[00:00:11] Speaker 02:
Final case for argument this morning is 15-5126, Acevedo versus United States.

[00:00:39] Speaker 02:
Let everybody settle in their seats.

[00:00:45] Speaker 01:
Morning, Your Honors.

[00:00:46] Speaker 01:
Good morning.

[00:00:48] Speaker 01:
My name is Jules Bernstein.

[00:00:50] Speaker 01:
I am accompanied by my co-counsel, Linda Lipset.

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This case involves the wage claims of some 77 customs and border protection employees who serve as supply chain security specialists.

[00:01:09] Speaker 01:
They assert that they are entitled to danger pay under 5 U.S.C.

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5928 because they meet the requirements that the Secretary of State has established in the DSSR regulations, as well as their agencies' policies and practices of paying danger pay to qualified employees.

[00:01:36] Speaker 04:
Can I just ask?

[00:01:38] Speaker 04:
Pardon?

[00:01:38] Speaker 04:
Can I just ask?

[00:01:39] Speaker 04:
You don't dispute that the statute by its... I'm going to take these things in order, so the series of questions.

[00:01:45] Speaker 04:
Of course.

[00:01:45] Speaker 04:
That the statute by itself doesn't make this claim that we're the source of the law here a money-mandating... I would say, Your Honor, our position is that, although it's not our principal position, that in this case the statute and the DSSR

[00:02:07] Speaker 01:
do make danger pay mandatory.

[00:02:11] Speaker 01:
But we don't have to deal with that, because in this case, the agency has been paying danger pay to its employees since 2005.

[00:02:22] Speaker 03:
But you didn't answer Judge Toronto's question.

[00:02:27] Speaker 03:
And that is whether the statute that uses the word may being permissive is money mandated.

[00:02:34] Speaker 01:
I would say that

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The issue of May is not in this case.

[00:02:40] Speaker 03:
But that's the statute, isn't it?

[00:02:41] Speaker 01:
Well, yes, Your Honor.

[00:02:42] Speaker 01:
But the statute, what the statute says is they may get it for this purpose or that purpose or in this situation.

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But it doesn't say anything about the regulations of the Secretary of State.

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But what about the Roberts case?

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Yes, we believe that the statute and the regulation themselves are only authorizing, not money-mandating.

[00:03:08] Speaker 01:
That's not the holding of the Roberts case.

[00:03:12] Speaker 01:
The Roberts case, in the context of the LQA, the living quarter allowance, the statute and the regulations are not money-mandating.

[00:03:26] Speaker 01:
But that was not the holding in the Roberts case.

[00:03:29] Speaker 01:
The holding in the Roberts case was that the statute, the DSSR, and the implementing regulations of the Defense Department made the LQA money mandating.

[00:03:46] Speaker 01:
So, pardon.

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Can I ask on the statute and the regulations, is there a difference between the living quarter, living quality?

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I don't know what the Q stands for.

[00:03:57] Speaker 01:
Yes, the living quarters allowance.

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The living quarters allowance and the danger pay, or those?

[00:04:02] Speaker 01:
Yes, yes.

[00:04:02] Speaker 01:
That is to say, there must be implementing regulations for living quarter allowance.

[00:04:10] Speaker 01:
But there need not be any

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implementing regulations for danger pay.

[00:04:18] Speaker 01:
Indeed, the Secretary of State says in her DSSR, the agency may implement supplementary regulations, but in this case, the only regulations that the agency implemented was the practice of paying

[00:04:37] Speaker 01:
Danger pay.

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It paid danger pay to over 550.

[00:04:41] Speaker 02:
Can I ask you, I couldn't see anything in the record.

[00:04:45] Speaker 02:
I mean, you mentioned the number, 551 people have been paid that.

[00:04:49] Speaker 02:
Is there anything in the record to indicate that?

[00:04:50] Speaker 01:
Yes, there is the declaration of Ms.

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Lipset, who went through tens of thousands of pages of documents provided by the government that demonstrated

[00:05:02] Speaker 01:
that there had been payment of danger pay.

[00:05:05] Speaker 01:
No, no, no.

[00:05:05] Speaker 01:
Well, let me finish my question.

[00:05:07] Speaker 01:
Yes, of course.

