SUSAN G. BRADEN, Chief Judge.
On January 3, 2010, the United States Department of Veterans Affairs ("VA") hired Nicholas Hindman and assigned him to the Edward Hines Jr. VA Hospital ("the VA Hospital"). Compl. ¶ 5. The VA employed Mr. Hindman as a Law Enforcement Officer ("LEO"), pursuant to 5 U.S.C. § 4521
On or about April 1, 2010, Mr. Hindman completed Law Enforcement Training and 90 days of continuous employment as a LEO. Compl. ¶ 7. The first pay period following this date was on April 10, 2010. Compl. ¶ 7. Although Mr. Hindman satisfied the conditions required by the retention pay policy, the VA Hospital failed to pay Mr. Hindman retention pay from April 20, 2010 to November 20, 2011. Compl. ¶ 10. The VA Hospital also provided no excuse or explanation for failure to pay Mr. Hindman retention pay. Compl. ¶ 10.
On July 1, 2015, counsel for Mr. Hindman submitted a demand letter to the VA Hospital for earned, but unpaid, retention pay for FY 2010-11. Pl. Resp. Ex. A. On July 22, 2015, the Acting Hospital Director responded as follows:
Based on Officer Hindman's records he would have become eligible to receive retention after April 1, 2010, after he had completed the Law Enforcement Training Center and reached his 90th day of employment. The first pay period following this date began on April 10, 2010. However according to the review retention was not made effective for Officer Hindman until November 20, 2011.
Pl. Resp. Ex. B.
To date, the VA Hospital continues to refuse to pay Mr. Hindman retention pay earned between April 10, 2010 and November 20, 2011. Compl. ¶ 10.
On July 1, 2015, Mr. Hindman filed a complaint, pursuant to the Equal Employment Opportunity Act ("EEOA"), with the VA Office of Resolution Management ("ORM") seeking back pay for his retention bonuses and alleging discrimination based on his race and sex. Gov't Mot. Ex. B at 2. The ORM subsequently conducted an investigation. Gov't Mot. Ex. B at 2. When the investigation concluded, the VA notified Mr. Hindman in writing of the right to request a hearing and a decision by an Equal Employment Opportunity Commission ("EEOC") Administrative Law Judge. Gov't Mot. Ex. B at 2. Mr. Hindman requested a hearing before an EEOC Administrative Law Judge, and, on January 20, 2016, the EEOC Administrative Law Judge issued an order acknowledging Mr. Hindman's complaint. Gov't Mot. Ex. A. at 1.
On February 24, 2016, Mr. Hindman ("Plaintiff") filed a Complaint in the United States Court of Federal Claims alleging that the VA engaged in an unjustified or unwarranted personnel action. Compl. ¶ 13. The February 24, 2016 Complaint seeks relief under the Back Pay Act, 5 U.S.C. § 5596,
On May 23, 2016, the EEOC Administrative Law Judge issued a procedural decision dismissing Plaintiff's EEOA complaint, pursuant to 29 C.F.R. § 1614.107(a)(3),
On August 2, 2016, the Government filed a Motion To Dismiss the February 24, 2016 Complaint ("Gov't Mot.") for lack of jurisdiction, pursuant to Rule of the United States Court of Federal Claims ("RCFC") 12(b)(1), and for failure to state a claim upon which relief could be granted, pursuant to RCFC 12(b)(6). ECF No. 10. On August 17, 2016, Plaintiff filed a Response/Objection To Defendant's Motion To Dismiss ("Pl. Resp."). ECF No. 14. On August 29, 2016, the Government filed a Reply In Support Of Defendant's Motion To Dismiss ("Gov't Reply"). ECF No. 15.
On January 10, 2017, the court issued a Memorandum Opinion And Order Regarding Jurisdictional Facts Required. See Hindman v. United States, No. 16-257, 2017 WL 104489, at *1 (Fed. Cl. Jan. 10, 2017). By that Memorandum Opinion and Order, the court informed the Government that the court required certain documents to adjudicate the issue of jurisdiction, including: (1) the VA Hospital's Group Authorization of "retention bonuses" for LEOs; (2) the Retention Service Agreement, signed by Plaintiff; and (3) any other relevant documents concerning the VA Hospital's "retention bonus" policy. Id. at *1.
