Crawley v. United States ( 2020 )

In the United States Court of Federal Claims
No. 19-1228C
(Filed: June 10, 2020)
)
DWAYNE CRAWLEY, et al., )
) Keywords: Breach of Contract; Drug
Plaintiffs, ) Enforcement Administration; Relocation
) Pay; 5 C.F.R. § 575.201; 5 C.F.R.
v. ) § 575.209; Authority
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
)
)
)
Jon D. Brooks, Brooks LLP, Corpus Christi, TX, for Plaintiffs.
Miles K. Karson, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Washington, DC, for Defendant, with whom were Steven J. Gillingham,
Assistant Director, Robert E. Kirschman, Jr., Director, and Joseph H. Hunt, Assistant Attorney
General. Kasia M. Preneta, Civil Litigation Section, Office of Chief Counsel, Drug Enforcement
Administration, Springfield, VA, Of Counsel.
OPINION AND ORDER
KAPLAN, Judge.
Plaintiffs in this case are special agents employed by the Drug Enforcement Agency
(“DEA” or “the agency”). Each of them agreed to relocate to DEA offices in Laredo or
Matamoros, Mexico. They allege that DEA agreed that—in exchange for their commitment to
serve in those locations for three years—it would make relocation incentive payments to them
equivalent to 25% of their annual basic pay for each of the three years they served. Plaintiffs
contend that—notwithstanding this commitment—DEA provided them with only a single lump-
sum payment equivalent to 25% of their basic pay for their first year of service. They also
contend that DEA’s failure to pay them the equivalent of 25% of their basic pay for all three
years of service violated 5 C.F.R. § 575.209. That regulation, which was issued by the Office of
Personnel Management (“OPM”) pursuant to 5 U.S.C. § 5753, authorizes agencies to pay
relocation bonuses to federal employees under specified circumstances. Collectively, Plaintiffs
seek $135,311.50 in damages as well as pre- and post-judgment interest, costs, and reasonable
attorney’s fees.
The government has moved to dismiss Plaintiffs’ regulatory violation claims pursuant to
Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”), for lack of subject-matter
jurisdiction. It has filed a motion to dismiss plaintiffs’ breach of contract claims under
RCFC 12(b)(6) or, in the alternative, for summary judgment as to those claims pursuant to
RCFC 56. Plaintiffs, in turn, oppose the government’s motion to dismiss and have cross-moved
for summary judgment as to both their regulatory and contract claims. Oral argument was held
on the cross-motions on May 20, 2020.
For the reasons set forth below, the government’s motion to dismiss Plaintiffs’ regulatory
claims is granted. In addition, the government’s motion for summary judgment is granted as to
Plaintiffs’ breach of contract claims and Plaintiffs’ cross-motion as to those claims is denied.
BACKGROUND 1
I. Statutory and Regulatory Framework
Pursuant to 5 U.S.C. § 5753(b), OPM “may authorize the head of an agency to pay a
bonus” to a current government employee if that employee’s position would be difficult to fill
absent such a bonus and requires the employee to relocate to a different geographic area. The
payment of the bonus is “contingent upon the employee entering into a written service agreement
to complete a period of employment with the agency, not longer than 4 years.” Id. § 5753(c)(1).
The written service agreement must include “the commencement and termination dates of the
required service period . . .[,] the amount of the bonus[,] the method of payment[, and] other
terms and conditions under which the bonus is payable.” Id. § 5753(c)(2)(A). Any bonus paid
pursuant to § 5753 “shall not exceed 25 percent of the annual rate of basic pay of the employee
at the beginning of the service period multiplied by the number of years . . . in the required
service period of the employee involved.” Id. § 5753(d)(1). Whatever the amount of the bonus, it
may be paid “as an initial lump sum, in installments, as a final lump sum upon the completion of
the full period of service required by the agreement, or in a combination of these forms of
payment.” Id. § 5753(d)(2).
The requirements of § 5753 are implemented through OPM’s regulations at 5 C.F.R.
Subpart B. See, e.g., 5 C.F.R. § 575.201 (authorizing an agency to pay a relocation incentive); id.
§ 575.209 (requiring an authorized agency official to establish criteria for calculating relocation
incentives and noting that payment can be made as a lump sum at the beginning of the service
term, in installments, as a final lump sum, or any combination thereof). The regulations provide
that the head of an agency “retains sole and exclusive discretion, subject only to OPM review
and oversight, to . . . [a]pprove a relocation incentive for an employee . . . [and e]stablish the
criteria for determining the amount of a relocation incentive.” Id. § 575.206(a)(2)–(3). They
require agencies interested in providing relocation incentives to establish a plan for doing so. Id.
§ 575.207(a). The plan must include, among other things, “designation of officials with authority
to review and approve payment of relocation incentives,” “requirements for determining the
amount of a relocation incentive,” and “[r]equirements governing service agreements.” Id.
§ 575.207(a)(1), (4), (6). Finally, as relevant to this case, “an authorized agency official who is at
least one level higher than the employee’s supervisor must review and approve each
11
The facts set forth in this section are drawn from the Plaintiffs’ amended complaint and
evidence submitted by the parties. Unless otherwise noted, they are not in dispute.
2
determination to pay a relocation incentive . . . [and that official] must review and approve the
relocation incentive determination before the agency pays the incentive to the employee.” Id.
§ 575.207(b)(1).
