United States Court of Appeals 

for the Federal Circuit 

__________________________ 

RALPH E. PRICE, 

Plaintiff-Appellant, 

v. 

LEON E. PANETTA, SECRETARY OF DEFENSE, 

DEPARTMENT OF DEFENSE, AND UNITED 

STATES. 

Defendants-Appellees. 

__________________________ 

2011-1437 

__________________________ 

Appeal from the United States District Court for the 

Eastern District of Virginia in Case No. 10-CV-0216, 

Judge Jerome B. Friedman. 

___________________________ 

Decided: March 16, 2012 

___________________________ 

ROBERT J. BERG, Meiselman, Denlea, Packman, Carton & Eberz, P.C., of White Plains, New York, argued for 

plaintiff-appellant. 

REGINALD T. BLADES, JR., Assistant Director, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, argued for 

defendants-appellees. With him on the brief were TONY 
PRICE v. PANETTA 2

WEST, Assistant Attorney General, and JEANNE E.

DAVIDSON, Director. 

__________________________ 

Before BRYSON, DYK, and O’MALLEY, Circuit Judges. 

BRYSON, Circuit Judge. 

The appellant, Ralph E. Price, was a civilian employee 

of the Department of Defense. After retiring in 2007, he 

served as a re-employed annuitant for a fixed two-year 

term that expired on January 3, 2009. Like many other 

Department of Defense employees, Mr. Price was subject 

to the National Security Personnel System (“NSPS”), 

under which employees were eligible for performancebased incentives in the form of bonuses and salary increases. The NSPS was created by statute in 2003. See

National Defense Authorization Act for Fiscal Year 2004, 

Pub. L. No. 108-136 § 1101, 117 Stat. 1392, 1621-22 

(2003). It remained in effect until 2009, when it was 

repealed by the National Defense Authorization Act for 

Fiscal Year 2010, Pub. L. No. 111-84, § 1113(b), 123 Stat. 

2190, 2498 (2009). 

During the fiscal year that ended on September 30, 

2008, Mr. Price received a performance rating for the 

“appraisal period” ending on that date that made him 

eligible for NSPS benefits. Those benefits, referred to as 

a “performance payout,” could take the form of a salary 

increase, a bonus, or a combination of the two. Because 

Mr. Price’s two-year term ended on January 3, 2009, he 

was not eligible for a salary increase, because by regulation the effective date of any performance payout in the 

form of a salary increase was the first day of the first pay 

period beginning on or after January 1 of each year, 

which in 2009 was January 4. See 5 C.F.R. 

§ 9901.342(g)(6). 
3 PRICE v. PANETTA

The dispute in this case turns on the effective date of 

NSPS bonus payments. The Department of Defense took 

the position that the effective date of a performance 

payout in the form of a bonus was the same as the effective date of a performance payout in the form of a salary 

increase, i.e., the first day of the first pay period beginning on or after January 1 of the year following the employee’s appraisal period. Mr. Price argued that the 

effective date of a performance payout in the form of a 

bonus should be either the end of the appraisal period (in 

this case, September 30, 2008) or the first day of the 

following year (in this case, January 1, 2009). Because he 

was employed by the Department of Defense on both of 

those days, he contends that he was eligible for a bonus 

because he was employed on the effective date of the 

bonus payments. 

When the Department of Defense denied Mr. Price’s 

request to be paid a bonus for the appraisal period ending 

on September 30, 2008, he filed an action in the United 

States District Court for the Eastern District of Virginia 

on behalf of himself and a class of similarly situated 

former Department of Defense employees. Proceeding 

under the Little Tucker Act, 28 U.S.C. § 1346, he argued 

that the Department of Defense had unlawfully denied 

bonus benefits to him and to all others who had completed 

an appraisal period but had resigned, retired, or transferred out of the NSPS before the designated effective 

date for an increase in salary, i.e., the first day of the first 

pay period of the following year. 

The district court held that it had jurisdiction over the 

action under the Little Tucker Act. On the merits, however, the court sustained the Defense Department’s 

determination that the effective date for the payout of 

bonuses under the NSPS was the same as the effective 
PRICE v. PANETTA 4

date for increases in salary, i.e., the first day of the first 

pay period of the year following the appraisal period, 

January 4, 2009. Because Mr. Price was not employed on 

that date, the court held that he was not entitled to 

payment of a bonus for the appraisal period that ended on 

September 30, 2008. 