On January 25, 2017, Plaintiff filed a Supplemental Exhibit in Response to the Government's August 2, 2016 Motion To Dismiss ("Pl. Mot."), attaching an August 14, 2008 "Revised Letter" to a newly hired LEO, as evidence of the VA Hospital's retention policy. Pl. Mot. Ex. 1. In that Response, Plaintiff also requested an amendment to the court's January 10, 2017 Order to direct the Government to submit: "All documents reflecting the payment of retention incentive payments (and the amount thereof) paid to Police Officers hired and employed at Edward Hines Jr. VA Hospital for each year during the period 2008 to the present." Pl. Mot. at 1. In the alternative, Plaintiff requested leave to propound a request for production of the aforementioned documents, to supplement Plaintiff's August 17, 2017 Response to the Government's August 2, 2016 Motion To Dismiss. Pl. Mot. at 2.
On February 3, 2017, the Government filed a Reply to Plaintiff's Supplemental Response ("2/3/17 Gov't Reply"), arguing that the additional discovery sought by Plaintiff was irrelevant to the jurisdictional issue before the court. 2/3/17 Gov't Reply at 4.
On February 28, 2017, the court issued a Memorandum Opinion and Order, declining to authorize the additional discovery requested by Plaintiff, but reaffirming the court's January 10, 2017 Memorandum Opinion And Order Regarding Jurisdictional Facts Required. See Hindman v. United States, No. 16-257, 2017 WL 770682, at *2 (Fed. Cl. Feb. 28, 2017).
On March 10, 2017, the Government filed a Submission Of Documents In Response To The Court's January 10, 2017 Memorandum Opinion And Order ("Gov't Sub."), attaching:
The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C. § 1491, "to render judgment upon 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). The Tucker Act, however, is "a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages. . . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976).
Therefore, to pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an independent contractual relationship, Constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages. See Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act . . . ."); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) ("The Tucker Act . . . does not create a substantive cause of action; . . . a plaintiff must identify a separate source of substantive law that creates the right to money damages. . . . [T]hat source must be `money-mandating.'"). Specifically, a plaintiff must demonstrate that the source of substantive law upon which he relies "can fairly be interpreted as mandating compensation by the Federal Government." United States v. Mitchell, 463 U.S. 206, 216 (1983) (quoting Testan, 424 U.S. at 400). When a plaintiff invokes a money-mandating statute and makes a non-frivolous assertion that he is entitled to relief under that statute, the United States Court of Appeals for the Federal Circuit has held that the United States Court of Federal Claims has jurisdiction to adjudicate the claims in the complaint. See Fisher v. United States, 402 F.3d 1167, 1172-76 (Fed. Cir. 2005) (holding that the United States Court of Federal Claims had jurisdiction to adjudicate a well-pleaded, non-frivolous complaint, grounded on a statute that was "reasonably amenable" to being read as mandating compensation).
In this case, Plaintiff has not met his burden to establish jurisdiction, as explained below.
A challenge to the United States Court of Federal Claims' "general power to adjudicate in specific areas of substantive law . . . is properly raised by a [Rule] 12(b)(1) motion[.]" Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(1) ("Every defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But a party may assert the following defenses by motion: (1) lack of jurisdiction over the subject matter[.]"). When considering whether to dismiss an action for lack of subject matter jurisdiction, the court is "obligated to assume all factual allegations of the complaint to be true and to draw all reasonable inferences in plaintiff's favor." Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).
A challenge to the United States Court of Federal Claims' "[ability] to exercise its general power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule] 12(b)(6) motion[.]" Palmer, 168 F.3d at 1313; see also RCFC 12(b)(6) ("Every defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But a party may assert the following defenses by motion: . . . (6) failure to state a claim upon which relief can be granted[.]").