[00:05:07] Speaker 02:
Because my question is, 551 out of how many requests, or how many people who could have potentially followed?

[00:05:15] Speaker 01:
There's nothing in the record with regarding requests.

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So that number is kind of hard to evaluate the import of that number.

[00:05:21] Speaker 02:
If there were only 551 requests, and the 551 grants means that every time anyone sought danger pay, they got it, that

[00:05:32] Speaker 02:
came in kind of ways in your favor.

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But we don't know if 10,000 people asked for it and only 551 got it.

[00:05:39] Speaker 01:
We know nothing about that.

[00:05:40] Speaker 02:
So that number isn't very helpful in terms of demonstrating that this is a money-mandating versus a money-authorizing statute, right?

[00:05:48] Speaker 01:
But what it does demonstrate is that there was a policy to pay danger pay.

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What we say is... Well, that certain people, under certain circumstances, that the agency might decide to grant them danger pay.

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I don't think anybody's disputing that there exists something called danger pay that may or may not be awarded to certain employees, right?

[00:06:10] Speaker 01:
That is true.

[00:06:11] Speaker 02:
Okay.

[00:06:12] Speaker 01:
And what we say is that if an agency has policies, has a policy to pay danger pay, that is sufficient

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Because what the United States Court of Federal Claims said was, there must be a formal policy, a written policy, in order for danger pay to be paid.

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And we say, that's just not the case.

[00:06:40] Speaker 02:
But I'm still a little unclear on what your position is, because nobody is disputing that the agency has, the government would say, in its discretion,

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at various times decided to award danger pay to certain individuals.

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How does the fact that they have awarded certain individuals danger pay inform the issue before us, which is whether or not it's mandatory or discretionary?

[00:07:08] Speaker 01:
Agency has not set forth any regulations or rules that talk about when people are qualified.

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This can't be the law that supervisors just willy nilly decide you get it and you don't, even though you're equally qualified.

[00:07:27] Speaker 01:
There is a policy to pay danger pay.

[00:07:30] Speaker 01:
That all we want is to get into court

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based upon the Tucker Act to say, we are entitled to danger pay.

[00:07:39] Speaker 01:
And the courtroom, these people work in dangerous places across the world under hazardous conditions.

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And Congress decided that there was to be danger pay for such people.

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And the agency has just willy nilly

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are proceeded to pay.

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As a matter of fact, the government now admits that there was a policy to pay danger pay, even though in the record they say there was no policy.

[00:08:11] Speaker 01:
So I think this is a cop.

[00:08:13] Speaker 04:
What are you referring to when you just said something about the government's admission?

[00:08:17] Speaker 01:
Pardon, Your Honor.

[00:08:17] Speaker 04:
What are you referring to when you say the government now admits that there was a policy?

[00:08:23] Speaker 01:
If you look at page 34 of the government's brief,

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It says we had a policy of paying certain categories of employees, but not these supply chain security specialists.

[00:08:41] Speaker 01:
Now, some supply chain security specialists did get danger pay.

[00:08:49] Speaker 01:
But all throughout,

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The record, there are declarations, sworn declarations, that was no policy.

[00:08:58] Speaker 01:
Well, suddenly we find out in the brief, off the record, that there was a policy to exclude supply chain security specialists and pay others.

[00:09:09] Speaker 01:
We don't know who those others are either.

[00:09:11] Speaker 02:
I'm looking at 34 in the brief, and they say here, contrary to Hoy,

[00:09:17] Speaker 02:
CBP has no clearly established policy stating that CCSS employees will receive danger pay.

[00:09:26] Speaker 02:
Instead, its consistent practice is not to pay danger pay.

[00:09:30] Speaker 02:
So how is that kind of a question by the, and it goes on to say here, although it has paid danger pay to some employees, of course it has, there's no dispute on that, CBP has not.

[00:09:41] Speaker 01:
How are employees supposed to know whether they're entitled to it?

[00:09:45] Speaker 01:
Although here, although it is paid danger pay to some employees, CBP has not established the policy or practice to pay danger pay to SES employees.

[00:09:58] Speaker 01:
Now, if you do not establish a policy, you have a policy not to pay certain people.

[00:10:06] Speaker 01:
They haven't established a policy.

