Doe v. United States

United States Court of Appeals for the Federal Circuit

05-5104

JOHN DOE,
on behalf of themselves and
all others similarly situated,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

Robert A. Van Kirk, Williams & Connolly LLP, of Washington, DC, argued for
plaintiffs-appellants. With him on the brief was Daniel D. Williams. Of counsel on the
brief was Paul Y. Kiyonaga, Kiyonaga & Soltis, P.C., of Washington, DC.

Alisa B. Klein, Attorney, Appellate Staff, Civil Division, United States Department
of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief
were Peter D. Keisler, Assistant Attorney General, Gregory G. Katsas, Deputy Assistant
Attorney General; and Mark B. Stern and Hillary A. Stern, Attorneys. Of counsel were
Michael S. Raab and Mark R. Freeman, Attorneys; and David M. Cohen, Director, and
Kathryn A. Bleecker, Assistant Director, Commercial Litigation Branch.

Appealed from: United States Court of Federal Claims

Judge Robert H. Hodges, Jr.
 United States Court of Appeals for the Federal Circuit

05-5104

JOHN DOE,
on behalf of themselves and
all others similarly situated,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

__________________________

DECIDED: September 11, 2006
__________________________

Before RADER, SCHALL, and PROST, Circuit Judges.

SCHALL, Circuit Judge.

Plaintiff John Doe and a class of similarly situated individuals (hereinafter

collectively, “the Doe plaintiffs”) appeal from the September 17, 2004 judgment of the

United States Court of Federal Claims dismissing their complaint. Doe v. United States,

No. 98-896 C, slip op. (Fed. Cl. Sept. 17, 2004) (“Doe Summary Judgment Order”). The

Doe plaintiffs are Department of Justice (“DOJ”) attorneys who sued the government for

alleged violations of the overtime provisions of the Federal Employees Pay Act of 1945
(“FEPA”), ch. 212, 59 Stat. 295 (codified as amended at 5 U.S.C. §§ 5542, 5545, 5546

(2000)).1 The Doe plaintiffs claim that the Court of Federal Claims erred when it

dismissed their claims for overtime pay pursuant to 5 U.S.C. § 5542(a), administratively

uncontrollable overtime (“AUO”) pay pursuant to 5 U.S.C. § 5545(c)(2), and holiday pay

pursuant to 5 U.S.C. § 5546(b). We discern no such error and therefore affirm the

judgment of the Court of Federal Claims dismissing the Doe plaintiffs’ complaint.

BACKGROUND

I.

The Doe plaintiffs are a class of over 9,000 DOJ attorneys who seek pay for

overtime work and holiday work performed between 1992 and 1999. Doe v. United

States, 372 F.3d 1347, 1349 & n.1 (Fed. Cir. 2004) (“Doe V”). The parties do not

dispute that the Doe plaintiffs worked overtime and on holidays during this period. Id. at

1350. Further, there is evidence supporting the Doe plaintiffs’ assertion that DOJ

expected and induced the Doe plaintiffs to work overtime and to work on holidays.

However, the Doe plaintiffs did not receive any written order or approval from DOJ

before performing this work. Id. at 1362-64. Even though they did not receive written

order or approval, the Doe plaintiffs allege that they are entitled to overtime, AUO, and

holiday pay under FEPA because they were expected and induced to work beyond the

regularly scheduled work week.

1
FEPA has not been amended in relevant part since 1999, when the events
relevant to this appeal took place. Thus, all references are to the 2000 version of the
United States Code unless otherwise indicated.

05-5104 2
 II.

FEPA includes specific provisions governing each of the Doe plaintiffs’ three

claims.

Section 5542(a) contains the general eligibility requirements for overtime pay

under FEPA. Section 5542(a) provides in relevant part:

For full-time, part-time and intermittent tours of duty,
hours of work officially ordered or approved in excess of 40
hours in an administrative workweek, or . . . in excess of 8
hours in a day, performed by an employee are overtime work
and shall be paid for, except as otherwise provided by this
subchapter[.]

5 U.S.C. § 5542(a) (emphasis added). As emphasized above, overtime hours must be

“ordered or approved” in order to be compensable. The applicable regulation repeats

this requirement by stating that overtime pay must be “[o]fficially ordered or approved.”

5 C.F.R. § 550.111(a)(1) (2006).2 Section 550.111(c) clarifies that “[o]vertime work in

excess of any included in a regularly scheduled administrative workweek may be

ordered or approved only in writing by an officer or employee to whom this authority has

been specifically delegated.” (emphasis added). As we noted in Doe V, a regulation

substantially similar to the present section 550.111(c) has been in effect since 1945,

when FEPA was enacted, until the present. 372 F.3d at 1352.

Pursuant to 5 U.S.C. § 5545(c)(2), the head of an agency may provide AUO pay

instead of other forms of premium pay such as overtime pay under section 5542(a).

Section 5545(c)(2) provides in relevant part:

2
The relevant provisions of the Code of Federal Regulations have not been
amended since 1999, when the events relevant to this appeal took place. Thus, all
references are to the 2006 version of the Code of Federal Regulations.

