Brown, P Hamilton v. Ridge, Thomas J. ( 2003 )


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  •      United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    –————
    No. 02-5193                            September Term, 2002
    98cv01282
    Filed On: May 6, 2003
    P. HAMILTON BROWN, ET AL.,
    APPELLEES
    v.
    UNITED STATES OF AMERICA AND THOMAS J. RIDGE,
    SECRETARY, DEPARTMENT OF THE TREASURY,
    APPELLANTS
    DISTRICT OF COLUMBIA,
    APPELLEE
    –————
    Consolidated with 02–5194
    –————
    BEFORE: SENTELLE and ROGERS, Circuit Judges, and
    SILBERMAN, Senior Circuit Judge
    ORDER
    It is, ORDERED that the court’s opinion filed on May 2,
    2003, be amended as follows:
    The appellants’ designation in the caption of the opinion
    should read:
    2
    United States of America and Thomas J. Ridge, Secretary,
    Department of Homeland Security
    Per Curiam
    FOR THE COURT:
    Mark J. Langer, Clerk
    BY:
    Michael C. McGrail
    Deputy Clerk
    Notice: This opinion is subject to formal revision before publication in the
    Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
    the Clerk of any formal errors in order that corrections may be made
    before the bound volumes go to press.
    United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued April 7, 2003                              Decided May 2, 2003
    No. 02-5193
    P. HAMILTON BROWN, ET AL.,
    APPELLEES
    v.
    UNITED STATES OF AMERICA AND
    THOMAS J. RIDGE, SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
    APPELLANTS
    DISTRICT OF COLUMBIA,
    APPELLEE
    Consolidated with
    No. 02-5194
    Appeals from the United States District Court
    for the District of Columbia
    (No. 98cv01282)
    –————
    Bills of costs must be filed within 14 days after entry of judgment.
    The court looks with disfavor upon motions to file bills of costs out
    of time.
    2
    Robert D. Kamenshine, Attorney, U.S. Department of Jus-
    tice, argued the cause for appellant. With him on the briefs
    were Roscoe C. Howard, Jr., U.S. Attorney, and William
    Kanter, Deputy Director.
    Michael J. Kator argued the cause and filed the brief for
    appellees.
    Before: SENTELLE and ROGERS, Circuit Judges, and
    SILBERMAN, Senior Circuit Judge.
    Opinion for the Court filed by Circuit Judge ROGERS.
    Concurring opinion filed by Senior Circuit Judge
    SILBERMAN.
    ROGERS, Circuit Judge: This case concerns the Treasury
    Department’s attempt to overcome the conceptual incompati-
    bility of two statutes. Specifically at issue is Treasury’s
    selection of a ‘‘weighted national average’’ methodology to
    calculate locality pay increases under the Federal Law En-
    forcement Pay Reform Act of 1990 (‘‘FLEPRA’’), incorporat-
    ed as Title IV of the Federal Employees Pay Comparability
    Act of 1990, Pub. L. No. 101–509, 
    104 Stat. 1389
     (1990)
    (codified at 
    5 U.S.C. § 5304
     (2000)), for retired Uniformed
    Division Secret Service agents who receive annuities under
    the District of Columbia Police and Firefighters Retirement
    and Disability Act (‘‘DCRA’’), 
    D.C. Code Ann. § 5
    –701 et seq.
    (2001). The conceptual difficulty arises because locality pay
    increases are geographically fixed while the DCRA’s equaliza-
    tion provision is based on the salary of an agent in active
    service. Notwithstanding the fact that Secret Service agents
    have postings throughout the United States and overseas,
    Treasury has determined that locality pay applies to DCRA
    Secret Service retirees. Hence, no issue is before the court
    regarding the entitlement of those retirees to locality pay
    adjustments. Rather, when Treasury determined it would
    apply the ‘‘weighted national average’’ methodology, a num-
    ber of DCRA Secret Service retirees filed suit, and the
    district court invalidated Treasury’s methodology. Brown v.
    Summers, 
    201 F. Supp. 2d 60
    , 63–64 (D.D.C. 2002). Trea-
    sury, joined by the United States and the District of Colum-
    3
    bia, appeals that judgment and contends that in light of the
    conceptually difficult task of calculating locality pay increases
    for retirees that track those of active agents, Treasury’s
    methodology is fair and valid. We hold, first, that Treasury –
    as opposed to the District of Columbia – is the proper locus of
    decisionmaking for calculating the amount of locality pay for
    Secret Service retirees who have opted to retire under the
    DCRA. We hold second, that whether viewed as filling a gap
    in the DCRA’s equalization clause or as resolving an ambigui-
    ty arising from the confluence of two statutes, Treasury’s
    methodology is entitled to deference under Skidmore v. Swift
    & Co., 
    323 U.S. 134
    , 139 (1944). Accordingly, we reverse.
