                   NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                     is not citable as precedent. It is a public record.


 United States Court of Appeals for the Federal Circuit
                                         05-5171

                      STEPHEN CARROLL, GARY BENTON,
                MARK MOODY, STUART HILL, and RONALD BROWNE,

                                                  Plaintiffs-Appellants,

                                             v.

                                     UNITED STATES,

                                                  Defendant- Appellee.

                               ___________________________

                               DECIDED: August 11, 2006
                               ___________________________


Before MAYER, BRYSON, and LINN, Circuit Judges.

PER CURIAM.

                                        DECISION

       The five plaintiffs appeal from a decision of the United States Court of Federal

Claims dismissing the plaintiffs’ action for lack of jurisdiction. Because we concur with

the trial court’s conclusion that the pay statute at issue in this case, 5 U.S.C. § 5378(a),

is not a money-mandating statute, we agree that the Court of Federal Claims did not

have jurisdiction under the Tucker Act, 28 U.S.C. § 1491. We therefore affirm the

decision of the trial court.
                                     BACKGROUND

       The plaintiffs are employed by the Department of Treasury. They work as police

officers at the Bureau of Engraving and Printing in Fort Worth, Texas, and at the U.S.

Mint facilities in Pennsylvania, Kentucky, Colorado, and California. From 1999 to 2002,

Treasury maintained two pay scales, one for officers working in Washington, D.C., and

one for officers in other locations throughout the United States. The pay scale for

officers in Washington was designated “TW,” and the pay scale for officers in other

locations was designated “TR.” The plaintiffs assert that the TW scale has a base

salary approximately 7-9% higher than the TR scale.

      In 2004, the plaintiffs filed an action in the Court of Federal Claims challenging

the difference between the two pay scales as unlawful and seeking compensation for

the difference between the two scales over the period of their employment. Following

briefing and argument, the trial court granted the government’s motion to dismiss for

lack of jurisdiction. The court explained that the Tucker Act creates a cause of action

against the United States only when another statute, regulation, or the Constitution “can

fairly be interpreted as mandating compensation by the Federal Government for the

damage sustained.” Carroll v. United States, 67 Fed. Cl. 82, 84 (Ct. Fed. Cl. 2005)

(“Carroll I”) (quoting United States v. Testan, 424 U.S. 392, 402 (1976)).

      The trial court first rejected the plaintiffs’ claim to the extent that it was based on

the Back Pay Act, 5 U.S.C. § 5596.        Citing our decisions in Worthington v. United

States, 168 F.3d 24, 26 (Fed. Cir. 1999), and United States v. Connolly, 716 F.2d 882,

887 (Fed. Cir. 1983), the court stated that the Back Pay Act, “by itself, cannot be used

as an exclusive basis for Tucker Act jurisdiction.” Carroll I, 67 Fed. Cl. at 85. The court




05-5171                                      2
noted that the plaintiffs had not alleged that their basic pay rate was reduced.

Moreover, the court explained that allegations that “the performance of duties warrant[s]

or justif[ies] higher pay than that previously received does not state a valid claim under

the [Back Pay Act].” Id. (citing Testan, 424 U.S. at 406).

       The court further concluded that the Treasury pay statute at issue, 5 U.S.C.

§ 5378, is not a money-mandating statute as applied to the plaintiffs’ claims.1 The court

explained that section 5378(a) “does not mandate the Secretary to implement a single,

locale-independent, pay scale” but rather “grants the Secretary wide discretion to set

pay rates” within a range of salaries. Carroll I, 67 Fed. Cl. at 86. Noting that the

plaintiffs had not argued that they were paid less than the lower limit of the prescribed

salary range, the court found that “no explicit provision of the statute had been violated.”

Id.   The court therefore granted the government’s motion to dismiss for lack of

jurisdiction.

                                       DISCUSSION

       On appeal, the plaintiffs acknowledge that the Back Pay Act cannot be invoked

without first demonstrating an agency’s violation of an applicable statute or regulation.

The plaintiffs thus concede that their claim “turns on whether 5 U.S.C. § 5378 provides

a basis for jurisdiction.”