05-5104 3
 The head of an agency, with the approval of the
Office of Personnel Management, may provide that—
...
(2) an employee in a position in which the hours of duty
cannot be controlled administratively, and which requires
substantial amounts of irregular, unscheduled overtime duty
with the employee generally being responsible for
recognizing, without supervision, circumstances which
require the employee to remain on duty, shall receive
premium pay for this duty on an annual basis instead of
premium pay provided by other provisions of this
subchapter, except for regularly scheduled overtime, night,
and Sunday duty, and for holiday duty. . . .

(emphases added). The Office of Personnel Management (“OPM”) has promulgated

regulations governing AUO payment policy at 5 C.F.R. §§ 550.151-.163. Sections

550.154 and 550.162-.163 set forth rates for premium pay for AUO and other payment

provisions specific to AUO. Sections 550.151-.153 establish criteria for determining

which positions meet the statutory requirements for AUO pay.

Under the regulations, OPM requires that agencies determine prospectively

which positions meet the criteria for AUO pay set forth in sections 550.151-.153.

Specifically, the applicable regulation states:

The head of each agency, or an official who has been
delegated authority to act for the head of an agency in the
matter concerned, is responsible for . . . . [d]etermining in
accordance with section 5545(c) of Title 5, United States
Code, and this subpart, which employees shall receive
premium pay on an annual basis under § 550.141 or
§ 550.151. These determinations may not be retroactive.

5 C.F.R. § 550.161(b).

Pursuant to section 550.161(b), DOJ published Order 1551.4A in 1975. The

order sets forth a general policy of providing AUO pay to persons meeting the statutory

requirements in a section entitled “POLICY.” Paragraph 6 of the order elaborates on

05-5104 4
the requirements for receiving AUO pay and repeats much of the language of 5 C.F.R.

§ 550.151-.153. Paragraph 7 is entitled “AUTHORIZED PERSONS” and provides:

Premium pay under this order may be paid to eligible
employees assigned to the classes of positions listed in
Appendix 1 to this order. The Assistant Attorney General for
Administration will authorize administratively uncontrollable
overtime pay for additional classes of positions upon the
request of a bureau director which shows that the positions
meet the criteria set out in paragraph 6.

Appendix 1 lists 6 positions: (1) Airplane pilot engaged in air-to-ground border patrol

activities, (2) Border patrol agent, (3) Criminal investigator, (4) General investigator, GS-

9 and above, (5) Officer-in-charge, Immigration and Naturalization Service domestic

office, engaged in investigative duties, and (6) Immigration officer, foreign area,

engaged in investigative duties. “Attorney” is not listed.

5 U.S.C. § 5546(b) concerns eligibility for holiday pay under FEPA. Section

5546(b) provides in relevant part:

(b) An employee who performs work on a holiday . . . is
entitled to pay at the rate of his basic pay, plus premium pay
at a rate equal to the rate of his basic pay, for that holiday
work which is not—
(1) in excess of 8 hours; or
(2) overtime work as defined by section 5542(a) of this title.

The regulations governing authorization for holiday pay provide as follows:

(a) Except as otherwise provided in this subpart, an
employee who performs holiday work is entitled to pay at his
or her rate of basic pay plus premium pay at a rate equal to
his or her rate of basic pay for that holiday work that is not in
excess of 8 hours.
(b) An employee is entitled to pay for overtime work on a
holiday at the same rate as for overtime work on other days.
(c) An employee who is assigned to duty on a holiday is
entitled to pay for at least 2 hours of holiday work.

05-5104 5
 (d) An employee is not entitled to holiday premium pay while
engaged in training, except as provided in § 410.402 of this
chapter.

5 C.F.R. § 550.131 (emphasis added). Section 550.132 also concerns holiday pay. It

is entitled “Relation to overtime, night, and Sunday pay” and provides:

(a) Premium pay for holiday work is in addition to overtime
pay or night pay differential, or premium pay for Sunday
work payable under this subpart and is not included in the
rate of basic pay used to compute the overtime pay or night
pay differential or premium pay for Sunday work.
(b) Notwithstanding premium pay for holiday work, the
number of hours of holiday work are included in determining
for overtime pay purposes the total number of hours of work
performed in the administrative workweek in which the
holiday occurs.
(c) The number of regularly scheduled hours of duty on a
holiday that fall within an employee’s basic workweek on
which the employee is excused from duty are part of the
basic workweek for overtime pay computation purposes.

(emphasis added). “Holiday work” is defined at 5 C.F.R. § 550.103 as “nonovertime

work performed by an employee during a regularly scheduled daily tour of duty on a

holiday designated in accordance with § 610.202 of this chapter.” Section 610.202 is

entitled “Determining the holiday” and sets forth guidelines for determining which day of

a week is to be treated as an employee’s holiday.

III.

On March 24, 2000, in Doe v. United States, 46 Fed. Cl. 399, 402 (2000) (“Doe

I”), the Court of Federal Claims granted the government’s motion to dismiss the Doe

plaintiffs’ claims for AUO pay for lack of jurisdiction under the Tucker Act.3 In Doe I, the

3
In Doe I, the court did not expressly state that it based its decision to
dismiss on the lack of Tucker Act jurisdiction. See Doe I, 46 Fed. Cl. at 402. However,
we believe that the basis of the court’s decision was jurisdictional. First, in a footnote
the court rejected the Doe plaintiffs’ argument that the Court of Federal Claims “may

05-5104 6
Court of Federal Claims began by examining the language of section 5545(c)(2), which

governs AUO pay, and found that the language of the statute was not in and of itself

mandatory. Id. at 401. The court found that “[t]he discretion to determine whether an

employee will be provided premium pay under this section rests with the head of the

Agency, with the approval of the Office of Personnel Management.” Id. Turning to the

agency’s policies, the court noted that DOJ Order 1551.4A concerned premium pay for

AUO and that “Attorney” was not listed as a covered position in Appendix 1 to the order.

