[00:00:34] Speaker 03:
The next case is Nicholas Heineman, if that's proper pronunciation, versus the United States, 2017-2066, Mr. Bridge.

[00:00:47] Speaker 03:
Is it Heineman or Hineman?

[00:00:49] Speaker 02:
Pardon me?

[00:00:49] Speaker 03:
Is it Heineman or Hineman?

[00:00:51] Speaker 03:
Hineman.

[00:00:51] Speaker 03:
Hineman.

[00:00:55] Speaker 02:
May it please the Court?

[00:00:58] Speaker 02:
This is an action for earned but unpaid retention pay.

[00:01:01] Speaker 02:
by Mr. Hinman, a V.A.

[00:01:03] Speaker 02:
police officer at Hines V.A.

[00:01:06] Speaker 02:
That's in Hines, Illinois.

[00:01:08] Speaker 02:
A couple of facts, short ones, are relevant.

[00:01:11] Speaker 02:
Mr. Hinman became a L.E.O.

[00:01:14] Speaker 02:
or a law enforcement officer at Hines January 3, 2010.

[00:01:17] Speaker 02:
Now, at the time of his hiring in 2010 and through the period of his employment, the retention incentive program at the Hines provided a 10 percent retention.

[00:01:30] Speaker 03:
But he needs a statute.

[00:01:32] Speaker 03:
If he's to recover in the claims court, what statute are you relying on?

[00:01:36] Speaker 02:
We're looking at the statute which would be 5754 and 5 USC 5305.

[00:01:40] Speaker 02:
5754 says May.

[00:01:45] Speaker 03:
So that's permissive.

[00:01:47] Speaker 02:
It is indeed the language of a permissive statute.

[00:01:50] Speaker 02:
However, the case law, looking at these particular statutes, is fairly clear.

[00:01:55] Speaker 02:
And that is, although a language or statute has perhaps permissive parts of it,

[00:02:01] Speaker 02:
Where the conditions precedent are already accomplished, there is no discretion left.

[00:02:09] Speaker 04:
Let me say it this way.

[00:02:10] Speaker 04:
Your problem is that the handbook requires a specific determination that it's necessary and appropriate to make these retention payments.

[00:02:24] Speaker 04:
And the memorandum authorizing those payments

[00:02:30] Speaker 04:
that came into effect on November 4, 2011.

[00:02:33] Speaker 04:
And I don't understand how, under those circumstances, he could get the retention pay before it was authorized.

[00:02:41] Speaker 04:
And he started getting it immediately the next pay period after the authorization.

[00:02:46] Speaker 02:
Right.

[00:02:46] Speaker 02:
The government in this case indicated that they didn't have any evidence of a group incentive pay before 2011.

[00:02:54] Speaker 02:
And at the trial level, I filed a supplemental document showing that, indeed, incentive pay began as early as 2008, not 2011.

[00:03:05] Speaker 04:
For some groups or some people, that may have been true.

[00:03:10] Speaker 04:
But here, the thing that's dated and signed on November 4, 2011 is the first authorization that applies to this person.

[00:03:24] Speaker 02:
I would have... You're familiar with the document, right?

[00:03:28] Speaker 02:
Yes, I am.

[00:03:30] Speaker 02:
Now, I think that question may be answered by the director's findings in his case when he was asked for the payment.

[00:03:37] Speaker 02:
And that's, quote, the director says, based upon Officer Hinman's record, he would have been entitled to receive retention pay on April 10, 2010, but he was not actually paid the retention pay until November 20, 2011.

[00:03:52] Speaker 02:
So there's no question

[00:03:53] Speaker 02:
that once the issue was posited to the director of the agency, he made an administrative decision saying, yes, we have the records.

[00:04:02] Speaker 02:
Yes, those records show that all police officers in this sector got retention pay.

[00:04:08] Speaker 02:
We are now, based upon that review, going to pay you.

[00:04:13] Speaker 02:
So there's a clear question of, first, when did the retention policy go into effect?

[00:04:19] Speaker 04:
Why isn't it just a situation where he made a mistake?

[00:04:22] Speaker 04:
and the actual records now that we have them in front of us show that there was no authorization before November 4th.

[00:04:30] Speaker 02:
Fair question, Your Honor.