II. DEA’s Relocation Incentive Plan
DEA is a component of the Department of Justice (“DOJ”), which delegated to DEA the
authority to establish a relocation incentive plan. Under that delegation, DEA may pay eligible
employees a maximum bonus of “25 percent of the employee’s basic pay . . . at the beginning of
the service period, multiplied by the length of his/her service agreement.” HR Order DOJ1200.1:
Part 2; Compensation: Chapter 2–5(B) (REV), Department of Justice Interim Relocation
Incentive Plan, available at https://www.justice.gov/jmd/hr-order-doj12001-part-2-
compensation-12.
The DEA, in turn, has issued its own “relocation incentive plan” as required by 5 C.F.R.
§ 575.207. The plan is set forth in § 2575 of DEA’s Manual, which is entitled “Recruitment,
Relocation, and Retention Incentives.” Def.’s Mot. to Dismiss, or Alternatively, for Summ. J.
App. (“Def.’s App.”) at 1, ECF No. 8-1. In § 2575.32 of the Manual, DEA explains that the
purpose of relocation incentive payments is to “provide[] management greater flexibility in
relocating employees with unusually high or unique qualifications or to fulfill a special DEA
need when the position is likely to be difficult to fill in the absence of a relocation incentive.” Id.
at 5. The Manual expressly cautions, however, that “[t]he payment of relocation incentives is
discretionary” and that “[n]o applicant or employee is entitled to a relocation incentive.” Id.
The DEA Manual identifies the DOJ and DEA officials who are authorized to initiate,
review, and approve the payment of relocation incentives, as well as the procedures and criteria
for approving such incentives. Id. at 6–7 (DEA Manual §§ 2575.34, 2575.36, 2575.37). It also
includes options for how incentives may be paid and requires employees to enter service
agreements as a condition of receiving a relocation incentive. Id. at 7 (DEA Manual §§ 2575.39;
2575.4). The Manual provides that such agreements “must specify: [the l]ength of the service
period[;] . . . [the e]xact amount of the incentive; [the m]ethod and timing of the payments; [the
c]onditions under which the agreement will be terminated by the DEA . . . [; and] DEA or
employee obligations, if a service agreement is terminated.” Id. (DEA Manual § 2575.4).
III. DEA Authorization to Offer Relocation Payments for Specified DEA Offices in
Mexico
On October 13, 2009, the DEA’s Assistant Administrator for Human Resources signed
off on a “decision paper” in which he requested approval to offer incentives to employees who
relocate to DEA offices in Ciudad Juarez, Matamoros, Nuevo Laredo, and Tijuana, Mexico. Id.
at 14. The Acting Administrator of the DEA approved the request as to all offices on July 15,
2010. Id. at 16. She authorized “the use of relocation incentives of up to 25% of basic pay for
employees in [special agent] and [resident agent in charge] positions who sign[ed] a two year
service agreement and all other employees who sign[ed] a three year service agreement upon
official assignment” to the four resident offices. Id. at 16.
3
IV. The Plaintiffs
A. Dwayne Crawley
Plaintiff Dwayne Crawley served a tour of duty as a DEA agent in Nuevo Laredo. Pls.’
Resp. to Def.’s Mot. & Pls.’ Counter Mot. for Summ. J. (“Pls.’ Mot.”) Ex. 2, at 1, ECF No. 9-2;
Id. Ex. 7, at 10, ECF No. 9-7. 2 In April 2013, before he was selected for the position, Mr.
Crawley exchanged emails with a DEA Human Resources Specialist. Id. Ex. 6, at 1, ECF
No. 9-6. Although Plaintiffs have not supplied the entire email chain (or any attachments), it
appears that Mr. Crawley was inquiring about his entitlement to a bonus should he receive a job
offer that required him to relocate. The HR Specialist advised him that “you will receive a
payment for each year of your initial tour for the vacancy that you are selected for.” Id. “For
example,” she explained, “if you are selected for a 3 year tour you will receive it for 3 years but
if you renew your tour there is no provision for you to continue to receive the annual payment.”
Id.
The record contains copies of several relocation incentive request and approval forms and
several service agreements related to Mr. Crawley’s tour of duty in Mexico. Plaintiffs’ Exhibit 1
is a relocation incentive request and approval form that was signed on October 20, 2014 by Rene
Dieguez, the resident agent in charge in the Nuevo Laredo office, as the “recommending
official.” Id. Ex. 1, ECF No. 9-1. It proposed that Mr. Crawley’s “service agreement period” be
one year in length and last from “10-19-2014 til 10-18-2015.” Id. The form, however, does not
bear the signatures of the Assistant Administrator of Human Resources or the Chief Financial
Officer (both of whom are required to approve such requests under § 2575.34 of the DEA
Manual, Def.’s App. at 6); nor does it have the signature of an “approving official,” Pls.’ Mot.
Ex. 1. It also does not specify the “total amount of the incentive payment,” although it
recommends that the “percentage of pay” be 25% and that the payment be made in a lump sum
upon signing. Id.
The government has also supplied a copy of a relocation incentive request and approval
form for Mr. Crawley, which it retrieved from Mr. Crawley’s eOPF (electronic personnel folder).
It looks similar to the version of the document at Plaintiff’s Exhibit 1, except that there are
several material alterations that appear to have been effected using white-out and ink. The
service agreement period, for example, was altered to read “10-19-2014 til 10-28-2017” Def.’s
App. at 18 (emphasis supplied). In addition, the figure “$18,701.00” is handwritten in ink under
the field for the “total amount of the incentive payment.” Id. Under section C, the government-
supplied copy bears the signatures of Raymond Pagliarini, Jr. (the Assistant Administrator of
Human Resources) and the Chief Financial Officer, dated November 19, 2014. There is no
signature by an approving official on the line set forth for that purpose, but handwritten below
the line is a notation stating, in all capital letters, “see attached authorization dated 7/15/10.” Id.