When considering whether to dismiss an action for failure to state a claim, the court must assess whether "a claim has been stated adequately" and then whether "it may be supported by [a] showing [of] any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007). The plaintiff's factual allegations must be substantial enough to raise the right to relief "above the speculative level." Id. at 555. The court must accept all factual allegations in the complaint as true and make all reasonable inferences in favor of the plaintiff. Id.
The Government argues that the February 24, 2016 Complaint should be dismissed under RCFC 12(b)(1), because the court does not have jurisdiction. Gov't Mot. at 5. First, the Complaint does not identify a separate, money-mandating source of substantive law since the Back Pay Act, 5 U.S.C. § 5596, "is not, by itself, a money-mandating source of law which would support a plaintiff's claims in this court under the Tucker Act." Gov't Mot. at 4 (quoting Adde v. United States, 81 Fed. Cl. 415, 417 (2008)). In other words, "[i]n addition to the Back Pay Act, a plaintiff must allege another source of law which requires a non-discretionary, virtually automatic payment which has not occurred." Gov't Mot. at 4-5 (quoting Adde, 81 Fed. Cl. at 417).
The claim alleged for damages under the Back Pay Act relies on "unpaid retention pay authorized pursuant to 5 U.S.C. § 5754." Gov't Mot. at 5 (citing Compl. ¶ 6). Section 5754's reference to "`may' in its provisions authorizing retention payments establishes a `presumption that . . . the statute creates discretion.'" Gov't Mot. at 6 (quoting Doe v. United States, 463 F.3d 1314, 1324 (Fed. Cir. 2006)). The Complaint also cites 5 U.S.C. § 5305 and the corresponding regulation, 5 C.F.R. § 530.303,
In the alternative, the February 24, 2016 Complaint "does not allege facts sufficient to prove [Plaintiff's] entitlement to retention pay." Gov't Mot. at 9. Although the VA created a group retention bonus policy, the February 24, 2016 Complaint does not allege that the VA created a policy that applied to Plaintiff, nor that Plaintiff satisfied the policy's terms. Gov't Mot. at 10. Specifically, the February 24, 2016 Complaint fails to allege that Plaintiff entered into a written service agreement with the VA, a requirement under section 5754. Gov't Mot. at 10. Therefore, the February 24, 2016 Complaint should be dismissed, pursuant to RCFC 12(b)(6). Gov't Mot. at 10.
Plaintiff responds that "a statute can be money-mandating even if the government enjoys some discretion under it." Pl. Resp. at 5 (quoting Agwiak v. United States, 347 F.3d 1375, 1380 (Fed. Cir. 2003)). The Back Pay Act, sections 5305 and 5754, and the implementing regulations together require compensation when an employee meets the coverage conditions set by OPM. Pl. Pl. Resp. at 8.
Section 5305 allows OPM to establish special rates for employees, when it finds "that the Government's recruitment or retention efforts with respect to 1 or more occupations in 1 or more locations are, or are likely to become, significantly handicapped" under enumerated circumstances. Pl. Resp. at 6 (quoting 5 U.S.C. § 5305(a)(1)). Under section 5305, "OPM may establish special rates for employees[.]" Pl. Resp. at 6 (quoting 5 C.F.R. § 530.303(a)). If OPM establishes a special rate for employees, the agency "must pay the applicable special rate to any employee who meets the coverage conditions established by OPM[.]" Pl. Resp. at 6 (quoting 5 C.F.R. § 530.303(a)). Therefore, although OPM's authority to establish special rates is discretionary, section 5305 mandates compensation, if OPM establishes a program and an employee meets the coverage conditions. Pl. Resp. at 7. Section 5305 applies to Plaintiff's claim, because the VA created a special rate of pay subject to certain coverage requirements, and Plaintiff met those coverage requirements. Pl. Resp. at 8.
Section 5754 also authorizes OPM to authorize the head of any agency to pay retention bonuses to a group of employees, if there is a high risk that a significant portion of the group would be likely to leave in the absence of retention bonuses. Pl. Resp. at 7 (citing 5 U.S.C. § 5754). The VA's published retention incentive regulations are authorized in part under section 5754. Pl. Resp. at 7-8. Therefore, sections 5754 and 5305 entitle Plaintiff to recover his earned and unpaid retention pay. Pl. Resp. at 8.