[00:04:31] Speaker 02:
The reason why you don't have all the records in front of you is because the trial court denied me and the plaintiff any right to conduct discovery at the time the 12b1 and 12b6 were pending.

[00:04:44] Speaker 02:
Instead, he said, I would like the agencies to produce various described documents

[00:04:51] Speaker 02:
which were insufficient to establish the issue.

[00:04:53] Speaker 02:
The issue being, was there a policy in effect, a VA policy, at the time in 2010, and if so, was he entitled to payment?

[00:05:05] Speaker 02:
That request for that document, and it was a very specific request, please just provide the plaintiff from 2008 to the present, those officers who receive retention pay.

[00:05:18] Speaker 02:
Nothing more, nothing less.

[00:05:21] Speaker 02:
We have an incomplete record because the Court said, we're not going to allow you to do that.

[00:05:25] Speaker 02:
We're going to allow the agency to produce half a loaf from 2.11 forward.

[00:05:31] Speaker 02:
And your request and your suggestion that that policy existed in 2008 all the way through this period of time existed, we're not going to let you find that out.

[00:05:43] Speaker 02:
And that's the second part of our argument in this case, which was the conversion of this case basically by the Court from a

[00:05:51] Speaker 02:
motion to dismiss to really a summary disposition.

[00:05:55] Speaker 02:
And I think that we spent a lot of time in a brief talking about 12D and a requirement once a trial court decides to move into extraneous evidence outside the pleadings and effectively relies on those extraneous documents or partial evidence from other than the pleadings.

[00:06:17] Speaker 02:
But the plaintiff is entitled to full discovery at that point.

[00:06:20] Speaker 01:
Can I ask you a question?

[00:06:21] Speaker 01:
You rely on this July 22, 2015 letter, right?

[00:06:25] Speaker 02:
From the director, yes.

[00:06:26] Speaker 02:
Right.

[00:06:26] Speaker 01:
So in order to get a money-mandating statute, at some level from the statute or on down, permissive language has to be translated into some kind of mandatory language.

[00:06:46] Speaker 01:
I thought you said a moment ago, you used the word of entitlement, that this July 22, 2015 letter says, you're entitled, you were entitled to it.

[00:06:58] Speaker 01:
It doesn't say that, does it?

[00:06:59] Speaker 02:
Yes, it does.

[00:07:00] Speaker 01:
It says you are eligible for it.

[00:07:02] Speaker 02:
It says entitled, you will become entitled.

[00:07:05] Speaker 02:
That says, appendix 25.

[00:07:08] Speaker 01:
Right, I'm looking at where in the letter?

[00:07:11] Speaker 03:
It says would have become, would have become.

[00:07:14] Speaker 02:
Entitled, right.

[00:07:15] Speaker 03:
Eligible.

[00:07:16] Speaker 01:
Eligible.

[00:07:17] Speaker 02:
I'm sorry?

[00:07:18] Speaker 01:
Eligible is different from entitled.

[00:07:20] Speaker 01:
Entitled, at least, might suggest something mandatory.

[00:07:24] Speaker 01:
Eligible doesn't.

[00:07:28] Speaker 02:
Eligible, you're correct.

[00:07:30] Speaker 02:
Excuse me, Your Honor.

[00:07:31] Speaker 02:
It is the term eligible.

[00:07:32] Speaker 01:
Right.

[00:07:32] Speaker 01:
So that's what I guess what I was asking about.

[00:07:34] Speaker 01:
OK.

[00:07:34] Speaker 01:
That this doesn't seem to me to make the crucial jump from permissive discretionary language to entitlement language.

[00:07:45] Speaker 02:
Fair question.

[00:07:46] Speaker 02:
The issue that the courts have all looked at is when we deal with the question of May or unauthorizing but not mandating statute is, has there been an active or actual decision by that agency to implement the retention pay?

[00:08:05] Speaker 02:
Once that action has occurred and is alleged to have occurred, as in this complaint, these States, the director of that facility,

[00:08:14] Speaker 02:
implemented that plan, OPM's plan saying you can have this retention.

[00:08:20] Speaker 02:
Once that occurs, there's no more discretion or may argument left.

[00:08:26] Speaker 02:
Now, if that hadn't been implemented and wasn't longstanding from 2008 all the way through the period in question, then there's a good argument that it would have been a may issue.

