
United States Court of Appeals for the Federal Circuit


                                               03-5120


   JERRY TODD, BENJAMIN E. ABEYTA, CHRISTOPHER BLAS ABEYTA, RICHARD ACKER, LARRY ALLRED, DAVID LIND
 AUSHERMAN, RICHARD SEVERN BOATMAN, RUSSELL T. BOWLIN, LARRY ALLAN BRAATEN, LINDA KAYE BROWN, WILLIAM
    DUANE BRYAN, JENNIFER LEE CEITHAML, RICHARD CHAVEZ, OLIVER DALLAS, LARRY DAVID DUKE, BRENT LEE
   EBERHART, WILLIAM J. FOLEY, PETER B. FREDRIKSON, WILLIAM L. GONZALES, MODESTO R. GUTIERREZ, RAY
    MARTIN HELMAN, MAURICE HOWLAND, STEVEN GERARD KUBALA, CAROL ANN LATHAM, LARRY LAYDEN, TERRY L.
  LOCKE, KENT T. MACKENZIE, ROGER ANTHONY MANDEVILLE, JOAN M. MALLEN, DALE E. MCCABE, JOEL D. MCCOY,
  DONALD E. MCFARLAND, HOLLY L. MINGS, JAMES P. MORGAN, DAVID CARL MOTT, JANET LOUISE MOULD, GLEN R.
  NICOLET, PHILLIP CHARLES OLIVER, TERRY PEREZ, GARY CLYDE PERRIN, BRENDA LOUISE PERRY, GARY ALBERT
 POSTLEWAIT, ANDREW PAUL RANKIN, JAMES M. REEVES, LARRY ROY ROLLS, DONALD ALAN SCHLOSSER, ROGER CRAIG
   SCHLOTTERBACK, JON LESLIE SEMANEK, LIBRADO SILVA, MARK SPAULING, JEFFREY L. SPROUL, RICHARD ALAN
 SUTTON, MICHAEL S. SZUCS, GREGORY TINGLEY, RICHARD ALAN UNDERWOOD, LARRY M. UTTERBACK, STEPHEN PRICE
      VAN SICKLE, DEBORAH T. VIBBERT, LOIS J. WARWICK, DAVID BRUCE WINGERT, and  CRAIG L. YORK ,

                                             Plaintiffs-Appellants,



                                                  v.

                                            UNITED STATES,

                                             Defendant-Appellee.



      George M. Chuzi, Kalijarvi, Chuzi & Newman, P.C., of Washington,  DC,  argued  for  plaintiffs-
appellants.

      Thomas D. Dinackus, Attorney, Commercial  Litigation  Branch,  Civil  Division,  United  States
Department of Justice, of Washington, DC, argued for defendant-appellee.  With him on the brief  were
Peter D. Keisler, Assistant Attorney  General;  David  M.  Cohen,  Director;  and  Brian  M.  Simkin,
Assistant Director.  Of counsel on the brief was Peter J. Hannums, Senior Attorney, Federal  Aviation
Administration, of Washington, DC.

      William W. Osborne, Jr., Osborne Law Offices, P.C., of Washington, DC, for amici curiae.

Appealed from:  United States Court of Federal Claims.

Judge Robert H. Hodges, Jr.








































                        United States Court of Appeals for the Federal Circuit


                                               03-5120

   JERRY TODD, BENJAMIN E. ABEYTA, CHRISTOPHER BLAS ABEYTA, RICHARD ACKER, LARRY ALLRED, DAVID LIND
 AUSHERMAN, RICHARD SEVERN BOATMAN, RUSSELL T. BOWLIN, LARRY ALLAN BRAATEN, LINDA KAYE BROWN, WILLIAM
    DUANE BRYAN, JENNIFER LEE CEITHAML, RICHARD CHAVEZ, OLIVER DALLAS, LARRY DAVID DUKE, BRENT LEE
   EBERHART, WILLIAM J. FOLEY, PETER B. FREDRIKSON, WILLIAM L. GONZALES, MODESTO R. GUTIERREZ, RAY
    MARTIN HELMAN, MAURICE HOWLAND, STEVEN GERARD KUBALA, CAROL ANN LATHAM, LARRY LAYDEN, TERRY L.
  LOCKE, KENT T. MACKENZIE, ROGER ANTHONY MANDEVILLE, JOAN M. MALLEN, DALE E. MCCABE, JOEL D. MCCOY,
  DONALD E. MCFARLAND, HOLLY L. MINGS, JAMES P. MORGAN, DAVID CARL MOTT, JANET LOUISE MOULD, GLEN R.
  NICOLET, PHILLIP CHARLES OLIVER, TERRY PEREZ, GARY CLYDE PERRIN, BRENDA LOUISE PERRY, GARY ALBERT
 POSTLEWAIT, ANDREW PAUL RANKIN, JAMES M. REEVES, LARRY ROY ROLLS, DONALD ALAN SCHLOSSER, ROGER CRAIG
   SCHLOTTERBACK, JON LESLIE SEMANEK, LIBRADO SILVA, MARK SPAULING, JEFFREY L. SPROUL, RICHARD ALAN
 SUTTON, MICHAEL S. SZUCS, GREGORY TINGLEY, RICHARD ALAN UNDERWOOD, LARRY M. UTTERBACK, STEPHEN PRICE
      VAN SICKLE, DEBORAH T. VIBBERT, LOIS J. WARWICK, DAVID BRUCE WINGERT, and  CRAIG L. YORK ,

