 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 11, 2008                  Decided March 28, 2008

                         No. 07-5182

                     J. B. FLOYD, ET AL.,
                          APPELLEES

                      ROY D. NEDROW,
                        APPELLANT

                               v.

                HENRY M. PAULSON, JR. AND
                  DISTRICT OF COLUMBIA,
                        APPELLEES


         Appeal from the United States District Court
                 for the District of Columbia
                       (No. 98cv00670)



     John V. Berry argued the cause for appellant. With him on
the briefs was Cristina Bull Wallace.

     Robert D. Kamenshine, Attorney, U.S. Department of
Justice, argued the cause for appellee Henry M. Paulson, Jr.
With him on the brief were Jeffrey S. Bucholtz, Acting Assistant
Attorney General, and William Kanter, Deputy Director.
                                   2

    Before: GINSBURG, HENDERSON, and RANDOLPH, Circuit
Judges.

     Opinion for the Court filed by Circuit Judge RANDOLPH.

     RANDOLPH, Circuit Judge: Roy D. Nedrow, a former
criminal investigator with the United States Secret Service,
receives retirement benefits under the District of Columbia
Police and Firefighters Retirement and Disability Act
(“Retirement Act”), D.C. CODE § 5-701 et seq. The Retirement
Act adjusts a retiree’s annuity by any “increase in salary . . . to
which he would be entitled if he were in active service” when
the increase took effect. Id. § 5-745(c). After Nedrow retired,
Congress enacted the Law Enforcement Availability Pay
(LEAP) Act of 1994, 5 U.S.C. § 5545a, which provided
“availability pay” to criminal investigators. Availability pay
increases a criminal investigator’s basic pay by twenty-five
percent. Id. § 5545a(h)(1). When the Department of the
Treasury denied that availability pay constituted an “increase in
salary” under the Retirement Act, approximately 550 former
Secret Service criminal investigators (including Nedrow) sought
review in the district court under the Administrative Procedure
Act. Judge Sporkin found for the plaintiffs and ordered the
Treasury Department and the District of Columbia1 to
“incorporate availability pay under the [LEAP Act] in
calculation of plaintiffs’ annuity payments in accordance with
the [Retirement Act].” Floyd v. Rubin, 46 F. Supp. 2d 8, 13
(D.D.C. 1999) (“Floyd I”). Neither the Treasury Department
nor the District appealed. When Nedrow’s annuity did not
increase, he filed a motion to enforce the judgment. Judge



     1
      The District of Columbia is a conduit for the retirement benefits,
which the federal government funds. Because the District has no stake
in the matter, it took no position on the issues raised in this appeal.
                                   3

Robertson, to whom the case had been transferred, denied the
motion. We affirm.

     Seven months before he retired, Nedrow joined the Senior
Executive Service. For that reason he was not entitled to an
increased annuity. Only those who, at the time of their
retirement, were criminal investigators are eligible under the
LEAP Act. As Judge Robertson concluded, “a criminal
investigator is a ‘law enforcement officer as defined under [5
U.S.C.] § 5541(3),’ § 5545a(2); a ‘law enforcement officer’ is
an ‘employee’, § 5541(3); and ‘employee’ is defined to exclude
members of the Senior Executive Service. § 5541(2)(C)(xvi).”
Floyd v. Rubin, No. 98-0670, slip op. at 2 (D.D.C. Apr. 17,
2007) (order denying motion to enforce judgment) (“Floyd II”).

     Nedrow thinks he is nevertheless entitled to availability pay
because he was a named plaintiff in the case. As he puts it, the
“defendants had the option to appeal the Floyd decision but
chose not to challenge it. Thus, the defendants waived their
right to challenge the Floyd decision with respect to any of the
plaintiffs.” Nedrow points out that Judge Sporkin, in his
memorandum opinion, stated that availability pay “is an across-
the-board increase in hours and pay for all Secret Service
criminal investigators to which all plaintiffs would be entitled,”
Floyd I, 46 F. Supp. 2d at 11-12, and that “[p]laintiffs . . . clearly
merit the inclusion of LEAP pay in the calculation of their
retirement annuities,” id. at 13.2


     2
      Nedrow does not rely on the pleadings. One paragraph of the
complaint alleged that “[a]ll plaintiff ‘members’ were employed by the
United States Secret Service . . . as criminal investigators at the time
of their retirement.” The Treasury Department answered: “This
paragraph contains plaintiffs’ legal conclusions, to which no response
is required; if a response is required, admitted.” But in response to
another paragraph alleging that “[e]ach plaintiff, at the time of his/her
                                   4

     In denying Nedrow’s motion to enforce the judgment, Judge
Robertson relied upon the order’s direction that defendants
“incorporate availability pay under the [LEAP Act] in
calculation of plaintiffs’ annuity payments in accordance with
the [Retirement Act].” Floyd II at 2 (quoting Floyd I, 46 F.
Supp. 2d at 13). Judge Robertson held that in light of this
language, the order did not entitle Nedrow to availability pay:
“The [Retirement Act] turns upon what a retired individual
would be entitled to ‘if he were in active service.’ When
Nedrow was in active service, as of the date of his retirement, he
was a member of the [Senior Executive Service] and ineligible
for [availability pay].” Id. at 2-3.

     We agree with Judge Robertson’s interpretation of the
order.3 Judge Sporkin did not find Nedrow to be eligible for
availability pay. There were no evidentiary findings to this
effect. Plaintiffs brought the case pursuant to the Administrative
Procedure Act, seeking judicial review of informal agency
action – the Treasury Department’s decision that retired Secret
Service criminal investigators were not entitled to availability
pay. Judge Sporkin did not purport to decide the factual
question whether each of the 550 plaintiffs met the requirements
of the LEAP Act. His “focal point for judicial review” was “the
administrative record already in existence, not some new record
made initially in the reviewing court.” Camp v. Pitts, 411 U.S.


retirement, met the conditions set forth in [the LEAP Act] for payment
of [availability] pay,” the Treasury Department answered: “This
paragraph contains plaintiffs’ legal conclusions, to which no response
is required; if a response is required, denied.”
     3
      It is an open question whether we should review de novo or for
abuse of discretion one district court judge’s interpretation of another
district court judge’s order. Nix v. Billington, 448 F.3d 411, 414-15
(D.C. Cir. 2006). Because Judge Robertson’s order survives review
under either standard, we do not reach the issue.
                                5

138, 142 (1973). We may assume that Judge Sporkin found at
least one of the 550 plaintiffs to be eligible under the LEAP Act.
But that implicit finding, along with the allegations in the
complaint, went only to the question of Article III standing.
Given the language of his order and the nature of the case, Judge
Sporkin did not decide that Nedrow was entitled to an increase
in his annuity. Enforcing that order therefore would have
booted Nedrow nothing. See Heartland Reg’l Med. Ctr. v.
Leavitt, 415 F.3d 24, 29 (D.C. Cir. 2005).

                                                        Affirmed.