[00:10:08] Speaker 01:
They had a policy to pay other people.

[00:10:12] Speaker 01:
Now, if you look at Roberts, what Roberts says is if you are within a class that's entitled, you have the right to go to court and see whether you're entitled.

[00:10:26] Speaker 01:
And that's a merits issue.

[00:10:27] Speaker 01:
So in Roberts, this court.

[00:10:30] Speaker 02:
said that there was jurisdiction over the... Didn't they base their assertion of jurisdiction on the regulations that existed in that case and don't exist, or the instructions or whatever title we give them?

[00:10:47] Speaker 01:
Yes, that is right.

[00:10:49] Speaker 01:
And we say that in this case, there was similarly a policy to pay danger pay

[00:10:55] Speaker 01:
although it was unwritten.

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And that's where we rely upon the Supreme Court's decision in Gobert for the proposition that policy is made through decisions of courts or agencies or through general administration.

[00:11:11] Speaker 01:
That's what happened here.

[00:11:13] Speaker 01:
There was an administration of paying danger pay.

[00:11:17] Speaker 01:
And so we're in the same position as was the plaintiff in Roberts.

[00:11:26] Speaker 02:
your interior rebuttal, so I don't hear from the government.

[00:11:30] Speaker 02:
Yes, I do.

[00:11:31] Speaker 02:
Thank you.

[00:11:35] Speaker 02:
Ms.

[00:11:36] Speaker 02:
Moore?

[00:11:39] Speaker 00:
May it please the Court, we respectfully request that the Court affirm the judgment of the Court of Federal Claims.

[00:11:44] Speaker 00:
The trial court lacks jurisdiction because the danger pay statute 5 USC 5928 is not a money-mandating statute.

[00:11:53] Speaker 00:
Instead, the danger pay statute is a money authorizing statute.

[00:11:56] Speaker 02:
Can I just ask you, is it the government's position that these particular supply chain security specialists, that it doesn't pay these people danger pay, or simply that it does sometimes, but really it is the government's discretion, and there's no policy to pay them all the time?

[00:12:13] Speaker 00:
Your Honor, there is no policy within the CBP to pay anybody danger pay.

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Plaintiffs, nor anybody else.

[00:12:19] Speaker 00:
There's no policy whatsoever.

[00:12:21] Speaker 02:
But some of them get paid danger pay.

[00:12:23] Speaker 00:
Some have received danger pay in the past.

[00:12:27] Speaker 00:
For jurisdictional purposes, the Court of Federal Claims allowed the parties to engage in limited discovery.

[00:12:33] Speaker 00:
And some of the results of that were that about 550 people have been paid danger pay by CBP.

[00:12:44] Speaker 02:
Do we know if any of those people were the security

[00:12:48] Speaker 00:
Specialists?

[00:12:49] Speaker 00:
Supply chain security specialists?

[00:12:51] Speaker 00:
One was.

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One out of about 551 individuals.

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And this is out of about 60,000 people employed by Customs and Border Protection.

[00:13:00] Speaker 00:
Now, over the years, 60,000 multiple times that because people come and go.

[00:13:06] Speaker 00:
This discovery took place from 2005 to 2014.

[00:13:09] Speaker 02:
So in that... But you must have pretty good documentation on who gets paid and who doesn't, right?

[00:13:18] Speaker 02:
You have that documentation.

[00:13:20] Speaker 00:
Well, the discovery results revealed that 551 people have been paid danger pay from 2005 to 2014, a nine year period.

[00:13:29] Speaker 02:
Yeah, well the statute says, which is kind of unusual in my experience, it concludes, the provision we've been looking at concludes by saying in each instance where an allowance under this section is initiated or terminated,

[00:13:41] Speaker 02:
the Secretary of State shall inform the Speaker of the House and the Committee on Foreign Relations of the Senate of the action taken and the circumstances justified.

[00:13:50] Speaker 02:
That suggests to me there's got to be a pretty strong paper trail with respect to all of these allowances, right?

[00:13:55] Speaker 00:
Yes, and there's no argument, Your Honor, that these 551 individuals did not encapsulate everybody.

[00:14:02] Speaker 00:
In other words, the key search terms with discovery goes over tens of thousands of documents.

