Jillian Lesko v. United States

United States Court of Appeals
for the Federal Circuit
______________________
JILLIAN LESKO,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1823
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-00715-CNL, Judge Carolyn N. Lerner.
______________________
Decided: January 30, 2026
______________________
D IMITRIOS VASILIOU K OROVILAS , Wucetich & Korovilas
LLP, El Segundo, CA, argued for plaintiff-appellant. Also
represented by J ASON MATTHEW W UCETICH ; MICHAEL S.
MORRISON, Alexander Morrison & Fehr LLP, Los Angeles,
CA.
MATTHEW J UDE CARHART , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by REGINALD T HOMAS BLADES , J R., P ATRICIA
M. MCCARTHY , BRETT SHUMATE.
______________________
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LESKO v. US 2
Before M OORE, Chief Judge, CHEN and STOLL , Circuit
Judges.
STOLL , Circuit Judge.
Jillian Lesko appeals the decision of the Court of Fed-
eral Claims dismissing all five counts in her Amended
Complaint for failure to state a claim upon which relief
may be granted. Ms. Lesko, who was a registered nurse for
the Indian Health Service during the COVID-19 pandemic,
alleged she and all similarly situated nurses were denied
various pay enhancements for overtime, nighttime, holi-
day, and Sunday work. In an en banc decision, this court
affirmed the Court of Federal Claims’ dismissal of Count II
and referred the remainder of the appeal back to the panel
for resolution. For the reasons discussed below, we now
reverse the Court of Federal Claims’ dismissal of Counts I
and III–V of Ms. Lesko’s Amended Complaint and remand
for further proceedings consistent with this opinion.
BACKGROUND
Titles 5 and 38 of the United States Code each govern
the hiring, firing, and compensation of federal employees.
Title 5 covers compensation and benefits for most General
Schedule federal employees while Title 38 governs employ-
ment within the Department of Veterans Affairs. Title 38
provides more competitive pay than Title 5, but Title 5 per-
mits the discretionary application of certain provisions
from Title 38 to eligible Title 5 healthcare employees. For
example, registered nurses employed by the Indian Health
Service (IHS)—a division of the Department of Health and
Human Services (HHS)—are hired as Title 5 employees,
but IHS pays them the higher base rate of pay under the
special salary provisions of Title 38. IHS does not, how-
ever, apply other compensation provisions from Title 38
that are available to Title 5 employees, including increased
compensation rates for overtime, nighttime, Sunday, and
holiday work.
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LESKO v. US 3
From November 2020 through July 2021, Ms. Lesko
served as a registered nurse for IHS. According to
Ms. Lesko’s Amended Complaint, to meet the needs of pa-
tients during the COVID-19 pandemic, “nurses were re-
quired to work long hours, well over their regularly
scheduled tours of dut[y],” and “[t]his additional work was
often not paid . . . and occurred at least weekly and often
daily.” J.A. 82–83 ¶ 43; see also J.A. 88 ¶ 61. This “work
was not irregular or occasional. Rather, it was and remains
continuous, consistent and regularly preformed [sic].”
J.A. 82–83 ¶ 43. Twenty-four hours per day, seven days
per week, the IHS electronic health record system alerted
nurses with patient updates, which “often require[d] imme-
diate responses,” or at least “timely” responses pursuant to
IHS policies and procedures. J.A. 83–84 ¶¶ 44, 47–48; see
also J.A. 86–87 ¶ 54. Nurses were also required to submit
or respond to patient notes and records within 48 to
72 hours. Supervisors and management were aware of this
additional work, but pressured nurses to timely complete
tasks, take on more responsibilities, and disciplined nurses
if they failed to complete tasks in a timely fashion. This
additional work also included nighttime, Sunday, and hol-
iday work. Ms. Lesko filed her original complaint for a
class action suit on June 27, 2022, which she amended on
November 14, 2022, after the Government filed its first mo-
tion to dismiss.
Relevant to this appeal, Ms. Lesko’s Amended Com-
plaint included Counts I and III–V and alleged that she
and all other similarly situated current and former regis-
tered nurses employed by IHS were denied various pay en-
hancements in violation of (1) 38 U.S.C. § 7453
(miscellaneous compensation benefits); (2) 5 C.F.R.
§§ 550.121–22 (nighttime pay); (3) 5 C.F.R. §§ 550.171–72
(Sunday pay); and (4) 5 C.F.R. §§ 550.131–32 (holiday pay).