I 

We are met at the outset by the government’s argument that the district court lacked jurisdiction over this 

action. Like the district court, we reject that argument, 

and for the same reasons. 

The Little Tucker Act, 28 U.S.C. § 1346(a), allows a 

plaintiff to bring an action in district court if the action is 

based on a claim against the United States “not exceeding 

$10,000 in amount, founded either upon the Constitution, 

or any Act of Congress, or any regulation of an executive 

department.” The Act both creates jurisdiction in the 

district court and waives sovereign immunity for an 

action falling within the jurisdictional grant. It does not, 

however, create a cause of action; for that, the plaintiff 

must look elsewhere. Fisher v. United States, 402 F.3d 

1167, 1172 (Fed. Cir. 2005) (en banc in pertinent part). 

As the Supreme Court has explained, the plaintiff must 

“identify a substantive source of law that establishes 

specific fiduciary or other duties, and allege that the 

Government has failed faithfully to perform those duties,” 

after which “the court must then determine whether the 

relevant source of substantive law can fairly be interpreted as mandating compensation for damages sustained” as a result of the breach. United States v. Navajo 

Nation, 537 U.S. 488, 506 (2003), quoting United States v. 

Mitchell, 463 U.S. 206, 217, 219 (1983); see also United 

States v. White Mountain Apache Tribe, 537 U.S. 465, 472 
5 PRICE v. PANETTA

(2003). This court has characterized that requirement as 

imposing on the Tucker Act plaintiff the burden of showing that the source of substantive law is a “moneymandating” provision, i.e., it must mandate “compensation for specific instances of past injuries or labors.” Nat’l 

Ctr. for Mfg. Scis. v. United States, 114 F.3d 196, 201 

(Fed. Cir. 1997). 

A statutory or regulatory provision that grants a government official or agency substantial discretion to decide 

whether to expend government funds in a particular way 

is not considered money-mandating and does not create a 

cause of action that can be prosecuted under the Little 

Tucker Act. See Barnick v. United States, 591 F.3d 1372, 

1378 (Fed. Cir. 2010). However, a statute or regulation 

that provides for payment of money can qualify as moneymandating if the plaintiff’s claim is that the statute or 

regulation creates a right to payment upon a showing that 

the plaintiff qualifies for that payment by satisfying 

designated statutory or regulatory requirements. Fisher, 

402 F.3d at 1174-75; see Jan’s Helicopter Serv., Inc. v. 

FAA, 525 F.3d 1299, 1307-08 (Fed. Cir. 2008); In re 

United States, 463 F.3d 1328, 1334-36 (Fed. Cir. 2006). 

Moreover, “[t]he substantive source of law may grant the 

claimant a right to recover damages either expressly or by 

implication.” Navajo Nation, 537 U.S. at 506, quoting 

Mitchell, 463 U.S. at 217 n.16. Once the plaintiff has 

made such a showing, all the plaintiff is required to do in 

order to establish jurisdiction under the Tucker Act or the 

Little Tucker Act is to make a non-frivolous assertion that 

he is “within the class of plaintiffs entitled to recover 

under the money-mandating source”; the court then has 

jurisdiction to determine whether the plaintiff is entitled 

to relief on the merits. Jan’s Helicopter Serv., 525 F.3d at 

1307. 
PRICE v. PANETTA 6

Complaints by civil service employees regarding personnel actions covered by the Civil Service Reform Act are 

subject to the jurisdiction of the Merit Systems Protection 

Board and do not give rise to actions under the Tucker 

Act or the Little Tucker Act. See United States v. Fausto, 

484 U.S. 439, 449, 455 (1988); Worthington v. United 

States, 168 F.3d 24, 26-27 (Fed. Cir. 1999). However, a 

statute or regulation requiring an agency to pay employees certain amounts under certain circumstances is 

frequently money-mandating and sufficient to give rise to 

an action under the Tucker Act or Little Tucker Act for 

damages. See Hall v. United States, 617 F.3d 1313, 1317-

18 (Fed. Cir. 2010) (suit for compensation for days employee was engaged in jury service); Brodowy v. United 

States, 482 F.3d 1370, 1375-76 (Fed. Cir. 2007) (statute 

providing for additional pay for FAA employees transferring between certain positions within the agency is a 

money-mandating statute); In re United States, 463 F.3d 

at 1334 (statute fixing salary of bankruptcy judges is a 

money-mandating statute); Bosco v. United States, 931 

F.2d 879, 882 (Fed. Cir. 1991) (“prevailing rate” wage 

statute is money-mandating). 

