           In the United States Court of Federal Claims
                                        No. 16-0885 C

                                    (E-Filed July 17, 2017)

                                             )
 REGINALD PRICE,                             )
                                             )
                       Plaintiff,            )   Motion to Dismiss; RCFC 12(b)(1);
                                             )   Subject Matter Jurisdiction; Back Pay Act,
 v.                                          )   5 U.S.C. § 5596 (2012); 10 U.S.C. §1586
                                             )   (2012)
 THE UNITED STATES,                          )
                                             )
                       Defendant.            )
                                             )
                                             )

Donald G. Huggins, Jr., Raleigh, NC, for plaintiff.

Joseph A. Pixley, Washington, DC, with whom were Chad A. Readler, Principal Deputy
Assistant Attorney General, Robert E. Kirschman, Jr., Director, Steven J. Gillingham,
Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant.

                                          OPINION

       On July 26, 2016, plaintiff filed a complaint alleging that defendant improperly
reduced his pay following a temporary overseas assignment, and failed to properly
compensate him for temporary quarters subsistence expenses and per diem funds. See
ECF No. 18 (amended complaint). Defendant has moved the court to dismiss the
complaint for lack of subject matter jurisdiction, or in the alternative, for failure to state a
claim upon which relief may be granted. See ECF No. 20. For the following reasons,
defendant’s motion is GRANTED.

I.     Background

       Plaintiff is an employee of the United States Air Force. See ECF No. 18 at 2. In
April 2009, plaintiff was a Security Assistant, GS-0086-07, in the Information Protection
office at Seymour Johnson Air Force Base in Goldsboro, North Carolina. See id. On
April 15, 2009, plaintiff accepted a temporary overseas assignment at Ramstein Air Base
in Germany, and signed an Overseas Employment Agreement (OEA). See id. Pursuant
to the terms of the OEA, plaintiff was granted a right to return to his position as Security
Assistant, GS-0086-07, following completion of his overseas assignment. See id. at 3.

       He began work at Ramstein Air Base in June 2009, as a Security Specialist, YA-
0080-02. See id. He was later promoted to Information Security Specialist, GS-0080-12.
See id. In March 2012, plaintiff began preparations to return to the United States. See id.
He claims that in connection with those preparations, he was not allowed adequate
temporary quarters subsistence, and was not otherwise compensated properly. See id. at
4.

        In June 2012, plaintiff returned to Seymour Johnson Air Force Base, and alleges
that he was “immediately reassigned to the GS-0086-07 Security Assistant position with
a duty title of Information Security Program Assistant and retained pay.” Id. Plaintiff
alleges that approximately six months prior to his return, his former position had been
“deleted,” and had been “upgraded” to Information Security Specialist GS-0080-12. See
id. at 5-6. Plaintiff asserts that he was entitled to this upgraded position in place of his
previously-held, now “deleted” position. See id. Plaintiff claims that “[a]s a result of the
Department of the Air Force’s failure to place Plaintiff into the Information Security
Specialist series 0080, grade GS-12, position description number 9Z008 capacity,
Plaintiff’s grade and pay were reduced.” Id. at 7.

       Based on the foregoing facts, plaintiff claims that he is entitled to compensation,
in “an amount equal to all of the pay, allowances, or differentials, as applicable which he
normally would have earned or received during the relevant period,” pursuant to the Back
Pay Act, 5 U.S.C. § 5596, for defendant’s failure to:

       (1)        assign him as “Information Security Specialist series 0080, grade GS-
                  12, position description number 9Z008 capacity pursuant to 10
                  U.S.C.A. § 1586(c)(1)(2) when upon return from his overseas tour his
                  previous position no longer existed;”

       (2)        properly compensate him for an extension of temporary quarters
                  subsistence expense; and

       (3)        provide him per diem funds commensurate with those provided to his
                  colleagues.

See id. at 8-9.

II.    Legal Standards

       Defendant asks the court to dismiss plaintiff’s claims first on the basis that the
court lacks subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Rules of the
United States Court of Federal Claims (RCFC), and in the alternative, for failure to state

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a claim upon which relief may be granted, pursuant to RCFC 12(b)(6). See ECF No. 20
at 8.

        Pursuant to the Tucker Act, this court has limited jurisdiction to hear “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) (2012). To show that the alleged claims fall within the
purview of this jurisdictional statute, a plaintiff must show that “the claim is founded
upon a money-mandating source and the plaintiff has made a nonfrivolous allegation that
[he] is with[in] the class of plaintiffs entitled to recover under the money-mandating
source.” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1309 (Fed.
Cir. 2008). When the identified “statute is not money-mandating, the Court of Federal
Claims lacks jurisdiction, and the dismissal should be for lack of subject matter
jurisdiction.” Greenlee Cty., Ariz. v. United States, 487 F.3d 871, 876 (Fed. Cir. 2007).