For all claims, she sought backpay under 5 U.S.C. § 5596.
The Government moved to dismiss under Rule 12(b)(6) of
the Rules of the Court of Federal Claims (RCFC) for failure
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LESKO v. US 4
to state a claim, which the Court of Federal Claims
granted.
Ms. Lesko appealed the dismissal of each count. The
court sua sponte granted en banc hearing on questions re-
lated to Count II and the validity of the Office of Personnel
Management’s (OPM) writing requirement for overtime
under 5 U.S.C. § 5542 on March 18, 2025. On Decem-
ber 12, 2025, the court upheld the writing requirement for
5 U.S.C. § 5542 and affirmed the Court of Federal Claims’
dismissal of Count II. The court referred the remainder of
the appeal back to the panel for resolution.
On December 15, 2025, we ordered party briefing on
whether the court’s en banc decision impacted the remain-
ing issues on appeal. Both parties filed responsive briefing
indicating that the en banc decision did not impact the
other counts at issue in Ms. Lesko’s appeal. See ECF
No. 90 at 3 (the Government asserting that “[n]othing in
the Court’s dismissal of Count II undermines or, as best as
we can tell, bears upon any arguments we have made with
respect to Counts I or Counts III–V”); ECF No. 91 at 1
(Ms. Lesko asserting that “the claims asserted in the oper-
ative complaint related to (1) nighttime pay, Sunday pay,
and holiday pay, and (2) entitlement to the Title 38 pay
rates associated with these premium pay provisions . . . are
wholly independent, and in no way impacted or altered by
the en banc Court’s ruling”).
We thus turn to Counts I and III–V. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(3).
D ISCUSSION
A trial court’s dismissal for failure to state a claim pre-
sents a question of law that we review de novo. Boaz Hous.
Auth. v. United States, 994 F.3d 1359, 1364 (Fed. Cir.
2021). When considering whether to dismiss a plaintiff’s
complaint, the court must accept all factual allegations in
the complaint as true and construe them in the light most
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LESKO v. US 5
favorable to the plaintiff. Inter-Tribal Council of Ariz., Inc.
v. United States, 956 F.3d 1328, 1338 (Fed. Cir. 2020). A
complaint should not be dismissed for failure to state a
claim unless the complaint fails to state a claim that is
plausible on its face. Id.
I
In Count I of her Amended Complaint, Ms. Lesko al-
leged that, just as IHS registered nurses’ base pay is pro-
vided through Title 38, they should also be awarded the full
panoply of higher compensation provided by the other pro-
visions of Title 38 that Title 5 employees are eligible for,
including for overtime, nighttime, Sunday, and holiday
work.
The Court of Federal Claims dismissed this count, con-
cluding that because OPM “has the authority to cherry-
pick Title 38 provisions and apply them piecemeal to Ti-
tle 5 employees” under 5 U.S.C. § 5371(b), its “subdele-
gate”—IHS—“enjoys the same discretion.” Lesko v. United
States, 164 Fed. Cl. 663, 667 (2023) (explaining that under
Title 5 “[OPM] may apply ‘1 or more provisions of . . .
[T]itle 38’” (second alteration and omission in original)
(quoting 5 U.S.C. § 5371(b))). The Court of Federal Claims
rejected Ms. Lesko’s argument that while OPM can choose
to apply certain provisions of Title 38, IHS was not dele-
gated that same authority to selectively choose. The court
determined that OPM authorized the HHS Secretary to se-
lectively choose “certain [T]itle 38 provisions,” including
“premium pay,” id. (alteration in original) (citing J.A. 101–
43 (Am. Compl. Ex. A)), and the HHS Secretary in turn del-
egated administrative and human resources authority to
the Assistant Secretary for Administration, who provides
direction and guidance to HHS’ Operating Divisions, in-
cluding IHS, id. (citing J.A. 168–74 (Mtn. Dismiss Appx.
Ex. 1)). And, the Court of Federal Claims concluded,
“[n]othing in the memoranda [cited by the Government]
tracing discretion from OPM to, ultimately, IHS cabined or
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LESKO v. US 6
changed the statutory permission to choose ‘one or more’
provisions from Title 38 to apply to Title 5 employees.” Id.