    I.
    In Floyd v. District of Columbia, 
    129 F.3d 152
    , 154 (D.C.
    Cir. 1997), the court recounted Congress’ determination that,
    in light of the Secret Service’s unique ties to the District of
    Columbia Metropolitan Police Department, Secret Service
    agents who performed non-clerical duties related to the pro-
    tection of the President for ten or more years could convert
    their retirement from the Federal Employee Retirement
    System, 
    5 U.S.C. § 8401
     et seq. (2000), to the higher-paying
    plan governed by the DCRA, 
    D.C. Code Ann. § 5
    –701 et seq.
    See 
    D.C. Code Ann. § 5
    –703. Unlike the federal system,
    which provides for cost-of-living adjustments, 
    5 U.S.C. § 8462
    , the DCRA contains an ‘‘equalization clause’’ that
    automatically increases retired agents’ pensions each time
    active agents receive salary increases. The equalization pro-
    vision provides:
    Each individual retired from active service and entitled
    to receive a pension relief allowance or retirement com-
    pensation under subchapter I of this chapter shall be
    entitled to receive, without making application therefor,
    with respect to each increase in salary, granted by any
    law which takes effect after the effective date of the
    District of Columbia Police and Firemen’s Salary Act
    Amendments of 1972, to which he would be entitled if he
    were in active service, an increase in his pension relief
    4
    allowance or retirement compensation computed as fol-
    lows: His pension relief allowance or retirement compen-
    sation shall be increased by an amount equal to the
    product of such allowance or compensation and the per
    centum increase made by such law in the scheduled rate
    of compensation to which he would be entitled if he were
    in active service on the effective date of such increase in
    salary.
    
    D.C. Code Ann. § 5
    –745(c) (emphasis added).
    Locality pay for Secret Service agents was first authorized
    by Congress when it enacted FLEPRA in 1990. Under
    FLEPRA, federal law enforcement officials, including active
    members of the Secret Service, are paid a percentage of
    ‘‘basic pay’’ in addition to their rate of pay under the General
    Schedule to reflect the higher cost of living in specified
    geographic areas. Since 1994, employees in twenty-eight
    cities have received locality pay increases, which the Office of
    Personnel Management (‘‘OPM’’) adjusts annually. 
    5 U.S.C. § 5304
     and note.
    In May 1998, certain retired Secret Service agents, who
    were employed as criminal investigators at the time of their
    retirement and whose annuities are governed by the DCRA,
    filed suit against Treasury, the United States, and the Dis-
    trict of Columbia (collectively ‘‘the government’’), claiming
    that locality adjustments awarded to active agents pursuant
    to FLEPRA were ‘‘increases in salary’’ subject to the
    DCRA’s equalization clause. The district court dismissed the
    case without prejudice in December 1998, subject to reopen-
    ing within six months, when Treasury agreed to include
    locality pay increases in the retirees’ annuities. Letter of
    December 9, 1998, from Nancy Killefer, Assistant Secretary,
    Dep’t of Treasury, to Earl Cabbell, Interim Chief Financial
    Officer, District of Columbia (‘‘the Killefer letter’’), reprinted
    in Joint Appendix (‘‘J.A.’’) at 110–15. The case was reopened
    in July 1999, when the retirees had not received locality pay
    increases.
    Treasury subsequently determined it would award each
    retiree locality pay increases based on a ‘‘weighted national
    5
    average’’ of locality adjustments for active Secret Service
    agents since 1991. The calculation under this methodology
    was based on the locality pay increases paid to active Secret
    Service agents throughout the United States, weighted to
    reflect the number of agents actually serving in each locality
    receiving increases. Treasury then awarded lump sum back
    payments to all DCRA Secret Service retirees, and used the
    ‘‘weighted national average’’ method to adjust annuity bene-
    fits for 1999 and each subsequent year. Although this meth-
    od benefitted some retirees, others would have fared better
    had the locality pay increase been determined by the location
    of their last post of duty. In January 2000, the district court
    granted the motion of plaintiff retirees’ counsel to withdraw
    due to the ‘‘irreconcilable’’ conflict of interest between the
    retirees.