[00:14:08] Speaker 00:
So the plaintiffs are not saying

[00:14:10] Speaker 00:
that the 551 people are not representative of what exactly was pay danger pay to CBP employees.

[00:14:18] Speaker 00:
We don't dispute that 551 people.

[00:14:20] Speaker 00:
or whatever the exact number is, there's a chart in the adjoint appendix.

[00:14:24] Speaker 03:
We're paid danger pay.

[00:14:26] Speaker 03:
We're talking about the waiver of sovereign immunity, right?

[00:14:30] Speaker 03:
Correct.

[00:14:30] Speaker 03:
There is a statute here.

[00:14:32] Speaker 03:
And to be a waiver of sovereign immunity for jurisdictional purposes as opposed to entitlement, does it have to say must?

[00:14:41] Speaker 03:
Can't it say may?

[00:14:42] Speaker 03:
It may waive carbon immunity if other requirements for entitlement are met, and those are dealt with by regulation.

[00:14:53] Speaker 03:
So can't may be money mandating if other requirements are met?

[00:15:01] Speaker 00:
Your Honor, that's sort of a two-fold question to take.

[00:15:05] Speaker 00:
It's a what question?

[00:15:06] Speaker 00:
It's sort of a two-fold question, because there are different

[00:15:10] Speaker 00:
statutory provisions to look at in a certain order here, as in the Roberts case.

[00:15:15] Speaker 00:
First you have the Overseas Differentials and Allowances Act, ODAA.

[00:15:23] Speaker 00:
That was the enabling legislation to allow government agencies such as DHS to pay certain differentials and allowances such as the Danger Pay Act, the Living Quarters Allowance at issue in Roberts,

[00:15:40] Speaker 00:
post allowances, hardship allowances, et cetera, to their employees.

[00:15:45] Speaker 00:
Now that, ODAA, uses the word may.

[00:15:50] Speaker 00:
The agencies may pay their employees these allowances.

[00:15:54] Speaker 04:
And if either state or a particular agency

[00:16:00] Speaker 04:
formally adopted a regulation saying, everybody in these circumstances gets pay.

[00:16:07] Speaker 04:
That would then be within the Tucker Act.

[00:16:09] Speaker 04:
Is this right?

[00:16:10] Speaker 04:
Because the Tucker Act is not limited to statutes, but includes regulations also.

[00:16:14] Speaker 00:
It does include regulations, Your Honor.

[00:16:16] Speaker 04:
But we don't have that either.

[00:16:18] Speaker 00:
We don't have that here, but just to complete the process in step-by-step fashion.

[00:16:23] Speaker 00:
So the Danger Pay Act, as well as the Living Quarters Allowance, the LQA issue on Robert's

[00:16:28] Speaker 00:
They were both enacted pursuant to the enabling legislation, which is the ODA.

[00:16:34] Speaker 00:
They both were.

[00:16:34] Speaker 00:
There are types of allowances, the LQA and Roberts and the Danger Pay Act at issue here.

[00:16:39] Speaker 00:
And both of those statutes also, on their own terms, say may.

[00:16:44] Speaker 00:
In other words, they're both permissive.

[00:16:46] Speaker 00:
This court held in Roberts that statutory language was permissive, the LQA.

[00:16:51] Speaker 00:
That's 5 USA 5923.

[00:16:53] Speaker 00:
So in Roberts,

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It's a similar analysis.

[00:16:56] Speaker 00:
And in Roberts, the court then, because it found that the LQA itself was not money-mandating, it went to the DSSR, Department of State Standardized Regulations.

[00:17:07] Speaker 00:
It looked at that because that was the Department of State's regulations that were promulgated in response to the ODAA.

[00:17:17] Speaker 00:
Those regulations, the court found in Roberts also, they used the word may.

[00:17:23] Speaker 00:
They set the parameters for different allowances in hardship pay, but they give the agencies complete discretion whether or not to pay those allowances or differentials.

[00:17:35] Speaker 00:
And this court held that in Roberts.

[00:17:38] Speaker 00:
The court held that the statutory language plus the DSSR language together was not money mandating.

[00:17:46] Speaker 00:
And this court held that

[00:17:49] Speaker 00:
And I quote, therefore the statute and the DSSR standing alone are not money mandating.