The Court of Federal Claims thus dismissed Count I for
failure to state a claim because it determined that IHS had
the discretion to pick and choose which Title 38 provisions
to apply to its employees, and its registered nurses were
not entitled to compensation pursuant to provisions IHS
did not so choose.
Turning to the pertinent statutory language, 5 U.S.C.
§ 5371(b) states: “The Office of Personnel Management
may, with respect to any employee described in subsec-
tion (c), provide that 1 or more provisions of chapter 74 of
title 38 shall apply—(1) in lieu of any provision of chap-
ter 51 or 61, subchapter V of chapter 55, or any other pro-
vision of this chapter; . . . .” Based on this language, we
agree that Title 5 gives OPM statutory authority to selec-
tively apply Title 38 provisions concerning pay rates and
systems, hours of work, and premium pay to certain Title 5
healthcare workers outside of the VA, including to IHS reg-
istered nurses. OPM has the authority to pick which of
these provisions to extend to eligible Title 5 employees,
with the Title 38 provision displacing the analogous Title 5
provision, but OPM need not apply all provisions to eligible
employees.
OPM may also delegate this authority to other federal
agencies. In this case, Ms. Lesko pled that OPM had exe-
cuted such a delegation agreement with HHS, which she
attached to her Amended Complaint as an exhibit, incorpo-
rating it therein. See J.A. 75–76 ¶ 10; J.A. 101–43. The
delegation agreement between OPM and HHS thus became
part of Ms. Lesko’s pleadings. See, e.g., McCutchen
v. United States, 14 F.4th 1355, 1363 (Fed. Cir. 2021) (ex-
plaining that when analyzing whether to dismiss a com-
plaint, “[w]e may consider ‘documents incorporated into
the complaint by reference, and matters of which a court
may take judicial notice’” (citation omitted)).
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LESKO v. US 7
Ms. Lesko further pled that, pursuant to this delega-
tion agreement, “IHS, a division of HHS, utilizes Title 38
provisions for [registered nurses] . . . . More specifically,
Plaintiff and other class members were and/or are em-
ployed as [registered nurses] as defined by 38 U.S.C.
§§ 7401(1) and 7453 and are hired and compensated pur-
suant to Title 38 instead of Title 5.” J.A. 76 ¶ 13.
Ms. Lesko pled that, based on this, she and other IHS reg-
istered nurses receive increased rates in their basic pay
pursuant to 38 U.S.C. § 7451; however, she alleged that
they were “not paid in compliance with the additional pay
provisions outlined in [38] U.S.C. § 7453(b)–(e).” J.A. 76–
78 ¶¶ 14–23. Ms. Lesko pled that, “[p]ursuant to the
OPM’s delegation of authority, IHS has specifically hired
and categorized Plaintiff and class members as Title 38
employees, yet, IHS has failed to pay them pursuant to the
Title 38 increased pay provisions,” and IHS has thus “mis-
calculated all payments provided to Plaintiff and the Class
for any and all additional pay earned pursuant to 38 U.S.C.
§§ 7453(b)–(e),” including for any overtime, nighttime,
Sunday, or holiday work. J.A. 77–78 ¶¶ 23–24; see also
J.A. 78–80 ¶¶ 25–30.
To support dismissal of Count I, the Government ar-
gued below and on appeal that the delegation chain from
OPM to HHS continued, with HHS having delegated its au-
thority to pick and choose which provisions of Title 38 to
apply to eligible Title 5 employees to IHS. Thus, the Gov-
ernment contends, IHS is free under 5 U.S.C. § 5371(b) to
decide whether or not to pay its registered nurses premium
pay for any and all additional pay earned pursuant to
38 U.S.C. § 7453(b)–(e). To support this argument, how-
ever, the Government relies on a document it attached to
its motion to dismiss. See Appellee’s Br. 11 (citing
J.A. 170). And the Court of Federal Claims relied on this
document in accepting the Government’s argument that
the HHS Secretary delegated “administrative and human
resources authorit[y]” to Operating Divisions like IHS.
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LESKO v. US 8
Lesko, 164 Fed. Cl. at 667 (alteration in original) (quoting
J.A. 170). Indeed, the Court of Federal Claims concluded
that “nothing in the memoranda tracing discretion from
OPM to, ultimately, IHS cabined or changed the statutory
permission to choose ‘one or more’ provisions from Title 38
to apply to Title 5 employees,” leading the court to dismiss
Count I. Id.
