[00:00:00] Speaker 02:
21-1678, Bell v. United States.

[00:00:16] Speaker 02:
Mr. Berger, please proceed.

[00:00:17] Speaker 03:
Yes, thank you.

[00:00:30] Speaker 03:
hinges on a very, very narrow decision point.

[00:00:35] Speaker 03:
And the issue is whether the court of claims has jurisdiction based on a substantive claim by these appellants that they're entitled to more than one year of a relocation bonus.

[00:00:50] Speaker 03:
They each received one year of a relocation bonus.

[00:00:54] Speaker 03:
The service agreements were for a total of three years,

[00:00:58] Speaker 03:
And the narrow issue is whether they're entitled to a three-year relocation bonus multiplied by their first-year salary or one year.

[00:01:07] Speaker 00:
Council, I'm having a little bit of a hard time seeing where the statute and regulation are money-mandating when, in fact, they use language like May.

[00:01:16] Speaker 03:
Understood.

[00:01:17] Speaker 03:
So we'll concede, right?

[00:01:19] Speaker 03:
We'll concede that the statute and the regulations, standing alone, are not money-mandating.

[00:01:28] Speaker 03:
So that's not the issue that I see here.

[00:01:32] Speaker 03:
The statute and the regulations, though, require that the DEA or the United States implement a plan before they decide to give these relocation bonuses.

[00:01:43] Speaker 03:
And when we look at the plan, the language of the plan, together with the statute and together with the regulation, create a money mandated obligation.

[00:01:57] Speaker 03:
Statute and the regulation have language that indicates that the bonus shall not exceed 25% of the annual rate of base pay multiplied by the years of service.

[00:02:13] Speaker 03:
But the plan that is required to be implemented before these bonuses are paid states something different.

[00:02:24] Speaker 03:
It doesn't track that language of shall not exceed.

[00:02:28] Speaker 03:
The plan at section B5 says that, quote, once a decision is made to pay the bonus in the discretion of the DEA, and we concede that, the DEA, the bonus, quote, may be paid up to 25% of base pay, comma.

[00:02:53] Speaker 00:
Can you tell me which section are you looking at in this plan?

[00:02:55] Speaker 00:
Yes.

[00:02:55] Speaker 00:
Did you say B5?

[00:02:58] Speaker 03:
Yeah.

[00:02:58] Speaker 02:
And what page can I find that at?

[00:03:03] Speaker 03:
OK.

[00:03:03] Speaker 03:
In the opening brief, it's addendum page 11.

[00:03:25] Speaker 03:
But it starts with five relocating employees, maybe paid amounts up to 25%, and then comma, multiply by.

[00:03:35] Speaker 03:
Arguably, the agency reserves discretion to pay a percentage up to 25%.

[00:03:47] Speaker 03:
The issue here is once that decision is made to pay a certain percentage,

[00:03:54] Speaker 03:
the language, the plain text of the plan, indicates that that percentage, that annual pay, must be multiplied by the years of the service agreement.

[00:04:06] Speaker 03:
It does not say that the amount is up to 25% of base pay.

[00:04:15] Speaker 03:
It doesn't say and up to three years or four years of the service agreement.

[00:04:20] Speaker 03:
It says up to 25%

[00:04:23] Speaker 03:
Once the discretion is exercised to give a percentage, it must be multiplied by three years or four years, however many years of the service agreement.

[00:04:33] Speaker 00:
Where's the must?

[00:04:34] Speaker 03:
That's the mandate.

[00:04:35] Speaker 00:
I see relocating employees may be paid.

[00:04:38] Speaker 00:
Where's the must?

[00:04:39] Speaker 03:
Well, it says may be paid amounts up to 25%.

[00:04:43] Speaker 03:
We have that.

[00:04:45] Speaker 03:
And then there's a comma, multiplied by the length of his or her service agreement.

[00:04:50] Speaker 03:
So once they decide to pay the 25%, or the 15%, or whatever percent, it must be multiplied.

