’”) (citations omitted). If the CSRA does not
deprive the Court of Federal Claims of jurisdiction over a
particular dispute, we proceed to the standard jurisdic-
tional inquiry under the Tucker Act, 28 U.S.C. § 1491,
which considers whether the claimant has identified a
source of substantive law that creates a right to money
damages. See Fisher v. United States, 402 F.3d 1167,
1172 (Fed. Cir. 2005).
The types of personnel actions encompassed by the
CSRA are those based on:
[1] unacceptable job performance, 5 U.S.C. § 4303,
[2] prohibited personnel practices such as “unlaw-
ful discrimination, coercion of political activity,
nepotism, and reprisal against so-called whistle-
blowers,” 5 U.S.C. §§ 2301-02, [3] minor adverse
personnel actions such as a suspension for 14 days
or less, 5 U.S.C. § 7502, and [4] major adverse
personnel actions such as “a removal; a suspen-
sion for more than 14 days; a reduction in grade; a
reduction in pay; and a furlough of 30 days or
less,” 5 U.S.C. § 7502.
HALL v. US 6
King v. United States, 81 Fed. Cl. 766, 771 (2008) (inter-
nal citations omitted). That list does not encompass the
denial of pay for periods in which the employee is deemed
to be AWOL. See Perez v. Merit Sys. Prot. Bd., 931 F.2d
853 (Fed. Cir. 1991); Rose v. Dep’t of Health & Human
Servs., 721 F.2d 355 (Fed. Cir. 1983).
The government acknowledges that denial of pay be-
cause of AWOL status is not an adverse personnel action
covered by the CSRA and that, but for the removal action,
the Court of Federal Claims would have had jurisdiction
over Ms. Hall’s claim. The government asserts, however,
that the removal action deprived the court of jurisdiction
over the claim because Ms. Hall’s back pay claim is “inex-
tricably intertwined with her removal from Federal
Service based upon her AWOL status.” Appellee’s Br. 10.
A ruling as to the legitimacy of the AWOL determination,
the government argues, would decide the legitimacy of the
removal action, which is a matter committed to the exclu-
sive jurisdiction of the MSPB.
The difficulty with the government’s position is that
Ms. Hall’s claim for money damages pursuant to section
6322(a) became ripe as soon as she was placed on AWOL
status and deprived of pay. That claim did not arise from
or turn on her removal from service. Nor did the fact of
her removal, once it occurred, change any aspect of her
claim to pre-removal pay. Cf. Read v. United States, 254
F.3d 1064, 1067 (Fed. Cir. 2001) (Jurisdiction is lacking
when a plaintiff’s “claim for back pay is based upon his
removal from his job, since it was that action that re-
sulted in the termination of his pay.”). Only the ancillary
claims for reinstatement and post-removal back pay were
predicated on the removal action. As to those ancillary
claims, we agree with the Court of Federal Claims that it
lacked jurisdiction. But as to the pre-removal claim for
back pay, we take a different view. We hold that the
7 HALL v. US
Court of Federal Claims had jurisdiction over that claim
and that the court’s jurisdiction did not evaporate when
the agency removed Ms. Hall.
Contrary to the government’s position, an adjudica-
tion of the section 6322(a) claim would not necessarily
resolve the removal issue. As an initial matter, the
removal was a separate personnel action, and Ms. Hall
was not required to challenge it in order to prosecute her
claim for pre-removal back pay. While reinstatement is a
necessary precondition for an employee to be entitled to
post-removal back pay, it is not a precondition for an
award of pre-removal back pay. Thus, if the agency
violated Ms. Hall’s rights under section 6322(a) and
unlawfully denied her compensation for the days she was
engaged in jury service, she was not required to seek
reinstatement in order to obtain relief for that denial of
compensation. See Bell v. United States, 23 Cl. Ct. 73, 77
(1991) (finding jurisdiction where plaintiffs claimed
entitlement to severance pay without contesting the
merits of their separation).
Even if Ms. Hall were to appeal the removal action be-
fore the MSPB, the outcome of that appeal would not
necessarily resolve the merits of her section 6322(a) claim.
For example, if the MSPB felt that removal was improper
because Ms. Hall’s interpretation of section 6322(a) was
reasonable, it could grant reinstatement even if it con-
cluded that the AWOL charge was valid.. Conversely, the
MSPB could deny reinstatement even if it found the
AWOL charge to be erroneous, e.g., on the ground that
her conduct in dealing with her supervisors regarding the
AWOL issue was inappropriate.