Reliance on a document outside the pleadings was in-
appropriate at this stage of the proceeding. In considering
whether a plaintiff has plausibly stated a claim, a court
considers the well-pled facts and documents attached and
incorporated into the complaint. See, e.g., Am. Contractors
Indem. Co. v. United States, 570 F.3d 1373, 1376 (Fed. Cir.
2009) (“On a motion to dismiss, the court generally may not
consider materials outside the pleadings.”); McCutchen,
14 F.4th at 1363. Should the Court of Federal Claims wish
to consider evidence outside the pleadings, it must convert
the motion to dismiss to a motion for summary judgment.
See Sharifi v. United States, 987 F.3d 1063, 1067 (Fed. Cir.
2021) (“If, on a motion under RCFC 12(b)(6) or 12(c), mat-
ters outside the pleadings are presented to and not ex-
cluded by the court, the motion must be treated as one for
summary judgment under RCFC 56. All parties must be
given a reasonable opportunity to present all the material
that is pertinent to the motion.” (quoting RCFC 12(d))).
Not only did that conversion not occur in this case, but the
court also did not acknowledge that it was relying on evi-
dence outside of Ms. Lesko’s pleadings to dismiss her alle-
gations. The Court of Federal Claims was obligated to take
all factual allegations in Ms. Lesko’s Amended Complaint
as true and construe them in the light most favorable to
her. In relying on evidence outside of the pleadings—evi-
dence that Ms. Lesko had no opportunity to vet in discov-
ery—the Court of Federal Claims did not do so.
On appeal, both parties focus their arguments on
whether HHS did, in fact, further delegate its authority
from OPM under 5 U.S.C. § 5371(b) to IHS, centering their
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LESKO v. US 9
dispute on the language in the government’s proffered doc-
ument. For her part, Ms. Lesko contends that such author-
ity remained with HHS because the document states that
the “HHS Deputy Assistant Secretary - Human Resources
is delegated ‘[a]ll authorities relating to administrative re-
sponsibilities for human resources’ including ‘pay and ben-
efits administration.’” Appellant’s Br. 22 (alteration in
original) (quoting J.A. 168). The Government responds
that such authority was delegated to IHS by HHS because
the document states that HHS Operating Divisions like
IHS were delegated “[a]ll human resources line manage-
ment authority.” Appellee’s Br. 11 (alteration in original)
(quoting J.A. 170). While both parties present feasible ar-
guments, we note that they do so without the benefit of dis-
covery, which may produce testimony or other evidence
that is relevant to resolving this dispute.1, 2
1 That additional evidence may be relevant to this is-
sue is further supported by both parties’ reliance on
sources outside of the record in their briefing on appeal.
2 The Government further contends on appeal that,
if Ms. Lesko is correct and IHS was never delegated the au-
thority to apply any provisions of Title 38 to its registered
nurses, her allegation is self-defeating because then
(1) IHS registered nurses should not have had access to any
compensation provisions of Title 38, including for their
base pay, and (2) she would no longer have a cause of action
under the Tucker Act, as she can only obtain Title 38 ben-
efits through the discretionary application of 5 U.S.C.
§ 5371. Both arguments are unpersuasive. Ms. Lesko al-
leged OPM properly delegated authority to HHS to elect
which benefits from Title 38 to apply to IHS registered
nurses, HHS elected in its discretion to provide those
nurses with all available provisions of Title 38, and IHS—
without authority to make this election for itself—failed to
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LESKO v. US 10
We thus reverse the Court of Federal Claims’ dismissal
of Count I in Ms. Lesko’s Amended Complaint.
II
In Counts III–V of her Amended Complaint, Ms. Lesko
alleged that IHS registered nurses were not compensated
correctly for work performed at nighttime, on Sundays, and
on holidays. The Court of Federal Claims considered these
counts together.
The regulations implementing Title 5 premium pay for
nighttime, Sunday, and holiday work require that such
work be “regularly scheduled.” See 5 C.F.R. § 550.121;
5 C.F.R. § 550.103. Also relevant is 5 C.F.R.
§ 610.121(b)(3), which states that:
If it is determined that the head of an agency
should have scheduled a period of work as part of
the employee’s regularly scheduled administrative
workweek and failed to do so . . . , the employee
shall be entitled to the payment of premium pay for
that period of work as regularly scheduled work
under subpart A of part 550 of this chapter. In this
regard, it must be determined that the head of the
agency: (i) Had knowledge of the specific days and
hours of the work requirement in advance of the
administrative workweek, and (ii) had the oppor-
tunity to determine which employee had to be
scheduled, or rescheduled, to meet the specific days
and hours of that work requirement.
compensate its nurses accordingly. If this is borne out,
nothing about it undermines that IHS registered nurses
were entitled to the base pay rates of Title 38 or that they
would be entitled to backpay for the compensation that the
authorized Government agency elected to provide them,
but they were not in fact paid.