[00:17:54] Speaker 00:
They could only become money mandating if further regulations were implemented requiring payment.

[00:17:59] Speaker 00:
That's at page 1164.

[00:18:02] Speaker 00:
We have nothing here past the DSSR, nothing from the agency, DHS or CBP.

[00:18:09] Speaker 04:
It seems to me that Roberts takes us to the point

[00:18:13] Speaker 04:
where there is something different about this case from that one.

[00:18:17] Speaker 04:
And what's different is that in Roberts, they went beyond the regulations and said there was an order and a directive, I think were the two terms, or something like that.

[00:18:25] Speaker 04:
And this court interpreted those particular formal actions pursuant to delegated authority in a particular way to be mandated.

[00:18:35] Speaker 04:
We don't have that.

[00:18:36] Speaker 04:
Now, my legal question is,

[00:18:40] Speaker 04:
Is there a point at which a practice, if proved, rises to the level of an order or a directive that would therefore support a money-mandating conclusion in the same way that happened that this court drew in Roberts, though without a formal directive here?

[00:19:06] Speaker 00:
Your Honor, I don't think so, because

[00:19:09] Speaker 00:
In all the cases in which this court has found a money-mandating source of payment for these allowances and entitlements or allowances and differentials, in the Doe case, Robert's case, the court always looked to something in writing from the agency, indicating by the agency's own terms that we will pay someone who

[00:19:31] Speaker 00:
is eligible under this criteria, this allowance.

[00:19:34] Speaker 04:
Outside the Tucker Act context, and to the extent you know, kind of in APA land in general, do some agency practices that are not formalized nevertheless get treated as having the same status as a regulation in the specific sense that they are then binding on the agency until change?

[00:19:59] Speaker 00:
Your Honor, perhaps in an APA case, but again, if... I mean, are you aware of authority?

[00:20:05] Speaker 04:
Perhaps isn't helping me.

[00:20:07] Speaker 00:
Your Honor, we are not.

[00:20:08] Speaker 00:
As far as these ODAA differentials and allowances are concerned, in every instance, the Court of Claims cases, in the Trivenich case, for instance, relied on written

[00:20:24] Speaker 00:
directives or orders, regulations, policy, what have you.

[00:20:27] Speaker 00:
It's in writing, something in writing that the agency set forth explicitly that their employees would be paid a certain allowance or differential.

[00:20:39] Speaker 04:
But my question is why, I will assume, because I haven't seen anything to the contrary, that what you just said is accurate as a factual matter.

[00:20:48] Speaker 04:
The question is why that should matter.

[00:20:50] Speaker 00:
It matters because otherwise to say that nothing in writing is required and be it an order or regulation, a policy directive or what have you, to say that nothing in writing is required then opens us up to an ad hoc determination with every government agency for every differential, every allowance for this particular statute and untold other statutory provisions out there to look at every single

[00:21:18] Speaker 00:
payment or non-payment made by every single agency, and that is not what Congress intended.

[00:21:23] Speaker 03:
You're saying that makes the statute not money mandated.

[00:21:28] Speaker 03:
Is that your point?

[00:21:30] Speaker 00:
Your Honor, without something in writing from the agency at regulation, the DSSR speaks of a regulation.

[00:21:38] Speaker 03:
But the lack of a clear regulation makes the statute not money mandated.

[00:21:43] Speaker 00:
Yes, lack of clear regulation.

[00:21:45] Speaker 00:
In Roberts, there was no regulation.

[00:21:48] Speaker 00:
And the court still found jurisdiction.

[00:21:49] Speaker 00:
So in Roberts, there were two instructions and an order.

[00:21:54] Speaker 00:
There was a DOD instruction, a Navy instruction, and a Marine Corps command order.

[00:21:57] Speaker 02:
So under our case, you don't need a regulation.

[00:21:59] Speaker 02:
Something less than that can do it.

[00:22:01] Speaker 00:
According to this court in Roberts, yes.

[00:22:03] Speaker 02:
Well, that's the law we're following here.

[00:22:05] Speaker 02:
I'm not sure why you're taking issue with that.

[00:22:09] Speaker 00:
We're not taking issue.