Id. Based on the foregoing, the court held that there was no requirement that the

agency pay compensation to attorneys and dismissed the Doe plaintiffs’ claim for AUO

pay. Id. at 402. The court’s decision dismissing the Doe plaintiffs’ claims for AUO pay

in Doe I has not been appealed previously.

The Doe plaintiffs’ claims for overtime pay under section 5542 and holiday pay

under section 5546(b) have already been the subject of several decisions in the Court of

Federal Claims and one appeal. On September 1, 2000, the Court of Federal Claims

denied the government’s motion to dismiss the Doe plaintiffs’ claims for overtime pay

under section 5542(a) and holiday pay under section 5546(b). Doe v. United States, 47

Fed. Cl. 594, 595 (2000) (“Doe II”). The court then granted the Doe plaintiffs’ motion for

summary judgment on the issue of liability and denied the government’s cross-motion.

Doe v. United States, 54 Fed. Cl. 404, 418 (2002) (“Doe III”). The court held that DOJ

(Cont’d. . . .)
exercise jurisdiction over claims that it would not have jurisdiction to hear standing alone
when necessary to effectuate judgment over an entire claim.” Id. at 402 n.4. This
suggests that the court dismissed the AUO claim for lack of jurisdiction. Second, the
court’s determination that section 5545(c)(2) is discretionary suggests that the court
dismissed the AUO claim because it found section 5545(c)(2) was not money-
mandating as required for Tucker Act jurisdiction.

05-5104 7
“ordered and approved” overtime within the meaning of section 5542 by expecting and

inducing attorneys to work more than forty hours a week. Id. at 418. Doe III makes no

mention of holiday pay under section 5546(b). However, the motion granted was for

summary judgment—not partial summary judgment.

We granted the government’s petition for interlocutory appeal, Doe v. United

States, 67 Fed. Appx. 596, 597 (2003) (“Doe IV”), and reversed the Court of Federal

Claims’s grant of summary judgment in Doe III, Doe V, 372 F.3d at 1364. The focus of

our decision in Doe V was the Doe plaintiffs’ claim for overtime pay under section

5542(a). In Doe V, we examined a long line of cases interpreting the written order

requirement for overtime pay under section 5542(a). Doe V, 372 F.3d at 1352-54. We

noted that Anderson v. United States, 136 Ct. Cl. 365 (1956) (“Anderson I”), was the

first of a line of cases in which the Court of Claims awarded overtime pay under FEPA

to employees who had been induced to work overtime without any written order or

authorization. Doe V, 372 F.3d at 1354. We found that the Anderson line of cases

“also suggested that equitable considerations prevented the government from denying

overtime compensation where it ‘induced’ overtime work.” Id. We then determined that

Schweiker v. Hansen, 450 U.S. 785 (1981), and Office of Personnel Management v.

Richmond, 496 U.S. 414 (1990), effectively overruled Anderson I and its progeny. Doe

V, 372 F.3d at 1355-57. We held that “the Anderson line of cases is no longer good law

and that the written order requirement is not invalid on the ground that it imposes a

procedural requirement that limits the right to overtime compensation under the statute

or because it is inequitable.” Id. at 1357. We then held that the written order

requirement set forth at 5 C.F.R. § 550.111(c) was more than a mere administrative

05-5104 8
instruction, id. at 1358, and that the regulation was entitled to deference under Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984). Doe

V, 372 F.3d at 1362. After upholding the validity of the regulation, we examined

whether the writing requirement had been met by DOJ’s actions. Id. at 1362-64. On

this point, we found that many of the Doe plaintiffs’ arguments merely repeated their

previously-rejected contentions that the written order requirement was invalid or merely

an administrative instruction. Id. at 1362. We found that the documents that the Doe

plaintiffs asserted gave them written authorization to work overtime, such as the United

States Attorney’s Manual, did not actually authorize overtime work. Id. at 1363. We

also rejected the Doe plaintiffs’ argument that the keeping of two sets of time records,

one for pay purposes and one for determining actual hours worked, was evidence of

written authorization and approval. Id. at 1363-64. We found instead that these records

merely showed that the agency had awareness that attorneys worked extra hours—not

that they had been authorized to receive overtime pay for working extra hours. Id. at

1364. Based on the foregoing, we not only reversed the grant of summary judgment in

favor of the Doe plaintiffs, but also held that summary judgment should have been

granted in favor of the government because the Doe plaintiffs’ overtime was not

“ordered or approved” as required by section 5542(a). Id. at 1349, 1364. Although we

granted summary judgment on liability, we made no mention in Doe V of holiday pay

under section 5546(b).