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LESKO v. US 11
5 C.F.R. § 610.121(b)(3). This regulation essentially codi-
fied our predecessor court’s holding in Aviles v. United
States, 151 Ct. Cl. 1 (1960). See Pay Administration (Gen-
eral) and Hours of Duty, 48 Fed. Reg. 3931, 3932 (Jan. 28,
1983) (“[T]he Court of Claims in Aviles . . . had previously
expressed another principle that: ‘[T]he mere fact of omit-
ting regular overtime from the scheduled tours of duty does
not make such overtime occasional or irregular.’ Under the
Aviles principle, this overtime work could have been sched-
uled under the regulations; therefore, it should have been
scheduled. . . . OPM concurs and we have included this re-
quirement in § 610.121(b) to fill a gap in the proposed reg-
ulations.” (second alteration in original) (quoting Aviles,
151 Ct. Cl. at 8)).
In Aviles, the Court of Claims determined that “tours
of duty which the [Agricultural Research Service] regularly
scheduled for [meat inspectors] were not 40 hour, five day
weeks but weeks consisting of five days each, each day last-
ing for eight hours or until the processing plant completed
its recurring overtime.” 151 Ct. Cl. at 8. The Court of
Claims further determined that the Government “could
have formally scheduled workweeks or tours of duty which
included the overtime which it knew would be required,”
but “declined to do so because it feared that payment might
have to be made for overtime hours scheduled but not ac-
tually worked.” Id. The Court of Claims reasoned that “it
seem[ed] inequitable and unfair . . . for the Government to
hold that plaintiffs have not regularly worked the overtime
which they were expected to work simply because it chose
to adhere to guide lines which have no bearing on the real-
ities of the situation,” and that “mere[ly] . . . omitting reg-
ular overtime from the scheduled tours of duty does not
make such overtime occasional or irregular.” Id. Thus, the
Court of Claims held that where “overtime worked by
plaintiffs was part of regularly scheduled tours of duty,”
they “should be paid the [premium pay] differential for any
overtime hours worked.” Id. at 9.
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LESKO v. US 12
In Burich v. United States, 177 Ct. Cl. 139 (1966), the
Court of Claims cabined its holding in Aviles. The court
emphasized that, unlike the meat inspectors in Aviles, the
plaintiff in Burich experienced “erratic and irregular peri-
ods of overtime,” as “neither the nature of the work nor the
length of time required in its performance could be ascer-
tained beforehand.” Burich, 177 Ct. Cl. at 145. The Court
of Claims thus held that the plaintiff was not entitled to
relief because his overtime work was not “amenable to ad-
ministrative control.” Id. at 147.
In dismissing Counts III–V of Ms. Lesko’s Amended
Complaint, the Court of Federal Claims found that, accord-
ing to Ms. Lesko’s pleadings, not only was her work “un-
scheduled,” it “was impossible to schedule in advance.”
Lesko, 164 Fed. Cl. at 670 (citation omitted). The Court of
Federal Claims explained that the type of additional work
alleged in Ms. Lesko’s Amended Complaint is not like the
unscheduled work in Aviles, which had “followed an ‘actual,
controllable’ pattern.” Id. at 670–71 (citation omitted).
Further, the Court of Federal Claims held that the OPM
regulation codifying Aviles only “license[d ]retroactively
schedul[ing] unscheduled work [if] . . . the agency[ has]
‘knowledge of the specific days and hours of the work re-
quirement in advance.’” Id. at 671 (quoting 5 C.F.R.
§ 610.121(b)(3)). Mere “knowledge of recurrent off-the-
clock work is insufficient.” Id. At the motion to dismiss
stage, the court must take the allegations in the complaint
as true and construe them in the light most favorable to
Ms. Lesko. We conclude that the Court of Federal Claims
did not follow this standard.