    In May 2000, retirees who were disadvantaged by the
    ‘‘weighted national average’’ methodology appeared before
    the district court with new counsel, who filed an amended
    complaint claiming that the locality pay increases reflected in
    their DCRA retirement benefits should be computed on the
    basis of the locality pay in effect at their last post of duty.
    The district court denied the government’s motion to dismiss,
    and ruled, on cross-motions for summary judgment, that
    Treasury’s ‘‘weighted national average’’ methodology was not
    entitled to judicial deference under Chevron U.S.A., Inc. v.
    Natural Res. Def. Council, Inc., 
    467 U.S. 837
    , 843 (1984), or
    Skidmore, 
    323 U.S. at 139
    . Brown, 201 F. Supp at 62–63.
    The court concluded that the District of Columbia, rather
    than Treasury, is responsible for DCRA’s implementation,
    and that the plain language of DCRA’s equalization clause
    ‘‘requires individualized calculations based on factors individu-
    al to each retiree.’’ 
    Id.
     The court invalidated Treasury’s
    method, but declined to replace it with the ‘‘last post of duty’’
    method, explaining that the latter ‘‘is without any specific
    support in the language of the statute,’’ and that the ‘‘plain-
    tiffs’ way is not the only way to comply with the statute’s
    mandate of individualized determinations.’’ Id. at 63. The
    court entered partial summary judgment for the retirees and
    remanded the case to Treasury and the District of Columbia
    6
    to ‘‘fashion a method that complies with the statute.’’ Id. at
    63–64.
    II.
    On appeal, the government contends, as it did in the
    district court, that Treasury’s ‘‘weighted national average’’
    methodology deserves deference under Chevron, 
    467 U.S. at 843
    , or alternatively, deference equal to its power to persuade
    under Skidmore, 
    323 U.S. at 139
    . Either position requires
    the court to determine whether (1) Treasury – as opposed to
    the District of Columbia – is the locus of decisionmaking with
    regard to locality pay for DCRA Secret Service retirees, and
    (2) the DCRA plainly prohibits the use of a ‘‘weighted nation-
    al average’’ to calculate locality pay increases for such retir-
    ees.
    Although a remand order does not usually signify a final
    decision for purposes of conferring jurisdiction on this court
    under 
    28 U.S.C. § 1291
     (2000), NAACP v. United States
    Sugar Corp., 
    84 F.3d 1432
    , 1436 (D.C. Cir. 1996), the court
    may exercise jurisdiction ‘‘where the agency to which the case
    is remanded would have no opportunity to appeal after the
    proceedings on remand.’’ Los Angeles v. Shalala, 
    192 F.3d 1005
    , 1012 (D.C. Cir. 1999) (quoting Occidental Petroleum
    Corp. v. SEC, 
    873 F.2d 325
    , 330 (D.C. Cir. 1989), cert. denied,
    
    530 U.S. 1204
     (2000)). Because the district court invalidated
    Treasury’s method for calculating locality adjustments, and
    remanded with instructions to select a new methodology,
    which Treasury views as ‘‘a new choice from among what [it
    has] considered to be less desirable alternatives,’’ Appellant’s
    Br. at 4, Treasury contends, and we agree, that this appeal
    represents its only opportunity to challenge the district
    court’s ruling. Therefore, the court has jurisdiction under
    the exception recognized in Shalala, 
    192 F.3d at 1012
    , and
    Occidental Petroleum, 
    873 F.2d at 330
    .
    A.
    In Floyd, the court left open the question of whether the
    United States or the District of Columbia is responsible for
    7
    making substantive decisions about Secret Service annuity
    adjustments under the DCRA. Floyd, 
    129 F.3d at 156
    .
    Then, as now, the District of Columbia asserted that ‘‘the
    United States makes all substantive decisions about Secret
    Service pensions under the DCRA and that the District
    serves as a mere conduit for federal pension monies.’’ 
    Id.
    The court in Floyd noted, however, that it found nothing in
    the DCRA or the record explicitly limiting the District of
    Columbia to a passive role. 
    Id.
     By contrast, the record in
    the instant case indicates that the District of Columbia does
    not make substantive decisions about Secret Service annuities
    under the DCRA, but instead has a role that is ‘‘purely
    ministerial, not discretionary.’’ D.C.’s Mem. in Supp. of
    Motion to Dismiss. Although the District of Columbia issues
    annuity payments to Secret Service retirees under the
    DCRA, it has no financial stake in the amount of those
    payments, which are determined by the United States and
    reimbursed to the District of Columbia by the United States.