The earliest version of a service agreement pertaining to Mr. Crawley is contained at
Plaintiffs’ Exhibit 2. Pls.’ Mot. Ex. 2. In the field for the “employment term,” the box for “one-
2
The page numbers for Plaintiffs’ Exhibits refer to the pagination assigned by the Court’s
electronic case management system.
4
year” is checked. Id. at 1. In addition, the form indicates that the commencement date of Mr.
Crawley’s “required period of service” is October 19, 2014, and its termination date is October
18, 2015. Id. at 1. The form agreement bears Mr. Crawley’s signature as well as that of Mr.
Dieguez as the “DEA Approving Official” (both dated October 20, 2014). Id. at 2. The
agreement specifies that Mr. Crawley will receive an incentive amount of “25% of basic pay of
$74,804,” with the “total amount of the incentive payment” being “$18,701” to be received as a
“lump sum payment upon signing the service agreement.” Id. at 1.
As was the case with the relocation incentive request and approval forms, the service
agreement that the government retrieved from Mr. Crawley’s eOPF appears to be an altered
version of the agreement Mr. Crawley has submitted as Plaintiffs’ Exhibit 2. See Def.’s App. at
19–20. It bears Mr. Crawley’s signature with the date “10/20/2014” in handwriting identical to
that on the agreement submitted as Plaintiffs’ Exhibit 2. See id. at 20. But in the government’s
document, Mr. Pagliarini has signed off as the “DEA Approving Official” in place of Mr.
Dieguez. Id. His signature is dated November 18, 2014. Id. The field “one-year” is checked for
“employment term” as it is in Mr. Crawley’s version, but written in ink next to the “other” field
under “employment term” is “10-19-14 to 10-28-17.” Id. at 19. Similarly, the “termination date
of the required period of service” in the government’s version of the agreement has been
changed to “10-28-2017.” Id.
The record also includes an OPM Form 52 whose effective date is November 16, 2014.
Id. at 17. It reflects that the agency issued an order directing that Mr. Crawley be provided a
payment in the amount of $18,701 around the same time that Mr. Pagliarini signed off on the
service agreement contained in Mr. Crawley’s eOPF. Id.
The record before the Court also contains a service agreement and a relocation incentive
request and approval form proposing a service period from October 19, 2015 to October 18,
2016. See Pls.’ Mot. Ex. 7, at 2–4. The service agreement was signed by Mr. Crawley and his
supervisor (again, Mr. Rene Dieguez) on or around October 14, 2015. Id. at 3. The
accompanying request form is only signed by Mr. Crawley’s supervisor and does not include the
signatures of the Assistant Administrator, the Chief Financial Officer, or an approving official.
Id. at 4. Neither document includes the total amount of the bonus payment or the amount of Mr.
Crawley’s base salary, though both specify an incentive bonus of 25% to be paid as a lump sum
upon signing. Id. at 2–4. Mr. Crawley did not receive a relocation incentive payment for this
period. Pls.’ 1st Am. Original Compl. (“Am. Compl.”) ¶ 10, ECF No. 4.
Also part of Plaintiff’s Exhibit 7 is another service agreement and another relocation
incentive request and approval form, the latter proposing a service period from November 2,
2016 to November 1, 2018. Pls.’ Mot. Ex. 7 at 7–8, 10. The service agreement form bears only
Mr. Crawley’s signature, however, and is dated August 25, 2017. Id. at 8. 3 The accompanying
request form identifies Mr. Crawley’s immediate supervisor and recommending official as Peter
3
Other than missing a DEA approving official’s signature, this form is complete. It specifies an
incentive amount of 25% of a basic pay of $82,042 for a total payment of $20,510.50. Pls.’ Mot.
Ex. 7, at 7. It also states that the method of payment will be distributed as a lump sum upon
signing. Id.
5
Reilly, but is not signed by Mr. Reilly, or by the Assistant Administrator for Human Resources,
the Chief Financial Officer, or an approving official. Id. at 10. Mr. Crawley also did not receive a
relocation incentive payment for this period. Am. Compl. ¶ 11.
B. Jeffrey Harmon
Plaintiff Jeffrey Harmon relocated to Matamoros, Mexico in August 2014. Pls.’ Mot.
Ex. 3, ECF No. 9-3. The record contains a service agreement signed by Mr. Harmon and dated
on or around August 26, 2014, which is marked as Plaintiffs’ Exhibit 3. Id. The service
agreement was also signed by Rafael Reyes, an Assistant Regional Director, who is listed as the
“DEA Approving Official,” and bears the date August 27, 2014. Id. at 2. “Three-years” is
checked in the box for employment term to begin on August 24, 2014, but otherwise the form
contains many empty fields. Id. at 1. Among them are the percent of basic pay for the bonus, Mr.
Harmon’s base salary, and the “total amount of the incentive payment.” Id.
The government has supplied a copy of Mr. Harmon’s service agreement, that it retrieved
from his eOPF, which appears to be an altered version of the agreement at Plaintiffs’ Exhibit 3. It
bears Mr. Harmon’s signature with the date August 26, 2014 in handwriting identical to that on
the agreement submitted as Plaintiffs’ Exhibit 3. Def.’s App. at 24. But in the government’s
document, Mr. Pagliarini has signed off as the “DEA Approving Official” in place of Mr. Reyes.