Here, Ms. Lesko pled that IHS registered nurses “reg-
ularly and routinely were forced to fill the coverage gaps”
in healthcare facilities that were often short staffed, and
“[s]upervisors and managers regularly and routinely re-
quired nurses to stay after hours and work without com-
pensation.” J.A. 82 ¶ 42; see also J.A. 86 ¶ 53 (“When
Plaintiff and class member shifts were set to end, hospitals
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LESKO v. US 13
and clinics were often short staffed and unable to meet pa-
tient demand[, thus] Plaintiff and class members were of-
ten required to stay after tours of duty ended.”). Indeed,
“nurses were required to work long hours, well over their
regularly scheduled tours of dut[y],” and “[t]his additional
work was often not paid . . . and occurred at least weekly
and often daily.” J.A. 82–83 ¶ 43. “This critical and re-
quired related patient work was not irregular or occasional.
Rather, it was and remains continuous, consistent and reg-
ularly preformed [sic] work completed daily and/or
weekly.” J.A. 82–83 ¶ 43.
Ms. Lesko further pled that IHS uses systems that in-
clude individual logins that “track[] and monitor[] the exact
time [nurses] are in the system . . . . The IHS is [thus] in
possession, custody and/or control of all current and histor-
ical time data related to how long Plaintiffs [sic] and class
members were utilizing these systems after their tours of
duty.” J.A. 83 ¶ 45; see also J.A. 83 ¶ 44. Additionally,
Ms. Lesko pled that nurses transmitted patient related
work via fax and email that will “evidenc[e] the time and
date such work is completed.” J.A. 83 ¶ 46. Ms. Lesko also
pled that, twenty-four hours per day, seven days per week,
the IHS electronic record system alerted nurses with pa-
tient updates, which “often require[d] immediate re-
sponses,” or at least “timely” responses pursuant to IHS
policies and procedures. J.A. 83–84 ¶¶ 44, 47–48. Nurses
also needed to respond to certain patient notes and records
within 48 to 72 hours. J.A. 84 ¶ 50. And because “[f]ace to
face appointments and/or telephone or remote patient in-
teractions take priority,” Ms. Lesko pled that “it [was] often
impossible to complete all required work and paperwork
during normally scheduled tours,” despite said paperwork
also “often [being] required to be completed within a set
number of hours.” J.A. 86–87 ¶ 54. Ms. Lesko further pled
that supervisors and management were aware of this work,
pressured nurses to timely complete tasks and take on
more responsibilities, and disciplined them if they failed to
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LESKO v. US 14
timely complete tasks. J.A. 84–85 ¶ 51; see also J.A. 86–87
¶ 54 (“Supervisors, managers and other IHS employees
have direct knowledge of this off-the-clock work, do not stop
Plaintiff and class members from completing these tasks,
and in fact directly and/or indirectly require the completion
of this necessary work on a regular and ongoing basis.”).
Ms. Lesko pled that uncompensated for time also included
nighttime, Sunday, and holiday work. See J.A. 87–88,
¶¶ 57–60.
Construing these allegations in the light most favora-
ble to Ms. Lesko, we cannot agree with the Court of Federal
Claims’ findings that “Ms. Lesko’s off-the-clock work was
impossible to schedule in advance”; that “IHS could not
have ‘formally scheduled workweeks . . . which included
the overtime . . . it knew would be required,’” as “much of
the additional work revolved around ‘patient emergencies’
‘at any time’”; that Ms. Lesko “does not allege that her off-
the-clock work followed an ‘actual, controllable’ pattern”;
and that “[n]othing in [the] Amended Complaint suggests
her additional work could be formally scheduled.” Lesko,
164 Fed. Cl. at 670–71 (omissions in original) (citations
omitted). With discovery it may turn out that certain of
this alleged uncompensated for work—like having to re-
spond to patient emergencies—is indeed not of a “habitual
and recurrent nature,” such that it followed an “actual, con-
trollable” pattern. However, Ms. Lesko pled that the addi-
tional work “occurred at least weekly and often daily”; “was
not irregular or occasional,” but in fact was “continuous,
consistent and regularly preformed [sic]”; was trackable by
IHS with such data remaining in the agency’s custody and
control; and was related to more than just patient emer-
gencies or alerts and notifications, but also included rou-
tine paperwork and instances when hospitals and clinics
were short staffed such that nurses had to remain on shift
after their scheduled tour ended. Construing Ms. Lesko’s
pleadings in the light most favorable to her, she states a
plausible claim that IHS registered nurses were “called
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LESKO v. US 15
upon regularly to perform night[, Sunday, and holiday]
work and that, by virtue of its habitual and recurrent na-
ture, such work could have and indeed should have been
formally scheduled,” Burich, 177 Ct. Cl. at 147, as part of
their “regularly scheduled” tours of duty. 5 C.F.R.
