Crawley v. United States

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