Acevedo v. United States
2016 U.S. App. LEXIS 10422
| Fed. Cir. | 2016Background
- Plaintiffs are current and former CBP Supply Chain Security Specialists in the C-TPAT program who worked at foreign posts designated by the State Department as danger pay-eligible.
- Plaintiffs sued the United States in the Court of Federal Claims seeking danger pay under 5 U.S.C. § 5928 (Count II); they also asserted an FLSA overtime claim (Count I) separately.
- Section 5928 authorizes (uses "may") danger pay up to 35% of basic pay for employees in foreign areas threatened by civil unrest, terrorism, or wartime conditions; the President delegated implementing regulations to the Secretary of State, implemented in the Department of State Standardized Regulations (DSSR).
- DSSR sets criteria and procedures for danger pay designations (Office of Allowances review, working group recommendation, agency head authority to grant pay subject to availability of funds and further agency implementing rules).
- The government moved to dismiss Count II for lack of Tucker Act jurisdiction, arguing § 5928 and the DSSR are money-authorizing (not money-mandating) and there is no agency-wide policy compelling payment; the Claims Court granted dismissal and Rule 54(b) judgment; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 5 U.S.C. § 5928 is money-mandating under the Tucker Act | § 5928 and its legislative purpose show Congress intended payment ("may" can be read as mandatory) | § 5928 is discretionary language authorizing, not mandating, payment | Court: § 5928 is money-authorizing, not money-mandating; no Tucker Act jurisdiction |
| Whether DSSR or related State/agency rules are money-mandating | DSSR contains detailed eligibility criteria and thus mandates pay when criteria met | DSSR contemplates further implementing agency regulations and does not require payment; it provides a framework only | Court: DSSR is money-authorizing, not money-mandating |
| Whether CBP has an agency policy/regulation that mandates danger pay to eligible employees | CBP has a practice/unwritten policy of providing danger pay to eligible employees, evidenced by internal letters/emails | Those communications show at best a discretionary practice; no agency-wide binding directive or formal regulation compels payment | Court: No binding CBP regulation/policy was identified; correspondence insufficient to establish money-mandating source |
| Whether combined statutory/regulatory/practice sources create money-mandating obligation | Together they establish an enforceable right to payment | Combined sources still lack a clear command to pay; without a money-mandating rule, Tucker Act jurisdiction fails | Court: Combined sources do not convert to money-mandating; jurisdiction lacking |
Key Cases Cited
- Bianchi v. United States, 475 F.3d 1268 (Fed. Cir.) (de novo review of jurisdictional dismissal)
- Trusted Integration, Inc. v. United States, 659 F.3d 1159 (Fed. Cir.) (plaintiff bears burden to establish jurisdiction)
- United States v. Testan, 424 U.S. 392 (U.S.) (Tucker Act is jurisdictional only; does not create substantive money-rights)
- Khan v. United States, 201 F.3d 1375 (Fed. Cir.) (must identify statute, regulation, or contract that mandates money damages)
- Doe v. United States, 100 F.3d 1576 (Fed. Cir.) (statute using "may" interpreted as money-mandating where legislative history and prior practice required payment)
- Roberts v. United States, 745 F.3d 1158 (Fed. Cir.) (§ 5928 and DSSR alone are money-authorizing; jurisdiction may exist if agency implementing regulations are money-mandating)
- United States v. Mitchell, 463 U.S. 206 (U.S.) (informal agency communications do not create substantive, money-mandating law)