                                             Plaintiffs-Appellants,

                                                  v.

                                            UNITED STATES,

                                             Defendant-Appellee.

                                     ___________________________

                       DECIDED:  October 5, 2004
                                     ___________________________

Before MICHEL, Circuit Judge, ARCHER, Senior Circuit Judge, and RADER, Circuit Judge.

RADER, Circuit Judge.

      Jerry Todd, et al. (collectively, appellants) appeal their claim against the United States  for
back pay, which claim the United States Court of Federal Claims dismissed  for  failure  to  state  a
claim upon which relief can be granted.  Todd  v.  United  States,  56  Fed.  Cl.  449,  453  (2003).
Because the Court of Federal Claims  did  not  err  in  dismissing  appellants’  claims,  this  court
affirms.
                                                  I.
      Appellants are  supervisors  and  managers  at  the  Albuquerque  Air  Traffic  Control  Center
(Albuquerque Center) of the Federal Aviation Administration (FAA).  Supervisors and managers  receive
compensation based, in part, on the volume and complexity of air traffic at the  Albuquerque  Center.
The FAA evaluates this volume and complexity factor for each traffic control center and assigns  each
an ATC Classification Level.  The FAA designated the Albuquerque  Center  as  an  ATC  Classification
Level 10 (ATC-10) facility in 1998.  Appellants allege  that  an  increase  in  air  traffic  at  the
Albuquerque Center during 1999  qualified  the  Albuquerque  Center  for  designation  as  an  ATC-11
facility.
      The FAA entered into a September 1998 Collective Bargaining Agreement (CBA) and a November 1999
Memorandum of Understanding  (MOU)  with  the  National  Air  Traffic  Control  Association  (Union).
Appellants, as supervisors, are not members of the Union, but claim to be third  party  beneficiaries
of the CBA and MOU.  Appellants allege that the CBA and MOU  obligated  the  FAA  to  reclassify  the
Albuquerque Center as an ATC-11 facility when the air traffic increased in 1999.  Appellants  further
allege that the FAA breached the CBA and MOU by refusing to reclassify the Albuquerque Center.
      An upgrade of the Albuquerque Center to an ATC-11  facility  would  give  appellants  a  higher
salary.  Appellants brought the present suit seeking back pay, retroactive  to  June  1999,  for  the
difference between their salary and benefits working  at  an  ATC-10  facility  and  the  salary  and
benefits at an ATC-11 facility.  The FAA, however, has not reclassified the Albuquerque Center as  an
ATC-11 facility.
                                                    II.
      Appellants brought the present suit in the Court of Federal Claims under the Tucker  Act.   The
Tucker Act grants the Court of Federal Claims jurisdiction over  actions  “founded  either  upon  the
Constitution, or any Act of Congress or any regulation  of  an  executive  department,  or  upon  any
express or implied contract with the United States, or for  liquidated  or  unliquidated  damages  in
cases not sounding in tort.”  28 U.S.C. § 1491 (2000).  The jurisdiction  of  the  Court  of  Federal
Claims under the Tucker Act is “limited to actual,  presently  due  money  damages  from  the  United
States.”  United States v. Testan, 424 U.S. 392, 398 (1976) (quoting United States v. King, 395  U.S.
1, 3 (1969)).  Thus,  jurisdiction  under  the  Tucker  Act  requires  the  litigant  to  identify  a
substantive right for money damages against the United States separate from the  Tucker  Act  itself.
Id.
      Appellants argue that the FAA’s alleged breach of the CBA and MOU with the Union supplies those
substantive rights for money damages  against  the  United  States.   Appellants  are  not,  however,
parties to either the CBA or the MOU.  Consequently, appellants do  not  have  a  contract  with  the
United States and cannot base a claim for money damages against the United States on  a  contract  to
which they are not a party.   See Chu v.  United  States,  773  F.2d  1226,  1229  (Fed.  Cir.  1985)
(“[T]here is a ‘well-established principle  that,  absent  specific  legislation,  federal  employees
derive the benefits and  emoluments  of  their  positions  from  appointment  rather  than  from  any
contractual or quasi-contractual relationship  with  the  government.’”);  accord  Hamlet  v.  United
States, 63 F.3d 1097, 1101 (Fed. Cir. 1995).
      Appellants initiated suit in the United States Court of Federal Claims to enforce  the  CBA  as