[00:08:39] Speaker 02:
But when we approach these facts, we approach these facts from the decision-making

[00:08:43] Speaker 02:
of a director who decided, at least as early as 2008, to implement the retention pay policies in his own policy under 5754.

[00:08:54] Speaker 02:
So it really is kind of a cloud saying this may or may not occur.

[00:08:59] Speaker 02:
It did occur.

[00:09:00] Speaker 02:
Wait.

[00:09:01] Speaker 02:
I'm sorry.

[00:09:01] Speaker 04:
In this November 4 letter, he says, we are requesting approval for a 10 percent group retention incentive for Hines Police Officers Series GSOT3.

[00:09:14] Speaker 04:
That includes your client, right?

[00:09:17] Speaker 04:
Yes.

[00:09:20] Speaker 04:
Why isn't that determinative of that was the authorization that you have to rely on and that that was for paid periods for which he actually got compensation?

[00:09:35] Speaker 02:
He received his compensation beginning in November 11.

[00:09:38] Speaker 02:
The question is, was he entitled to it before?

[00:09:41] Speaker 02:
That's answered by only if, yes he is, only if he can show that the retention policy or retention plan was adopted by that agency from 2008 on.

[00:09:52] Speaker 02:
If he can show that evidence, there's no question.

[00:09:57] Speaker 02:
In fact, it's a summary judgment for the plaintiff.

[00:09:59] Speaker 02:
There is no defense.

[00:10:01] Speaker 02:
Once you adopt the policy, you implement it at your agency, you've made that discretionary determination to implement the policy.

[00:10:11] Speaker 02:
In this case, there were two requirements, 90 days of continuous employment and your completion of training.

[00:10:19] Speaker 02:
In this case, Hinman completed his training, continued 90 days of continuous employment, and made his demand.

[00:10:27] Speaker 02:
That's when the letter from the director comes forward and said, we will compute the amount we owe you.

[00:10:33] Speaker 02:
There was no argument about it.

[00:10:35] Speaker 02:
There was no contest about it.

[00:10:37] Speaker 02:
When the director looked at it, he said,

[00:10:39] Speaker 02:
our records reflect you should have been receiving this effect of April 1.

[00:10:44] Speaker 02:
He makes that determination.

[00:10:45] Speaker 02:
It's a clear admission, but even in the absence of an admission, the evidence shows, in fact, as our supplemental request indicates, even in 2008, that retention was paid to each and every officer at the Hines VA.

[00:11:02] Speaker 02:
So as I sit here before you today, Mr. Himm is the only officer I'm aware of

[00:11:07] Speaker 02:
from 2008 to the present that wasn't paid as retention pay.

[00:11:15] Speaker 02:
And I think, Your Honor, the case of Fisher versus, I'm sorry, Roberts versus United States really deals with this case, I think, straight on.

[00:11:25] Speaker 02:
And that's the fair interpretation rule.

[00:11:28] Speaker 02:
It says where you can show that an agency, and in this case, an OPM reg, provides for the payment of retention.

[00:11:36] Speaker 02:
and that that is a fairly straightforward interpretation of not only their actions, but the VA handbook provisions that they implemented, implemented specifically to provide 5754 pay, retention pay.

[00:11:55] Speaker 02:
Once that occurs, then there's a fair interpretation that the plaintiff is entitled to a trial on the merits.

[00:12:03] Speaker 02:
This case really is a confusion in that the Court of Claims

[00:12:07] Speaker 02:
didn't limit itself to a jurisdictional finding.

[00:12:10] Speaker 02:
It actually decided the merits of the case.

[00:12:13] Speaker 02:
And that's why the plaintiff is entitled not only to have this reversed and remanded, but an opportunity to show, on record, the actual pay period 2008 to the president.

[00:12:25] Speaker 03:
With that, I'll reserve that.

[00:12:27] Speaker 03:
Thank you, counsel.

[00:12:27] Speaker 03:
We'll save you a little time.

[00:12:30] Speaker 03:
Mr. McBurney.

[00:12:34] Speaker 00:
Good morning, Your Honor.

[00:12:35] Speaker 00:
May it please the Court?

[00:12:36] Speaker 00:
Jimmy McBurney on behalf of the United States.

[00:12:39] Speaker 00:
I think your honor's hit it straight on.