    See 
    D.C. Code §§ 5
    –703, 5–732. As the District of Columbia
    told the district court, it ‘‘simply acts as an administrator’’ of
    the annuity program, ‘‘and is, at most, a conduit for those
    federal funds, paying them out as the federal government
    directs.’’ D.C.’s Mem. in Supp. of Motion to Dismiss. Trea-
    sury agrees with this position, and the District of Columbia
    filed a statement in this appeal that its ‘‘interest is adequately
    served by the United States.’’ None of the parties suggest
    that a federal agency other than Treasury is the proper locus
    of decisionmaking or is responsible for funding annuities for
    DCRA Secret Service retirees.
    The Killefer letter, relied on by the retirees, is not to the
    contrary. Indeed, the letter emphasizes the extent to which
    Treasury controls decisionmaking related to DCRA annuities
    for Secret Service retirees. Noting that ‘‘questions have been
    raised TTT concerning annuities’’ under the DCRA, Treasury
    advised the District of Columbia of its conclusion that ‘‘locali-
    ty pay TTT is sufficiently akin to salary that it should be
    included in the calculation of retirees’ annuity increases.’’
    The letter further requests that ‘‘the District [of Columbia]
    not alter any current practice with respect to implementation
    8
    of this retirement system without prior discussions with
    [Treasury],’’ and explains that Treasury will ‘‘assist the Dis-
    trict of Columbia in determining how best to calculate in-
    creased annuities based on locality pay.’’ If the District of
    Columbia were making substantive decisions about Secret
    Service annuities under the DCRA, as the retirees contend, it
    would be illogical for the District of Columbia to require
    Treasury’s authorization before changing its practices with
    regard to annuity payments. The Killefer letter thus sub-
    stantiates that Treasury – as opposed to the District of
    Columbia – makes substantive decisions about Secret Service
    annuity adjustments under the DCRA.
    While there may be joint actions by the United States and
    the District of Columbia to ensure that DCRA Secret Service
    retirees receive their benefits, and this is likely to entail
    cooperative arrangements, the financial control and the sub-
    stantive determination, based on an interpretation of a sepa-
    rate federal law such as FLEPRA, rests with the United
    States – in this case Treasury – not the District of Columbia.
    When Congress authorized certain Secret Service agents to
    opt into the DCRA, it neither required the District of Colum-
    bia to assume the costs of paying the benefits for these
    additional annuitants, nor authorized the District of Columbia
    to determine the amount of those benefits arising under
    separate federal statutes. See 
    D.C. Code §§ 703
    , 732. What
    the parties’ conduct demonstrates is consistent with the Dis-
    trict of Columbia having neither a regulatory role nor a
    financial stake in the determination of locality pay increases
    for DCRA Secret Service retirees. This, in turn, is consistent
    with Congress’ decision to afford a generous retirement op-
    tion for certain agents at federal expense. 
    D.C. Code § 5
    –703. The district court erred in finding otherwise.
    B.
    This court is not presented with the question of whether,
    pursuant to the DCRA’s equalization clause, federal DCRA
    annuitants are entitled to FLEPRA locality adjustments. In
    Lanier v. District of Columbia, 
    871 F. Supp. 20
     (D.D.C.
    9
    1994), the district court ruled that under the equalization
    clause, DCRA Secret Service retirees are eligible for locality
    pay increases given to active agents receiving such adjust-
    ments under FLEPRA. 
    Id. at 24
    ; see also District of
    Columbia v. Tarlosky, 
    675 A.2d 77
    , 80–81 (D.C. 1996). That
    the government did not appeal the decision in Lanier does
    not alone prove its acquiescence in the judgment. Hastings
    v. Earth Satellite Corp., 
    628 F.2d 85
    , 94 n.27 (D.C. Cir. 1980).
    Nor, inasmuch as the instant appeal arises from a different
    lawsuit, is Treasury barred by law of the case or waiver from
    challenging eligibility. Crocker v. Piedmont Aviation, Inc.,
    
    49 F.3d 735
    , 739–40 (D.C. Cir. 1995). Rather, its subsequent
    determination in the Killefer letter represents Treasury’s
    position that Secret Service DCRA annuitants are entitled to
    locality pay adjustments, as the Lanier court ruled; it is on
    that determination that Treasury, as well as the United
    States and the retirees, relies in the instant case. Hence, the
    government has waived any challenge to the entitlement of
    DCRA Secret Service agents to locality pay.
