Cummins v. Us

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

SHIRLEY Y. M. CUMMINS, DAVID P.
GIAMELLARO, CAROLYN A. GONZALEZ, ALBERT
E. MILLER, ROSA CARMINA RODRIGUEZ, FOR
THEMSELVES, ON BEHALF OF ALL PERSONS
SIMILARLY SITUATED,
AND AS
REPRESENTATIVES OF THE PLAINTIFF CLASS
CERTIFIED IN CARABALLO V. U.S., CIVIL NO.
1997/27(D. V.I. 2000),
Plaintiffs-Appellants

v.

UNITED STATES,
Defendant-Appellee
______________________

2024-2166
______________________

Appeal from the United States Court of Federal Claims
in No. 1:23-cv-00308-KCD, Judge Kathryn C. Davis.
______________________

Decided: August 14, 2026
______________________

R
OBERT G. MULLENDORE, Robert G. Mullendore, P.S.,
Missoula, MT, argued for plaintiffs-appellants.

GALINA I. FOMENKOVA, Commercial Litigation Branch,
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CUMMINS v. US 2
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by CLAUDIA BURKE, PATRICIA M. MCCARTHY, BRETT
SHUMATE.
______________________

Before R
EYNA, SCHALL, and CUNNINGHAM, Circuit Judges.
REYNA, Circuit Judge.
Plaintiffs in this class action case are current or retired
federal employees who have lived and worked in non-for-
eign areas outside the contiguous United States. Plaintiffs
asserted claims against the United States for underpay-
ment of salary and retirement benefits. The United States
Court of Federal Claims dismissed their claims for lack of
subject-matter jurisdiction. For the reasons below, we af-
firm.
B
ACKGROUND
In 2023, current and retired federal employees living
in “non-foreign areas” of the United States brought suit
against the government for underpayment of salary and re-
tirement benefits. Non-foreign areas are, inter alia,
“States, commonwealths, territories, and possessions of the
United States outside the 48 contiguous United States.”
5 C.F.R. § 591.205. These include, for example, Hawaii,
Alaska, and Puerto Rico. Id.
I.
This case concerns two components of non-foreign fed-
eral employees’ salaries: cost-of-living allowances and lo-
cality pay. We begin with a discussion of the statutory
framework for each.
A. Cost-of -Living Allowances
Federal employees in non-foreign areas receive a cost-
of-living allowance (“COLA”) pursuant to 5 U.S.C. § 5941
and Executive Order No. 10,000. Historically, COLA rates
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CUMMINS v. US 3
were based on “(1) living costs substantially higher than in
the District of Columbia; (2) conditions of environment
which differ substantially from [those] in the continental
United States and warrant an allowance as a recruitment
incentive; or (3) both of these factors,” but were capped at
25 percent of the rate of basic pay. 5 U.S.C. § 5941(a)
(1966).
Under the Civil Service Retirement System (“CSRS”)
and the Federal Employees Retirement System (“FERS”),
“basic pay” is the salary a federal employee receives for
purposes of retirement calculations. See 5 U.S.C.
§§ 8331(3), 8401(4). The statutes explicitly exclude certain
types of pay from basic pay, including “bonuses, allow-
ances, overtime pay, [and] military pay.” 5 U.S.C.
§§ 8331(3), 8401(4). The Office of Personnel Management
(“OPM”) has interpreted these statutes to exclude COLA
from basic pay for purposes of retirement calculations.
OPM conducted annual surveys to determine COLA
rates until Congress changed the compensation scheme for
non-foreign employees in 2009, as discussed in Sec-
tion I.B.2, infra. See 5 C.F.R. § 591.223 (dividing non-for-
eign areas into three groups and explaining that “OPM
conducts a survey in each COLA area once every 3 years on
a rotational basis”).
B. Locality Pay
1. Federal Employees Pay Comparability Act of 1990
(“FEPCA”)
In 1990, Congress introduced locality-based compara-
bility payments to offset pay disparities among federal and
non-federal workers doing “the same levels of work” within
a given locality. Federal Employees Pay Comparability Act
of 1990, Pub. L. No. 101-509, § 529, 104 Stat. 1389; see also
5 U.S.C. § 5304(d)(1)(A). Congress instructed the Presi-
dent to direct an agent to prepare a report that (A) com-
pares rates of pay of federal and non-federal workers in
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CUMMINS v. US 4
each locality, (B) identifies each locality in which a pay dis-
parity exists and specifies the size of the disparity, and
(C) recommends comparability payments to reduce pay dis-
parities. 5 U.S.C. § 5304(a), (d)(1)(A)–(C) (1990). Congress
further instructed the President to “provide for or adjust
comparability payments” based on the report. See
id. § 5304(d)(2).
Locality pay differs from COLA in that it is considered
part of “basic pay” for retirement purposes. See
id. § 5304(c)(2)(A).
Congress explicitly excluded employees in non-foreign
areas from being included in a “pay locality.” See
id. § 5304(f)(1)(A) (providing that “each General Schedule
position (excluding any outside the continental United
States, as defined in section 5701(6)) shall be included with
a pay locality” (emphasis added)).
1