More importantly, even if the MSPB were to overturn
the AWOL charge and rule in Ms. Hall’s favor, it would be
unable to award her the pre-removal pay she would have
HALL v. US 8
received absent the AWOL charge. In Mattern v. Depart-
ment of the Treasury, 291 F.3d 1366 (Fed. Cir. 2002), we
held that the MSPB’s “power to make an aggrieved em-
ployee whole under the Back Pay Act extends back only to
the effective date of the [appealable] adverse action.” Id.
at 1371. Because the only appealable adverse action in
this case is the removal action, the MSPB would be pow-
erless to award any pre-removal back pay to Ms. Hall. 1
For that reason as well, it is incorrect to say that Ms.
1 In a supplemental brief submitted after oral ar-
gument, the government has attempted to distinguish
Mattern on the ground that the MSPB would have been
authorized to grant Ms. Hall relief on her pre-removal pay
claim, because she was appealing from a denial of “basic
pay,” and not “additional pay” such as availability pay,
overtime pay, or premium pay. See 5 U.S.C. § 7512. That
distinction is contrary to the position taken by both the
MSPB and this court in Mattern. The MSPB ruled in
Mattern that the Board was authorized to award back
pay “only to the extent that an employee lost pay as a
result of an action the Board, acting within its jurisdic-
tion, found unjustified or unwarranted,” e.g., a removal
action. Mattern v. Dep’t of the Treasury, 88 M.S.P.R. 65,
70 (2001) (emphasis added). Pay lost prior to a removal
action, whether premium pay or basic pay, is not lost “as
a result of” the removal. On appeal in that case, we
likewise noted that because pre-removal actions—such as
placement on administrative leave or reassignment to
restricted duty—are not “adverse actions” within the
scope of the CSRA, they are not “remediable by the Board
under the Back Pay Act.” Mattern, 291 F.3d at 1370.
To the extent that the government means to suggest
that an AWOL charge that results in the denial of pay is a
“reduction in pay” that is directly actionable in the MSPB,
that position would be contrary to the position the gov-
ernment has repeatedly and successfully advocated in
prior cases. See, e.g., Perez, 931 F.2d at 855; Lawson v.
Dep’t of Heath & Human Servs., 64 M.S.P.R. 673, 680
(1994) (“reduction in pay” means “reduction in basic rate
of pay”); In re Doyle, 41 M.S.P.R. 31, 34 (1989).
9 HALL v. US
Hall’s claim for court leave is “inextricably intertwined”
with her removal from federal service.
The government relies heavily on Dachman v. United
States, 73 Fed. Cl. 508 (2006), aff’d, 230 F. App’x 981
(Fed. Cir. 2007), in arguing that the Court of Federal
Claims loses jurisdiction over a back pay claim arising
from a charge of AWOL if the employee is subsequently
removed based on the AWOL charge. Like Ms. Hall, Dr.
Dachman contested her placement on AWOL prior to her
removal, and she sought both pre-removal and post-
removal back pay in an action brought in the Court of
Federal Claims. The government sought to dismiss the
case for lack of jurisdiction, asserting that the claims for
back pay arose directly from the agency’s decision to
remove Dr. Dachman from federal service. The Court of
Federal Claims simply adopted the government’s repre-
sentation that all of Dr. Dachman’s claims for back pay,
both pre-removal and post-removal, “emanate[d] from an
underlying removal action.” Id. at 517. For the reasons
outlined above, however, we find the premise of that
decision to have been mistaken, and we therefore do not
agree with the court’s disposition in that case.
Having determined that the CSRA does not preclude
the Court of Federal Claims from exercising jurisdiction
in this case, we turn to the question whether Ms. Hall has
identified a money-mandating source within the meaning
of the Tucker Act. Ms. Hall met that burden by alleging
that compensation of her forfeited pre-removal pay is
mandated by the Back Pay Act based on a violation of
section 6322(a). See Worthington, 168 F.3d at 26 (“The
Back Pay Act is . . . a ‘money-mandating’ statute when
based on violations of statutes or regulations covered by
the Tucker Act.”). We conclude that the Court of Federal
Claims has jurisdiction to determine whether Ms. Hall
was entitled to paid leave under section 6322(a). Accord-
HALL v. US 10
ingly, we remand for a determination on the merits of
that claim.
REVERSED AND REMANDED