Regarding the Government's argument that the February 24, 2016 Complaint fails to state a claim, the Complaint alleges that Plaintiff "completed Law Enforcement Training and 90 days of continuous employment as an LEO on or about April 1, 2010." Pl. Resp. at 9 (quoting Compl. ¶ 7). Accordingly, the February 24, 2016 Complaint sufficiently alleges satisfaction of the conditions necessary to recover unpaid retention bonus pay. Pl. Resp. at 9. Furthermore, Plaintiff does not need to show he entered into a written service agreement, because section 5754(d) provides an exception to that requirement if the agency pays a retention bonus in biweekly installments. Pl. Resp. at 7 (citing 5 U.S.C. 5754(d)(2)(B)(3)(A)). Finally, the VA committed an unjustified personnel action within the meaning of the Back Pay Act, when it failed to implement the Acting Hospital Director's administrative determination acknowledging Plaintiff's right to recover unpaid retention pay. Pl. Resp. at 9.
Plaintiff improperly conflates sections 5305 and 5754, but they are wholly independent and govern entirely different matters. Gov't Reply at 3. Plaintiff's claim is for discretionary retention bonus pay governed by the permissive language in section 5754; section 5305 contains no provision governing the retention bonus payments. Gov't Reply at 3-4. Instead, section 5305 governs locality-based comparability payments not at issue here. Gov't Reply at 3 n.1. The February 24, 2016 Complaint's "blanket assertion" that section 5305 applies, in fact "does nothing to actually assert a claim under that statute . . . let alone provide `well-pleaded factual allegations' that might `plausibly give rise to an entitlement to relief' under it." Gov't Reply at 4-5 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
The Back Pay Act, 5 U.S.C. § 5596, is not, by itself, a money-mandating source of law that supports a claim under the Tucker Act. See, e.g., Spagnola v. Stockman, 732 F.2d 908, 912 (Fed. Cir. 1984) (holding that the Back Pay Act is "`derivative,'" in that it only authorizes payment of back pay where another statute or regulation required payment, and the payment did not occur (quoting United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983) (en banc) ("The Back Pay Act is merely derivative in application; it is not itself a jurisdictional statue."))); Shelleman v. United States, 9 Cl. Ct. 452, 456 (1986) ("[T]he Back Pay Act is derivative in its reliance on other regulations and statutes to fix efficacious jurisdiction in this court . . . derivative statutes do not, ipso facto, create a right of action in the Claims Court.") (emphasis in original).
A discrete number of back pay disputes are cognizable in the United States Court of Federal Claims through a combination of the Tucker Act, the Back Pay Act, and a money-mandating statute. See Worthington v. United States, 168 F.3d 24, 26 (Fed. Cir. 1999) (holding that appellant's Back Pay Act claim, based on an underlying violation of the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. §§ 6120-6133, satisfied the "Act of Congress" prong of the Tucker Act to confer jurisdiction to the United States Court of Federal Claims).
Accordingly, for the court to exercise jurisdiction over a claim for back payment, the plaintiff must have alleged a money-mandating source of law independent from the Back Pay Act. See Connolly, 716 F.2d at 887-88 (holding that, because the Back Pay Act is not a jurisdictional statute, a violation of that Act alone did not provide the court with jurisdiction).
The Government concedes that section 5305 is money-mandating, because it "compels payment once certain conditions precedent are met." Gov't Mot. at 7 (quoting Doe v United States, 463 F.3d 1314, 1324 (2006) (holding that a statute is money-mandating, even if the statute contains the word "may," if the statute compels payment once certain conditions precedent are met)) (internal quotation marks omitted); see also Little v. United States, 124 Fed. Cl. 256, 269 (2015) ("An employee who qualifies for an authorized special pay rate [under section 5305] has a right to be paid according to that rate."); 5 C.F.R. § 530.303(c) ("An agency must pay the applicable special rate [under section 5305] to any employee who meets the coverage conditions established by OPM[.]") (emphasis added). Section 5305, however, does not apply, because it applies only to "rates of basic pay," and a retention bonus is not part of an employee's rate of basic pay.