2. Non-Foreign AREA Act of 2009
The exclusion of COLA and inclusion of locality pay in
retirement benefits calculations for non-foreign and contig-
uous United States employees, respectively, created dis-
parities in retirement benefits among federal workers in
non-foreign areas versus those in the contiguous United
States. To eliminate these disparities, Congress expanded
the locality pay system to include non-foreign area federal
employees. 5 U.S.C. § 5304(f)(1)(A) (2009); see also Non-
Foreign AREA Act of 2009, Pub. L. 111-84, §§ 1911–19, 123
Stat. 2190, 2619–27 (amending 5 U.S.C. §§ 5304, 5941 and
39 U.S.C. § 1005(b)).
Congress provided guidance for introducing locality
pay and phasing out COLA in a manner designed to protect

1
The term “‘continental United States’ means the
several states and the District of Columbia, but does not
include Alaska or Hawaii.” 5 U.S.C. § 5701(6).
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CUMMINS v. US 5
employees’ take home pay. See Non-Foreign AREA Act
§§ 1914–15, 123 Stat. 2621–22. Congress phased in local-
ity pay for non-foreign employees over a period of three
years and transitioned COLA from an annual calculation
to a set formula such that it could be gradually phased out.
See id. § 1914, 123 Stat. 2621 (5 U.S.C. § 5304 Note provid-
ing transition schedule for locality-based payments for
each non-foreign area); 5 U.S.C. § 5941(c)(2)(B).
To determine locality pay for the newly eligible non-
foreign employees, Congress suggested that the Bureau of
Labor Statistics conduct “separate surveys to determine
the extent of any pay disparit[ies]” in non-foreign areas.
Non-Foreign AREA Act § 1915(a)(3), 123 Stat. 2621–22.
Congress further suggested each area with a pay disparity
exceeding a threshold be treated as a separate pay locality.
Id. § 1915(a)(4), 123 Stat. 2621–22.
II.
Plaintiffs filed a class action complaint in the United
States Court of Federal Claims (“Federal Claims Court”) in
March 2023. Plaintiffs filed an amended complaint in Au-
gust 2023, asserting six claims falling into two categories:
four claims pertaining to salary and two for retirement
benefits. J.A. 38–41. In their salary claims, Plaintiffs al-
leged entitlement to locality pay during the period from
January 1, 1994, through December 31, 2009. Plaintiffs
also alleged continuing entitlement to COLA at the rates
that were in effect on December 31, 2009. Plaintiffs con-
tended that their exclusion from locality pay and Con-
gress’s phase-out of COLA constituted violations of due
process and equal protection guaranteed by the Fifth
Amendment and unconstitutional bills of attainder. In
their retirement benefits claims, Plaintiffs argued that the
government’s agencies must correct their payroll records to
reflect the amounts of locality pay that Plaintiffs were en-
titled to receive during the period from January 1, 1994,
through December 31, 2009, and must pay, with interest,
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CUMMINS v. US 6
the additional retirement benefit amounts that Plaintiffs
would have been entitled to had they received locality pay
during that period. Plaintiffs also alleged that COLA “is
and at all times was an integral part of base pay and basic
pay.” J.A. 40. They contended that their retirement annu-
ities should be increased “on account of the inclusion of
COLA in base pay and basic pay.” Id.
The Federal Claims Court dismissed all claims for lack
of jurisdiction. Cummins v. United States, 171 Fed. Cl. 527,
536 (2024). Regarding the salary claims, the court found
that Plaintiffs had not identified a money-mandating
source of law to satisfy jurisdiction under the Tucker Act
and that the court lacks jurisdiction to issue the type of eq-
uitable relief requested. Id. at 532–35. Regarding the re-
tirement benefits claims, the court found that Plaintiffs’
claims challenge the Office of Personnel Management’s
(“OPM”) calculation of retirement benefits for employees
under the CSRS or the FERS. Id. at 535–36. The court
found its review of such a challenge is precluded by the
Civil Service Reform Act’s exclusive review process, which