       Plaintiff bears the burden of establishing this court’s subject matter jurisdiction by
a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846
F.2d 746, 748 (Fed. Cir. 1988). If the court determines that it lacks subject matter
jurisdiction, it must dismiss the complaint. See RCFC 12(h)(3).

        Because the court has determined that it lacks subject matter jurisdiction over this
case, there is no need to analyze the sufficiency of plaintiff’s claims under RCFC
12(b)(6).

III.   Analysis

       Plaintiff relies on the Back Pay Act, 5 U.S.C. § 5596 as the primary basis for all
three counts in the amended complaint. See ECF No. 18 at 8-9. For the second and third
counts, the Back Pay Act is the only statute cited. But for the first count, plaintiff also
cites 10 U.S.C. § 1586, which outlines certain procedures related to the rotation of
“employees assigned to duty outside the United States.” As explained above, in order to
establish subject matter jurisdiction, plaintiff must demonstrate that one or both of these
statutes are money-mandating, such that the court may exercise its authority in light of
the government’s limited waiver of sovereign immunity pursuant to the Tucker Act.

       For the following reasons, the court concludes that plaintiff has failed to do so.

       A.     The Back Pay Act is not money-mandating

       Plaintiff claims that he is entitled to compensation, pursuant to the Back Pay Act,
for damages suffered as a result of defendant’s failure to take three actions: (1) assign
him to the upgraded Information Security Specialist position “when upon return from his
overseas tour his previous position no longer existed,” (2) properly compensate him for

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temporary quarters subsistence expense, and (3) provide him per diem funds
commensurate with those provided to his colleagues. See ECF No. 18 at 8-9.

       The Back Pay Act states, in relevant part:

       An employee of an agency who, on the basis of a timely appeal or an
       administrative determination (including a decision relating to an unfair labor
       practice or a grievance) is found by appropriate authority under applicable
       law, rule, regulation, or collective bargaining agreement, to have been
       affected by an unjustified or unwarranted personnel action which has resulted
       in the withdrawal or reduction of all or part of the pay, allowances, or
       differentials of the employee-- [is entitled to corrective action and back pay].

5 U.S.C.A. § 5596(b)(1) (2012). In its motion to dismiss, defendant argues that the
statute is not money-mandating, and thus, cannot support this court’s jurisdiction.
“[J]urisdiction cannot be based solely upon the Back Pay Act to establish the jurisdiction
of the Court; some other money-mandating statute or regulation must be alleged.” ECF
No. 20 at 15.

        Defendant’s position is based on clear, well-established precedent. The Federal
Circuit has explained: “The Back Pay Act is merely derivative in application; it is not
itself a jurisdictional statute.” United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir.
1983) (citing Montalvo v. United States, No. 675–81C, slip op. at 3-4 (Ct. Cl. Sept. 10,
1982)). See also Worthington v. United States, 168 F.3d 24, 26 (Fed. Cir. 1999) (“The
Back Pay Act is such a ‘money-mandating’ statute when based on violations of statutes
or regulations covered by the Tucker Act.”); Spagnola v. Stockman, 732 F.2d 908, 912
(Fed. Cir. 1984) (“Unless some other provision of law commands payment of money to
the employee for the ‘unjustified or unwarranted personnel action,’ the Back Pay Act is
inapplicable.”); Mendoza v. United States, 87 Fed. Cl. 331, 335 (2009) (stating that
“standing by itself, Section 5596 is not a money-mandating source that would support a
claim under the Tucker Act.”). 1

       In his response, plaintiff does not dispute this legal reality. Instead, he simply
points to his allegation that defendant violated 10 U.S.C. § 1586 (2012). See ECF No. 23
at 13. Plaintiff invokes 10 U.S.C. § 1586 only with regard to the first count of the
complaint, see ECF No. 18 at 8, and the sufficiency of that statute for purposes of
establishing jurisdiction is discussed below. As to the second and third counts of the
complaint, plaintiff essentially concedes that the court lacks subject matter jurisdiction.

1
       In Carpenter v. United States, 28 Fed. Cl. 195 (1993), this court concluded that in
narrow circumstances that a claim for attorneys’ fees pursuant to the Back Pay Act may
be considered money-mandating. On the points germane to the outcome of the matter at
bar, however, the Carpenter decision presents no contradiction.

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His response with regard to those claims, in its entirety, reads: “Plaintiff has elected to
take no position on the legal arguments proffered by Defendant’s as they pertain to
Counts II and III.” ECF No. 23 at 14.

        Because the Back Pay Act is not, on its own, money-mandating, the court lacks
subject matter jurisdiction over the second and third counts of the complaint, for which
plaintiff fails to allege any money-mandating source.

       B.     10 U.S.C. § 1586 is not money-mandating

        To support the court’s subject matter jurisdiction over the first count in the
complaint, plaintiff alleges that the government violated 10 U.S.C. § 1586, see ECF No.
18 at, and claims that the statute is money-mandating, see ECF No. 23 at 13-14.
Defendant argues that 10 U.S.C. § 1586 is not money-mandating, but correctly observes
that this issue appears to be one of first impression. See ECF No. 20 at 17.