Id. His signature is dated September 3, 2014. Id. Furthermore, the fields that were incomplete on
Mr. Harmon’s version are filled out in ink specifying an incentive payment of 25% of basic pay
of $99,799 for a total payment of $24,949.75 to be paid as a “lump sum upon signing the service
agreement.” Id. at 23. A relocation payment of $24,949.75 is reflected in Mr. Harmon’s wage
and earnings statement for the pay period between September 7 and September 20, 2014. Id.
at 26.
Plaintiffs’ Exhibit 8 contains several documents related to Mr. Harmon, the first of which
appears to be the relocation incentive request and approval form that correlates with Mr.
Harmon’s service agreement contained at Plaintiffs’ Exhibit 3. Pls.’ Mot. Ex. 8, at 1, ECF
No. 9-8. This request form is signed by Paul K. Craine, a Regional Director, who is listed as the
“Recommending Official.” Id. It proposes that Mr. Harmon’s “service agreement period” be
from “08/24/2014–08/23/2017.” Id. The form does not bear the signatures of the Assistant
Administrator of Human Resources or the Chief Financial Officer (who are required to clear the
request); nor does it have the signature of an approving official. Id. It also does not specify the
percentage of pay, the total amount of the payment, or the payment schedule. Id.
The government-supplied copy of the relocation incentive request and approval form, that
it retrieved from Mr. Harmons’s eOPF, consists of the same document that Mr. Harmon supplied
with several alterations again accomplished with white-out and ink. Def.’s App. at 22. Under
section B of the government’s version, missing information is filled in—“25%” is written in for
percentage of pay, “lump sum” is written in for the payment schedule, and “$24,949.75” is
written as the total amount of the incentive payment. Id. Under section C, the
government-supplied copy bears the signatures of Mr. Pagliarini and the Chief Financial Officer,
both dated September 3, 2014. Id. There is no signature by an approving official but handwritten
below the section set aside for such approval is a notation stating “see attached authorization
dated 7/15/10” with “Michele Leonhart” handwritten in ink as the approving official.
6
A second relocation incentive request and approval form also appears in Plaintiffs’
Exhibit 8. See Pls.’ Mot. Ex. 8, at 4 (bearing the signature of John D. Niedzialek, who is listed as
the “recommending official,” dated August 9, 2017). Like Mr. Harmon’s previous documents,
the payment schedule and the total amount of the incentive payment fields under section B are
left blank, but, in this version, the percentage of pay field reads “25%.” Id. The service period is
listed as “08/24/2014–8/23/2017” (the same service period listed in the documents described
above). Id. This version appears to be initialed by Mr. Harmon and Peter A. Reilly (who is listed
as an Assistant Regional Director and Mr. Harmon’s “immediate supervisor”). Id. at 4–5. It does
not, however, include signatures for the Assistant Administrator of Human Resources, the Chief
Financial Officer, or an approving official. Id. at 4.
An accompanying service agreement is also included in Plaintiffs’ Exhibit 8, which was
signed by Mr. Harmon and Peter Reilly on August 7 and 9, 2017 respectively. Id. at 2–3. This
agreement does not include the percentage, basic pay, or total amount of the incentive payment.
Id. at 2. It only indicates that payment should be distributed as a “lump sum” and lists Mr.
Harmon’s employment term as “four years,” though the term of employment according to the
information on the form commenced on August 24, 2014 and ends on August 23, 2017. Id. Mr.
Harmon did not receive a relocation incentive payment for any year after 2014. Am. Compl. ¶¶
10–11.
C. Lucy Carter
Plaintiff Lucy Carter began her service in Matamoros, Mexico in August 2013. See Pls.’
Mot. Ex. 9, at 1, ECF No. 9-9. Plaintiffs’ Exhibit 9 is a copy of a service agreement that bears
only her signature (dated August 29, 2013). Id. at 2. In the agreement, her incentive amount is
indicated as “25% of basic pay of $78,841.25” with the method of payment described as “[o]ne
payment per year at the start of period of service.” Id. at 1. Her employment term is listed as
“three-years” beginning August 11, 2013. Id.
Ms. Carter also presents what appears to be a completed relocation incentive request and
approval form, which is signed by her immediate supervisor, a recommending official, Mr.
Pagliarini, and the Chief Financial Officer. Id. at 3. The document indicates that she was to
receive 25% of her basic pay for a total amount of $19,710.25. Id. However, the payment
schedule reports that she will receive “[o]ne payment per year” for a service period lasting from
August 11, 2013 through August 29, 2016. Id. 4 Ms. Carter was apparently paid this incentive
payment during her first year of service only. Am. Compl. ¶¶ 9–11.
V. The Present Action
Plaintiffs filed their complaint in this court on August 16, 2019. ECF No. 1. They
subsequently filed an amended complaint on August 21, 2019 in which they added Ms. Carter as
a plaintiff. See Am. Compl. Plaintiffs allege that DEA violated its obligations under 5 C.F.R.
§ 575.201 and § 575.209, and also committed a breach of contract when it did not provide them
4
The government was unable to locate either a service agreement or an accompanying relocation
incentive request and approval form for Ms. Carter.
7
relocation incentive payments equal to 25% of their basic pay for their second and third years of
service. Id. ¶¶ 15, 17–20. They seek judgment in the amount of $40,007 for Mr. Crawley,
$55,884 for Mr. Harmon, and $39,420.50 for Ms. Carter. Id. ¶ 25. Each also demands pre- and
post-judgment interest, costs, and attorney’s fees. Id.
