     In the United States Court of Federal Claims
                                 No. 13-297C
                            (Filed: June 18, 2014)


**********************

LEE DAWSON,
                                              Jurisdiction; Veterans
                     Plaintiff,
                                              Administration; employment;
                                              equitable remedies; intermittent
v.
                                              schedule; fraud and coercion.
THE UNITED STATES,

                     Defendant,

**********************

       Daniel Berko, San Francisco, CA, for plaintiff.

      Tanya Beth Koenig, Civil Division, Department of Justice, Washington,
DC, with whom are Stuart F. Delery, Assistant Attorney General, Bryant G.
Snee, Acting Director, and Reginald T. Blades, Jr., Assistant Director, for
defendant.

                              _______________

                                 OPINION
                              _______________

BRUGGINK, Judge.

       Plaintiff, Lee Dawson, is a former employee of the United States
Department of Veterans Affairs. In his complaint, he alleges that he, and
others similarly situated, were improperly denied certain employee benefits
when the agency began to treat them as intermittent, rather than full time
employees. Pending is defendant’s motion to dismiss for lack of subject
matter jurisdiction or in the alternative for failure to state a claim for which
relief may be granted. Oral argument was held on February 18, 2014, after
which the parties submitted supplemental briefing. The matter is now ready
for disposition. For the reasons described below, we grant defendant’s motion
to dismiss on jurisdictional grounds.

                              BACKGROUND1

        Mr. Dawson was hired as an intern under the Student Educational
Employment Program (“SEEP”) by the United States Department of Veterans
Affairs, Veterans Administration Palo Alto Healthcare Services (“VAPAHCS”
or “VA”), in June of 2008. The SEEP program was established in 1977 and
provided authority for government agencies to hire students as part-time or
full-time employees. See Exec. Order No. 12,015, 42 Fed. Reg. 56,947 (Oct.
26, 1977); 5 C.F.R. § 213.3202 (2012). SEEP included two tracks by which
students could be employed. The first track, the Student Temporary
Employment Program (“STEP”), is governed by 5 C.F.R. § 213.3202(a) and
is specifically for temporary employment situations with the possibility of
conversion to the second internship track. The second track, the Student
Career Experience Program (“SCEP”), is governed by 5 C.F.R. § 213.3202(b)
and offers the possibility of a non-competitive conversion from an internship
to a term, career, or career-conditional appointment upon the satisfactory
completion of certain requirements. 5 C.F.R. § 213.3202(b)(10), (11).2

        Neither the complaint nor the amended complaint clarify whether
plaintiff was originally employed under the STEP or SCEP program, or
whether his status may have changed from one to the other between 2008 and
2013, when his employment at the VA ended. Throughout his employment


1
  We presume the facts in plaintiff’s complaint are correct, and draw all
reasonable inferences in plaintiff’s favor for the purposes of defendant’s
motion to dismiss. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).
We also rely on the VA Form 3497 attached to the motion to dismiss, which
plaintiff signed and which is referenced in the complaint.
2
  Recently, SEEP was replaced by the Pathways Program pursuant to
Executive Order 13,562. 75 Fed. Reg. 82,585 (Dec. 27, 2010); see 5 C.F.R.
pt. 362 (2013). Both “programs are designed to provide clear paths to federal
internships and later careers in Government for students and recent graduates.”
Pl.’s Am. Compl. ¶ 5; see 5 C.F.R. § 362.201 (2013) (“The Internship Program
provides students in high schools, colleges, trade schools and other qualifying
educational institutions . . . the opportunity to explore Federal careers as paid
employees while completing their education.”).

                                       2
with VAPAHCS, Mr. Dawson maintained the same forty-hour work week
schedule.

       On January 14, 2009, Mr. Dawson signed a form entitled, “employee
request for change to part-time employment” that adjusted his work schedule
from full-time to intermittent, effective February 1, 2009. Attach. to Def.’s
Mot. to Dismiss Am. Compl. (“VA Form 3467”); see Pl.’s Am. Compl. ¶ 6.
The form recites the following as the “reason for requesting change to part-
time employment:” “In lieu [sic] of Budget constraints, as instructed by
Workforce Development Coordinator on 1/14/09.” As a consequence of his
change in schedule, VA treated plaintiff, and others who went through the
same schedule change, as no longer eligible for health benefits, sick leave, or
annual leave.