    The conceptual difficulty underlying Treasury’s contention
    that the court should defer to its selection of a payment
    methodology underscores, however, that DCRA’s equalization
    provision hardly appears to have been designed with locality
    pay in mind. Congress enacted the DCRA in 1916, and
    amended it in 1957 to allow participation by retired Secret
    Service agents. See Pub. L. No. 85–157 § 12(b), 
    71 Stat. 391
    ,
    392 (1957). Neither enactment indicates that Congress antic-
    ipated the adoption of FLEPRA in 1990 or the incorporation
    of locality pay increases into the DCRA. Nor did this change
    with enactment of the District of Columbia Retirement Pro-
    tection Act of 1997, which provided a cost-of-living adjustment
    for retired D.C. Metropolitan Department police officers and
    D.C. firefighters under the DCRA, but expressly declined to
    amend the DCRA as it applied to Secret Services retirees.
    Compare Pub. L. No. 105–33, 
    111 Stat. 251
    , § 11013 (1997),
    with id. at § 11084(c).
    The district court in Lanier aptly stated that there is a
    ‘‘clash of two worthwhile principles,’’ one to ensure retirees
    are treated fairly in their retirement and one to provide
    10
    locality pay incentives to ensure adequate public protection.
    
    871 F. Supp. at 23
    . The equalization clause provides that
    each Secret Service retiree shall receive an increase in his
    annuity equal to any increase in salary ‘‘to which he would be
    entitled if he were in active service.’’ 
    D.C. Code § 5
    –745(c)
    (emphasis added). Because active Secret Service agents
    move frequently, and sometimes to less desirable postings
    justifying additional salary incentives, any individual retiree’s
    locality pay adjustment is by necessity a fictitious extrapola-
    tion of what ‘‘he would be entitled [to] if he were in active
    service.’’ 
    Id.
     The district court here recognized that if a
    DCRA retiree ‘‘is receiving a percentage increase equal to
    what he or she would have received as an active agent today,
    [ ] it is merely by coincidence.’’ Brown, 
    201 F. Supp. 2d at 63
    .
    Given the strange gap in the DCRA, a gap that Congress
    may not have intended to leave but one the court must
    address in light of Treasury’s determination to award locality
    pay increases to DCRA Secret Service retirees, the court is
    unable to conclude that the DCRA’s plain language prohibits
    Treasury’s ‘‘weighted national average’’ methodology, much
    less that it requires only ‘‘individual determinations,’’ as the
    district court ruled. Any sense that the DCRA was intended
    to include locality adjustments is betrayed by the fact that,
    because of the movement of Secret Service agents’ duty
    assignments to over one hundred offices throughout the
    United States and overseas, no methodology can provide
    every retiree with the exact locality adjustment he would
    have received as an active agent. Indeed, to the extent the
    district court ruled that individualized locality adjustments
    were required, the government points out that:
    there is no way to ascertain the locality increase that the
    agent would actually receive if currently employed.
    Thus, all methods of adjustment are inherently flawed in
    terms of the ‘‘individualized’’ determination envisioned by
    the district court. And no method of approximation, no
    matter its merits, will be equally advantageous to all
    retirees.
    11
    Appellant’s Br. at 14. Further, there is no merit to the
    retirees’ attempt to distinguish between ‘‘room for applica-
    tion’’ and ‘‘ambiguity’’ arising from the confluence of the two
    statutes so far as the extension of deference to Treasury’s
    methodology. In either circumstance, the DCRA must be
    construed to permit the exercise of reasonable judgment in
    closing the gap or resolving the ambiguity.
    C.
    The question remains whether Treasury’s ‘‘weighted na-
    tional average’’ methodology is entitled to judicial deference.
    The government challenges the district court’s ruling that
    Chevron deference is unavailable where, as here, Treasury’s
    methodology was promulgated informally during the course
    of litigation, without notice-and-comment rulemaking.
    Brown, 201 F. Supp. at 62. Because we hold that Treasury’s
    methodology satisfies the requirements for Skidmore defer-
    ence, however, 
    323 U.S. at 139
    , we need not reach the
    question of Chevron deference.
    Under Skidmore, the court grants an agency’s interpreta-
    tion only as much deference as its persuasiveness warrants.
    
    Id.