The government filed a motion to dismiss or, in the alternative, for summary judgment on
December 16, 2019. ECF No. 8. Plaintiffs responded to the government’s motion and cross-
moved for summary judgment on January 9, 2020. ECF No. 9. The government responded to the
cross-motion on January 23, 2020. ECF No. 10, and oral argument was held on the motions on
May 20, 2020.
DISCUSSION
I. The Government’s Motion to Dismiss Plaintiffs’ Regulatory Claims
Plaintiffs contend that DEA’s decision to provide relocation incentive payments equal to
25% of their basic pay for only the first year of their service in Mexico violated 5 C.F.R.
§ 575.209. That provision, they allege, “clearly provides for up to three years’ payments; that is,
it states that ‘the total amount of relocation incentive payments paid to an employee in a service
period may not exceed 25 percent of the annual rate of basic pay of the employee at the
beginning of the service period multiplied by the number of years (including fractions of a year)
in the service period (not to exceed 4 years).’” Pls.’ Mot. at 6 (quoting 5 C.F.R. § 575.209(b)(1)).
As noted above, the government has filed a motion to dismiss Plaintiffs’ regulatory
violations claims pursuant to RCFC 12(b)(1). When ruling on such a motion, the Court “must
accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable
inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011) (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). If
jurisdictional facts are challenged, the Court may consider evidence outside the pleadings to
determine whether it possesses subject-matter jurisdiction to entertain a plaintiff’s claims. Banks
v. United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014). For the reasons set forth below, the Court
concludes that—as a matter of law—it lacks jurisdiction over Plaintiffs’ claims that the agency’s
failure to provide them with additional relocation incentive payments violated OPM regulations.
The Tucker Act provides that the Court of Federal Claims “shall have jurisdiction to
render judgment upon any claim against the United States founded either upon the Constitution,
or any Act of Congress or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated damages in cases not
sounding in tort.” 28 U.S.C. § 1491(a)(1). It is well established that the Tucker Act—a
jurisdictional statute—“does not create any substantive right enforceable against the United
States for money damages.” United States v. Testan, 424 U.S. 392, 398 (1976). Generally,
therefore, a plaintiff must identify a separate money-mandating source of substantive rights to
establish the Court’s jurisdiction. See Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.
2005) (en banc in relevant part).
To qualify as money-mandating sources of substantive rights, statutes and regulations
“must be such that they ‘can fairly be interpreted as mandating compensation by the Federal
8
Government for the damage sustained.’” Roberts v. United States, 745 F.3d 1158, 1162 (Fed.
Cir. 2014) (quoting United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003)).
In that regard, “[i]t is enough ‘that a statute creating a Tucker Act right be reasonably amenable
to the reading that it mandates a right of recovery in damages.’” Id. (quoting White Mountain
Apache Tribe, 537 U.S. at 473). A statute or regulation “providing for solely discretionary
payment of money,” however, “does not give rise to ‘a right to recover money damages from the
United States.’” Id. at 1163 (quoting Adair v. United States, 648 F.2d 1318, 1322 (Ct. Cl. 1981)).
As a general matter, OPM’s regulations governing the payment of relocation bonuses are
not money mandating because any payment of such bonuses under the regulations is entirely
discretionary. See Bell v. United States 145 Fed. Cl. 378, 387 (2019) (holding that the Court of
Federal Claims lacked jurisdiction over claims brought pursuant to the regulations set forth at 5
C.F.R. § 575, Subpart B, because those provisions “afford discretion to the government
regarding the payment of a relocation incentive”). The regulations (like their authorizing statute)
leave it up to agencies to decide whether or not to use relocation bonuses to meet their needs. See
5 C.F.R. § 575.209(a) (stating that “[a]n agency may pay a relocation incentive” (emphasis
supplied)); 5 C.F.R. § 575.201 (providing that “[a]n agency may pay a relocation incentive to a
current employee who must relocate to accept a position in a different geographic area under the
conditions specified in this subpart” (emphasis supplied)).
Further, even assuming that an agency decides to provide an employee with a relocation
bonus, the regulations give agencies the discretion to decide the amount of any such bonus so
long as it is below the prescribed maximum. See 5 C.F.R. § 575.206(a)(3) (affording agencies
authority to establish criteria “for determining the amount of a relocation incentive,” subject to
the general rule in 5 C.F.R. § 575.209(b)(1) that “the total amount of relocation incentive
payments paid to an employee in a service period may not exceed 25 percent of the annual rate
of basic pay of the employee at the beginning of the service period multiplied by the number of
years (including fractions of a year) in the service period (not to exceed 4 years)”). The agency’s
discretion to determine the amount of any retention payment under the OPM regulations belies
any argument that the OPM regulations, particularly the regulation that Plaintiffs claim DEA
violated (i.e., 5 C.F.R. § 575.209(b)(1)), are money-mandating for purposes of establishing this
Court’s jurisdiction under the Tucker Act.
Plaintiffs’ reliance on Doe v. United States, 463 F.3d 1314, 1325 (Fed. Cir. 2006), for a
contrary conclusion is unavailing. At issue in that case was whether 5 U.S.C. § 5545(c)(2) is a
money-mandating statute. That statutory provision authorizes agencies to elect to provide
employees with “administratively uncontrollable overtime” (“AUO”) pay (rather than regular
overtime pay) where they hold positions that require them to work overtime on an irregular basis
that is inherently unsuited to administrative oversight and control. Id. at 1315. 5 It states as
follows:
5
AUO pay is not based on the number of actual overtime hours worked in any particular pay
period, but is instead based on a percentage of an employee’s basic pay. See 5 U.S.C.