Section 5305, entitled "Special Pay Authority," authorizes OPM to "establish . . . higher minimum rates of pay for 1 or more grades or levels." 5 U.S.C. § 5305(a)(1). The implementing federal regulation clarifies that "[u]nder 5 U.S.C. § 5305, OPM may establish special rates for employees paid under a statutory pay system[.]" 5 C.F.R. § 530.303(a) (emphasis added). But, under 5 C.F.R. § 530.302, special rates of pay are considered to be part of a federal employee's "rate of basic pay." 5 C.F.R. § 530.302 defines "rate of basic pay" as "the rate of pay fixed by law or administrative action for the position held by an employee before any deductions, including a GS rate, an LEO special base rate, a locality rate, a special rate under this subpart or a similar rate under 38 U.S.C. § 7455, or a retained rate, but excluding additional pay of any other kind." (emphasis added). In other words, although section 5305 permits OPM to establish "special" rates, these "special rates" are considered part of a federal employee's "rate of basic pay." And, 5 U.S.C. 5754 expressly states that "[a] retention bonus is not part of the basic pay of an employee for any purpose." Id. § 5754(e)(3) (emphasis added).
Accordingly, section 5305 does not require the payment of retention bonuses, because it applies only to special rates for basic pay.
Plaintiff also argues that 5 U.S.C. § 5754 is money-mandating. Pl. Resp. at 7-8. The VA retention bonus program is authorized under section 5754. VA Handbook pt. VI, ch. 3, § 1(a) ("[Retention bonuses] are authorized under 5 U.S.C. [§] 5754[.]"); see generally 5 C.F.R. § 575.301-314. Section 5754, however, is not money-mandating, as applied to Plaintiff.
"A statute is not money-mandating when it gives the government complete discretion over the decision whether or not to pay an individual or group." Doe v. United States, 463 F.3d 1314, 1324 (Fed. Cir. 2006) (citing Doe v. United States, 100 F.3d 1576, 1582 (Fed. Cir. 1996)). Use of the word "may" in a statute creates a "presumption of discretion." Doe, 463 F.3d at 1324 (citing McBryde v. United States, 299 F.3d 1357, 1362 (Fed. Cir. 2002) ("We . . . presume that when Congress used the word "may" in the statute in suit, we should use common sense and presume that the word conveys some degree of discretion.")).
In addition, a statute is not money-mandating when it "only authorizes but does not require the payment of money . . . and contemplates that further implementing regulations will be issued defining the circumstances in which money will be paid." Roberts v. United States, 745 F.3d 1158, 1165 (Fed. Cir. 2014). In other words, if the statute provides that money will be paid only in accordance with implementing regulations and discretionary agency policy, then that statute is merely "money-authorizing," and does not have a money-mandating effect, standing by itself. See Avecedo v. United States, 824 F.3d 1365, 1369-70 (Fed. Cir. 2016). For example, in Avecedo, the United States Court of Appeals for the Federal Circuit held that a provision of the Overseas Differentials and Allowances Act governing the grant of a "danger pay allowance" for federal employees was "money-authorizing," and not money-mandating. Id. This was so, because the relevant provision established a framework under which the heads of agencies could elect to pay a "danger pay allowance," in their discretion. Id.
In this case, section 5754 authorizes OPM to decide whether or not to authorize payments retention bonuses, using the qualifying word "may":
5 U.S.C. § 5754(c) (emphasis added).
Therefore, whether OPM authorizes an agency to pay retention bonuses is a matter of discretion. Specifically, section 5754 provides that OPM "may" authorize an employing agency to pay retention bonuses, if the employing agency determines that an employee possesses "unusually high or unique qualifications," or if the employing agency determines that either an employee or a group of employees would be likely to leave federal employment in the absence of a retention bonus. 5 U.S.C § 5754(b), (c). Such a determination is left to the discretion of OPM, even if the agency determines that those conditions have been met. See 5 U.S.C. § 5754(b) (providing that OPM "may authorize" payment of retention bonuses if the employing agency determines statutory requirements are met (emphasis added)), (c) (same).