requires the challenge to be brought before the Merit Sys-
tems Protection Board (“MSPB”). Id.
We have jurisdiction to review Federal Claims Court
decisions under 28 U.S.C. § 1295(a)(3).
D
ISCUSSION
Plaintiffs challenge the Federal Claims Court’s dismis-
sal as to all six claims. We first address whether the Fed-
eral Claims Court has jurisdiction under the Tucker Act to
hear Plaintiffs’ salary claims. Plaintiffs contend that the
Federal Claims Court has jurisdiction to decide their salary
claims because “constitutional analysis of money-mandat-
ing statutes is an essential part, and the responsibility, of
the United States Court of Federal Claims.” Appellants’
Br. 30. We then address whether the Federal Claims Court
or this court has jurisdiction to hear Plaintiffs’ retirement
benefits claims. Plaintiffs argue that this court, the United
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CUMMINS v. US 7
States Court of Appeals for the Federal Circuit, has juris-
diction to decide as a matter of law in the first instance
whether COLA should be included in the calculation of re-
tirement benefits, and should do so without requiring a
“dress rehearsal” before the MSPB. Appellants’ Br. 33.
This court reviews decisions of the Federal Claims
Court on issues of law de novo, and on findings of fact for
clear error. Anaheim Gardens v. United States, 444 F.3d
1309, 1314 (Fed. Cir. 2006). We review dismissals for lack
of subject matter jurisdiction de novo. Id.
I. Salary Claims
Plaintiffs allege that the statutory provisions excluding
them from receiving locality pay and reducing their COLA
are unconstitutional and therefore void. Appellants’
Br. 11. They contend that the statutes must be adminis-
tered as if the provisions did not exist. Id. Plaintiffs deny
that they seek declaratory judgment; rather, they assert
their allegations “depend solely upon the Tucker Act,
28 U.S.C. § 1491, for jurisdiction.” Appellants’ Br. 21.
The Tucker Act waives sovereign immunity for certain
monetary claims against the United States. Kanemoto
v. Reno, 41 F.3d 641, 644 (Fed. Cir. 1994). The Tucker Act
does not, however, in and of itself, create a substantive
right enforceable against the government. Hamlet
v. United States, 873 F.2d 1414, 1416 (Fed. Cir. 1989). In-
stead, a claimant must point to some other source of law
that can be fairly interpreted as mandating compensation,
i.e., “money-mandating.” See id.
Here, Plaintiffs’ salary claims are based on FEPCA (in-
troducing locality pay) and the Non-Foreign AREA Act
(amending 5 U.S.C. § 5941 to phase out COLA). Plaintiffs
argue that if the court were to disregard provisions of those
statutes because they are unconstitutional, the statutes
would have money-mandating effect. Appellants’ Br. 11
(“The unconstitutional provisions are parts of larger
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CUMMINS v. US 8
‘money-mandating’ statutes. . . . [The provisions] must be
disregarded, and the statutes must be administered as if
the provisions did not exist.”).
To this point, Plaintiffs argue that the Federal Claims
Court has jurisdiction to “engage in constitutional analysis
of money-mandating statutes,” as evidenced by “consistent
decisions” of the Federal Claims Court and this court. Ap-
pellants’ Br. 23. Specifically, Plaintiffs seek the Federal
Claims Court’s consideration of FEPCA without the provi-
sion that excludes them from receiving locality pay from
1994–2009, and the Non-Foreign AREA Act without the
provision phasing out COLA. J.A. 38–40; Appellants’
Br. 11.
Section 1491(a)(1), the provision of the Tucker Act at
issue here, provides that the Federal Claims Court “shall
have jurisdiction to render judgment upon any claim
against the United States founded . . . upon . . . any Act of
Congress or any regulation of an executive department.”
28 U.S.C. § 1491(a)(1). We have interpreted § 1491(a)(1) as
providing jurisdiction over suits involving statutes and reg-
ulations that we have deemed money mandating, i.e., stat-
utes or regulations that explicitly or implicitly mandate
monetary compensation as to the plaintiff. Holmes
v. United States, 657 F.3d 1303, 1309 (Fed. Cir. 2011). A