       The relevant subsection of the statute reads as follows:

       (c) The right to return to a position in the United States granted under this
       section shall be without reduction in the seniority, status, and tenure held by
       the employee immediately before his assignment to duty outside the United
       States and the employee shall be placed, not later than 30 days after the date
       on which he is determined to be immediately available to exercise such right
       in accordance with the following provisions:

              (1) The employee shall be placed in the position which he held
              immediately before his assignment to duty outside the United States,
              if such position exists.

              (2) If such position does not exist, or with his consent, the employee
              shall be placed in a vacant existing position, or in a new continuing
              position, for which he is qualified, available for the purposes of this
              section in the department concerned, in the same geographical area as,
              with rights and benefits equal to the rights and benefits of, and in a
              grade equal to the grade of, the position which he held immediately
              before his assignment to duty outside the United States.

              (3) If the positions described in paragraph (1) and paragraph (2) do
              not exist, the employee shall be placed in an additional position which
              shall be established by the department concerned for a period not in
              excess of 90 days in order to carry out the purposes of this section.
              Such additional position shall be in the same geographical area as,
              with rights and benefits not less than the rights and benefits of, and in


                                              5
              a grade not lower than the grade of, the position held by the employee
              immediately before his assignment to duty outside the United States.

              (4) If, within 90 days after his placement in a position under paragraph
              (3) a vacant existing position or new continuing position, for which
              the employee is qualified, is available for the purposes of this section
              in the department concerned, in the same geographical area as, with
              rights and benefits equal to the rights and benefits of, and in a grade
              equal to the grade of, the position which he held immediately before
              his assignment to duty outside the United States, the employee shall
              be placed in such vacant existing position or new continuing position.

              (5) If, within the 90-day period referred to in paragraphs (3) and (4),
              the employee cannot be placed in a position under paragraph (4), he
              shall be reassigned or separated under the regulations prescribed by
              the Office of Personnel Management to carry out sections 3501-3503
              of title 5.

              (6) If there is a termination of or material change in the activity in
              which the former position of the employee (referred to in paragraph
              (1)) was located, he shall be placed, in the manner provided by
              paragraphs (2), (3), and (4), as applicable, in a position in the
              department concerned in a geographical area other than the
              geographical area in which such former position was located.

10 U.S.C. § 1586(c) (2012). Plaintiff cites only to subsection (c)(1) and (2), but the court
has reproduced the entire subsection to facilitate a thorough discussion of plaintiff’s
jurisdictional allegations.

        In order for a provision to be money-mandating, it must “create[ ] a substantive
right by mandating the payment of [plaintiff’s] claim, and “[t]he statute relied upon must
grant a right of action with specificity.” Collins v. United States, 67 F.3d 284, 286 (Fed.
Cir. 1995) (citing United States v. Testan, 424 U.S. 392, 400 (1976)). In evaluating
whether a statute is money-mandating, courts are generally concerned with whether the
language regarding payment is compulsory or permissive. For example, in Doe v. United
States, 463 F.3d 1314, 1324 (Fed. Cir. 2006), the Federal Circuit explained that to be
money-mandating, a statute cannot give “the government complete discretion over the
decision whether or not to pay an individual or group.” See also McBryde v. United
States, 299 F.3d 1357, 1361 (Fed. Cir. 2002) (stating that Tucker Act jurisdiction “arises
only when the underlying statute can fairly be interpreted as mandating compensation by
the Federal Government for the damage sustained,” and then engaging in a lengthy
discussion of mandatory versus permissive language) (citations omitted).



                                             6
       As demonstrated by the excerpt reproduced above, it is true that the statute
currently before the court contains several instances of compulsory language, e.g., “[t]he
employee shall be placed in the position which he held immediately before his
assignment to duty outside the United States.” 10 U.S.C. § 1586(c)(1) (emphasis added).
Plaintiff’s position, however, has a more fundamental problem than arguing the
mandatory or permissive nature of the provision. That is, the statute does not involve,
much less mandate, any payments. The provision consistently speaks in terms of
ensuring that employees can return to the same or an equivalent position after service
overseas. But the statute does not provide for monetary compensation.

       To be clear, the court does not find that an individual in plaintiff’s position is not,
pursuant to any statute, entitled to compensation. The court does hold, however, that the
source of any right to compensation, and thus the foundation of this court’s jurisdiction,
cannot be 10 U.S.C. § 1586, as alleged by plaintiff in this case.

IV.    Conclusion

       For the foregoing reasons, defendant’s motion to dismiss, ECF No. 20, is
GRANTED, pursuant to RCFC 12(b)(1). The clerk’s office is directed to ENTER final
judgment in favor of defendant, DISMISSING plaintiff’s complaint, for lack of subject
matter jurisdiction, with prejudice.

       IT IS SO ORDERED.

                                                   /s/ Patricia Campbell-Smith
                                                   PATRICIA CAMPBELL-SMITH
                                                   Judge




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