[00:04:56] Speaker 00:
I still don't see the must.

[00:04:58] Speaker 00:
Where is the should, shall, must?

[00:05:00] Speaker 00:
There is no should, shall.

[00:05:01] Speaker 00:
OK, it's just may.

[00:05:02] Speaker 00:
Oh, agree.

[00:05:03] Speaker 00:
Multiply by.

[00:05:04] Speaker 03:
Comma, pause, multiply.

[00:05:07] Speaker 00:
The thing is, because there's no may before multiplied, that it must mean something other than may.

[00:05:13] Speaker 03:
Absolutely.

[00:05:16] Speaker 03:
OK.

[00:05:16] Speaker 03:
Absolutely.

[00:05:17] Speaker 03:
There is no discretion.

[00:05:20] Speaker 03:
Multiply it.

[00:05:21] Speaker 03:
That's the mandate.

[00:05:25] Speaker 00:
Do you have any cases where it's similar to this, where the failure to include a word like may was interpreted as meaning shall?

[00:05:37] Speaker 03:
No.

[00:05:38] Speaker 03:
No.

[00:05:40] Speaker 03:
We have many cases which have been cited by my adversary as well as myself in which this court has stated

[00:05:48] Speaker 03:
that statutes that use the word may can be interpreted as shall if you make inferences with instructions, orders, and supplemental orders and instructions that go along with the statute.

[00:06:02] Speaker 03:
So a may can be converted to shall.

[00:06:06] Speaker 03:
But in this case, looking at the plain text, it does not appear to be any discretion at all, because once they decide what that percentage is,

[00:06:16] Speaker 03:
it's to be multiplied by the length of the higher service agreements.

[00:06:20] Speaker 00:
Is your argument based on your view that there was, in fact, an agreement, that there was a contract that provided there had to be at least some amount paid to employees?

[00:06:30] Speaker 03:
It's not dependent upon whether there was a service agreement or not, because the plan dictates and requires that there be a service agreement.

[00:06:39] Speaker 03:
There were service agreements.

[00:06:41] Speaker 03:
They're attached to the appendix in the opening brief.

[00:06:46] Speaker 00:
But the contract issue is not peeled before us.

[00:06:49] Speaker 00:
That's not before us.

[00:06:50] Speaker 03:
That's correct.

[00:06:51] Speaker 03:
A breach of contract is not before the court.

[00:06:53] Speaker 03:
That's correct.

[00:06:54] Speaker 03:
The issue is whether the service agreements conform to the plan, whether the plan trumps the service agreements.

[00:07:01] Speaker 03:
The agency was required to issue service agreements that conform to the plan.

[00:07:07] Speaker 03:
If it conformed to the plan, each individual would have received, in this case, 25% of their

[00:07:15] Speaker 03:
base annual pay multiplied by their years of service, which were three.

[00:07:20] Speaker 03:
They only received one year.

[00:07:22] Speaker 03:
My point is that when we get to the comma multiplied by, there doesn't appear to be any discretion on the part of the agency to decide what that multiple should be.

[00:07:33] Speaker 03:
One year?

[00:07:33] Speaker 03:
Two years?

[00:07:34] Speaker 03:
Three years?

[00:07:34] Speaker 03:
All it says is multiply by the length of service.

[00:07:38] Speaker 03:
You have to multiply it by the amount of years of service.

[00:07:42] Speaker 03:
That's what it says.

[00:07:44] Speaker 03:
It doesn't track the statute.

[00:07:46] Speaker 03:
The statute talks about, well, you could pay these bonuses, may not exceed up to 25% multiplied by.

[00:07:59] Speaker 03:
But when you look at the plan, you don't see shall not exceed.

[00:08:03] Speaker 03:
It says.

[00:08:06] Speaker 04:
But doesn't, Mr. Bird, isn't the plan to which you've been referring, doesn't it really just reflect

[00:08:13] Speaker 04:
what is in the statute, which you agree, and the regulation is not money mandated.