plaintiff’s claim, however, must be one for “actual, pres-
ently due money damages.” Nat’l Air Traffic Controllers
Ass’n v. United States, 160 F.3d 714, 716 (Fed. Cir. 1998)
(citation modified). “It is not enough that the court’s deci-
sion . . . will ultimately enable the plaintiff to receive
money from the government.” Id. Thus, the Federal
Claims Court has jurisdiction over claims seeking pres-
ently due monetary compensation for a violation of a
money-mandating statute. See United States v. Mitchell,
463 U.S. 206, 218 (1983); Lummi Tribe of the Lummi Rsrv.,
Washington v. United States, 870 F.3d 1313, 1319 (Fed.
Cir. 2017).
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CUMMINS v. US 9
We have also held that when a money-mandating stat-
ute contains a provision that is unconstitutional, the Fed-
eral Claims Court has jurisdiction over the plaintiff’s
§ 1491(a)(1) claim to deem that provision unconstitutional
and then proceed to the merits of plaintiff’s entitlement to
money damages under the modified statute. Gentry v.
United States, 546 F.2d 343, 354 (Ct. Cl. 1976); Kanemoto,
41 F.3d at 645–46.
For example, in Gentry, the plaintiff challenged a “live-
with” requirement for receipt of benefits under the Civil
Service Retirement Act of 1930. 546 F.2d at 344–45. The
plaintiff survived his deceased father but was denied sur-
vivorship benefits because he did not live with his father
prior to his father’s passing, as required by the Act. Id. at
344. The United States Court of Claims (“Court of
Claims”), a predecessor to this court, considered whether it
could “disregard, on constitutional grounds, one provision
of a statute, and render judgment on the provisions that
remain standing (if severable).” Id. at 345. The Court of
Claims held that it could. Id. at 347–48, 354. The court
concluded that the plaintiff’s claim, grounded in the statute
when read in light of the Fifth Amendment, “states a claim
for money presently due, not requiring further action on
anyone’s part to create the entitlement thereto.” Id. at 346.
In Kanemoto, we held that the Federal Claims Court
had jurisdiction to “interpret” a statute in response to the
appellants’ constitutional challenge and “render a judg-
ment against the United States.” 41 F.3d at 645. The
named plaintiff, a United States citizen of Japanese de-
scent, was interned with her family during World War II
and then sent to Japan as part of a prisoner exchange. Id.
at 642. She sought to receive $20,000 in restitution under
the Civil Liberties Act of 1988, but the Act included a pro-
vision denying reparations to individuals who relocated to
a country while the United States was at war with that
country. Id. at 643. The plaintiff challenged the provision’s
constitutionality. Id. We held that the Federal Claims
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CUMMINS v. US 10
Court had jurisdiction to hear her case because the statute,
disregarding the unconstitutional provision, mandated
presently due damages to the plaintiff. See id. at 645–46
(“The Court of Federal Claims under its Tucker Act juris-
diction can interpret the statute and render a judgment
against the United States that will provide Kanemoto with
the entire relief she sought in the first place from the [Of-
fice of Redress Administration]—the $20,000 statutory
amount of restitution.”).
Gentry and Kanemoto differ from the present case be-
cause in each, once the unconstitutional provision in the
money-mandating statute at issue was disregarded, the
plaintiff was left with a claim seeking presently due money
damages under the statute, i.e., a money-mandating provi-
sion.
Here, the statutes upon which Plaintiffs rely, even
without the challenged provisions, are not money-mandat-
ing as to Plaintiffs. The modified statutes do not entitle
Plaintiffs to “presently due monetary damages.” See
Lummi, 870 F.3d at 1319 (holding that statute was not
money-mandating because “the underlying claim is not for
presently due money damages. It is for larger strings-at-
tached NAHASDA grants—including subsequent supervi-
sion and adjustment—and, hence, for equitable relief.”).