        The complaint alleges that Mr. Dawson and the putative class were not
informed until after they executed forms requesting a part-time or intermittent
schedule “that [] VAPAHCS would take the position that this [change] would
result in a loss of leave benefits . . . , which included annual and sick leave, as
well as eligibility for health care and other federal insurance benefits programs
for [SEEP] employees.” Pl.’s Am. Compl. ¶ 6. It further characterizes
VAPAHCS’s actions as fraudulent and “underhanded” in that the agency
“obtained the consent of approximately 150 SEEP employees to a personnel
action which purported to change their work schedules from part-time to
‘intermittent’ . . . by causing them to fear loss of their jobs if they did not agree
to the personnel action.” Id. Despite the nominal change in schedule, plaintiff
continued to work the same hours and schedule as he had previously. Instead
of being assigned an altered work schedule as the result of the change in
schedule, “[Mr.] Dawson and all class members were required to continue to
work their regular full-time or part-time schedule.” Id.

        Mr. Dawson worked for VAPAHCS until January 22, 2013. He filed
suit here on April 29, 2013, on his own behalf and on behalf of approximately
300 other similarly-situated individuals.

       Plaintiff asks us to find that VAPAHCS withheld benefits from him and
the potential class members to which they were entitled by statute or
regulation. He seeks the monetary equivalent of at least 36 days of sick and
annual leave, along with other employee benefits, which he believes total over
$10,000. He also seeks back pay for the entire class in an amount greater than
$5 million, attorneys fees pursuant to 5 U.S.C. § 7701(g), and an injunction to
prohibit VAPAHCS from denying interns benefits to which they are allegedly

                                         3
entitled by labeling them intermittent employees. We are unable to grant
plaintiff the relief he seeks for the reasons explained below.

                                DISCUSSION

I.     Regulatory Background

       Key to plaintiff’s argument is the language in the regulations applicable
to SEEP employees prior to July 10, 2012. Until July 9, 2012,3 when the
SEEP program was replaced by the Pathways Program, benefits for SEEP
interns were fixed by two sets of regulations. Applicable to STEP employees
was 5 C.F.R. § 213.3202(a)(13), which provided:

       (13) Benefits. (i) Students under this program are eligible for
       annual and sick leave and are generally ineligible for retirement
       coverage. Refer to § 831.201 [Exclusions from retirement
       coverage] and § 842.105 [Regulatory exclusions from retirement
       annuity] of this chapter for specific information. (ii) For rules
       on health and life insurance coverage refer to § 870.202 [Basic
       insurance amount for life insurance], § 890.102 [Health
       insurance coverage], and § 890.502 [Contributions and
       withholdings] of this chapter.

Id. (emphasis added).

      The regulation governing SCEP interns during the same time period
provides the following:

       (16) Benefits. (i) Students appointed under this program earn
       annual and sick leave and with no prior service or with less than
       5 years of prior civilian service, are generally covered by the
       Federal Employees Retirement System (FERS) (see part 842 of
       this chapter). (ii) For life insurance and health benefits coverage


3
 On this date, the Pathways Program Regulations became effective. Excepted
Service, Career and Career-Conditional Employment; and Pathways Program,
77 Fed. Reg. 28,194 (May 11, 2012) (“Agencies, however, shall have a 6-
month transition period following the effective date of the final rule to convert
to the Internship Program any students serving under appointments made
pursuant to the Student Educational Employment Program [SEEP].”).

                                       4
       refer to § 870.202 [Basic insurance amount for life insurance]
       and § 890.102 [Health insurance coverage] of this chapter.

5 C.F.R. § 213.3202(b)(16) (2012) (emphasis in original).

       In the case of STEP employees, therefore, plaintiff can point to
language in the appointment regulations making them “eligible” for certain
benefits. In the case of SCEP employees, plaintiff can point to language
stating that they “earn” annual and sick leave.

        Defendant, however, points to other regulations as well as statutory
provisions that it contends made plaintiff ineligible for benefits both before
and after July 9, 2012. Both SCEP and the current Pathways Program provide
that “[a]ppointments are subject to all the requirements and conditions
governing term, career, or career-conditional employment . . . .” 5 C.F.R. §
362.105(c)(3) (2013); 5 C.F.R. § 213.3202(b)(10)(i) (2012). Defendant also
points out that all leave entitlement ultimately finds its source in Title 5,
Chapter 63 of the United States Code, which provides that only “employees”
are entitled by law to sick leave and annual leave. See 5 U.S.C. §§ 6303, 6307
(2012). An employee, for purposes of Chapter 63 benefits, however, “does not
include . . . a part time employee who does not have an established regular tour
of duty during the administrative workweek.” 5 U.S.C. § 6301(2)(b)(ii). An
intermittent employee, in turn, is defined as one who does not have a
“regularly scheduled tour of duty.” 5 C.F.R. § 340.401(b) (2012); 5 C.F.R. §
340.401(b) (2013). In short, defendant contends that, when plaintiff became
an interim employee, he lost whatever entitlement he might have had to annual
and sick leave.

