fifty four five u s c fifty three zero five fifty seven fifty four says may so that's permissive it is indeed the language of a permissive stature whatever the case law looking at the particular state  fairly clear and that is although a language or statute has perhaps permissive parts of it where the conditions precede are already accomplished there is no left there's no discretion left  quote the director says based upon officers him and record he would have been entitled to receive retention pay at april ten twenty ten but he was not actually paid the retention pay until november twenty twenty a lap so there is no question that once the issue was posited to the director of the agency he made in the ministry of decision saying yes we have the records yes those records show that all police officers in this sector got a retention  actual records now that we have in front of us instead he said i would like the agency produce various described documents which were insufficient to establish the issue the issue being was there a policy of a fact of a policy at the time twenty ten and if so was he entitle to pay for that request for that document it was a very specific request please just provide the plaintiff from two thousand and eight to the present those officers will receive attention pay nothing more nothing less instead we have an incomplete record because the court said we're not going to allow you to do that we're going to lobby the agency to produce  from two eleven forward and your request and your suggestion that that policy existed in two thousand and eight all the way through this period of time existed we're not going to let you find that up and that's the second part of our argument in this case which was the conversion of this case basically by the court from our motion to dismiss to really a summary disposition and i think that they can spend a lot of time and a brief talking about to get a you know money mandated statute at some level from the statute or on down permissive language has to be translated into some kind of mandatory language and i thought you said a moment ago you use the word in title meant that this july twenty second twenty fifteen letters as you're in trouble you were entitle incredulous which fair question that the issue that the courts have all looked at is in the when we deal with the question of may or an authorizing but not mandated statute is has there been an active implemented that plan o p m plan saying you can have the retention once that occurs there's no more discretion or may argument left now if that  hadn't been implemented and wasn't long standing some two thousand eight of the way through the period in question and there's a good argument that it would have been a major issue but that when we approach these factions we approach these facts from the decision making of a director who decided at least as early as two thousand and eight to implement the retention pay policies of his own policy under fifty seven fifty four so it really is kind of a cloud saying this may or may yes only if you can show that they the retention policy or protection plan was adopted by that agency from two thousand and eight on if you can show that evidence there is no question in fact it's a summary judgment agency and in this case an o p m rag provides for the payment of attention and that that is a fairly straightforward interpretation of not only their actions but the disagree with that characterization i think it's statutory interpretation in the sense that the court needs to look at the statute section fifty seven fifty four in conjunction with the implementing regulations and policies that might have been into in place were i would still lightly disagree with your characterization judge dyke is that even if the implementation wasn't place at the time which the record is quite clear it was not one would still have to look at that implementation and determine whether under the rules set forth  did we have some concerns about whether it even should be considered what but what put appendix pay should i be looking for the letter is from thirty or thirty four and putting aside the concerns about whether we should even be looking at that letter there's a simple explanation from the face of the letter just taking it at face value which is that the letter is referring to an individualized incentive award the statute talks about two types of potential retention incentives there's individual retention incentives which are up to a maximum of twenty five percent and then there's another provision for group retention incentive which is up to a maximum of ten percent mr henman claims entitle him to a group retention incentive and that is the authorization that we presented the request of the trial judge showing that that went into effect in november of two thousand and eleven the an authenticated letter presented by mr headman from two thousand and eight is referring to an individualized retention incentive and we see that in the fact that it refers to retention incentive of twenty percent which is obviously above the ten percent cap for group retention status so whether there is some sort of authorization in place in two thousand a individualized retention incentives is entirely irrelevant to the question at hand in this case which is whether mr him in was entitled to a group retention incentive so i think that's that's the answer to your honest question well  right and i think you know the way we know again that that must be individualized is because it goes on to state that the incentives twenty percent and the statute explicitly caps group retention incentives at ten percent individualized attention incentives are kept a twenty five percent so that letter would be consistent with an individual lies for attention a sense of so we do think the record is quite clear and there's no real factual dispute about the fact that there wasn't a retention incentive the in place for a group attention incentive at the time of issue that being said i would also note that even if there were that would not in this case into these facts change the discretionary nature of section fifty seven retention right i think there's some question about that again that that's not this case because that wasn't even a fact as of the time period issue but our view would be when we look at the regulations that talk about look at any time the agency has the discretion to terminate their retention incentives even if the conditions that gave rise to it don't change and in fact they were the language that a termination of retention incentive or failure to receive it is not appealable or griebel to us even under the standards of roberts that still retains a level of discretion but even if your honor disagrees with that the fact remains that the retention incentive did not go into place for group leos until november of two thousand and eleven which and as soon as it did mr h in fact begin receiving that retention incentive and in this case i think that's the beginning in the end of the matter place which would have which obviously we produced in fact i look at her right here or in the production in the unfortunately it's docket seventeen on the court of federal claims docket and unfortunately it's not make it into the appendix but it is on the first page docket seventeen and she also asked for any relevant documents concerning the v a hospital retention bonus policy she did not ask for and the other individuals who received retention incentive for the sole reason that that would be entirely irrelevant i guess that's why i'm sorry my question is  and so that would include any document like the nov fourth document yes your honor and we produced all documents that existed in that category and again there was nothing earlier than that document that existed you know with regards to the discovery request that was asked for plaintiff's documents evidencing other individuals who may have received discretionary retention bonuses was completely irrelevant to the jurisdictional question before the court ruled out now there might be some sort of argument about whether that could have been relevant to america's attorney nation but again that's not what the court ruled on the court ruled solely on jurisdictional grounds and the question there is whether there was something mandating the government to provide these bonuses to individuals who met specified standards set forth by the agency and regardless of whether that circumstance existed as of november of two thousand and eleven it certainly was not the case during the time period issue that mr him is claiming unpaid pay for and i realize it's not not a the issue here but since you brought it money mandating consistent or inconsistent roberts and other cases where we have found certain kinds of agency in women haitians discretionary discretionary language and statues to qualify it would be consistent and again we haven't taken a firm position on whether that authorization would or would not mandate payment because that's not the facts of this case but the important principle under roberts is is i would have to look at more carefully that if that was the case and i wanted firm position there but i don't think it has the type of language we saw in roberts where you know it was very clear that if you meet this category you are entitled to the payment again no i haven't looked at it that closely because this off five is pertinent here because it actually makes retention a part of the basic rate of pay for the officer it's it's incorporated as a basic rate of pay so in other the case of roberts i would i would submit to the court respectively that that stands for the proposition of arguing once there has been a discretion there is nothing further to assess other than the applicant or in this case the law enforcement officer meet the conditions proceed once he meets those conditions preceding to ninety days in the law enforcement training there is no other discretion left and i would submit to the court that having been allowed to go through and i mean those documents showing who was and was not paid for two thousand and eight and forward every single officer that i'm aware of and whether you call plaintiff clearly was entitled to explore that at the court of claims and rather than face a summary disposition i think twelve the it's clear that we were titled to fully prepare ourselves to respond