Hindman v. United States

• Decision Date: 20 March 2017
• Docket Number: No. 16-257,16-257
• Parties: NICHOLAS HINDMAN, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

NICHOLAS HINDMAN, Plaintiff, v. THE UNITED STATES, Defendant.

No. 16-257

United States Court of Federal Claims

March 20, 2017

5 U.S.C. § 5305 (Special Rates Of Pay);

5 U.S.C. § 5596 (Back Pay Act);

5 U.S.C § 5754 (Federal Workforce Flexibility Act of 2004, Retention Bonuses);

28 U.S.C. § 1491 (Tucker Act Jurisdiction);

5 C.F.R §§ 530.301-309 (Special Rates of Pay)

5 C.F.R. §§ 575.301-314 (Retention Incentives);

Rules of the United States Court of Federal Claims ("RCFC") 12(b)(1), 12(b)(6).

Timothy A. Bridge, St. Charles, Illinois, Counsel for Plaintiff.

Jimmy S. McBirney, United States Department of Justice, Civil Division, Washington, D.C., Counsel for the Government.

MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Chief Judge.

I. RELEVANT FACTUAL BACKGROUND.¹

On January 3, 2010, the United States Department of Veterans Affairs ("VA") hired Nicholas Hindman and assigned him to the Edward Hines Jr. VA Hospital ("the VA Hospital"). Compl. ¶ 5. The VA employed Mr. Hindman as a Law Enforcement Officer ("LEO"), pursuantto 5 U.S.C. § 4521² and 5 U.S.C. § 5541(3),³ from January 3, 2010 to January 3, 2016. Compl. ¶ 5. The United States Office of Personnel Management ("OPM") authorized the VA Hospital toimplement a group retention payment policy for LEOs, pursuant to 5 U.S.C. § 5754.⁴ Compl. ¶ 6. Under the VA's Retention Incentive Policy ("the retention pay policy"), as set forth in VA Directive And Handbook 5007/46, Pay Administration ("the VA Handbook"), LEOs may beeligible for additional retention pay after completing Law Enforcement Training and 90 days of employment. VA Handbook pt. VI, ch. 3, § 6(d).⁵

On or about April 1, 2010, Mr. Hindman completed Law Enforcement Training and 90 days of continuous employment as a LEO. Compl. ¶ 7. The first pay period following this date was on April 10, 2010. Compl. ¶ 7. Although Mr. Hindman satisfied the conditions required by the retention pay policy, the VA Hospital failed to pay Mr. Hindman retention pay from April 20, 2010 to November 20, 2011. Compl. ¶ 10. The VA Hospital also provided no excuse or explanation for failure to pay Mr. Hindman retention pay. Compl. ¶ 10.

On July 1, 2015, counsel for Mr. Hindman submitted a demand letter to the VA Hospital for earned, but unpaid, retention pay for FY 2010-11. Pl. Resp. Ex. A. On July 22, 2015, the Acting Hospital Director responded as follows:

Based on Officer Hindman's records he would have become eligible to receive retention after April 1, 2010, after he had completed the Law Enforcement Training Center and reached his 90th day of employment. The first pay period following this date began on April 10, 2010. However according to the review retention was not made effective for Officer Hindman until November 20, 2011.

Our Human Resources Office will work with our payroll office to determine exact calculations regarding the retention pay the Officer Hindman did not receive. Although, per policy retention incentives cannot be paid retroactively, arrangements can be made to pay the amount identified in this review as a lump sum payment.

Pl. Resp. Ex. B.

To date, the VA Hospital continues to refuse to pay Mr. Hindman retention pay earned between April 10, 2010 and November 20, 2011. Compl. ¶ 10.

II. PROCEDURAL HISTORY.

On July 1, 2015, Mr. Hindman filed a complaint, pursuant to the Equal Employment Opportunity Act ("EEOA"), with the VA Office of Resolution Management ("ORM") seeking back pay for his retention bonuses and alleging discrimination based on his race and sex. Gov't Mot. Ex. B at 2. The ORM subsequently conducted an investigation. Gov't Mot. Ex. B at 2.When the investigation concluded, the VA notified Mr. Hindman in writing of the right to request a hearing and a decision by an Equal Employment Opportunity Commission ("EEOC") Administrative Law Judge. Gov't Mot. Ex. B at 2. Mr. Hindman requested a hearing before an EEOC Administrative Law Judge, and, on January 20, 2016, the EEOC Administrative Law Judge issued an order acknowledging Mr. Hindman's complaint. Gov't Mot. Ex. A. at 1.