[00:12:41] Speaker 00:
This really is a simple statutory interpretation question.

[00:12:44] Speaker 00:
And the question before the court is whether section.

[00:12:47] Speaker 04:
Well, it's not a simple statutory interpretation question.

[00:12:49] Speaker 04:
The question is whether under Roberts there was an authorization under the statute to make these payments before November of 2011.

[00:13:00] Speaker 04:
That's really a factual issue.

[00:13:03] Speaker 00:
Well, I would slightly disagree with that characterization.

[00:13:05] Speaker 00:
I think it's statutory interpretation in the sense that the court needs to look at the statute, section 57 and 54, in conjunction with the implementing regulations and any policies that might have been in place.

[00:13:18] Speaker 00:
Where I would slightly disagree with your characterization, Judge Dyke, is that even if the implementation was in place at the time, which the record is quite clear it was not, one would still have to look at that implementation and determine whether, under the rules set forth in Roberts,

[00:13:34] Speaker 00:
It was such a policy that once certain conditions are met, the agency then mandates payment.

[00:13:41] Speaker 04:
Well, why is it so clear that it was not in place at the time?

[00:13:45] Speaker 04:
Because she has submitted a letter from 2008 which seems to address incentive payments for this class of officers and says that they will receive the payments.

[00:14:03] Speaker 04:
So it's a little mysterious as to what happened here, because in 2008, they seemed to be getting the incentive payments, and then it's not.

[00:14:13] Speaker 04:
And then there's this other authorization of November 2011, which provides for incentive payments.

[00:14:21] Speaker 04:
Is this done on a yearly basis?

[00:14:23] Speaker 04:
How does one reconcile these two pieces of evidence?

[00:14:28] Speaker 00:
Sure.

[00:14:28] Speaker 00:
There's a simple answer to that.

[00:14:29] Speaker 00:
And first, I'll note that, and we talked about this in the brace,

[00:14:33] Speaker 00:
The letter is unauthenticated.

[00:14:34] Speaker 00:
We have some concerns about whether it even should be considered, but.

[00:14:43] Speaker 00:
But putting aside the concerns about whether we should even be looking at that letter, there's a simple explanation from the face of the letter, just taking it at face value, which is that the letter is referring to an individualized incentive award.

[00:14:56] Speaker 00:
The statute talks about two types of potential retention incentives.

[00:15:00] Speaker 00:
There's individual retention incentives, which are up to a maximum of 25%.

[00:15:05] Speaker 00:
And then there's another provision for group retention incentive, which is up to a maximum of 10%.

[00:15:11] Speaker 00:
Mr. Hinman claims entitlement to a group retention incentive.

[00:15:15] Speaker 00:
And that is the authorization that we presented at the request of the trial judge showing that that went into effect in November of 2011.

[00:15:23] Speaker 00:
The unauthenticated letter presented by Mr. Hinman from 2008

[00:15:27] Speaker 00:
is referring to an individualized retention incentive.

[00:15:31] Speaker 00:
And we can see that from the fact that it refers to a retention incentive of 20%, which is obviously above the 10% cap for group retention incentives.

[00:15:42] Speaker 00:
So whether there is some sort of authorization in place in 2008 for individualized retention incentives is entirely irrelevant to the question at hand in this case, which is whether Mr. Hinman was entitled to a group retention incentive.

[00:15:58] Speaker 00:
So I think that's the answer to your Honor's question.

[00:16:00] Speaker 04:
Well, I don't know.

[00:16:02] Speaker 04:
The August 14, 2008 letter doesn't read to me like an individual incentive award.

[00:16:09] Speaker 04:
It looks very much like a group incentive award.

[00:16:15] Speaker 00:
I wouldn't read it that way, Your Honor.

[00:16:16] Speaker 04:
It says, congratulations on your selection of the position of police officer, GSO 83-6, the salary includes a retention incentive.

[00:16:26] Speaker 00:
Right.

[00:16:26] Speaker 00:
And I think, you know, the way we know, again, that that must be individualized is because it goes on to state that the incentive is 20 percent, and the statute explicitly caps group retention incentives at 10 percent.

[00:16:39] Speaker 00:
Individualized retention incentives are capped at 25 percent, so that letter would be consistent with an individualized retention incentive.

