In the United States Court of Federal Claims

No. 16-257

Filed: February 28, 2017

****************************************

*

*

NICHOLAS HINDMAN, *

*

Plaintiff, *

*

v. *

*

THE UNITED STATES, *

*

Defendant. *

*

*

****************************************

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. 

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 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.
3

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