As the district court noted, the statutory scheme at issue in this case contemplated that bonuses would be paid 

in amounts dictated by the ratings given to NSPS employees for the pertinent appraisal period. 5 U.S.C. § 

9902(b)(7)(I) (Supp. II 2008) (directing the Defense Department to promulgate regulations providing for a “payfor-performance evaluation system to better link individual pay to performance and provide an equitable method 

for appraising and compensating employees”). Those 

regulations created the NSPS pay system, which established pay structures and pay administration rules that 

replaced the standard civil service pay system for covered 

employees. 5 C.F.R. § 9901.301(a). With respect to the 
7 PRICE v. PANETTA

performance pay provisions of the NSPS, the regulations 

provided that NSPS employees would be rated after the 

close of each fiscal year, and each employee would be 

assigned a specific number of “shares” based on that 

rating. Those shares would then be used to determine the 

amount of the employee’s performance payout. 5 C.F.R. § 

9901.342. The amount of the performance payout would 

be calculated by starting with the number of shares each 

employee was assigned and multiplying the value of each 

share by the employee’s base salary. Id. § 9901.342(g)(2). 

In Mr. Price’s case, the government does not dispute 

the amount that he would have been entitled to under the 

regulations if he had been employed on the effective date 

of the bonus payments. According to Mr. Price, that 

amount, calculated according to his rating during the 

2008 appraisal period and reduced to a sum certain, was 

$4,777. The issue in this case is not the amount of the 

bonus, but whether he was entitled to any bonus at all, 

which turns not on the exercise of discretion by a government official, but on the date that is determined to be the 

effective date of the bonus payments for the appraisal 

period ending on September 30, 2008. 

Mr. Price’s claim is thus to a fixed amount calculated 

according to the regulatory formula, and his eligibility to 

be paid that sum turns on an interpretation of the governing statute and regulations. If Mr. Price is correct that he 

was employed on the effective date of the bonus payments, he would have an undisputed right to the payment 

of a bonus in an amount certain. An action to enforce the 

payment of that amount could properly be brought under 

the Little Tucker Act, as the regulation in dispute would 

be money-mandating as to an employee who is determined to be eligible for a bonus in a fixed amount. See

Doe v. United States, 463 F.3d 1314, 1324-25 (Fed. Cir. 
PRICE v. PANETTA 8

2006) (where statute dictates that “once the agency makes 

a determination that a particular position is entitled to 

[certain type of] pay, the employee ‘shall’ receive premium 

pay under the statute,” such a statute “is moneymandating because once a condition is met, namely that 

the head of an agency states that a position meets the 

[listed] criteria . . . , the statute requires payment to 

employees with that position”); Fisher, 402 F.3d at 1174-

75 (statute is money-mandating because when the requirements of the statute are met—i.e., when the Secretary determines that a service member is unfit for duty 

because of a physical disability, and that disability is 

permanent and stable and is not the result of the member's intentional misconduct or willful neglect—the member is entitled to compensation”); Doe v. United States, 

100 F.3d 1576, 1582 (Fed. Cir. 1996) (finding statute to be 

money-mandating when it requires “the payment of some 

award to claimants who have met the statutory conditions 

for recovery,” despite the “fact that the [government] 

retains some discretion to determine the amount of an 

award, within prescribed limits”); see generally United 

States v. Testan, 424 U.S. 392, 402 (1976) (noting authority allowing a Tucker Act suit for relief by a plaintiff 

arguing that his position carries a statutory entitlement 

to a higher level of pay). 