[00:16:48] Speaker 00:
So we do think the record is quite clear, and there's no real factual dispute

[00:16:54] Speaker 00:
about the fact that there wasn't a retention incentive in place for a group retention incentive at the time at issue.

[00:17:01] Speaker 00:
That being said, I would also note that even if there were, that would not in this case under these facts change the discretionary nature of Section 5754 as implemented in the regulations, because as we talked about in our briefs, as we see in the regulations from OPM, as we see in the DA handbook,

[00:17:20] Speaker 00:
What's set forth is absolute discretion for the agency.

[00:17:23] Speaker 04:
I don't understand what you're talking about.

[00:17:25] Speaker 04:
If you look at the November 2011 authorization, there's nothing discretionary about that.

[00:17:33] Speaker 04:
People who were receiving compensation after that period were entitled to the retention bonus, right?

[00:17:43] Speaker 00:
I think there's some question about that.

[00:17:44] Speaker 00:
Again, that's not this case because that wasn't even in effect as of the time period at issue.

[00:17:49] Speaker 00:
But our view would be, when we look at the regulations that talk about, look, at any time the agency has the discretion to terminate the retention incentive, even if the conditions that gave rise to it don't change, and in fact the language that a termination of retention incentive or failure to receive it is not appealable or grievable, to us, even under the standards of Roberts, that still retains a level of discretion.

[00:18:13] Speaker 00:
But even if Your Honor disagrees with that, the fact remains that the retention incentive did not go into place for group LEOs until November of 2011, which, and as soon as it did, Mr. Hinman did in fact begin receiving that retention incentive.

[00:18:28] Speaker 00:
And in this case, I think that's the beginning and the end of the matter.

[00:18:37] Speaker 04:
What did Judge Braden order the government to produce?

[00:18:42] Speaker 00:
Judge Braden ordered the government to produce several items, and those included, I'm looking for her exact language, but they included any retention incentive agreements in place, which obviously we produced.

[00:18:56] Speaker 00:
In fact, if I look at them, I have it right here.

[00:18:58] Speaker 04:
Did she require the production of any decisions to award retention incentives?

[00:19:10] Speaker 00:
No, no, she did not.

[00:19:11] Speaker 00:
Her request was for the hospital's group authorization of retention bonuses for LEOs, any retention service agreement signed by plaintiff.

[00:19:20] Speaker 00:
What page does this have?

[00:19:22] Speaker 00:
I don't think this is in the appendix, unfortunately.

[00:19:24] Speaker 00:
It's docket 17 on the Court of Federal Claims docket.

[00:19:28] Speaker 00:
And unfortunately, it did not make it into the appendix.

[00:19:32] Speaker 00:
But it is on the first page of docket 17.

[00:19:34] Speaker 00:
And she also asked for any relevant documents concerning the VA hospital's retention bonus policy.

[00:19:40] Speaker 00:
She did not ask for any other individuals who had received retention incentive for the sole reason that that would be entirely irrelevant.

[00:19:49] Speaker 04:
I guess that's not my question.

[00:19:51] Speaker 04:
I'm sorry.

[00:19:51] Speaker 04:
My question is, did she direct the government to produce any documents like the November 4th document, 2011 document?

[00:20:01] Speaker 00:
Yes, in the sense that she had asked the government to produce any VA group authorization for retention incentives.

[00:20:08] Speaker 00:
And so that would have included any document like the November 4th document, yes, Your Honor.

[00:20:12] Speaker 00:
And we produced all documents that existed in that category.

[00:20:15] Speaker 00:
And again, there was nothing earlier than that document that existed.

[00:20:20] Speaker 00:
With regards to the discovery request that was asked for by plaintiffs, documents evidencing other individuals who may have received discretionary retention bonuses was completely irrelevant to the jurisdictional question before the court.

[00:20:35] Speaker 00:
Now, you know, there might be some sort of argument about whether that could have been relevant to America's determination.

[00:20:40] Speaker 00:
But again, that's not what the court ruled on.

[00:20:41] Speaker 00:
The court ruled solely on jurisdictional grounds.

[00:20:44] Speaker 00:
And the question there is whether there was something mandating the government to provide these bonuses to individuals who met specified standards set forth by the agency.

[00:20:54] Speaker 00:
And regardless of whether that circumstance existed as of November of 2011, it certainly was not the case during the time period of issue that Mr. Heman is claiming unpaid pay for.