§ 550.103. Having thus cleared the bar of plausibly stating
a claim at the motion to dismiss stage, whether IHS regis-
tered nurses’ nighttime, Sunday, and holiday work was
such that it could have been “regularly scheduled” is an is-
sue for resolution on the facts.
On appeal, the Government argues that Ms. Lesko has
“implicitly” admitted that her claims for uncompensated
work at nighttime, on Sundays, and on holidays were not
so consistent that the precise hours were known in advance
and should have been part of her regular schedule. Appel-
lee’s Br. 16, 19.3 The Government further contends that
Ms. Lesko’s pleadings “suggest[] . . . ad hoc work that the
agency could not have predicted with such specificity.” Ap-
pellee’s Br. 19. We are not persuaded. First, it is not clear
to us that Ms. Lesko conceded that all alleged nighttime,
Sunday, and holiday work was irregular such that author-
ized personnel would not have “[h]ad knowledge of the spe-
cific days and hours of the work requirement in advance of
the administrative workweek.” 5 C.F.R. § 610.121(b)(3).
The Government only relies on Ms. Lesko’s statement that
“the law does not require such precision,” to support its
proposition, which falls short of a concession. Appellee’s
3 The Government also seems to imply that Aviles is
no longer good law because it “was decided before OPM
promulgated th[e] regulatory language” in 5 C.F.R.
§ 610.121(b)(3). Appellee’s Br. 18. But the Government
also concedes that this regulation codified Aviles and goes
on to cite positively the Court of Federal Claims’ use of
Aviles and Burich. Appellee’s Br. 18–19. This argument is
thus both underdeveloped and unpersuasive.
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LESKO v. US 16
Br. 19 (quoting Appellant’s Br. 18). Furthermore,
Ms. Lesko, as part of her argument that the Court of Fed-
eral Claims erred by not allowing her to further amend her
complaint, asserted that she could more specifically allege
that such work should have been scheduled by someone
with authority to do so, see Appellant’s Br. 24, further sup-
porting that she was not making any such concession in her
opening brief.
Second, as we have already noted, construing all well-
pled facts in the light most favorable to her, Ms. Lesko’s
pleadings include more than just emergency or ad hoc
work, instead she alleged that uncompensated, routine
tasks and work “was not irregular or occasional.” J.A. 82–
83 ¶ 43. She also alleged that much of this work was track-
able, with IHS possessing the data.
We thus reverse the Court of Federal Claims’ dismissal
of Counts III–V in Ms. Lesko’s Amended Complaint.
III
Ms. Lesko alternatively argues that the Court of Fed-
eral Claims abused its discretion by dismissing her
Amended Complaint instead of granting her leave to
amend to more specifically allege that IHS registered
nurses’ overtime work could have and should have been
scheduled and to further allege facts and claims related to
the recovery of basic pay. In her responsive briefing to the
panel order following the court’s en banc decision,
Ms. Lesko argued that, related to Count II, the Court of
Federal Claims should have given her leave to amend to
assert claims for straight time pay for off the clock work
that does not derive from Title 5. ECF No. 91 at 4–5. How-
ever, Ms. Lesko never moved to amend her complaint a sec-
ond time in front of the Court of Federal Claims, and
instead only requested leave to amend as an alternative
form of relief incorporated into her response to the Govern-
ment’s motion to dismiss. A trial court does not abuse its
discretion by not allowing a party to amend a complaint
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LESKO v. US 17
where the party fails to move to amend. See, e.g., Meehan
v. United Consumers Club Franchising Corp., 312 F.3d
909, 913–14 (8th Cir. 2002); see also Refaei v. United
States, 725 F. App’x 945, 951–52 (Fed. Cir. 2018) (non-
precedential) (citing Meehan approvingly).
CONCLUSION
We have considered the Government’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we reverse the decision of the Court of Federal Claims
dismissing Counts I and III–V of Ms. Lesko’s Amended
Complaint and remand for further proceedings consistent
with this opinion.
REVERSED AND REMANDED
COSTS
Costs to Appellant.
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