# In the United States Court of Federal Claims

No. 16

- 257
Filed: February 28, 2017

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* NICHOLAS HINDMAN, *

* Plaintiff, *

*

v. *

* THE UNITED STATES, *

*
Defendant. *

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*

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MEMORANDUM OPINION AND ORDER

On February 24, 2016

, Mr. Nicholas Hindman (“Plaintiff”) filed a Complaint in the United

S tates Court of Federal Claims. ECF No. 1. O n August 2, 2016, the Government filed a Motion
To Dismiss

. ECF No. 10.

On January 10, 2017, the court issued a Mem orandum 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 r equired
certain documents to adjudicate the issue of jurisdiction

, including: (1) the Edward Hines Jr. Hospital’s (“the VA Hospital ”) G roup A uthorization of “retention bonuses” for law enforcement officers (“ LEOs ”) ; (2) the Retention Service Agreement

, signed by Plaintiff; and (3) any other
relevant docum ents 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 request ed 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
do cuments, to supplement Plaintiff ’ s August 17, 201 6 Response to the Government ’ s August 2,
2016 Motion To Dismiss. Pl. Mot. at 2. 5 U.S.C. § 5754 ( Federal Workforce Flexibility Act of 2004

— Retention Bonuses);

28 U.S.C. 1491 (Tucker Act Jurisdiction).2

On February 3, 2017

, the Government filed a R eply (“Gov’t Reply”), arguing that the documents requested by Plaintiff are not relevant to the jurisdi ctional issues before the court,
beca use “whether or not the VA provided di scretionary retention payments to any other employees has no bearing on whether such payments were mandated by the statute.” Gov’t Reply at 4.

M ore over, t he documents requested by Plaintiff are not relevant to the jurisdiction al i ssue before
the court

, because the a pplicable portion of the Federal Workforce Flexibility Act , 5 U.S.C. § 5754,

i s 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 (F ed. Cir. 2014). I f the r e levant statute and regulations are not money mandating , the court does not have jurisdiction under the Tucker Act to adjudicate the claims alle ged by the February 24, 2016 Complaint, even if other employees were paid retention payments

. 1

A s 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 impleme nting regulations and agency directives

. See Roberts , 745 F.3d at 1166. I n Roberts , the United States Court of Appe als for the Federal Circuit held that the Overseas
Diffe rential and Allowances Act, 5 U.S.C. § 592 3

, and implement ing regulations

, promulgated by the Department of S tat e and the Department of Defense, and an O rder issued by a Marine Corps Commander (“the Order”), together e videnced that the Overseas Differential and Allowances Act

was money

- mandating

. Id. This was because the Order compelled payment under the Overseas
Diffe rential and Allowances Act when certain c onditions were met, even though that Act and implementing regulations used discretionary language. Id.

In this case, the relevant provision of the Workforce Fle xibility Act, 5 U.S.C. § 5754

, could
have a money

- mandating effect

, if the VA Hospital’s Group Authorization for r etention b onuses mandates payment

, if certain conditions a re met. And, if Plaintiff met those conditions

— e.g., if he signed a Retention Service A greement

— 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 C omplaint with VA ’ s Office of Resolution Mana gement ( “ ORM ” ) , that was appealed to the Equal Employment Opportunity Commission ( “ EEOC ” ), but
was dismissed on Ma y 23, 2016 , because Plaintiff’s February 14, 2016 Complaint in the United

States Cou rt of Federal Claims concerned the same underlying issues

. See Government ’ s 8/2/2016
Motion To Dismiss Exhibit 1 , ECF No 10

– 1

. The do cuments requested by Plaintiff evidencing payments to other employee s , however, may be relevant to a ny new complaint Plaintiff may wish to file with the EEOC, but a re not relevant in determining whether the court has jurisdiction in this

case.3

F or these reasons

, t he 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 a uthorize the extensive disco very requested by Plaintiff at the pleadings stage.

IT IS SO ORDERED.

s/ Susan G. Braden
SUSAN G. BRADEN Judge