Pursuant to our direction in Doe V, the Court of Federal Claims directed an entry

of summary judgment in favor of the government. Doe Summary Judgment Order, slip

op. at 1. The Doe plaintiffs then filed a motion for reconsideration before the Court of

05-5104 9
Federal Claims in which they argued that all three of their claims—for AUO pay,

overtime pay, and holiday pay—survived our decision in Doe V. The Court of Federal

Claims rejected the argument, holding that the doctrine of the law of the case barred

reconsideration of the overtime pay claim and that the holiday pay claim was barred by

implication. Doe v. United States, 63 Fed. Cl. 798, 804 (2005) (“Doe VI”). Thus, the

Court of Federal Claims denied the Doe plaintiffs’ motion for reconsideration. Id.

The Doe plaintiffs now appeal (1) the dismissal of the AUO pay claim in Doe I

and (2) the grant of summary judgment in favor of the government on the overtime and

holiday pay claims in the Doe Summary Judgment Order. We have jurisdiction over the

Doe plaintiffs’ appeal pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

I.

We review de novo the Court of Federal Claims’s grant of summary judgment in

favor of the government. Info. Sys. & Networks Corp. v. United States, 437 F.3d 1173,

1176 (Fed. Cir. 2006). We also review de novo the Court of Federal Claims’s dismissal

of a claim for lack of jurisdiction. Samish Indian Nation v. United States, 419 F.3d 1355,

1363 (Fed. Cir. 2005); Doe v. United States, 100 F.3d 1576, 1579 (Fed. Cir. 1996).

II.

We begin with the Doe plaintiffs’ claims for overtime pay under section 5542.

The Doe plaintiffs argue that the Court of Federal Claims erred in dismissing their

claims for overtime pay under section 5542 because they had an alternative theory of

liability that was not addressed in our decision in Doe V. They characterize their

alternative theory as an “as applied” challenge to 5 C.F.R. § 550.111(c)’s requirement of

05-5104 10
written approval for overtime pay. Instead of arguing that 5 C.F.R. § 550.111(c) is

invalid, the Doe plaintiffs argue that DOJ effectively eliminated their ability to acquire a

written order or approval for working overtime from a higher level official, as required by

the regulation. Therefore, they argue, their overtime should be considered authorized

and approved. This argument was not foreclosed by Doe V, the Doe plaintiffs urge,

because it was not raised in the certified order for the interlocutory appeal that led to

that decision. They argue that Doe V only overruled the Anderson I line of cases to the

extent that the cases held the writing requirement invalid. In contrast, the Doe plaintiffs

argue that the Doe V court “said nothing about whether an agency could avoid its

obligations under FEPA by refusing to implement a reasonable or rational system for

obtaining the very writings the Court held were required.” Appellants’ Br. at 48. Thus,

the Doe plaintiffs contend that cases supporting their “as applied” challenge, such as

Adams v. United States, 162 Ct. Cl. 766 (1963), Bilello v. United States, 174 Ct. Cl.

1253 (1966), and Anderson v. United States, 201 Ct. Cl. 660 (1973) (“Anderson II”),

remain good law.

The Doe plaintiffs also argue that they should be allowed to modify their claims

for overtime pay under section 5542 because Doe V changed the controlling legal

standard. The Doe plaintiffs argue that the fact that Hansen, 450 U.S. 785, and

Richmond, 496 U.S. 414, the Supreme Court cases that overruled Anderson I, predate

their complaint makes no difference because Anderson I was continually relied upon

until Doe V.

The government counters that Doe V forecloses any consideration of the

“alternative arguments” presented by the Doe plaintiffs. It recites our holding in Doe V

05-5104 11
that no compensation could be awarded for work that was not “ordered and approved in

strict compliance with [section 550.111(c)].” At the same time, it argues that the Doe

plaintiffs are merely repeating the same argument they raised in Doe V: that “the

governing OPM regulation should be disregarded in light of the government’s asserted

misconduct.” In support of this contention, the government recites passages in the Doe

plaintiffs’ briefs in the Doe V appeal that are nearly identical to passages in the present

briefs. Contrary to the Doe plaintiffs’ arguments, the government argues, Doe V

rejected both the Anderson notion that a writing requirement was invalid and that

equitable considerations, such as the failure to implement a workable system for

authorizing overtime, could entitle workers to overtime even without written

authorization. Appellee’s Br. at 28-29 (citing Doe V, 372 F.3d at 1355).

The government contends that the Doe plaintiffs’ request that they be allowed to

amend their previous arguments to accommodate a new legal standard should not be

entertained. The government argues that the Doe plaintiffs made the same arguments

in their petition for a rehearing in Doe V and that because rehearing was not granted in

that case, they should not be able to get a rehearing now. Further, the government

asserts that the denial of the petition for rehearing was correct because Doe V did not

create a new legal standard. Rather, Doe V required compliance with 5 C.F.R.

§ 550.111(c), which has been in effect since 1945. The government argues that the

Doe V panel considered evidence purportedly showing compliance with section

550.111(c)’s writing requirement at the Doe plaintiffs’ request. The government

contends that the Doe V panel rejected the Doe plaintiffs’ argument, foreclosing further

consideration of the issue.

