HINDMAN v. USA

Filing 16

REPORTED ORDER Status Report due by 3/10/2017. Signed by Judge Susan G. Braden. (pt) Copy to parties.

In the United States Court of Federal Claims
No. 16-257
Filed: February 28, 2017
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NICHOLAS HINDMAN,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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5 U.S.C. § 5754
(Federal Workforce
Flexibility Act of 2004—
Retention Bonuses);
28 U.S.C. 1491 (Tucker Act
Jurisdiction).

MEMORANDUM OPINION AND ORDER
On February 24, 2016, Mr. Nicholas Hindman (“Plaintiff”) filed a Complaint in the United
States Court of Federal Claims. ECF No. 1. On August 2, 2016, the Government filed a Motion
To Dismiss. ECF No. 10.
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 Order, the court informed the Government that the court required
certain documents to adjudicate the issue of jurisdiction, including: (1) the Edward Hines Jr.
Hospital’s (“the VA Hospital”) Group Authorization of “retention bonuses” for law enforcement
officers (“LEOs”); (2) the Retention Service Agreement, signed by Plaintiff; and (3) any other
relevant documents concerning the VA Hospital’s “retention bonus” policy. Id.
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, 2016 Response to the Government’s August 2,
2016 Motion To Dismiss. Pl. Mot. at 2.

On February 3, 2017, the Government filed a Reply (“Gov’t Reply”), arguing that the
documents requested by Plaintiff are not relevant to the jurisdictional issues before the court,
because “whether or not the VA provided discretionary retention payments to any other employees
has no bearing on whether such payments were mandated by the statute.” Gov’t Reply at 4.
Moreover, the documents requested by Plaintiff are not relevant to the jurisdictional issue before
the court, because the applicable portion of the Federal Workforce Flexibility Act, 5 U.S.C. § 5754,
is not “money-mandating,” even if every other employee at the VA Hospital received a retention
bonus payment. Gov’t Reply at 4. Tucker Act jurisdiction requires that the statute and
implementing regulations be such that they can “fairly be interpreted as mandating compensation.”
Roberts v. United States, 745 F.3d 1158, 1162 (Fed. Cir. 2014). If the relevant statute and
regulations are not money mandating, the court does not have jurisdiction under the Tucker Act to
adjudicate the claims alleged by the February 24, 2016 Complaint, even if other employees were
paid retention payments.1
As to the issue of whether the documents requested by the court are relevant, when
determining whether a statute is “money-mandating,” the court may read the statute in combination
with the implementing regulations and agency directives. 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 relevant provision of the Workforce Flexibility Act, 5 U.S.C. § 5754, could
have a money-mandating effect, if the VA Hospital’s Group Authorization for retention bonuses
mandates payment, if certain conditions are met. And, if Plaintiff met those conditions—e.g., if
he signed a Retention Service Agreement—then Plaintiff would be “within the class of plaintiffs
entitled to recover under the money-mandating source.” Jan’s Helicopter Service, Inc. v. F.A.A.,
424 F.3d 1299, 1307 (Fed. Cir. 2008).

1

Plaintiff previously filed a Complaint with VA’s Office of Resolution Management
(“ORM”), that was appealed to the Equal Employment Opportunity Commission (“EEOC”), but
was dismissed on May 23, 2016, because Plaintiff’s February 14, 2016 Complaint in the United
States Court of Federal Claims concerned the same underlying issues. See Government’s 8/2/2016
Motion To Dismiss Exhibit 1, ECF No 10–1. The documents requested by Plaintiff evidencing
payments to other employees, however, may be relevant to any new complaint Plaintiff may wish
to file with the EEOC, but are not relevant in determining whether the court has jurisdiction in this
case.
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For these reasons, the Government will file the documents requested by the court in the
January 10, 2017 Memorandum Opinion and Order no later than March 10, 2017. At present, the
court declines to authorize the extensive discovery requested by Plaintiff at the pleadings stage.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge

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