§ 5545(c)(2).
9
The head of an agency, with the approval of the Office of Personnel Management,
may provide that . . . an employee in a position in which the hours of duty cannot
be controlled administratively, and which requires substantial amounts of irregular,
unscheduled overtime duty with the employee generally being responsible for
recognizing, without supervision, circumstances which require the employee to
remain on duty shall receive premium pay for this duty on an annual basis instead
of premium pay provided by other provisions of this subchapter.
5 U.S.C. § 5545(c)(2). The court of appeals recognized that “[b]y using the word ‘may,’ the
statute gives the ‘head of an agency’ the discretion to allow AUO pay for employees in particular
positions.” Doe, 463 F.3d at 1325. Nonetheless, in Doe the agency had decided to designate
certain positions eligible for AUO. The court held that “once the agency makes a determination
that a particular position is entitled to AUO pay,” § 5545(c)(2) provides that “the employee
‘shall’ receive premium pay under the statute.” Id. The court of appeals found the AUO statute
money mandating despite its use of the word “may,” “because once a condition is met, namely
that the head of an agency states that a position meets the criteria listed in subsection (c)(2), the
statute requires payment to employees with that position.” Id.
Unlike § 5545(c)(2), there is nothing in the OPM regulations which states that an
employee “shall” receive a relocation bonus under any particular circumstances. More to the
point here, there is nothing in the regulations that prescribed the amount of any relocation bonus
an agency must pay, so long as it stays below the statutory ceiling. Instead, the regulations set
forth the conditions under which an agency may, if it wishes, pay an employee a relocation
bonus, subject to whatever payment criteria that the agency chooses.
Nor did the regulations become money mandating under the reasoning of Doe once DEA
issued its relocation incentive plan. Unlike the DOJ policy in Doe, which identified those
positions that the agency head had determined met the criteria for receiving AUO pay, DEA’s
relocation incentive plan simply establishes the criteria under which the agency may—in its
discretion—offer relocation incentives to its employees. See Def.’s App. at 5 (DEA Manual
§ 2575.32) (stating that “[t]he payment of relocation incentives is discretionary” and that “[n]o
applicant or employee is entitled to a relocation incentive”). And the DEA plan, like the OPM
regulations and the statute, contemplates that any substantive obligation to pay a relocation
bonus shall be based on the terms of the parties’ relocation incentive agreement. See 5 U.S.C.
§ 5753(c)(1); 5 C.F.R. § 575.207(a); HR Order DOJ1200.1: Part 2; Compensation: Chapter 2-
5(B) (REV), Department of Justice Interim Relocation Incentive Plan, available at
https://www.justice.gov/jmd/hr-order-doj12001-part-2-compensation-12; Def.’s App. at 7 (DEA
Manual § 2575.4).
In short, the OPM regulations governing the payment of relocation bonuses are not, at
least under the facts of this case, money mandating. This Court therefore lacks jurisdiction under
the Tucker Act to hear Plaintiffs’ claims regarding their violation. The government’s motion to
dismiss the claim for lack of subject-matter jurisdiction is therefore granted. 6
6
The Court notes that—for much the same reason that it lacks jurisdiction to hear Plaintiffs’
claims under the OPM regulation—the claims also lack merit. The regulatory language on which
10
II. Breach of Contract Claim
In Count I of their amended complaint, Plaintiffs allege that “valid contract[s]” exist
between themselves and the government, that they fully performed under the terms of the
contracts, and that the government breached the contracts by not paying them relocation bonuses
during their second and third years of service. Am. Compl. ¶ 19. The government has filed a
motion to dismiss Court I under RCFC 12(b)(6), or in the alternative for summary judgment as to
that claim. Plaintiffs have filed a cross-motion for summary judgment as to their contract claim.
Both parties rely upon evidence outside of the pleadings in supporting their motions and
opposing their opponent’s. The Court will therefore treat the government’s motion as one for
summary judgment under RCFC 56. See RCFC 12(d) (“If, on a motion under RCFC 12(b)(6) . . .
matters outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under RCFC 56.”). For the reasons set forth below, the
government’s motion for summary judgment as to Count I of Plaintiffs’ amended complaint is
granted, and Plaintiffs’ cross-motion is denied.
A. Standards for Summary Judgment
In accordance with RCFC 56(a), the Court may grant summary judgment to a party if the
movant shows that there is “no genuine issue as to any material fact and [that] the moving party
is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). In ruling on a motion for summary judgment, all evidence must be viewed in the light
most favorable to the nonmoving party, and all reasonable factual inferences should be drawn in
favor of the nonmoving party. Id. at 255; Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59
(1970).
“Once the moving party has satisfied its initial burden, the opposing party must establish
a genuine issue of material fact and cannot rest on mere allegations, but must present actual
evidence.” Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002)
(citing Anderson, 477 U.S. at 248); see also Dairyland Power Co-op. v. United States, 16 F.3d
1197, 1202 (Fed. Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986))
(observing that the moving party “may discharge its burden by showing the court that there is an
absence of evidence to support the nonmoving party’s case”). A fact is material if it “might
affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. An issue of
material fact is in genuine dispute if it “may reasonably be resolved in favor of either party.” Id.
at 250.
B. Application of Standards
To establish the existence of a valid contract with the United States, a plaintiff must
prove: 1) mutuality of intent; 2) consideration; 3) lack of ambiguity in offer and acceptance; and
they rely plainly does not, as Plaintiffs argue, require agencies to provide bonuses equal to
twenty-five percent of their annual rate of basic pay multiplied by the number of years of service.