The government’s argument that this case does not 

fall within the purview of the Little Tucker Act is based in 

part on its contention that Mr. Price is wrong in interpreting the pertinent regulations, and that under the proper 

interpretation of the governing regulations he was required to be employed on January 4, 2009, in order to be 

entitled to a bonus for the performance year ending on 

September 30, 2008. The government asserts that because Mr. Price was “not entitled to a bonus payout,” the 

NSPS regulations were “not money-mandating with 
9 PRICE v. PANETTA

respect to Mr. Price.” Gov. Br. 18. As the district court 

pointed out in responding to the same argument, however, that argument conflates jurisdiction with the merits. 

If Mr. Price is correct on the merits of his regulatory 

argument, he was entitled to be paid the bonus, and the 

district court would have jurisdiction to issue judgment in 

his favor. If Mr. Price is wrong on the merits, he is not 

entitled to be paid. But that is because he would lose his 

case on the merits, not because the district court would 

lack jurisdiction to adjudicate the dispute. See Doe, 463 

F.3d at 1324 (“The jurisdictional requirement is met if a 

statute or regulation is ‘money-mandating.’ . . . However, 

a party bringing suit under the Tucker Act may then lose 

on the merits if he or she is not one of the persons entitled 

to pay under the statute or regulation.”); see also Brodowy, 482 F.3d at 1375 (“Where plaintiffs have invoked a 

money-mandating statute and have made a non-frivolous 

assertion that they are entitled to relief under the statute, 

we have held that the Court of Federal Claims has subject-matter jurisdiction over the case.”). 

II 

On the merits, Mr. Price argues that he was entitled 

to be paid a performance bonus even though he was not 

employed on January 4, 2009, the date that the agency 

identified as the effective date for performance payouts 

attributable to the 2008 appraisal period. We reject his 

argument and hold that the Defense Department was 

entitled to adhere to its consistent practice of designating 

the first day of the first pay period of the year following 

the appraisal period as the effective date for the bonus 

component of the performance payout. 

Under the pertinent NSPS regulations, a “performance payout” is defined to mean “the total monetary value 
PRICE v. PANETTA 10

of a performance pay increase and bonus” under the 

performance-based pay system. 5 C.F.R. § 9901.304. The 

regulations provide that employees who are no longer 

covered by the NSPS “on the effective date of the payout . 

. . are not entitled to a performance-based payout.” Id. § 

9901.342(g)(7). The regulations further provide that the 

effective date of the salary increase component of the 

performance payout “will be the first day of the first pay 

period beginning on or after January 1 of each year.” Id.

§ 9901.342(g)(6). Mr. Price points out that while the 

“effective date” regulation expressly refers to the effective 

date of the salary increase component of the performance 

payout, it does not expressly refer to the effective date of 

the bonus component of the performance payout. In fact, 

no regulatory provision speaks expressly to that issue. 

Mr. Price argues that the court should adopt the end 

of the appraisal period as the effective date of the bonus 

component of the performance payout. By that time, he 

contends, the employee has “earned” the bonus by the 

quality of his or her work. It is unfair, Mr. Price asserts, 

to deprive an employee who “earned” a bonus during the 

appraisal period from receiving that bonus simply because the employee left the agency several months later. 

The question, however, is not what the court might 

select as the most equitable date for a bonus to vest, but 

rather whether the agency’s selection of the first day of 

the first pay period in the following year is a permissible 

choice. As noted, there is no statutory or regulatory 

provision setting the particular date on which the right to 

bonus payments vests. In the absence of an express 

provision as to the effective date of bonus payments, the 

agency has construed its regulations to make the effective 

date for bonuses the same as the effective date for salary 

increases. 
11 PRICE v. PANETTA

It is well settled that an agency’s interpretation of its 

own regulations is entitled to deference unless that interpretation is “plainly erroneous or inconsistent with the 

regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997); 

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 

(1945). That principle applies whether the regulation in 

question is ambiguous or simply silent on the issue in 

question. See White v. United States, 543 F.3d 1330, 

1337-38 (Fed. Cir. 2008). Moreover, an agency’s interpretation of its regulations is entitled to that generous degree 

of deference even when that interpretation is offered in 

the very litigation in which the argument in favor of 

deference is made, as long as there is “no reason to suspect that the interpretation does not reflect the agency’s 

fair and considered judgment on the matter in question.” 