05-5104 12
 We agree with the government that Doe V previously determined that the Doe

plaintiffs do not have a viable claim for overtime pay under section 5542 and therefore

forecloses the Doe plaintiffs’ current argument that DOJ’s system for acquiring written

authorization pursuant to section 550.111(c) is unreasonable. This “as applied”

argument is foreclosed by our finding in Doe V that Anderson I, 136 Ct. Cl. 365, was

overruled by the Supreme Court’s decisions in Hansen, 450 U.S. 785, and Richmond,

496 U.S. 414. Doe V, 372 F.3d at 1357. In Anderson I, the employer induced

employees to work overtime and then refused payment because of a written approval

requirement. 136 Ct. Cl. at 371. The Anderson I court struck down the writing

requirement. Id. In Doe V, we held that Anderson I had been overruled to the extent

that it held that “the OPM regulation was invalid because it added a procedural writing

requirement to the substantive requirements of FEPA or because the result was

inequitable.” Doe V, 372 F.3d at 1355 (emphasis added). In essence, we upheld the

writing requirement as valid and stated that any equity-based attack to the

reasonableness of the writing requirement must fail. The Doe plaintiffs’ argument in this

appeal is nothing but an equity-based attack on the reasonableness of the writing

requirement because the Doe plaintiffs merely repeat the equity-based arguments that

we rejected in Doe V. In Doe V, they argued that it was inequitable to encourage

overtime that was foreclosed by a writing requirement. Now they argue that it is

inequitable to encourage overtime that was foreclosed by a writing requirement that was

practically impossible to meet. The latter is merely an extension of the former, which we

have already rejected. See id.

05-5104 13
 The Doe plaintiffs’ reliance on Adams, 162 Ct. Cl. 766, Bilello, 174 Ct. Cl. 1253,

and Anderson II, 201 Ct. Cl. 660, is also misplaced. In Doe V, we classified Adams as

one of the Anderson I, 136 Ct. Cl. 365, line of cases, which was overruled by Hansen

and Richmond. Doe V, 372 F.3d at 1354. We cited Bilello in Doe V for the proposition

that overtime that was approved only by a supervisor who lacked authority to approve

the overtime was not compensable. Id. at 1363. Thus, our citation to Bilello in Doe V

was not an endorsement of attacks on the reasonableness of agency implementation of

a regulation like the one the Doe plaintiffs presently challenge. In the Anderson II

decision, the Court of Claims interpreted “regularly scheduled” broadly to include

overtime induced by unauthorized persons because the court was “reluctant to impute

to the VA an intent to frustrate the apparent will of Congress that overtime work shall be

paid for.” 201 Ct. Cl. at 664. The Doe plaintiffs quote this portion of Anderson II for the

proposition that when an agency fails to create a reasonable system for authorizing

overtime, courts award overtime pay. In actuality, the Anderson II court stated that

when construing the overtime statute’s “regularly scheduled” language, it was

appropriate to keep in mind the intent of Congress to pay for overtime. Id. Any

statutory or regulatory construction argument is foreclosed in the present case,

however, by Doe V. In Doe V we established that OPM’s regulation at 5 C.F.R.

§ 550.111(c), which requires written approval for overtime pay, is a reasonable

interpretation of “ordered or approved” in 5 U.S.C. § 5542, and therefore entitled to

Chevron deference. Doe V, 372 F.3d at 1358-59. The Doe plaintiffs are asking us to

reevaluate that assessment and therefore their arguments must fail.

05-5104 14
 Finally, Doe V does not set forth a new legal standard that might allow the Doe

plaintiffs to make new arguments before the trial court under that standard. Hansen and

Richmond, which were our bases for finding that Anderson I had been overruled, were

decided in 1981 and 1990, respectively. Thus, the Doe plaintiffs knew about Hansen

and Richmond before Doe V was decided and had their opportunity to mount arguments

under the principles of those cases.

III.

Turning to the Doe plaintiffs’ claim for AUO pay, the Doe plaintiffs argue that the

Court of Federal Claims erred in Doe I when it dismissed their claim for AUO pay

pursuant to section 5545(c)(2) for lack of jurisdiction. They acknowledge that the

statute governing AUO pay contains the discretionary word “may.” Despite this

discretionary language, the Doe plaintiffs argue that section 5545(c)(2) is money-

mandating for two reasons. First, they argue that the word “may” in section 5545(c)(2)

gives the agency the discretion to establish how it will pay overtime, but not whether

AUO pay will be paid. Thus, an agency has the choice to elect to pay either overtime

pay under section 5542(a) or AUO pay under 5545(c)(2). Although the agency can

choose between overtime pay and AUO pay, according to the Doe plaintiffs, the agency

must pay for hours worked. The Doe plaintiffs’ second argument as to why section

5545(c)(2) is money-mandating is that once DOJ makes an election to compensate

AUO, any employee meeting the statutory requirements must be paid.

With regard to the merits of their claim for AUO pay, the Doe plaintiffs argue that

the language of paragraph 5 of DOJ Order 1551.4A makes AUO pay required for all

employees whose work requires “substantial amounts of irregular or occasional

05-5104 15
overtime,” including attorneys. Based on Hannon v. United States, 29 Fed. Cl. 142

(1993), the Doe plaintiffs argue that because DOJ had a policy to provide AUO pay, the

plaintiffs are entitled to AUO pay so long as they qualify under the statute and

regulation. They also argue that the list of covered positions in Appendix 1 to DOJ’s

order is non-exclusive and that therefore attorneys are covered despite not being listed.