The text of subsections (d)(1)
A money-authorizing statute that use the permissive word "may," however, can still have a money-mandating effect when the statute is read in combination with its implementing regulations and formal agency policy. See Roberts, 745 F.3d at 1166. In Roberts, the United States Court of Appeals for the Federal Circuit held that the Overseas Differential and Allowances Act, 5 U.S.C. § 5923, and implementing regulations, promulgated by the Department of State and the Department of Defense, and an Order issued by a Marine Corps Commander ("the Order"), together evidenced that the Overseas Differential and Allowances Act was money-mandating. Id. This was because the Order compelled payment under the Overseas Differential and Allowances Act when certain conditions were met, even though that Act and implementing regulations used discretionary language. Id.
In this case, the OPM implementing regulations, 5 C.F.R. §§ 575.301-314, do not indicate that section 5754 is money-mandating. Instead 5 C.F.R. §§ 575.301-314 grant discretion to the agency to determine whether to pay or terminate retention bonuses. See 5 C.F.R. § 575.301 (providing purpose of subpart and stating that "[a]n agency may pay a retention [bonus]" under 5 U.S.C. § 5754 when conditions specified by regulations are met); 5 C.F.R. § 575.303(a)(4) ("[A]n Executive agency may pay a retention [bonus] to a current employee who holds . . . a position as a [LEO.]"); 5 C.F.R. § 575.305(b) (stating that an agency "may pay" a retention bonus to a group of employees if they possess "unusually high or unique qualifications" or there is otherwise a "high risk that a significant number of the employees in the group would be likely to leave" in the absence of a bonus); 5 C.F.R. § 575.306 (stating that "[a]n authorized agency official retains sole and exclusive discretion, subject only to OPM review and oversight to determine" whether the conditions for a bonus payment set by 5 C.F.R. § 575.305 are met); 5 C.F.R. § 575.308(a) ("An agency, in its sole and exclusive discretion, subject only to OPM review and oversight, may approve a retention [bonus] for an individual or group or category of employees using the approval criteria in § 575.306") (emphasis added).
Most significantly, 5 C.F.R. § 575.311 allows an agency to "terminate unilaterally" a retention bonus "based solely on the management needs of the agency, even if the conditions giving rise to the original determination to pay the incentive still exists." 5 C.F.R. §§ 575.311(a)(3), (f)(4). This subsection expressly states that "the reduction or termination of a retention incentive under this section is not grievable or appealable." 5 C.F.R. § 575.311(g) (emphasis added). Therefore, even if an employee fulfills all the conditions precedent to receiving a retention bonus, nevertheless the agency is under no obligation to pay or continue paying that bonus. See id.; compare id. with 5 C.F.R. § 530.303(c) ("An agency must pay the applicable special rate [under 5 U.S.C. § 5305] to any employee who meets the coverage conditions established by OPM[.]") (emphasis added).
In this case, the VA's implementing regulations, as provided in the VA Handbook, also do not use money-mandating language. See, e.g., VA Handbook pt. VI, ch. 3, § 1(a) ("Retention [bonuses] may be used to retain full-time or part-time employees . . . . These incentives are authorized under 5 U.S.C. [§] 5754 [and by] 5 CFR part 575, subpart C, and the provisions of this chapter."). The VA Handbook sets forth the agency retention incentive plan, that states that "[s]ubject to the requirements in this chapter, approving officials may authorize individual retention [bonuses] of up to 25 percent of an employee's rate of basic pay or group incentives up to 10 percent of an employee's rate of basic pay." VA Handbook pt. VI, ch. 3, § 1(b) (emphasis added). The VA Handbook consistently uses "may" to indicate that a retention incentive is conditioned on agency discretion. See, e.g., VA Handbook pt. VI, ch. 3, §§ 6(a), 7(b) ("Retention incentives may be authorized for current employees serving in full-time or part-time appointments. . . . A retention incentive may be authorized for an employee or group of employees whose retention is essential[.]") (emphasis added). The Handbook also affords the approving official discretion in terminating a retention bonus: "An approving official may unilaterally terminate a retention incentive based solely on the management needs of VA. . . . The termination of an incentive is not grievable or appealable." VA Handbook pt. VI, ch. 3, §§ 13(a), (d).