       1
            That statute states: “(a) The Secretary of the Department of the Treasury, or
his designee, in his sole discretion shall fix the rates of basic pay for positions within the
police forces of the United States Mint and the Bureau of Engraving and Printing without
regard to the pay provisions of title 5, United States Code, except that no entry-level
police officer shall receive basic pay for a calendar year that is less than the basic rate
of pay for General Schedule GS-7 and no executive security official shall receive basic
compensation for a calendar year that exceeds the basic rate of pay for General
Schedule GS-15.” 5 U.S.C. 5378 (Supp. 2006) (enacted by amendment Oct. 10, 1997).


05-5171                                       3
       The plaintiffs argue that section 5378 is money mandating with respect to their

claims because the discretion granted the Secretary “pertains solely to the

establishment of the level of basic rate of pay for police positions.” According to the

plaintiffs, the pay statute does not authorize a dual pay system for police officers. Yet

the plaintiffs fail to cite any authority that such express authorization is required before

the Secretary can institute a location-based pay system. The statute explicitly states

that the Secretary “in his sole discretion shall fix the rates of basic pay,” reciting only a

single exception to that discretion: that the range of pay be bounded by the basic rate of

pay for General Schedules GS-7 and GS-15. See 5 U.S.C. § 5378(a). Because the

plaintiffs have not alleged that their pay fell outside that range, section 5378(a) does not

grant them any right to recover money damages from the United States.

       Although the plaintiffs contend that this court has previously concluded that the

presence of the word “may” in a statute does not necessarily render the statute wholly

discretionary, the cases on which the plaintiffs rely do not help them. In those cases,

this court concluded that, despite the use of the term “may,” the statutes in question

mandated payment upon proof that some statutory standard was satisfied. Section

5378(a), by contrast, states that the Secretary “in his sole discretion shall fix the rates of

basic pay” and thus plainly does not create a right to a level of pay other than the level

selected by the Secretary of the Treasury within the range assigned by the statute.

While it is true that the Secretary is obliged to pay employees, the issue before the trial

court was whether the statute required the Secretary to pay all the subject police

officers at the higher rate assigned to such officers who work in Washington, D.C. As to

that issue, the statute is not money mandating.          Indeed, even if the statute were




05-5171                                       4
interpreted to forbid the Secretary from creating different pay levels for different

locations, the statute would still not be money mandating, as it would not require the

Secretary to increase the pay levels for all regionally based officers, rather than

reducing the pay levels for officers in Washington, D.C.

      The plaintiffs argue that the lower court “failed to properly apply the Supreme

Court’s ‘fair interpretation’ rule under United States v. White Mountain Apache Tribe,

537 U.S. 465 (2003)” in determining whether section 5378(a) is a money-mandating

statute for purposes of giving the Court of Federal Claims jurisdiction under the Tucker

Act. In doing so, the plaintiffs appear to be perhaps expressing concern that the trial

court applied the “fairly be interpreted” jurisdictional test set forth in United States v.

Mitchell, 463 U.S. 206, 217 (1983), and not the “fair inference” described in White

Mountain.    We disagree.     The trial court acknowledged the potential differences

between the jurisdictional tests of White Mountain and Mitchell, but nonetheless

concluded that any “lack of clarity” was of little consequence because “[u]nder either

approach, the statutes identified by the plaintiffs are clearly not money-mandating.”

Carroll I, 67 Fed. Cl. at 85 (citing Fisher v. United States, 402 F.3d 1167, 1174 (Fed.

Cir. 2005) (“Whether White Mountain alters the Mitchell test, as suggested by the

dissent in White Mountain, and whether the new test is less stringent in some respects

or is the same, as suggested by the concurrence, is less than clear. Future opinions by

the Supreme Court may clarify all this.”)). Thus, the trial court was plainly cognizant of

the two articulated standards for determining whether a statute is money mandating and

resolved that issue without needing to determine whether the two standards are

different or to choose between them. The trial court’s analysis of the Supreme Court




05-5171                                     5
decisions, the governing standard, and the application of that standard to this case was

plainly correct. The court therefore did not err in dismissing the plaintiffs’ claim for lack

of jurisdiction.




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