In response to a question on this point at oral argument, the Doe plaintiffs filed

supplemental briefing. In that briefing, they argue that the Appendix 1 list is non-

exclusive because, in a 1988 memorandum, the Assistant Attorney General for

Administration (“AAGA”) authorized the Immigration and Naturalization Service (“INS”)

Commissioner to extend AUO pay coverage from the positions in the list to include

“immigration officers,” as defined in 8 C.F.R. § 103.1.4 Because more positions receive

AUO pay than those listed in Appendix 1, the Doe plaintiffs argue, the list is non-

exclusive.

4
In 1988, when the AAGA memorandum was written, 8 C.F.R. § 103.1(q)
provided:

Any immigration inspector, immigration examiner,
border patrol agent, aircraft pilot, airplane pilot, helicopter
pilot, deportation officer, detention officer, detention service
officer, detention guard, investigator, special agent,
intelligence officer, intelligence agent, general attorney,
applications adjudicator, contact representative, Chief
Legalization Officer, Supervisory Legalization Officer,
Legalization Adjudicator, Legalization Officer and
Legalization Assistant, or senior or supervisory officer of
such employees is hereby designated as an immigration
officer authorized to exercise the powers and duties of such
officer as specified by the Act and this chapter.

Notably, “general attorney” is listed in the regulation as being an “immigration officer.”
However, the 1988 AAGA memorandum specifically exempted “general attorney” from
receiving AUO pay. “Immigration officer” is currently defined at 8 C.F.R. § 108.1(b).

05-5104 16
 The government responds to the Doe plaintiffs’ jurisdictional arguments by noting

that the jurisdictional and merits inquiry converge in this case. Even if the court below

erred by dismissing on jurisdiction, they argue that dismissal on the merits was required

without further hearing.

The government counters the Doe plaintiffs’ arguments on the merits of the AUO

pay claim by contending that section 5545(c)(2) gives “the head of an agency” the

discretion to decide if any employee is entitled to AUO pay. The government recounts

the legislative history of section 5545(c)(2) and the applicable regulations, which

expressly state that AUO pay determinations may not be made retroactively. See 5

C.F.R § 550.161(b). If AUO pay cannot be awarded retroactively, the government

argues, then the agency must use its discretion to prospectively determine which

employees will be awarded AUO pay. The government argues that DOJ did not

exercise its discretion to give attorneys AUO pay. The government turns to Appendix 1

to DOJ Order 1551.4A, which the government notes did not list attorneys as a group

authorized to receive AUO pay. This list, the government argues, is exclusive because

the order sets forth procedures for adding positions to the list. It notes that these

procedures were followed when the INS positions mentioned in the 1988 AAGA

memorandum were added to the list. Further, the government points out that the 1988

AAGA memorandum authorized AUO pay for “immigration officers,” as defined in 8

C.F.R. § 103.1, but specifically exempted “general attorneys” from coverage. The

government also argues that the Doe plaintiffs’ position, if adopted, would effectively

nullify DOJ Order 1551.4A, by making it the courts’ duty to determine which positions

meet statutory and regulatory requirements for AUO pay.

05-5104 17
 The Court of Federal Claims’s jurisdiction pursuant to the Tucker Act is derived

from the underlying substantive law that is the subject of a suit. Samish, 419 F.3d 1355,

1364 (2005). A substantive law provides jurisdiction only if it “can fairly be interpreted

as mandating compensation by the Federal Government for the damage sustained.”

United States v. Mitchell, 463 U.S. 206, 217 (1983) (“Mitchell II”). This requirement is

commonly termed as the “money-mandating” requirement. Id.; Fisher v. United States,

402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part). The “fair interpretation”

standard articulated in Mitchell II is met when a statute is “reasonably amenable to the

reading that it mandates a right of recovery in damages.” United States v. White

Mountain Apache Tribe, 537 U.S. 465, 472-73 (2003). Thus, jurisdiction exists under

the Tucker Act so long as there is a “fair inference” that a statute is money-mandating.

Id. at 473; see also Samish, 419 F.3d at 1364. We have acknowledged that the

jurisdictional inquiry and merits inquiry may blend together under the Tucker Act.

Fisher, 402 F.3d at 1173. In Fisher we clarified the distinction between the jurisdictional

and merits inquiry under the statute. 402 F.3d at 1175-76. The jurisdictional

requirement is met if a statute or regulation is “money-mandating.” Id. at 1175.

However, a party bringing suit under the Tucker Act may then lose on the merits if he or

she is not one of the persons entitled to pay under the statute or regulation. See Fisher,

402 F.3d at 1176 (citing Banks v. Garrett, 901 F.2d 1084, 1087-88 (Fed. Cir. 1990);

Sawyer v. United States, 930 F.2d 1577 (Fed. Cir. 1991)).

A statute is not money-mandating when it gives the government complete

discretion over the decision whether or not to pay an individual or group. See Doe v.

United States, 100 F.3d 1576, 1582 (Fed. Cir. 1996); see also McBryde v. United

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States, 299 F.3d 1357, 1362 (Fed. Cir. 2002). There is a presumption that the use of

the word “may” in a statute creates discretion. McBryde, 299 F.3d at 1362. However,

this presumption of discretion may be rebutted by “the intent of Congress and other

inferences that we may rationally draw from the structure and purpose of the statute at

hand.” Id. We have found that a statute is not wholly discretionary, even if it uses the

word “may” when an analysis of congressional intent or the structure and purpose of the

statute reveal one of the following: (1) the statute has “clear standards for paying”

money to recipients, (2) the statute specifies “precise amounts” to be paid, or (3) the

statute compels payment once certain conditions precedent are met. Samish, 419 F.3d

at 1364-65 (citing Perri v. United States, 340 F.3d 1337, 1342-43 (Fed. Cir. 2003)); see

also Fisher, 402 F.3d at 1175 (finding that a statute is money-mandating because it

mandates payment when the statutory requirements are met).

