Bell v. United States

Case: 21-1678 Document: 38 Page: 1 Filed: 12/10/2021
United States Court of Appeals
for the Federal Circuit
______________________
CHRIS BELL, BRIAN BONIFANT, ARLYN BRUNET,
PHILLIP CETRONE, ANDRE CLARK, MICHAEL
COLE, MELITON CORDERO, TERRY DAVIS,
WENDY DAVIS, CARMEN DESHEPLO,
CHRISTOPHER M. DIAZ, KERMIT DIAZ, DAVID
FLORES, ERIC FRIEDMAN, JESUS GAMEZ,
GEORGE GRECO, BRENDAN HANDRATTY,
GABRIEL HILL, GEORGE HORTON, PHILIP
JONES, DAVE JOSEPH, DARREN KAWCZYK,
ROBERT KENNEDY, MATTHEW KRUSE,
GREGORY KRYWY, MICHAEL MIRANDA, SAMARL
PARKS, FRANCISCO PEREZ, DAVID PINA, LAILA
RICO, MICHAEL SERRA, JOSEPH SHEPHERD,
MICHAEL SILVEIRA, JASON STAAB-PETERS,
CHANELLE WALLACE, JOHN WALTERS, CHRIS
YORK,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-1678
______________________
Appeal from the United States Court of Federal Claims
in No. 1:16-cv-00830-LKG, Judge Lydia Kay Griggsby.
______________________
Case: 21-1678 Document: 38 Page: 2 Filed: 12/10/2021
2 BELL v. US
Decided: December 10, 2021
______________________
LAWRENCE BERGER, Mahon & Berger, Esqs., Glen Cove,
NY, argued for plaintiffs-appellants.
MILES KARSON, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by REGINALD THOMAS BLADES, JR., BRIAN M. BOYNTON,
MARTIN F. HOCKEY, JR.
______________________
Before MOORE, Chief Judge, SCHALL and STOLL, Circuit
Judges.
MOORE, Chief Judge.
Appellants appeal a United States Court of Federal
Claims order dismissing their relocation-incentive-bonus
claim for lack of subject-matter jurisdiction. Bell v. United
States, 145 Fed. Cl. 378, 387 (2019). 1 For the following rea-
sons, we affirm.
I
Appellants are former and current Drug Enforcement
Agency (DEA) employees who were relocated to Puerto Rico
or the U.S. Virgin Islands at the DEA’s request for two to
five years. Each Appellant received a one-time relocation
incentive bonus pursuant to 5 U.S.C. § 5753(b), which pro-
vides that “[t]he Office of Personnel Management may au-
thorize the head of an agency to pay a [relocation incentive]
bonus” to an individual who relocates to accept a position.
1 Appellants do not appeal the Claims Court’s reso-
lution of their other claims.
Case: 21-1678 Document: 38 Page: 3 Filed: 12/10/2021
BELL v. US 3
Each bonus was equivalent to 25% of each Appellant’s
yearly salary.
Appellants brought suit against the government, alleg-
ing they are entitled to a relocation incentive bonus for
each year of their relocation, rather than the one-time bo-
nus they received. The Claims Court dismissed that claim,
holding it was not based on a statute or regulations that
are money mandating. Bell, 145 Fed. Cl. at 387. Appel-
lants appeal. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
II
To establish Claims Court jurisdiction under the
Tucker Act, a plaintiff must identify a money-mandating
statute or agency regulation, see 28 U.S.C. § 1491(a)(1);
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.
2005) (en banc), or a combination of statute, regulation,
and agency policy, Roberts v. United States, 745 F.3d 1158,
1166 (Fed. Cir. 2014). When a provision uses discretionary
language, “a very strong, but rebuttable, presumption
arises that the . . . provision is non-money-mandating.”
Contreras v. United States, 64 Fed. Cl. 583, 593 (2005); see
also McBryde v. United States, 299 F.3d 1357, 1362 (Fed.
Cir. 2002) (“We may thus presume that . . . the word ‘may’
. . . conveys some degree of discretion. But we must pro-
ceed to test that presumption against . . . other inferences
that we may rationally draw . . . .”). This presumption can
be overcome through “obvious inferences from the struc-
ture and purpose” of the provision that monetary relief is
required. United States v. Rodgers, 461 U.S. 677, 706
(1983); see also Contreras, 64 Fed. Cl. at 593 (“[W]hile in-
ferences may be used to convert ‘may’ to ‘shall’ through the
interpretive process, these inferences are to be obvious.”).
Whether a statute is money mandating is a question of law
we review de novo. Fisher, 402 F.3d at 1173.
5 U.S.C. § 5753(b) provides that “[t]he Office of Person-
nel Management may authorize the head of an agency to
Case: 21-1678 Document: 38 Page: 4 Filed: 12/10/2021
4 BELL v. US
pay a [relocation incentive] bonus” to an individual who re-
locates to accept a position. 5 U.S.C. § 5753(b) (emphasis
added). The statute’s implementing regulations 5 C.F.R.
§§ 575.201–213, contain similar discretionary language,
stating, for example, that “[a]n agency may pay a relocation
incentive.” 5 C.F.R. § 575.201 (emphasis added).
Appellants concede that the statute and implementing
regulations use discretionary language in empowering the
Office of Personnel Management to provide relocation in-
centive bonuses. Appellants’ Reply Br. 1; Oral Arg.
at 1:19–1:27, available at https://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=21-1678_1104202
1.mp3. But they claim that the combination of the statute
and regulations with Department of Justice Human Re-
sources Order 1200.1 (DOJ Plan) is money mandating. We
do not agree.
The DOJ Plan uses the same discretionary language as
the statute and regulations: “Relocating employees may be
paid amounts of up to 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 DOJ
1200.1 Part 2 ¶ 5 (emphasis added). The discretionary lan-
guage in the statute creates a strong presumption that the
statute is not money mandating, and the discretionary lan-
guage in the regulations also creates a strong presumption
that the regulations are not money mandating. And we see
nothing in the Plan that rebuts those presumptions, either
individually or in combination.
We reject Appellants’ argument that once the govern-
ment decides to pay a bonus, the “multiplied by” clause of
the DOJ Plan mandates multiplication. That clause does
not stand by itself, but rather modifies the “amounts” that
“may be paid.” It does not state that the amounts shall or
must be multiplied. It merely defines the maximum bonus
that the Office of Personnel Management may pay relocat-
ing employees. Thus, the “multiplied by” clause does not
Case: 21-1678 Document: 38 Page: 5 Filed: 12/10/2021
BELL v. US 5
rebut the strong presumption that the statute and regula-
tions are not money mandating.
III
We have considered Appellants’ other arguments and
find them unpersuasive. Since the Claims Court correctly
dismissed for lack of jurisdiction, we affirm.
AFFIRMED