[00:21:04] Speaker 01:
And I realize it's not an issue here, but since you brought it up, is your position about the November 2011 policy not qualifying as one that would generate money mandating, consistent or inconsistent with Roberts and other cases where we have found

[00:21:31] Speaker 01:
certain kinds of agency implementations of discretionary language and statutes to qualify?

[00:21:41] Speaker 00:
It would be consistent, Your Honor.

[00:21:42] Speaker 00:
And again, we haven't taken a firm position on whether that authorization would or would not mandate payment because that's not the facts of this case.

[00:21:50] Speaker 00:
But the important principle under Roberts is when you have an authorization that says, okay, anybody who meets Standard A, B, and C is entitled to this payment,

[00:21:59] Speaker 00:
that can render it money-mandating.

[00:22:01] Speaker 00:
If you have an authorization that says, okay, people who meet these particular standards may be entitled to, well, may be eligible for a retention incentive at the further discretion of the agency, our view is even under Robert's, that's not money-mandating, because there's still discretion.

[00:22:16] Speaker 01:
Individuals... Do you think November 2011 is in that second category?

[00:22:21] Speaker 00:
I believe it is.

[00:22:22] Speaker 00:
I would have to look at it more carefully if that was the case.

[00:22:24] Speaker 00:
I don't want to take a firm position there, but I don't think that it has

[00:22:27] Speaker 00:
the type of language we saw in Roberts, where it was very clear that if you meet this category, you are entitled to the payment.

[00:22:33] Speaker 00:
Again, though, I haven't looked at it that closely, because that's not this case.

[00:22:37] Speaker 04:
I can't imagine why he didn't include this document in the appendix.

[00:22:41] Speaker 04:
It's a fair question, Your Honor.

[00:22:44] Speaker 00:
If there are not any further questions, then I would ask for affirmance of the district court's decision.

[00:22:50] Speaker 00:
Thank you, Your Honors.

[00:22:51] Speaker 03:
Mr. Bridge has some rebuttal time, three and a half minutes.

[00:22:55] Speaker 02:
Thank you, Your Honor.

[00:22:59] Speaker 02:
Getting back to the statutory authority, we've already looked at 5754, but I wanted to advise the court that 5305, 5 USC 5305 is pertinent here because it actually makes retention pay a part of the basic rate of pay for the officer.

[00:23:17] Speaker 02:
It's incorporated as a basic rate of pay.

[00:23:22] Speaker 02:
So in other words, when you're looking for statutory authority, quite apart from the discretion that's already been exercised,

[00:23:29] Speaker 02:
that recognizes statutory, that's your paycheck.

[00:23:33] Speaker 02:
And even though it's an incentive, it becomes part of your basic pay.

[00:23:39] Speaker 02:
The case of Roberts, I would submit to the court, respectively, that that stands for the proposition I'm arguing.

[00:23:48] Speaker 02:
Once there has been a discretion, there is nothing further to assess other than

[00:23:55] Speaker 02:
Did the applicant, or in this case, the law enforcement officer, meet the conditions preceding?

[00:24:01] Speaker 02:
Once he meets those conditions preceding the 90 days in the law enforcement training, there's no other discretion left.

[00:24:09] Speaker 02:
Hence, I would submit to the court that having been allowed to go through and obtain those documents showing who was and was not paid for 2008 and forward, every single officer that I'm aware of was paid.

[00:24:23] Speaker 02:
And whether you call it group or individual or otherwise, every single officer that I'm aware of, there weren't some officers paid and some officers not.

[00:24:32] Speaker 02:
They were all in the same group.

[00:24:34] Speaker 02:
They were all LEOs.

[00:24:35] Speaker 02:
And they were all subject to a retention.

[00:24:38] Speaker 02:
I think the plaintiff clearly was entitled to explore that at the Court of Claims.

[00:24:44] Speaker 02:
And rather than face a summary disposition, I think 12D is clear that we were entitled

[00:24:51] Speaker 02:
to fully prepare ourselves to respond to essentially a summary disposition of the case.

[00:24:57] Speaker 02:
With that, I thank the courts for the time.

[00:24:59] Speaker 03:
Thank you, counsel.

[00:25:00] Speaker 03:
We'll take the case under advisement.