third  party  beneficiaries.   The  CBA,  however,   includes   its   own   enforcement   provisions.
Specifically,  the  CBA  requires  grievance  procedures  for  all  disputes  under  that   contract.
Appellants have not invoked those grievance procedures.  Thus, appellants, in essence, seek  to  gain
the benefit of the CBA, and at the same time, to circumvent the  exclusive  grievance  procedures  of
the contract.  Ironically, the exclusive grievance procedures of the  CBA  preclude  any  party  from
challenging the CBA in the Court of Federal Claims, thereby providing an additional reason  that  the
Court of Federal Claims lacks jurisdiction.  See, e.g., Chin v. United States, 890 F.2d  1143,  1144-
47 (Fed. Cir. 1989); Harris v. United States, 841 F.2d 1097, 1098-1100 (Fed. Cir.  1988);  Rinner  v.
United States, 50 Fed. Cl. 333, 335-36 (2001); Hayes v. United States,  20  Cl.  Ct.  150,  151,  156
(1990) (interpreting Chin and Harris).
      Even assuming that a third party beneficiary could enforce the CBA and  MOU  in  the  Court  of
Federal Claims, appellants cannot establish jurisdiction under the Tucker Act for a claim  for  money
damages against the United States.  Appellants essentially  seek  to  use  the  CBA  or  the  MOU  as
leverage to obtain a reclassification of the Albuquerque Center to  an  ATC-11  facility.   Absent  a
prior reclassification, however, appellants have no claim for back pay.  In other  words,  appellants
cannot show any entitlement to an increased salary until the Albuquerque Center qualifies as an  ATC-
11 facility.  Even if the Albuquerque Center would becomes an ATC-11 facility, appellants would  have
no claim for back pay because they would not be eligible for an increase in  salary  for  any  period
before the Center’s status  adjustment.   Thus,  appellants  are  not  seeking  presently  due  money
damages, but instead seek the equitable remedy of a reclassification of the Albuquerque Center to  an
ATC-11 facility and a salary increase based on that reclassification.
      In Testan, the United States Supreme Court expressly addressed the jurisdiction of the Court of
Federal Claims to provide this type of equitable relief.  424 U.S. at  394.   The  similarly-situated
plaintiffs in Testan sought both a retroactive promotion from a pay-grade of GS-13 to GS-14 and  back
pay based upon that promotion.*  Id.  The Testan court held that “federal agencies continue  to  have
discretion in determining most matters relating to the terms and conditions of  federal  employment,”
and Government employees may not receive pay for positions to which they  have  not  been  appointed.
Id. at 406.  Without first obtaining a retroactive promotion, the  Court  found,  the  plaintiffs  in
Testan lacked an entitlement to money damages against the United States; the case was  dismissed  for
lack of jurisdiction.  Id. at 407-08.
      The holding in Testan governs this case.  This court does not read the  holding  in  Testan  as
limited to cases involving the Classification Act or the Back Pay Act, as  suggested  by  appellants.
Testan confirms the long-standing rule that “one is not entitled to the benefit of a  position  until
he has been duly appointed to it.”  Id. at 402 (citing United States v.  McLean,  95  U.S.  750,  752
(1878); Ganse v. United States, 376 F.2d  900,  902  (Cl.  Ct.  1967)).   This  court  also  declines
appellants’ invitation to draw a distinction  between  the  classification  of  a  position  and  the
classification of a facility.  Appellants seek a retroactive promotion or  pay  raise  based  on  the
reclassification of the Albuquerque Center to  an  ATC-11  facility.   Without  first  obtaining  the
reclassification and retroactive promotion, however, appellants  have  no  claim  for  money  damages
against the United States.  Absent a claim  for  presently  due  money  damages  against  the  United
States, the Court of Federal Claims does not have jurisdiction under  the  Tucker  Act  to  entertain
appellants’ claims.  Accordingly, this court affirms  the  Court  of  Federal  Claims’  dismissal  of
appellants’ claims.
                                                COSTS
      Each party shall bear its own costs.
                                               AFFIRMED

      *     Mr. Todd attempts to  distinguish  Testan  by  arguing  that  Mr.  Todd  seeks  merely  a
reclassification of a facility and a pay raise, not a  new  position.   However,  the  plaintiffs  in
Testan likewise merely sought a pay raise from GS-13 to GS-14 for  the  position  they  held  at  the
time.  See United States v. Testan, 424 U.S. 392, 393 (1976).