     In making its determination, the court must examine
    ‘‘the thoroughness evident in [the agency’s] consideration, the
    validity of its reasoning, its consistency with earlier and later
    pronouncements, and all those factors which give it power to
    persuade, if lacking power to control.’’ 
    Id. at 140
    ; cf. Chris-
    tensen v. Harris County, 
    529 U.S. 576
    , 587 (2000). Trea-
    sury’s methodology for calculating locality pay increases satis-
    fies the requirements for Skidmore deference.
    The record demonstrates that Treasury examined five dif-
    ferent methods for calculating locality pay increases before
    choosing the ‘‘weighted national average’’ methodology: (1)
    the annuitant’s last post of duty; (2) the annuitant’s resi-
    dence; (3) the average of all locality pay rates across the
    country; (4) the locality pay rate in the District of Columbia;
    and (5) the ‘‘weighted national average.’’ Treasury analyzed
    the various outcomes of each methodology, and noted, for
    example, that if the last post of duty was used, as the retirees
    12
    urged before the district court, ‘‘annuitants who retired from
    certain localities would not have received any locality pay
    increase.’’ Treasury officials also consulted the OPM and
    engaged in discussions with the District of Columbia to devise
    appropriate procedures for effecting the increases before
    making its selection.
    Moreover, Treasury’s choice of the ‘‘weighted national aver-
    age’’ method reflects its reasoned attempts to choose a calcu-
    lation that mirrors the actual career experiences of agents
    moving from one locality to another. Although the govern-
    ment concedes that the use of averaging reduces the adminis-
    trative burden associated with other methods, the affidavits
    from various Treasury officials, including the Supervisory
    Personnel Management Specialist and the Deputy Assistant
    Secretary for Human Resources, demonstrate that the princi-
    pal reason for choosing that technique is that it is the ‘‘most
    equitable approach because all annuitants would receive some
    increase each year, regardless of where they might happen to
    have last worked or where they presently live.’’ Treasury
    further explained that it ‘‘did not consider using more than
    one method of calculating locality pay increases for annui-
    tantsTTTT [because it] believes that the equalization provision
    and basic fairness require that a single method be applied to
    all annuitants.’’ Moreover, Treasury noted, the use of a
    single annual percentage increase across the board is similar
    to across-the-board increases under many other retirement
    systems.
    Finally, Treasury has ‘‘specialized experience’’ in calculat-
    ing annuities, particularly those under the administratively
    complex DCRA. United States v. Mead Corp., 
    533 U.S. 218
    ,
    234–35 (2001) (internal citation omitted). The Killefer letter
    indicates that Treasury regularly evaluates how other federal
    statutory schemes effect the DCRA annuity system, and often
    makes decisions about what national law requires.
    In light of the fact that no locality adjustment can give the
    retirees exactly what they would be paid as active agents,
    Treasury’s ‘‘weighted national average’’ methodology is a
    13
    persuasive solution to an unforeseen problem, and for all of
    the above reasons, it is entitled to Skidmore deference.
    Accordingly, we reverse the judgment of the district court
    invalidating Treasury’s methodology.
    1
    SILBERMAN, Senior Circuit Judge, concurring: I think
    Judge Rogers has ably analyzed the case before us, and I
    concur in the court’s opinion. I write separately because I
    would go a step further and conclude the statute does not
    even cover locality pay. As such, the only possible challenge
    appellees could make under the APA to Treasury’s determi-
    nation that locality pay should be averaged for these Secret
    Service retirees is that the Treasury was arbitrary and
    capricious. They did not do so, and I do not see how such a
    challenge could have been successful.
    I agree with the majority that it is certainly not open to us
    to hold that locality pay is not available to Secret Service
    Agents who chose to receive annuities under the DCRA. The
    Treasury Department acquiesced in the district court’s ruling
    in Lanier v. District of Columbia, 
    871 F. Supp. 20
     (D.D.C.
    1994), to the effect that those retirees were entitled to locality
    pay increases under the equalization clause–as it was entitled
    to do. Accordingly, the government sought to accommodate
    that ruling by adopting the weighted average methodology.
    It did not even suggest in this case that the locality pay
    statute does not apply to appellees.
    Still, we are not obliged, for purposes of this case, to accept
    the Lanier district court construction of the locality pay
    statute. It seems rather obvious to me, as the majority
    suggests, that the very fact that no one can even propose a
    persuasive methodology, including the district judge below,
    by which locality pay would apply to appellees demonstrates
    that Congress never intended locality pay to cover them.
    That is why the statute is silent on the issue.