The first issue before us is whether a statute using the word “may,” as used in 5

U.S.C. § 5545(c)(2), is discretionary. We find that the Doe plaintiffs are correct that 5

U.S.C. § 5545(c)(2) is a money-mandating statute. As previously noted, section

5545(c)(2) provides:

The head of an agency, with the approval of the
Office of Personnel Management, may provide that—
...
(2) an employee in a position in which the hours of duty
cannot be controlled administratively, and which requires
substantial amounts of irregular, unscheduled overtime duty
with the employee generally being responsible for
recognizing, without supervision, circumstances which
require the employee to remain on duty, shall receive
premium pay for this duty on an annual basis instead of
premium pay provided by other provisions of this
subchapter, except for regularly scheduled overtime, night,
and Sunday duty, and for holiday duty. . . .

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By using the word “may,” the statute gives the “head of an agency” the discretion to

allow AUO pay for employees in particular positions, although this discretion is

somewhat limited because the agency may only award AUO pay to employees in

positions that meet the requirements listed in section 5545(c)(2). Further, once the

agency makes a determination that a particular position is entitled to AUO pay, the

employee “shall” receive premium pay under the statute. Thus, the statute is money-

mandating because once a condition is met, namely that the head of an agency states

that a position meets the criteria listed in subsection (c)(2), the statute requires payment

to employees with that position. See Fisher, 402 F.3d at 1175; Samish, 419 F.3d at

1364-65 (citing Perri, 340 F.3d at 1342-43). Therefore, the Court of Federal Claims

erred to the extent that it dismissed the Doe plaintiffs’ claim for AUO pay for lack of

jurisdiction in Doe I.

However, although the court erred in dismissing the Doe plaintiffs’ AUO pay

claim for lack of jurisdiction, the error was harmless because the claim should have

been dismissed on the merits. While section 5545(c)(2) may be money-mandating once

certain conditions are met, the Court of Federal Claims correctly found that it does not

require payment to the Doe plaintiffs. The regulations set forth at 5 C.F.R. §§ 550.151-

.163 do not state that any person meeting the statutory requirements for AUO pay is

entitled to premium pay. Instead, the regulations establish a system whereby agencies

must decide if a particular position meets the requirements of the statute before

employees with that position may be awarded AUO pay. See 5 C.F.R. § 550.153(a).

The regulations require that the head of each agency or a designated person determine

which employees meet the statutory requirements for AUO pay prospectively. 5 C.F.R.

05-5104 20
§ 550.161(b). This determination must be based on the criteria set forth at 5 C.F.R.

§§ 550.151-.153. Pursuant to this regulatory mandate, DOJ stated in paragraph 7 of

DOJ Order 1551.4A that the positions listed in Appendix 1 to the order are covered

positions. “Attorney” is not one of the listed covered positions. Contrary to the Doe

plaintiffs’ arguments, the Appendix 1 list is an exclusive list except to the extent that

positions are authorized to receive AUO pay under the procedures set forth in

Paragraph 7 of DOJ Order 1551.4A. Paragraph 7 states that the AAGA “will authorize

[AUO] pay for additional classes of positions upon the request of a bureau director

which shows that the positions meet the criteria set out in paragraph 6.” Thus, the only

way to receive AUO pay for a position not on the Appendix 1 list is by seeking and

receiving authorization from the AAGA. Contrary to the Doe plaintiffs’ arguments, the

1988 AAGA memorandum cited in their supplemental authority actually illustrates the

exclusive nature of the Appendix 1 list. The 1988 AAGA memorandum followed the

procedures set forth in Paragraph 7 of DOJ Order 1551.4A to authorize the position of

“immigration officer” as defined in 8 C.F.R. § 103.1 to receive AUO pay. Thus, 5 U.S.C.

§ 5545(c)(2) does not require payment to all qualified persons once the agency has

exercised its discretion to implement a program. Instead, it requires payment once an

agency has designated a position as qualified. Here, the agency did not designate

“attorney” as a qualified position and the Doe plaintiffs admit that they do not fall under

one of the six qualified positions listed in Appendix 1. Therefore, the Doe plaintiffs’

claims should have been dismissed on the merits because, as attorneys, they have no

basis for entitlement to AUO pay under § 5545(c)(2) or 5 C.F.R. §§ 550.151-.163.