Instead, Plaintiffs’ request that the Federal Claims Court
address the modified statutes necessarily implicates equi-
table relief against the government. The Federal Claims
Court lacks jurisdiction to grant this equitable relief. See
id. at 1318–19.
If the provision of FEPCA that expressly excluded non-
foreign employees from the receipt of locality pay from
1990–2009 were struck, there would be no framework dic-
tating an amount presently due to Plaintiffs. As the gov-
ernment argues, there would be a “vacuum” left that only
Congress could fill. See Appellee Br. 24–26. FEPCA man-
dates that locality pay be calculated by comparing General
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CUMMINS v. US 11
Schedule and non-federal salary data for comparable jobs
within a given geographic region. 5 U.S.C. § 5304(d)(1)(A).
That data was not collected for non-foreign areas until
2009, when Congress extended locality pay to non-foreign
federal employees and created processes to determine the
amount to pay them. See id. § 5304(f)(1) (extending locality
pay to federal employees in non-foreign areas); Non-For-
eign AREA Act § 1915(a), 123 Stat. 2621–22 (“It is the
sense of Congress that . . . the Bureau of Labor Statistics
should conduct separate surveys to determine the extent of
any pay disparity . . . that may exist with respect to posi-
tions located in [non-foreign areas].”). Without the pro-
cesses initiated by Congress, Plaintiffs cannot claim
entitlement to presently due monetary damages. We con-
clude, therefore, that FEPCA does not mandate money
damages presently due to Plaintiffs, with or without the
provision excluding Plaintiffs from receiving locality pay.
Similarly, if the Federal Claims Court struck the pro-
vision of the Non-Foreign AREA Act that phased out
COLA, Plaintiffs would be left with a vacuum, not an enti-
tlement to presently due monetary damages. Prior to Con-
gress’s enactment of the Non-Foreign AREA Act, OPM
“conduct[ed] a survey in each COLA area once every 3
years on a rotational basis and survey[ed] the Washington,
DC, area concurrently with each COLA area survey.” 5
C.F.R. § 591.223. With the Non-Foreign AREA Act, Con-
gress introduced a COLA phase-out formula that elimi-
nated the need for ongoing surveys. See 5 U.S.C.
§ 5941(c)(2)(B). OPM’s suspension of the surveys means
that Plaintiffs cannot claim entitlement to presently due
monetary damages. Like FEPCA, the Non-Foreign AREA
Act does not mandate monetary damages presently due to
Plaintiffs, with or without the provision phasing out COLA.
To render monetary judgment for Plaintiffs’ claims
would require the Federal Claims Court to (1) instruct the
Bureau of Labor Statistics to collect locality data for
1994–2009; (2) instruct the President’s agent to determine
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CUMMINS v. US 12
locality pay for the years of 1994–2009 based on the col-
lected data; (3) order OPM to determine COLA payments
for 2010 to the present without the aid of annual COLA
surveys; and (4) order OPM to resume conducting annual
COLA surveys. Such actions to enjoin fall outside the Fed-
eral Claims Court’s jurisdiction. See Bowen v. Mass., 487
U.S. 879, 905 (1988) (finding no jurisdiction in the Federal
Claims Court where petitioner’s suit was not merely for
past due sums, but for an injunction to correct the method
of calculating payments going forward). The Federal
Claims Court, however, “does not have the general equita-
ble powers of a district court to grant prospective relief.”
Id.
Moreover, Plaintiffs’ prayer for relief is not limited to
payment of COLA and locality pay, which implicitly invoke
equitable remedies. Plaintiffs explicitly seek prospective
equitable remedies that are likewise outside the Federal
Claims Court’s jurisdiction. Plaintiffs request a “partial
judgment . . . including provisions requiring Defendant to
prevent further violations of law from occurring after the
date of the partial judgment.” J.A. 44. Plaintiffs further
seek a “permanent injunction requiring Defendant and its
agencies henceforward to comply with applicable laws.”
