Acevedo v. United States, 121 Fed. Cl. 57

Background

Plaintiffs are present and former CBP Supply Chain Security Specialists who allege denial of danger pay under 5 U.S.C. § 5928 and seek money damages in the Court of Federal Claims under the Tucker Act.
Section 5928 authorizes ("may be granted") a danger pay allowance up to 35% of basic pay for employees serving in foreign areas where civil insurrection, terrorism, war, or similar conditions threaten physical harm.
Section 5922(c) delegates regulatory implementation to the President, and the President has delegated that authority to the Secretary of State; the Department of State’s DSSR sets criteria, rates, and procedures for danger pay designations.
CBP and DHS produced evidence that some CBP employees received danger pay upon submission of SF-1190 forms, but CBP has no formal, agency-wide written policy or regulation mandating payment of danger pay to all employees meeting State Department criteria.
Plaintiffs argue that the statute, DSSR, legislative history, and CBP practice make danger pay money-mandating; the government says § 5928 and the DSSR are discretionary and not money-mandating and that CBP has no binding implementing rules creating enforceable monetary rights.
The Court granted the government’s RCFC 12(b)(1) motion and dismissed Count II without prejudice, holding plaintiffs failed to identify a money-mandating source to support Tucker Act jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 5 U.S.C. § 5928 (danger pay) is money-mandating under the Tucker Act	§ 5928 and related provisions, DSSR, legislative history, and CBP practice establish an entitlement to danger pay	§ 5928 and DSSR are permissive (use "may"), commit decisions to agency discretion, and do not mandate payment	§ 5928 and DSSR are not money-mandating; dismissal for lack of Tucker Act jurisdiction
Whether DSSR or agency practice converted discretionary authority into a binding right	DSSR criteria + CBP’s de facto practice of paying upon SF-1190 submission create an enforceable entitlement	DSSR expressly contemplates agency discretion and further implementing agency rules; informal practice/emails are not binding regulations	DSSR and informal CBP practices do not create a money-mandating, binding source of law
Whether legislative history demonstrates a congressional intent to create an entitlement	Plaintiffs cite reports and preambles arguing Congress intended uniformity and payment when danger exists	Legislative history expressly notes the authorities are discretionary and not new entitlements; purpose was uniform authority across agencies, not mandatory pay	Legislative history does not overcome permissive statutory language; no entitlement found
Whether plaintiffs identified any CBP regulation/directive that compels payment (which could supply Tucker Act jurisdiction)	Plaintiffs rely on internal emails, constituent letters, and evidence of past payments to show agency-wide policy or practice	Defendant shows absence of formal CBP regulations, policies, or directives that mandate payment; past payments alone insufficient	No formal CBP rule or regulation was identified; practice is insufficient to create money-mandating obligation

Key Cases Cited

United States v. White Mountain Apache Tribe, 537 U.S. 465 (discusses when statutory language creates money-mandating obligation)
United States v. Mitchell, 463 U.S. 206 (agency rules or regulations can be sources of substantive law creating Tucker Act claims)
Testan v. United States, 424 U.S. 392 (Tucker Act does not create substantive rights; independent money-mandating source required)
Roberts v. United States, 745 F.3d 1158 (statute using "may" not money-mandating where implementing regulations contemplated)
McBryde v. United States, 299 F.3d 1357 (use of "may" presumes congressional discretion)
Doe v. United States, 463 F.3d 1314 (distinguishes statutes that become money-mandating when they compel payment once a condition is met)