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 Although Hannon involves the same statute and the same DOJ order, it is

unpersuasive in this case. In Hannon, the Court of Federal Claims found that it had

jurisdiction under section 5545(c)(2) to hear claims for AUO pay brought by Diversion

Investigators for the Drug Enforcement Agency. 29 Fed. Cl. at 150. The Diversion

Investigators argued that they were “criminal investigators” under DOJ Order 1551.4A

and therefore should have received AUO pay. Id. at 145. In response to a jurisdictional

challenge, the court found that section 5545(c)(2) was money-mandating once a

program was implemented. Id. at 147-48. DOJ Order 1551.4A demonstrated that DOJ

had implemented a program for AUO. Id. at 148. Therefore, the court found that it had

jurisdiction to evaluate whether or not the Diversion Investigators were “criminal

investigators” under DOJ Order 1551.4A and therefore entitled to compensation under

the statute. See id. The present case is distinguishable from the Hannon case because

the Doe plaintiffs do not claim that they fall into one of the six covered positions listed in

Appendix A of DOJ Order 1551.4A. Therefore, although section 5545(c)(2) gives the

Court of Federal Claims jurisdiction as stated in Hannon, the Doe plaintiffs’ claim should

have been dismissed on the merits because the Doe plaintiffs do not hold a position

covered by DOJ Order 1551.4A.

IV.

With regard to the Doe plaintiffs’ claim for holiday pay, the Doe plaintiffs argue

that their claim was not considered in Doe IV or Doe V and therefore should not have

been rejected on summary judgment. They note that the word “holiday” did not even

appear in the briefing at the summary judgment stage. Further, the Doe plaintiffs argue

that the government conceded that a different standard applies to holiday pay and

05-5104 22
overtime pay under section 5542. More specifically, they note that the government

stated that holiday work must be “scheduled in advance” rather than “ordered or

approved” like overtime pay under section 5542. The Doe plaintiffs then dedicate the

remainder of their brief to arguments as to why their holiday work was “regularly

scheduled.”

The government argues that the Doe plaintiffs’ arguments regarding holiday pay

are new on appeal and therefore inappropriate. Further, the government argues that

the Doe plaintiffs chose to merge their arguments on holiday pay with their overtime pay

arguments and thus submitted themselves to the decision in Doe V. In support of this

argument, the government notes that the same arguments about inducement that the

Doe plaintiffs made in the Court of Federal Claims in connection with their overtime pay

claim under section 5542(a) were made in connection with their holiday pay claim under

section 5546(b). The government also argues that the plaintiffs filed a cross-motion for

summary judgment rather than a partial motion for summary judgment in Doe IV and

therefore expressly joined their holiday pay claim to their overtime pay claim.

Finally, the government argues that if we were to allow the Doe plaintiffs to

reopen their holiday pay claims, the claims would fail as a matter of law. In support of

this argument, the government points to the legislative history of the holiday pay statute,

which it says shows that mere performance of holiday hours without prior formal

scheduling does not entitle a person to holiday pay.

Although Doe III, Doe IV, and Doe V make no mention of the holiday pay claim

pursuant to section 5546(b), we agree with the Court of Federal Claims that the Doe

plaintiffs’ claim for holiday pay is barred by our decision in Doe V. Our review of the

05-5104 23
record reveals that the Doe plaintiffs did not seek to separate their claim for holiday pay

from their claim for overtime pay until after Doe V issued. In their initial complaint, the

Doe plaintiffs stated in their holiday pay count that they had been induced and

encouraged to work on holidays, just as they claimed in their overtime count that they

were induced and encouraged to work overtime. Compl. at 16, 20. Instead of

distinguishing the theory of liability for the holiday pay claim and the overtime pay claim,

the Doe plaintiffs explicitly bound the two claims together by filing a motion for summary

judgment on liability—not partial summary judgment—and then presenting their

inducement and encouragement arguments. The Doe III decision thus granted the Doe

plaintiffs’ motion for summary judgment on liability for both claims even though only

section 5542(a) was explicitly addressed. 54 Fed. Cl. at 418. In their opposition to the

government’s motion for interlocutory appeal, the Doe plaintiffs did not argue that their

holiday pay claim had not been addressed by the Doe III decision. In addition, in their

briefing in Doe V and the subsequent petition for rehearing, the Doe plaintiffs likewise

did not mention the holiday pay claim. Under the circumstances, we conclude that the

Doe plaintiffs were content to have their holiday pay claim pursuant to section 5546(b)

joined with their claim for overtime pay pursuant to section 5542(a) until the Doe III

liability determination was reversed in Doe V. Only when the liability determination was

reversed on appeal did the Doe plaintiffs raise their argument that the theory for liability

on the holiday pay claim was distinct from the overtime pay claim. The Doe plaintiffs

should have raised the issue of the distinction between their holiday pay claim and their

overtime pay claim7 before that time, however. Because they did not, the issue was

waived. See United States v. Husband, 312 F.3d 247, 250-51 (7th Cir. 2002) (stating

05-5104 24
that, after a first appeal, “any issue that could have been but was not raised on appeal is

waived . . . .”); United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (stating that when an

appellate mandate has issued, the mandate rule “forecloses litigation of issues decided

by the district court but foregone on appeal or otherwise waived, for example because

they were not raised in the district court”).

CONCLUSION

We affirm the Court of Federal Claims’s entry of summary judgment in favor of

the government on the Doe plaintiffs’ section 5542 overtime pay and section 5546(b)

holiday pay claims. Although we find that the Court of Federal Claims erred in ruling

that it lacked jurisdiction over the Doe plaintiffs’ claim for AUO pay under section

5545(c)(2), the error was harmless because the claim should have been dismissed on

the merits. We therefore affirm the court’s dismissal of the Doe plaintiffs’ claim for AUO

pay, but find that the dismissal should have been based on the merits of the claim rather

than on lack of jurisdiction.

COSTS

Each party shall bear its own costs.

AFFIRMED

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