       Defendant in effect is arguing that the two regulatory provisions
allowing the appointment of SCEP or SEEP interns were wrong to the extent
they suggested that all interns automatically were either eligible or would earn
sick and annual leave. The SEEP regulations intimated more than could have
been delivered, because the statutory and regulatory provisions actually
controlling sick and annual leave made it clear that interns were ineligible if
they worked an “intermittent” schedule. Presumably the intimation would not
have been inaccurate if the interns had been treated as having a regularly
scheduled tour of duty.

        With respect to his claim for the period between January 14, 2009 and
July 8, 2012, plaintiff does not question the limitations on leave applicable to
intermittent employees. Instead, he contends that his change from full time to

                                       5
intermittent status was bogus because the agency did not explain the
consequences of his signing VA Form 3497, and in fact fraudulently deceived
him. Plaintiff thus argues that it was improper for the VA to ask him to
“request” a change to an intermittent schedule. He also contends, and for
purposes of its motion defendant does not challenge the assertion, that plaintiff
in fact did not work an intermittent schedule and did work a regular 40-hour
schedule. The change from full time to intermittent status is void, according
to plaintiff, and the court has the power to declare it so and order repayment
to plaintiff of the value of his lost leave.

        For the period after July 9, 2012, plaintiff contends that the agency
violated its own policy by treating interns as intermittent employees. Plaintiff
relies on 5 C.F.R part 362, which, unlike its predecessor regulations, does not
mention whether interns are eligible for or earn benefits. Instead, 5 C.F.R. §
362.203(g) (2013) gives the following guidance about intern scheduling:

       There are no limitations on the number of hours an Intern can
       work per week (so long as any applicable laws and regulations
       governing overtime and hours of work are adhered to).
       Agencies and students should agree on a formally-arranged
       schedule of school and work so that:

              (1) Work responsibilities do not interfere with academic
              schedule;
              (2) Completion of the educational program . . . and the
              Internship Program is accomplished in a reasonable and
              appropriate timeframe;
              (3) The agency is informed of and prepared for the
              student’s periods of employment;

Plaintiff urges the court to read the regulation quoted directly above with the
notes and comments that preceded its adoption in 2012 by the Office of
Personnel Management (“OPM”):

              Two agencies commented on work schedules. One
       suggested OPM amend the final rule by specifying the number
       of hours a student may work. We did not amend the final rule
       because the regulations specify an Intern may work a full or
       part-time schedule. Interns agreeing to work a full-time
       schedule must work 40 hours per week. Part-time schedules are
       generally considered to fall between 16 and 32 hours per week.

                                       6
       Interns are covered by the same rules for hours of duty
       contained in part 610 of the CFR.

              Another agency suggested we modify the final rule to
       include an intermittent work schedule. We did not modify the
       final rule because we do not believe an intermittent work
       schedule is appropriate for an Intern. Employees on an
       intermittent work schedule do not have a regularly-scheduled
       tour of duty; they have no set hours of duty or days of work
       every week. This is not conducive for students with a set
       academic schedule or for Intern appointments intended to train
       an employee for permanent employment.

Excepted Service, Career and Career-Conditional Employment; and Pathways
Program, 77 Fed. Reg. at 28,208 (emphasis supplied). Based on this language,
plaintiff asks us to conclude that the agency violated 5 C.F.R. § 362.203(g)
when its interns were assigned intermittent schedules.4 In other words,
plaintiff, and others in his situation, should not have been reclassified as
intermittent.

    Plaintiff also asks the court to take judicial notice of advice given on the
OPM website that

       an intermittent schedule is appropriate only when the nature of
       the work is so sporadic and unpredictable that a regularly
       scheduled tour of duty cannot be scheduled in advance. In
       establishing the [STEP] program, OPM did not intend to have
       STEP or SCEP students working on intermittent schedules.
       Students may work full- or part-time schedules, however, as best
       meets their needs and the needs of the agency.

Https://www.opm.gov/faqs/topic/employment/index.aspx?cid=b9efecc7-acdf-
4b54-8958-3c29a97b5c8f (last visited June 16, 2014).5

4
 Mr. Dawson worked for a full twelve days under the new regulations because
the Pathways Program regulation became effective July 10, 2012 and gave a
6-month transition period for compliance. See 77 Fed. Reg. at 28,194.
5
 The comments in the federal register must be read in conjunction with 5
C.F.R. § 213.102(b)(3)(i) (2013), however, which provides, “Unless otherwise
                                                                   (continued...)