On February 24, 2016, Mr. Hindman ("Plaintiff") filed a Complaint in the United States Court of Federal Claims alleging that the VA engaged in an unjustified or unwarranted personnel action. Compl. ¶ 13. The February 24, 2016 Complaint seeks relief under the Back Pay Act, 5 U.S.C. § 5596,⁶ in the amount of $8,160.20 for unpaid LEO retention bonus pay earned between April 1, 2010 and November 20, 2011, plus interest and attorney's fees. Compl. ¶ 15.

On May 23, 2016, the EEOC Administrative Law Judge issued a procedural decision dismissing Plaintiff's EEOA complaint, pursuant to 29 C.F.R. § 1614.107(a)(3),⁷ becausePlaintiff's February 14, 2016 Complaint in the United States Court of Federal Claims concerned the same underlying issues as the administrative EEOA complaint. Gov't Mot. Ex. A at 3. The Office of Employment Discrimination Complaint Adjudication ("OEDCA") received the judge's decision on June 1, 2016. Gov't Mot. Ex. B at 2. On June 13, 2016, OEDCA entered a final order finding that the EEOC Administrative Law Judge's decision was factually and legally correct and dismissing Plaintiff's EEOA complaint. Gov't Mot. Ex. B at 3. On July 1, 2016, Plaintiff appealed the dismissal to the EEOC. Gov't Mot. Ex. C at 1.

On August 2, 2016, the Government filed a Motion To Dismiss the February 24, 2016 Complaint ("Gov't Mot.") for lack of jurisdiction, pursuant to Rule of the United States Court of Federal Claims ("RCFC") 12(b)(1), and for failure to state a claim upon which relief could be granted, pursuant to RCFC 12(b)(6). ECF No. 10. On August 17, 2016, Plaintiff filed a Response/Objection To Defendant's Motion To Dismiss ("Pl. Resp."). ECF No. 14. On August 29, 2016, the Government filed a Reply In Support Of Defendant's Motion To Dismiss ("Gov't Reply"). ECF No. 15.

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 Memorandum Opinion and Order, the court informed the Government that the court required certain documents to adjudicate the issue of jurisdiction, including: (1) the VA Hospital's Group Authorization of "retention bonuses" for LEOs; (2) the Retention Service Agreement, signed by Plaintiff; and (3) any other relevant documents concerning the VA Hospital's "retention bonus" policy. Id. at *1.

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, 2017 Response to the Government's August 2, 2016 Motion To Dismiss. Pl. Mot. at 2.

On February 3, 2017, the Government filed a Reply to Plaintiff's Supplemental Response ("2/3/17 Gov't Reply"), arguing that the additional discovery sought by Plaintiff was irrelevant to the jurisdictional issue before the court. 2/3/17 Gov't Reply at 4.

On February 28, 2017, the court issued a Memorandum Opinion and Order, declining to authorize the additional discovery requested by Plaintiff, but reaffirming the court's January 10, 2017 Memorandum Opinion And Order Regarding Jurisdictional Facts Required. See Hindman v. United States, No. 16-257, 2017 WL 770682, at *2 (Fed. Cl. Feb. 28, 2017).

On March 10, 2017, the Government filed a Submission Of Documents In Response To The Court's January 10, 2017 Memorandum Opinion And Order ("Gov't Sub."), attaching:

• the VA Hospital's November 4, 2011 "Group Retention Incentive Request" for LEOs, approved by Hospital Director Sharon M. Helman (Gov't Sub. Ex. at 1-2);⁸

• the VA Hospital's July 13, 2014 "Authorization And Review Of Retention Incentive," that extended the group retention bonus authorization through July 11, 2015 (Gov't Sub. Ex. at 3-5);

• the VA Hospital's August 9, 2015 "Authorization And Review Of Retention Incentive," that extended the group retention bonus authorization through August 6, 2016 (Gov't Sub. Ex. at 6-8);

• Plaintiff's September 12, 2014 Retention Service Agreement for the period of September 21, 2014 through September 19, 2015, approved on September 25, 2014 (Gov't Sub. Ex. at 9);

• Plaintiff's June 15, 2015 Retention Service Agreement for the period of July 12, 2015 through July 9, 2016, approved on June 17, 2015 (Gov't Sub. Ex. at 10); and

• the VA's July 1, 2013 Standard Operating Procedure ("SOP") 575-3, Procedures For Administering The Retention Incentive Process (Gov't Sub. Ex. at 11-43).

III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C. § 1491, "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). The Tucker Act, however, is "a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages. . . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976).

Therefore, to pursue a substantive right under the Tucker Act, a plaintiff must identify and plead...