J.A. 45. Plaintiffs describe the injunction as follows:
To reduce the risks of noncompliance, the injunc-
tion should require Defendant and its agencies
(i) to provide substantial and effective opportuni-
ties for Class members and Class counsel to submit
comments or objections prior to any decision to
publish a proposed rule, if the rule concerns, inter-
prets, or regulates any aspect of the legal rights of
Class members with respect to salaries, annuities,
and benefits, and (ii) to respond promptly and con-
structively to any recommendations by Class coun-
sel for amendment or rescission of rules, or for
issuance of new rules, concerning federal employ-
ment in non-foreign areas.
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CUMMINS v. US 13
Id. In these requests, Plaintiffs seek to modify the govern-
ment’s future practices with respect to Plaintiffs’ compen-
sation. It is well settled that the Federal Claims Court
lacks jurisdiction to grant such relief. Bowen, 487 U.S. at
905.
In view of the foregoing, we conclude that the Federal
Claims Court lacks jurisdiction to grant the relief that
Plaintiffs request. We do not reach the question of whether
the challenged provisions of FEPCA and the Non-Foreign
AREA Act are unconstitutional. See Ex parte McCardle,
74 U.S. 506, 514 (1868) (“Without jurisdiction the court
cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only func-
tion remaining to the court is that of announcing the fact
and dismissing the cause.”).
II. Retirement Benefits Claims
Plaintiffs raise two retirement benefits claims. The
first stems from their alleged entitlement to locality pay
from January 1, 1994, through December 31, 2009. Plain-
tiffs contend that the government’s agencies must correct
their payroll records to reflect the amounts of locality pay
Plaintiffs should have received, and must pay the addi-
tional retirement benefit amounts that Plaintiffs would
have been entitled to had they received that locality pay.
Because Plaintiffs’ locality pay claim depends entirely on
their salary claims, over which the Federal Claims Court
does not have jurisdiction, we hold that the Federal Claims
Court likewise lacks jurisdiction to hear that claim.
Plaintiffs’ second claim challenges OPM’s practice of
excluding COLA from retirement calculations. Plaintiffs
contend that this court has jurisdiction to decide in the first
instance as a matter of law whether that practice is con-
trary to the intention of Congress and the President. Ap-
pellants’ Br. 32–34. We disagree.
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CUMMINS v. US 14
Plaintiffs’ second retirement benefits claim falls under
CSRS or FERS. Congress has specified that CSRS shall be
administered, and claims thereunder adjudicated, by OPM.
See 5 U.S.C. § 8347(a) (“The Office of Personnel Manage-
ment shall administer this subchapter.”); id. § 8347(b)
(“The Office shall adjudicate all claims under this subchap-
ter.” (emphasis added)). Similar provisions exist for FERS.
See id. § 8461(b), (c) .
Congress further specified that a claimant may appeal
a decision by OPM regarding CSRS to the MSPB. 5 U.S.C.
§ 8347(d)(1) (“[A]n administrative action or order affecting
the rights or interests of an individual or of the United
States under this subchapter may be appealed to the
[MSPB] under procedures prescribed by the Board.”). Like-
wise for FERS. Id. § 8461(e)(1). Final decisions of the
MSPB are only appealable to this court. See id.
§ 7703(b)(1)(A). This means that the MSPB is not, as as-
serted by Plaintiffs, a dress rehearsal but rather the main
act.
Plaintiffs have cited no cases supporting their proposi-
tion that this court has authority to review their retirement
benefits claim when OPM and the MSPB have not first
done so. Nor do Plaintiffs argue that the Federal Claims
Court had jurisdiction to decide their claim.
We hold that neither this court nor the Federal Claims
Court has jurisdiction to decide Plaintiffs’ second retire-
ment benefits claim.
C
ONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the reasons stated above,
we affirm.
AFFIRMED
COSTS
No costs.
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