[00:22:10] Speaker 00:
But the Roberts case did specifically said without further regulations.

[00:22:14] Speaker 00:
Although in Roberts, it used two instructions and an order.

[00:22:17] Speaker 00:
So perhaps they were the equivalent of regulations, what have you.

[00:22:21] Speaker 00:
But in this case, we don't have anything.

[00:22:24] Speaker 00:
We have nothing in writing, no orders.

[00:22:25] Speaker 04:
They must have been the equivalent of regulations, because isn't the word regulation in the Tucker Act?

[00:22:30] Speaker 00:
Regulation is in the Tucker Act, yes.

[00:22:32] Speaker 04:
So it had better be the equivalent of a regulation.

[00:22:34] Speaker 00:
Yes.

[00:22:35] Speaker 00:
The court didn't use the word equivalent, but it was apparently found to be the equivalent, the two instructions and the order.

[00:22:41] Speaker 00:
Again, we have nothing here.

[00:22:42] Speaker 00:
We have no order, no directive, no nothing.

[00:22:44] Speaker 02:
The disturbing thing is, if you push back a little, maybe I've just been part of the government for too long, but they've got broad authority here.

[00:22:51] Speaker 02:
But typically, broad authority that's granted by statute, and even some of the stuff here, suggests that implementing regulations were contemplated.

[00:22:59] Speaker 02:
Because that's normally what happens in the government.

[00:23:02] Speaker 02:
You get a broad discretion in the statute, and then the person in charge with implementing that provision

[00:23:09] Speaker 02:
in order to implement it, has to have some rules.

[00:23:14] Speaker 02:
Because he can't be arbitrary.

[00:23:15] Speaker 02:
He can't be discriminatory.

[00:23:18] Speaker 02:
So this just seems kind of different, now whether it's allowable or just not allowable is another question, or whether it's money mandating.

[00:23:25] Speaker 02:
But doesn't this seem to be an odd circumstance where there's no guidance that exists to ensure that there's fair, non-arbitrary, and non-discriminatory application of this discretionary grant?

[00:23:39] Speaker 00:
Your Honor, in the DSSR, the language of that, the opening provision, Section 013, says, when authorized by law, the head of an agency may defray official residence expenses for and grant post-differentials, including danger pay allowance.

[00:23:58] Speaker 00:
Then below that, it says, within the scope of these regulations, the head of an agency... Well, no, you lifted something out of that provision.

[00:24:05] Speaker 02:
That sentence that you were reading from concludes

[00:24:07] Speaker 02:
subject to the provisions of these regulations and the ability of funds.

[00:24:12] Speaker 02:
So it contemplates regulations that give some guidance, and also the limitation that there is a limitation, and that limitation is the availability of funds, which has nothing to do with the discretion of the implementing act.

[00:24:26] Speaker 00:
Your Honor, what I was going to read was that towards the end of that, or a little bit below from what I had read before,

[00:24:33] Speaker 00:
The DSSR says, within the scope of these regulations, the head of an agency may issue further implementing regulations as he, she may deem necessary for the guidance of his or agency with respect to the, with regard to the granting of and accounting for these payments.

[00:24:48] Speaker 00:
In other words, the agencies do not have to implement regulations on this.

[00:24:53] Speaker 00:
They're not required to.

[00:24:54] Speaker 00:
This is an offer to the agencies to do so.

[00:24:57] Speaker 00:
Here, CBP did not issue regulations, no order, no policy, no nothing.

[00:25:02] Speaker 00:
Neither did DHS.

[00:25:04] Speaker 04:
Can I just ask you, to the extent you know, the Chief pointed out that the last sentence of 5928 from USC says, in each instance where an allowance under this section is initiated or terminated, you basically have to report to Congress.

[00:25:22] Speaker 04:
Can you describe practice under that provision?

[00:25:24] Speaker 04:
Open-ended question.

[00:25:26] Speaker 04:
What's happening, in fact?

[00:25:28] Speaker 00:
Your Honor, that wasn't really the subject of

[00:25:31] Speaker 00:
the discovery in this case, and it's not in the record as to how the agency reported to Congress about the individuals that were getting danger pay.

[00:25:40] Speaker 00:
The discovery was more limited as to who did receive danger pay, and the result was the 550 individuals.