Rather, it states that the relocation bonuses “may not exceed” that amount. 5 C.F.R.
§ 575.209(b)(1).
11
4) actual authority on the part of the government’s representative to bind the government in
contract. Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012); see also Hanlin v.
United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003).
The basis for Plaintiffs’ contract claims here is somewhat obscure. The Court does not
understand Plaintiffs to be arguing that the obligations allegedly breached arose out of written
service agreements executed in accordance with the requirements of 5 U.S.C. § 5753, the OPM
regulations, and the DEA manual. For one thing, Plaintiffs did not attach any such agreements to
their amended complaint, nor specify any provisions of service agreements that were breached,
as is required by this court’s rules in breach of contract cases. See RCFC 9(k) (“In pleading a
claim founded on a contract[], a party must identify the substantive provisions of the contract[]
on which the party relies”). Instead, Plaintiffs submitted the service agreements that were in their
possession for purposes of discrediting the government’s reliance on the agreements that were
contained in Mr. Crawley’s and Mr. Harmon’s eOPFs. 7
Further, the undisputed facts establish that the “service agreements” that the Plaintiffs
filed with the Court in opposing the government’s motion are not valid contracts for any number
of reasons. For one thing, none of them were executed or approved by authorized agency
officials. See H. Landau & Co. v. United States, 886 F.2d 322, 324 (Fed. Cir. 1989) (citing H.F.
Allen Orchards v. United States, 749 F.2d 1571, 1575 (Fed. Cir. 1984)) (“To recover for breach
of an express or implied-in-fact contract with the United States, [the plaintiff] must show ‘that
the officer whose conduct is relied upon had actual authority to bind the government in
contract.’”).
The “service agreement” pertaining to Ms. Carter at Plaintiffs’ Exhibit 9, for example, is
not signed by any agency official. The same is true for Mr. Crawley’s 2017 service agreement
contained in Plaintiffs’ Exhibit 7. The other purported agreements Plaintiffs submitted that
pertain to Mr. Harmon and to Mr. Crawley were signed by their immediate supervisors as
“approving officials.” But first-line supervisors lack the authority under the DEA Manual to bind
the United States in contract. The DEA Manual specifies that it is the Deputy Administrator
alone who may enter a binding agreement to provide an employee with a relocation bonus.
Def.’s App. at 6 (DEA Manual § 2575.34 ¶ B) (“The Administrator has delegated authority to
approve relocation incentives . . . [which] has been redelegated to the Deputy Administrator.”).
And OPM regulations expressly prohibit an employee’s immediate supervisor from authorizing
the payment of a relocation incentive bonus in most cases. 5 C.F.R. § 575.207(b)(1) (“[A]n
authorized agency official who is at least one level higher than the employee’s supervisor must
7
The agreements contained in the eOPFs reflect obligations to pay Mr. Crawley and Mr.
Harmon lump-sum relocation payments equal to 25% of their first year’s salary. Plaintiffs
contend that these agreements are not valid because they were altered after Mr. Crawley and Mr.
Harmon signed them. Their suspicions appear well-founded in light of the record before the
Court. In any event, the Court gives those documents no weight at all in resolving the parties’
cross-motions.
12
review and approve each determination to pay a relocation incentive, unless there is no official at
a higher level in the agency.” (emphasis supplied)). 8
In any case, the terms of the agreements Plaintiffs submitted have been satisfied. Mr.
Crawley’s service agreement at Plaintiffs’ Exhibit 2 indicates that the total amount of his
incentive payment is $18,701, which represents “25% of [his salary] of $74,804.” Pls.’ Mot. Ex.
2, at 1. It is undisputed that Mr. Crawley received this amount in a lump-sum payment. See
Def.’s App. at 17 (Crawley eOPF Standard Form 52). As for Ms. Carter, assuming that the
relocation incentive request and approval form she supplied accurately reflects the terms of her
service agreement it recommends a total payment of “$19,710.25” for a term of service lasting
from “08/11/2013 thru 08/20/2016.” Pls.’ Mot. Ex. 9, at 3. Ms. Carter does not deny that she
received that payment.
Mr. Harmon’s service agreement at Plaintiffs’ Exhibit 3 does not set forth the material
terms—such as the amount of the payment—from which the Court could conclude that a contract
was made. See Modern Sys. Tech. Corp. v. United States, 979 F.2d 200, 202 (Fed. Cir. 1992)
(“In the absence of . . . sufficiently definite terms, no contractual obligations arise.”);
Restatement (Second) of Contracts § 33 (Am. Law Inst. 1981) (explaining that an offer “cannot
be accepted [so as] to form a contract unless the terms of the contract are reasonably certain . . .
[that is] they provide a basis for determining the existence of a breach and for giving an
appropriate remedy”); see also 5 U.S.C. § 5753(c)(1)–(2) (requiring that an employee enter a
service agreement to receive a relocation bonus which includes “the amount of the bonus”). Mr.
Harmon’s other service agreement at Plaintiffs’ Exhibit 8 and Mr. Crawley’s 2015 service
agreement at Plaintiffs’ Exhibit 7 similarly fail to include the total amount of the bonus to be
paid.