                                       7
      On the assumption that his allegedly coerced, or in any event, unlawful
change to an intermittent schedule constitutes an unjustified or unwarranted
personnel action, plaintiff invokes the Back Pay Act, 5 U.S.C. § 5596(b)(1)
(2012), as a basis for recovering his lost benefits. The Back Pay Act provides
that

       An employee of an agency who, on the basis of a timely appeal
       or an administrative determination (including a decision relating
       to an unfair labor practice or a grievance) is found by
       appropriate authority under applicable law, rule, regulation, or
       collective bargaining agreement, to have been affected by an
       unjustified or unwarranted personnel action which has resulted
       in the withdrawal or reduction of all or part of the pay,
       allowances, or differentials of the employee--

                  (A) is entitled, on correction of the personnel action, to
                  receive for the period for which the personnel action was
                  in effect--

                            (i) an amount equal to all or any part of the pay,
                            allowances, or differentials, as applicable which
                            the employee normally would have earned or
                            received during the period if the personnel action
                            had not occurred, less any amounts earned by the
                            employee through other employment during that
                            period; and
                            (ii) reasonable attorney fees . . . .

       5 U.S.C. § 5596(b)(1).




       5
           (...continued)
specified in a particular appointing authority, an agency may make Schedule
A, B, C, or D appointments on either a permanent or nonpermanent basis,
with any appropriate work schedule (i.e., full-time, part-time, seasonal, on-call,
or intermittent).” See 5 C.F.R. § 213.3401 (stating that Pathway Program
participants are appointed under Schedule D).

                                             8
II.    Defendant’s Motions

        Defendant has moved to dismiss the complaint for lack of subject
matter jurisdiction. The Tucker Act allows the court to adjudicate “any claim
against the United States 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(a)(1) (2006). While
the Tucker Act constitutes a waiver of sovereign immunity, it does not give
rise to a substantive cause of action. See United States v. Mitchell, 463 U.S.
206, 216 (1983). “[I]n order to come within the jurisdictional reach and the
waiver of the Tucker Act, a plaintiff must identify a separate source of
substantive law that creates the right to money damages.” Fisher v. United
States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc). A source of law is
money-mandating if it is “reasonably amendable to the reading that it
mandates a right of recovery in damages.” United States v. White Mountain
Apache Tribe, 537 U.S. 465, 473 (2003). Additionally, a plaintiff must make
“a non-frivolous assertion that it is within the class of plaintiffs entitled to
recover under the money-mandating source.” Jan’s Helicopter Serv. Inc. v.
Fed. Aviation Admin., 525 F.3d 1299, 1307 (Fed. Cir. 2008).

        Defendant’s initial focus in its briefing was on what is implied by the
words “earn” and “entitled” in the regulations. It argued that these regulations
are not money-mandating. Its more recent briefing disavows the importance
of that language and we agree it is irrelevant. The substance of plaintiff’s
claim is that on January 14, 2009, he was improperly moved by the VA Form
3497 from a full-time SEEP intern position, which had benefits, to an
intermittent position that did not include benefits. Plaintiff does not appear to
question the key assumption in defendant’s argument, namely, that, if the
January 14 change of plaintiff’s status from full time to intermittent was
proper, then he would not be entitled to the disputed benefits. We recognize
plaintiff’s argument to be that the change was of no effect, or fraudulent, or
both. The gist of it is that he should not have been changed to an intermittent
employee position. If he was not an intermittent employee, he would have a
claim to benefits. Plaintiff’s real argument is thus that the court should strike
VA Form 3497 from plaintiff’s personnel files on the ground that it is illegal
or coerced.

      Defendant’s subsequent briefing shifted to a different jurisdictional
argument, a variant of a familiar theme in this court’s personnel decisions. We
have often held that the court cannot reclassify employees into different

                                       9
positions, because, as the Supreme Court explained in United States v. King,
395 U.S. 1 (1969), a plaintiff must have a claim for “actual, presently due
money damages from the United States.” Id. at 3. An employee is entitled to
the pay of the position to which he or she is appointed. If it requires a
predicate determination that the employee should be in a different position,
pay grade, or classification, that predicate determination cannot be made by
this court. This court does not, at least insofar as this case is concerned, have
the type of general equitable powers necessary to declare a personnel action
illegal. As the Court in King held, what the employee there was requesting
was “essentially equitable relief of a kind that the Court of Claims has held
throughout its history . . . it does not have the power to grant.” Id. at 2-3.
Similarly, in United States v. Testan, 424 U.S. 392 (1976), the Court held that
our predecessor court, the Court of Claims, did not have jurisdiction to hear a
claim by two employees that the work they were doing deserved a higher pay
classification. Id. at 399.