[00:08:20] Speaker 04:
It just says, you know, you can pay up to 25 percent, and to effectuate that, you multiply, you go through this multiplication process.

[00:08:32] Speaker 04:
Okay.

[00:08:33] Speaker 04:
Well, I guess my concern isn't my problem.

[00:08:37] Speaker 04:
I don't see how that

[00:08:40] Speaker 04:
point in the plan somehow serves to convert the statute and the regulation into money-mandating items?

[00:08:49] Speaker 03:
I don't see how we can deviate from a plain text.

[00:08:54] Speaker 03:
It's obvious that DEA opted to pay the percentage and to also pay a multiple of that percentage.

[00:09:04] Speaker 03:
There's nothing in the statute or the regulation that in any way precludes them from doing it.

[00:09:10] Speaker 03:
They just say that it can't exceed the 25% and the multiple of the service years.

[00:09:17] Speaker 03:
It just says it can't exceed it.

[00:09:19] Speaker 03:
But nothing in the statute of the regulation says, how do I calculate?

[00:09:23] Speaker 03:
What am I going to calculate?

[00:09:24] Speaker 03:
What am I going to pay these people to go to these hard to fill places?

[00:09:27] Speaker 04:
But isn't the method of calculation something

[00:09:31] Speaker 04:
really just an implementation point.

[00:09:33] Speaker 04:
It doesn't matter.

[00:09:34] Speaker 04:
It doesn't really relate, does it, to whether the whole program is mandatory or money-mandating, I should say.

[00:09:43] Speaker 03:
If that's what the intent was, they should have then characterized the plan as, hey, you have the discretion to pay anything you want not to exceed x, which is tracking the language.

[00:09:59] Speaker 03:
It's a statute.

[00:10:00] Speaker 03:
That's not what they did.

[00:10:01] Speaker 03:
They say, you could pay up to 25%, but when you figure out that percentage, you multiply it by the length of the years of service.

[00:10:12] Speaker 03:
And in each of these cases, the length of the years of service were three years, not one year.

[00:10:17] Speaker 03:
Each of them got only one year, and they deserve to be paid the full three years for these hard-to-feel posts.

[00:10:23] Speaker 00:
Mr. Berger, so you agree, just so I make sure I understand, you agree that

[00:10:28] Speaker 00:
whether they were entitled to this relocation pay is discretionary and not money mandated.

[00:10:35] Speaker 00:
That's correct.

[00:10:36] Speaker 00:
And you also agree that the 25% is discretionary.

[00:10:41] Speaker 00:
That's correct.

[00:10:42] Speaker 00:
But your view is that the multiplier is money mandated.

[00:10:47] Speaker 03:
Is a mandate.

[00:10:49] Speaker 03:
Pick the percentage and multiply it.

[00:10:52] Speaker 00:
And your view is even, I'm going to assume from it, that says shall be multiplied.

[00:10:57] Speaker 00:
And it actually says that.

[00:10:59] Speaker 00:
That's my point.

[00:11:00] Speaker 00:
I'm going to assume it.

[00:11:01] Speaker 00:
I don't necessarily agree with you that it says shall be multiplied.

[00:11:04] Speaker 03:
I understand.

[00:11:04] Speaker 00:
But assuming it does, your view is that it doesn't matter at all, that everything before that is discretionary and not money mandated.

[00:11:11] Speaker 03:
That's correct.

[00:11:14] Speaker 03:
It's been converted by this plan from discretionary to mandatory.

[00:11:18] Speaker 02:
Do you agree as a matter of law

[00:11:21] Speaker 02:
that our cases say when the statute and the reg are discretionary, which you can see by themselves they are, that it creates a very strong, that's the quote the government extracted from one of our cases, the words very strong presumption that the whole thing is not money mandating.

[00:11:39] Speaker 03:
Reputable.

[00:11:40] Speaker 03:
I agree.

[00:11:41] Speaker 02:
Okay.