Nevertheless, despite the permissive language in both the OPM regulations and the VA Handbook, section 5754 could be money-mandating, as applied to Plaintiff, if the VA Hospital's Group Authorization for retention bonuses mandated payment for the period for which Plaintiff seeks back pay. See Roberts, 745 F.3d at 1166 (holding that Overseas Differential and Allowances Act was money-mandating because the Marine Corps Order mandated payment under certain conditions); see also 5 U.S.C. § 5754(d)(3)(B) ("If the agency pays a retention bonus [on a biweekly basis] and makes a determination to terminate those payments . . . the employee shall continue to be paid the retention bonus through the end of the pay period[.]"). It was for this reason that the court ordered the Government to produce the VA Hospital's Group Authorization policies. See Hindman, No. 16-257, 2017 WL 104489, at *1. But, the Government could not locate a VA Hospital Group Authorization for retention bonuses that applied to the period for which Plaintiff requests back pay, i.e., between April 1, 2010 and November 20, 2011. Gov't Sub. at 1-2 (explaining that "the Government . . . conducted a search of its records" and that "each of [the documents identified] post-date the time period" for which Plaintiff seeks back pay).
The Government did locate and provide a "Group Retention Incentive Request," that was filed in order to request approval for a 10% group retention bonus for LEOs at the VA Hospital. Gov't Sub. Ex. at 1-2 (emphasis added); see also 5 U.S.C. § 5754(c) (providing that OPM may authorize an agency to pay retention bonuses to a "group of employees"). But, this document was not signed by the requesting official until November 4, 2011. Gov't Sub. Ex. at 1. In addition, the requested group retention bonus was to commence on November 6, 2011, and the bonuses were to be paid on a biweekly basis. Gov't Sub. Ex. at 1 ("[T]he incentive will be paid in bi-weekly installments of equal amounts."). Consequently, the first bonus payment would not have been until November 20, 2011—after the period for which Plaintiff requests back pay elapsed. In other words, the reason that "retention was not made for effective for [Plaintiff] until November 20, 2011" was that the VA Hospital's Group Authorization for retention bonuses did not take effect until that date. Compare Pl. Resp. Ex. B (explaining that Plaintiff began to receive retention bonus pay on November 20, 2011) with Gov't Sub. Ex. at 1 (evidencing that, under the VA Hospital's Group Authorization, retention bonus payments began on November 20, 2011).
For these reasons, the court has determined that section 5754 is not money-mandating, as applied to Plaintiff.
Because the court does not have jurisdiction over Plaintiff's claims, the Government's RCFC 12(b)(6) Motion is moot.
For these reasons, the Government's August 2, 2016 Motion To Dismiss is granted. See RCFC 12(b)(1). The Clerk is directed to dismiss Plaintiff's February 24, 2016 Complaint.
5 U.S.C. § 4521.
5 U.S.C. § 5541(3).
Sections 8331 and 8401 of Title 5 further define "Law Enforcement Officer" as "an employee, the duties of whose position are primarily the investigation, apprehension or detention of individuals suspected or convicted of offenses against the criminal laws of the United States," and as "an employee, the duties of whose position are primarily . . . the protection of officials of the United States against threats to personal safety." See 5 U.S.C §§ 8331(20), 8401(17)(A)(i)(II).
The term "Law Enforcement Officer" is further defined by the United States Office of Personnel Management in 5 C.F.R. § 550.103, and that regulation, in relevant part, provides:
5 C.F.R. § 550.103.
5 U.S.C. §5754(c).
VA Directive And Handbook 5007/46, Pay Administration, pt. VI, ch. 3, § 6(d).
5 U.S.C. § 5596(b)(1).
29 C.F.R. § 1614.107(a)(3).
5 C.F.R. § 530.303.
Specifically, the circumstances are:
5 U.S.C. 5305(b).