Auer, 519 U.S. at 462; Reizenstein v. Shinseki, 583 F.3d 

1331, 1335 (Fed. Cir. 2009); Abbott Labs. v. United States, 

573 F.3d 1327, 1331 (Fed. Cir. 2009); Gose v. U.S. Postal 

Serv., 451 F.3d 831, 838 (Fed. Cir. 2006) (“Legitimate 

agency interpretations may be made even during the very 

administrative determination that has become the subject 

of review. However, the interpretation must truly be one 

that had been applied by the agency, either prior to or, at 

the latest, during the exercise of its administrative powers in the present matter.”). 

There is no reason to believe that the Defense Department’s interpretation of its NSPS regulations is 

merely a “convenient litigating position” or a “post hoc 

rationalization” in this case. See Chase Bank USA, N.A. 

v. McCoy, 131 S. Ct. 871, 881 (2011); Bowen v. Georgetown 

Univ. Hosp., 488 U.S. 204, 213 (1988). To the contrary, 

the record shows that the Department of Defense has 

treated the effective date of the bonus component of the 

performance-based payout in the same manner since the 

initiation of the NSPS program in 2004. The Departmen-
PRICE v. PANETTA 12

tal regulations that were in effect before they were revised in 2008 provided that “Performance-based payouts 

shall be effective the first day of the first pay period 

beginning on or after January 1 of each year.” Dep’t of 

Def. Civilian Personnel Manual, DOD 1400.25-M, subch. 

1930.9.4. In that form, the regulations unambiguously 

provided that the “first day of the first pay period” after 

the first of each year was the effective date for all performance-based payouts, whether in the form of salary 

increases or bonuses. Pursuant to the 2008 revisions to 

the NSPS statute, see National Defense Authorization Act 

for Fiscal Year 2008, Pub. L. No. 110-181, § 1106, 122 

Stat. 3, 349, 356 (2007), the Defense Department repromulgated its regulations through notice-and-comment 

procedures. In the course of the revisions made to the 

regulations, the language of the effective date provision 

was amended to its current form, which continues to 

provide that employees must be employed on the effective 

date of the payout to receive a performance-based payout 

but defines the “effective date” only for increases in salary. 5 C.F.R. § 9901.342(g)(6) & (7). 

From the regulatory record, it is clear that, despite 

the omission of reference to the effective date for bonus 

payments, the new regulations were intended to codify 

and continue the previous practice rather than to alter it. 

The new regulations largely tracked the previous version, 

and the Department identified those areas in which 

changes were intended. Those specified modifications did 

not include any reference to altering the effective date of 

bonuses by separating salary increases from bonuses for 

purposes of determining the date of vesting. See Proposed 

Rules, 73 Fed. Reg. 29,882, 29,890 (May 22, 2008). During the notice-and-comment process, a commenter suggested that an NSPS employee “who earns a bonus for the 

performance year but retires before the end of the calen-
13 PRICE v. PANETTA

dar year should still be able to receive a bonus payment.” 

Final Rule, 73 Fed. Reg. 56,344, 56,372 (Sept. 26, 2008). 

The Department of Defense rejected that suggestion, 

explaining that the regulation “clearly states that an 

employee who is no longer covered by NSPS on the effective date of the payout is not entitled to a performancebased payout.” Id. While that response did not specifically identify the effective date of the bonus component of 

the payout, it rejected the underlying rationale of Mr. 

Price’s argument—that an employee who is covered by the 

NSPS during the appraisal period should be entitled to 

the bonus earned during that period. 

The administrative record thus shows that the interpretation of the regulation advanced by the government 

in this case is consistent with the position taken by the 

Department of Defense as to the effective date issue since 

the Department first promulgated regulations implementing the NSPS. In short, this is a case in which “the 

agency’s course of action indicates that the interpretation 

of its own regulations reflects its considered views.” Long 

Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171 

(2007). The Department’s interpretation, which is not 

“plainly erroneous or inconsistent with the regulation,” 

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 

(1994), is therefore entitled to deference. Because Mr. 

Price has not pointed to any statutory or regulatory 

language that is contrary to the Department’s interpretation of the regulatory rule, we agree with the district 

court that the Department’s interpretation governs this 

case and requires that Mr. Price’s claim be rejected. 

AFFIRMED