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Acevedo v. United States

United States Court of Appeals, Federal Circuit

June 9, 2016

SALMA ACEVEDO, JAIME A. ALVARADO, PETER J. APPELT, JOHN BILOTTI, JR., WILLIAM W. BRADLEY, JEFFREY BRODACK, JOHNNY R. CISNEROS, PIERRE DE BONO, JAMES E. DEZENDORF, ROBERT DOBIECKI, CESAR ESPEJO, TARA FIONDA, LISA FOOSE, JUAN ANTONIO GALLARDO, CATHERINE GIARRAPUTO, SERGIO PIMENTA GODINHO, BRIAN HERLIHY, CRISTOBAL HERNANDEZ, TRACEY HILL, CHERYL LISE JACOBO, DAVID F. JONES, DAVID R. KAISER, DAVID LANDERER, ANDREW J. LONG, RICHARD J. LORIA, JEANNETTE POZO, GUILLERMO C. SALOMON, JESSICA ALFRED, ADELA T. ARGUELLO, MARITA BAEZ, DANIEL E. BAUTISTA, PABLO R. CARDENAS, OLGA L. CASEY, CHRISTINE M. COOPER, TOMMY L. COOPER, GEORGE O. DORADO, KEITH R. DURHAM, JOSEFINA FARIAS, KENNETH P. KELLY, RAYMOND F. KNOPP, TAMARA T. LACY, FRANK MADDALENA, RALPH MARTINEZ, CLAUDIA MONISTROL, RAYMOND MONZON, RAYMOND MORABITO, TODD NICHOLAS, KAREN O'NEILL, THOMAS O'SHEA, DENNYSON F. PADILLA, JOSE E. PORRONDO, JEANNINE PERNICIARO, CHRISTINE POWERS, EMA QYTEZA, DEBORAH ANN REINOA, GONZALO REINOSA, JOHN RIOMAO, DULCE MARIA RODRIGUEZ, KARLA RODRIGUEZ, KERRI ROONEY, NORMAN A. ROY, GEORGE RUDY, DEBRA K. RUTTER, JACQUELINE SALAMON, MICHAEL B. SAUER, KENNETH J. SCOTT, CHARLES SHEGOG, LINDA SHOUPE, MICHAEL SILVA, STACEY SIMON, ADRIAN SMITH, MICHAEL J. SMITH, RONALD M. SMITH, PHILLIP THOMPSON, PETER TOUHY, WAYNE T. WILSON, JOHN F. YOUNG, ROBERT ZYLSTRA, Plaintiffs-Appellants
v.
UNITED STATES, Defendant-Appellee

         Appeal from the United States Court of Federal Claims in No. 1:11-cv-00768-EDK, Judge Elaine Kaplan.

          Jules Bernstein, Bernstein & Lipsett, P.C., Washington, DC, argued for plaintiffs-appellants. Also repre­sented by Linda Lipsett; Edgar N. James, James & Hoffman, P.C., Washington, DC.

          Lauren Moore, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing­ton, DC, for defendant-appellee. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Reginald T. Blades, Jr.

          Before Prost, Chief Judge, Lourie and Taranto, Circuit

          Judges. Prost, Chief Judge

         Plaintiffs-Appellants Salma Acevedo et al. ("Appellants") allege that the United States violated 5 U.S.C. § 5928 by refusing to provide them with danger pay allowances. The Court of Federal Claims ("Claims Court") held that it lacked jurisdiction over the case because § 5928 and its implementing regulations are not money-mandating, as required for the court to possess jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1). Acevedo v. United States, 121 Fed.Cl. 57, 59 (2015). For the reasons stated below, we affirm the Claims Court's ruling.

         Background

         The Appellants in this case are employed by the U.S. Customs and Border Protection, Department of Homeland Security ("CBP"), as present and former Supply Chain Security Specialists in its Customs-Trade Protection Against Terrorism ("C-TPAT") program. The purpose of the C-TPAT program is to improve the security of the importation of goods into the United States. Pursuant to this mission, C-TPAT employees, including the Appellants in this case, travel and work at foreign posts designated by the Secretary of State as "danger pay posts" in an attempt to prevent terrorists and terrorist weapons from entering the United States.

         In Count I of their complaint against the government, the Appellants alleged that they did not receive overtime pay as required by the Fair Labor Standards Act and thus sought back pay, liquidated damages, attorney fees and other relief pursuant to 29 U.S.C. § 216(b). In Count II, the Appellants alleged violations of 5 U.S.C. § 5928, contending that CBP refused to provide them with danger pay allowances for work performed in posts of duty that the Department of State has designated as eligible for such allowances.

         Section 5928 ("the danger pay statute") is part of the Overseas Differentials and Allowances Act of 1960 ("ODAA" or "the Act"). Section 5928 provides as follows:

An employee serving in a foreign area may be granted a danger pay allowance on the basis of civil insurrection, civil war, terrorism, or wartime conditions which threaten physical harm or im­minent danger to the health or well-being of the employee. A danger pay allowance may not exceed 35 percent of the basic pay of the employee, except that if an employee is granted an additional differential under section 5925(b) of this title with respect to an assignment, the sum of that additional differential and any danger pay allowance granted to the employee with respect to that as­signment may not exceed 35 percent of the basic pay of the employee. The presence of nonessential personnel or dependents shall not preclude pay­ment of an allowance under this section. In each instance where an allowance under this section is initiated or terminated, the Secretary of State shall inform the Speaker of the House of Repre­sentatives and the Committee on Foreign Rela­tions of the Senate of the action taken and the circumstances justifying it.

5 U.S.C. § 5928 (emphasis added).

         Pursuant to Executive Order No. 10, 903, the Presi­dent delegated to the Secretary of State the authority to promulgate regulations governing the payment of allow­ances under § 5928. Exec. Order No. 10, 903, 26 Fed. Reg. 217 (Jan. 9, 1961); see also Department of State Standard­ized Regulations ("DSSR") §§ 011(a), 650. The regulations state that the "danger pay allowance prescribed in Chap­ter 650 may be granted to employees defined in Section 040i." DSSR § 031.2 (emphasis added).

         The DSSR also prescribes the basis for danger pay al­lowance:

A danger pay allowance is established by the Sec­retary of State when, and only when, civil insur­rection, civil war, terrorism or wartime conditions threaten physical harm or imminent danger to the health or well being of a majority of employees of­ficially stationed or detailed at a post or coun­try/area in a foreign area. To determine whether the situation meets the danger pay criteria, a post usually must submit the Danger Pay Factors Form (FS–578) along with pertinent supporting information to the Department of State (Office of Allowances) for review. The Director of the Office of Allowances ...

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