       The Back Pay Act allows the award of money damages in this court if
an appropriate authority has determined that, under applicable law, rule, or
regulation, an employee has been affected by an unjustified or unwarranted
personnel action resulting in the withdrawal or reduction of all or part of their
pay. Worthington v. United States, 168 F.3d 24, 26 (Fed. Cir. 1999). If the
claim in this court is that the employee did not receive the pay commensurate
with their appointed position, e.g., they were discharged improperly or had not
received correctly calculated overtime pay, then the court has independent
power to act. See Doe v. United States, 463 F.3d 1314, 1324 (Fed. Cir. 2006);
King v. United States, 81 Fed. Cl. 766 (2008); Power v. United States, 220 Ct.
Cl. 157, 163-64 (1979). If there must first be a predicate determination that the
agency has made a mistake in classifying the employee in some way for pay
purposes, then the court cannot, in the first instance, make that determination.

       King and Testan dealt with mis-classification, and defendant repeatedly
characterizes what plaintiff is seeking here as “reclassification” of his position.
That is not what plaintiff is asking for, however. Reclassification, as plaintiff
correctly points out, has to do with the job classification and the pay grade to
which someone is appointed. See generally Anderson v. United States, 764
F.2d 849 (Fed. Cir. 1985). Unfortunately for plaintiff, however, we think the
distinction does not matter. Plaintiff’s position as a GS-303-5 Program
Support Assistant, STEP, does not automatically entitle him to the benefits he
seeks. For the reasons we set out above, when plaintiff’s schedule was
changed to “intermittent,” there were automatic consequences in terms of
benefits. Indeed, presumably that is why the VA sought the change. To

                                        10
reverse that change in work schedule, however, would require the court to
declare that the action was improper, either because Mr. Dawson’s actual
schedule would not support the change or because the STEP program was not
intended for such purposes. We believe that determination was reserved to the
employing agency, and perhaps, if challenged, to review at OPM. It is not
within this court’s purview. As defendant correctly points out, we lack
jurisdiction to grant the equitable relief that plaintiff seeks. “Except in strictly
limited circumstances, see 28 U.S.C. § 1491(b)(2), there is no provision in the
Tucker Act authorizing the Court of Federal Claims to order equitable relief.”
Massie v. United States, 226 F.3d 1318, 1321 (Fed. Cir. 2000).

III.   We Lack Jurisdiction Over Claims of Fraud or Coercion

       Plaintiff’s secondary argument also falls outside of this court’s
jurisdiction. The following excerpt summarizes plaintiff’s claim:

       Mr. Dawson and many class members (all hired before February
       1, 2009) while full or part time employees and unquestionably
       entitled to benefits, were tricked and coerced into signing
       ‘Employee Request for Change to Part-Time Employment’ . . .
       which together with the Standard Form-50 . . . based on the
       Request for Change deprived them of their benefits in violation
       of 5 C.F.R. § 213.3202(a) and (a)(13)(i) and 5 C.F.R. §
       213.3202(b) and (b)(16)(i)[] . . . which mandated that they get
       the benefits. . . . [T]he Request for Change was knowingly false
       and fraudulently obtained.

Pl.’s Mem. of P. & A. in Opp’n to Mot. to Dismiss 2. Plaintiff characterizes
the agency’s conduct as coercive and fraudulent and he asks that the court
intervene to undo the change to intermittent status. Such claims sound in tort,
however. See Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997).
The Tucker Act explicitly excludes causes of actions sounding in tort from its
waiver of sovereign immunity. 28 U.S.C. § 1491(a)(1). Thus, we do not have
jurisdiction to entertain plaintiff’s claims of fraud. Brown, 105 F.3d at 623.




                                        11
                               CONCLUSION

        We agree with defendant that this is not the proper forum to hear
plaintiff’s claims. They do not originate in a money mandating statute or
regulation because plaintiff’s status during the relevant period was that of an
intermittent employee and he was therefore not entitled to annual or sick leave.
The court is not empowered to move plaintiff back into a position from which
he could make that argument. Defendant’s motion to dismiss, therefore, is
granted. The clerk is directed to enter judgment accordingly.



                                           ERIC G. BRUGGINK
                                           Judge




                                      12