Lacking valid service agreements to support their claims, Plaintiffs contend that an
implied contract was formed between themselves and the DEA based on the DEA’s October 13,
2009 “decision paper” approved by the Administrator on July 15, 2010. See Pls.’ Mot. at 3. But
as explained above, that memorandum merely authorized “the use of relocation incentives of up
to 25% of basic pay for employees in [special agent] and [resident agent in charge] positions who
sign a three year service agreement upon official assignment to” four Mexico resident offices,
including Nuevo Laredo and Matamoros. Def.’s App. at 16. It contained no language in which
DEA committed to provide a relocation bonus to any particular employee or class of employees
who agree to accept a reassignment to one of those offices. See id. Nor does the memorandum
include a commitment that DEA will provide the maximum authorized incentive payment to
employees who are offered a relocation bonus. Instead, the memorandum authorized the use of
relocation bonuses, “administered in accordance with DEA policy.” Id. That policy, in turn,
8
Under the DEA Manual’s procedures, the role of the supervisor is only to initiate the bonus
approval process. He does so by submitting a request on a standard form to the Assistant
Administrator for Human Resources (“HR”) and the Chief Financial Officer. Def.’s App. at 6
(DEA Manual § 2575.34 ¶ D). If HR approves payment of the incentive, the Chief Financial
Officer “certifies whether or not funds are available and, upon approval by the Deputy
Administrator, identifies funds for relocation incentives.” Id. (DEA Manual § 2575.34 ¶ F).
13
emphasizes that the payment of relocation incentives is entirely discretionary and that “[n]o
applicant or employee is entitled to a relocation incentive.” Id. at 5 (DEA Manual § 2575.32).
Further, DEA policy and the statute and regulations authorizing incentive relocation pay
contemplate that commitments to pay relocation bonuses must be made through the execution of
a valid service agreement. 5 U.S.C. § 5753(c)(1)–(2) (requiring the service agreement to include:
the length of the service period; the exact amount of the incentive; the method and timing of the
payments; and any obligations upon termination); 5 C.F.R. § 575.207 (emphasizing that
employees must enter a service agreement before receiving a relocation incentive payment);
Def.’s App. at 7 (DEA Manual § 2575.4) (same).
Mr. Crawley contends that a contract was formed between himself and DEA as a result of
representations made to him in an email from one of DEA’s HR representatives. See Pls.’ Mot.
Ex. 5, ECF No. 9-5; id. Ex. 6. The undisputed facts show that the HR Representative did not
possess authority to contract; to the contrary, that authority is—as explained above—reserved to
the DEA Administrator and must be exercised through a service agreement. And to the extent
that Mr. Crawley’s claim is based on a theory of promissory estoppel, such claims may not be
brought against the United States. See Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101,
111 (2012) (quoting Jablon v. United States, 657 F.2d 1064, 1070 (9th Cir. 1981))
(“[P]romissory estoppel theory does not fall within the jurisdiction granted to the court by the
Tucker Act . . . [because] ‘the government has not waived its sovereign immunity with regard to
a promissory estoppel cause of action.’”).
III. Equitable Estoppel
Finally, Plaintiffs contend that the doctrine of equitable (or judicial) estoppel precludes
the government from contesting their claims because it agreed to settle another case involving
similar claims, namely Cabanvazquez v. United States, Case No. 17-909. See Transfer Compl.,
Cabanvazquez v. United States, No. 17-909, ¶¶ 16–23 (Fed. Cl. Oct. 16, 2017) (alleging a breach
of contract and a violation of 5 C.F.R. § 209). This contention is frivolous.
The doctrine of judicial estoppel provides that “where a party successfully urges a
particular position in a legal proceeding, it is estopped from taking a contrary position in a
subsequent proceeding where its interests have changed.” Data Gen. Corp. v. Johnson, 78 F.3d
1556, 1565 (Fed. Cir. 1996) (citing Davis v. Wakelee, 156 U.S. 680, 689 (1895)). “Judicial
estoppel is designed to prevent the perversion of the judicial process and, as such, is intended to
protect the courts rather than the litigants.” Id. Its invocation is discretionary. Id.
Plaintiffs fail to explain how the government’s settlement of Cabanvazquez can serve as
the predicate for invoking the doctrine of judicial estoppel. Judicial estoppel, as noted, applies
where a party urges a position different from one that it successfully urged a court to approve in
prior litigation. A settlement obviates the need for a judicial determination and therefore cannot
serve as the basis for invoking judicial estoppel. Water Techs. Corp. v. Calco, Ltd., 850 F.2d
660, 666 (Fed. Cir. 1988). Indeed, the settlement agreement in Cabanvazquez contains a standard
clause which states that “[t]his agreement is for the purpose of settling this case, and for no
other.” Pls.’ Mot. Ex. 10, at 3, ECF No. 9-10 (settlement agreement in Cabanvazquez). It also
states that “this agreement shall not bind the parties, nor shall it be cited or otherwise referred to,
14
in any proceedings, whether judicial or administrative in nature, in which the parties or counsel
for the parties have or may acquire an interest, except as is necessary to effect the terms of this
agreement.” Id. 9 Plaintiffs’ contention that the government should be estopped from contesting
the claims here on the basis of its settlement of Cabanvazquez is therefore rejected.
CONCLUSION
For the foregoing reasons, the government’s motion to dismiss Count II for lack of
jurisdiction is GRANTED. Likewise, the government’s motion for summary judgment as to
Count I is GRANTED. Plaintiffs’ cross-motion for summary judgment is DENIED. The Clerk
is directed to enter judgment accordingly. Each side shall bear its own costs.
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Judge
9
The Court notes that counsel for Plaintiffs here also represented the plaintiff in Cabanvazquez.
Arguably, therefore, he violated the settlement agreement by citing it in this case.
15