[00:25:48] Speaker 04:
And do you happen to know as a government lawyer whether reports of this sort are getting made?

[00:25:57] Speaker 04:
Your Honor, I don't... Sometimes government lawyers get to inform us about things their clients as a whole have told them.

[00:26:03] Speaker 00:
Your Honor, that was not part of the record below.

[00:26:05] Speaker 00:
It was not really an issue below.

[00:26:07] Speaker 00:
I have no reason to believe, however, that the agency is not reporting an inherent adherence with the statutory requirement.

[00:26:16] Speaker 00:
But it was not really one of the relevant issues.

[00:26:18] Speaker 04:
And can I ask you a question about the discovery?

[00:26:21] Speaker 04:
So the discovery uncovered 500 and something instances of pay.

[00:26:26] Speaker 04:
Was there discovery into the number of requests for such pay?

[00:26:33] Speaker 00:
Your Honor, I don't believe so.

[00:26:34] Speaker 00:
A request for danger pay, I don't believe, was one of the interrogatories, or a request for production of documents.

[00:26:41] Speaker 00:
I see that my time is up.

[00:26:44] Speaker 00:
We respectfully request that the Court affirm the judgment of the Court of Federal Plans.

[00:26:47] Speaker 01:
Thank you.

[00:26:56] Speaker 01:
First, how does anyone in this agency know whether to grant a request for danger pay?

[00:27:05] Speaker 01:
If you are a supervisor, whether you pay it or not, there are no regulations of this agency that tell you anything, or not to pay certain people.

[00:27:17] Speaker 01:
This is not the way the Department of Customs and Border Patrol

[00:27:25] Speaker 01:
Homeland security can function.

[00:27:29] Speaker 01:
Separate and apart from this case, this is quite amazing.

[00:27:34] Speaker 01:
Now, counsel said 60,000 people in the agency, not all of them work in these places that are designated as dangerous by the Secretary of State.

[00:27:45] Speaker 01:
How often they do, who knows?

[00:27:48] Speaker 01:
But a substantial number of employees got paid danger pay

[00:27:53] Speaker 01:
pursuant to a policy to pay danger pay.

[00:27:58] Speaker 01:
We say we are within that policy and are entitled to go to court the same way Roberts was entitled to go to court to say he was entitled to the LQA.

[00:28:10] Speaker 01:
Now, this court said he was properly in court, that there was jurisdiction under the Tucker Act.

[00:28:20] Speaker 01:
But guess what?

[00:28:21] Speaker 01:
He lost in this court on the merits because he did appeal as well.

[00:28:26] Speaker 01:
Now, all we want is our day in court to see whether we're entitled to danger pay.

[00:28:35] Speaker 01:
Of course, someone told Congress, a high-level person in the agency told Congress, told a member of Congress, that one of his constituents, who was one of our clients, was entitled to danger pay.

[00:28:51] Speaker 01:
And a whole slew of people inside the agency in responsible positions made statements to the effect that danger pay is paid to all employees who qualify.

[00:29:06] Speaker 01:
Now, that's a statement of what the policy is.

[00:29:11] Speaker 01:
And I think that, in addition to the fact that it was paid, is sufficient to say, in effect, there is a policy.

[00:29:18] Speaker 01:
And we're entitled to go to court to have that policy implemented for our clients.

[00:29:32] Speaker 01:
As to the statutory reports, I just should say, those reports are to be filed by the Secretary of State, not by the agency.

[00:29:42] Speaker 01:
I thought there was some uncertainty about that.

[00:29:46] Speaker 01:
And Your Honor, let's face it, in the Roberts case, the same statute that said May was involved.

[00:29:56] Speaker 01:
And it didn't stand in the way of this court saying there was jurisdiction there.

[00:30:02] Speaker 02:
Thank you.

[00:30:02] Speaker 02:
Thank you.

[00:30:03] Speaker 02:
We thank both counsels.

[00:30:04] Speaker 02:
The case is submitted.

[00:30:05] Speaker 02:
That concludes our proceedings for this morning.

[00:30:09] Speaker 03:
All rise.

[00:30:20] Speaker 03:
The honorable court is adjourned from day to day.