[00:11:42] Speaker 02:
So it is a very strong presumption based on the discretionary language, but you think

[00:11:46] Speaker 02:
Your entire argument hinges on whether we conclude the very strong presumption is overcome by the language in paragraph five.

[00:11:53] Speaker 03:
That's correct.

[00:11:53] Speaker 03:
And that's what this entire case hinges on.

[00:11:55] Speaker 02:
Let's save the rest of your time for rebuttal.

[00:11:57] Speaker 02:
Yes, thank you.

[00:11:59] Speaker 02:
Mr. Carson.

[00:12:25] Speaker 01:
Thank you, Your Honors.

[00:12:25] Speaker 01:
May I please the court?

[00:12:27] Speaker 01:
The court should affirm the trial court's decision, which correctly held that it lacked subject matter jurisdiction over appellant's statutory claim, because the statute and regulations at issuing this appeal are discretionary, not money-mandating.

[00:12:42] Speaker 01:
Appellants have already conceded that the statute and the implementing regulations are discretionary.

[00:12:47] Speaker 01:
And the issue comes down to section B5 of the DEA plan.

[00:12:54] Speaker 01:
The trial court in examining section B5 of the DEA plan correctly found that its language was discretionary in nature, and that all that section B5 does is sets a maximum amount of the amount that can be paid to an employee as a relocation incentive payment.

[00:13:23] Speaker 01:
Section B5 provides that, as the court has already gone over, that relocating employees may be paid amounts of up to 25% of the employee's basic pay at the beginning of the service period, multiplied by the length of his or her service agreement, calculated as stated in 5 CFR Section 575209.

[00:13:45] Speaker 01:
5 CFR Section 575209

[00:13:52] Speaker 01:
which appellants concede is discretionary in nature, tracks the language of that regulation, tracks the language of section B5 in the DEA plan, almost identically.

[00:14:07] Speaker 01:
And all these two provisions do, again, are establish the maximum amount that can be paid in an RIP.

[00:14:15] Speaker 01:
For example,

[00:14:16] Speaker 01:
If an employee enlists for a three-year service period and her annual rate of basic pay for the ease of math at the beginning of the period is $100,000, the maximum amount of that employee's RIP for that three-year period is $75,000.

[00:14:37] Speaker 01:
And the way you would calculate that based on the section is that you take the $100,000 basic rate pay, multiply it by three years, you get $300,000, and you take 25% of it.

[00:14:49] Speaker 01:
And that's $75,000.

[00:14:50] Speaker 01:
So that's the maximum.

[00:14:52] Speaker 01:
But it's discretionary, the amount that's paid as an RIP.

[00:14:58] Speaker 01:
And both the plan and the regulations

[00:15:01] Speaker 01:
and the statute go through all the factors that go into that flexible discretionary.

[00:15:07] Speaker 02:
Mr. Berger's argument is that the word multiplied by doesn't have the word may in front of it.

[00:15:14] Speaker 02:
So once you decide to award 25%, you have to multiply it by the number of years.

[00:15:20] Speaker 02:
There's no word may.

[00:15:21] Speaker 02:
Multiplied is a verb, correct?

[00:15:23] Speaker 01:
Correct.

[00:15:24] Speaker 02:
Right.

[00:15:24] Speaker 02:
May is a verb.

[00:15:27] Speaker 01:
Modifier.

[00:15:28] Speaker 02:
Yeah, whatever.

[00:15:29] Speaker 02:
Yeah, same idea.

[00:15:30] Speaker 02:
But his idea, as far as I understand, is that under the English language, the word may modifies whether you are going toward 25%, but it doesn't modify whether you're going to multiply it by the number of years.

[00:15:44] Speaker 02:
That's what I understand his argument to be.

[00:15:47] Speaker 02:
You started by saying, let's start with easy math, and you messed up the math.

[00:15:53] Speaker 02:
Can you do a little better with English?

[00:15:55] Speaker 01:
I'm sorry.

[00:15:58] Speaker 01:
Mr. Burger wants to read, I think, words into section B5 of the plan.

[00:16:04] Speaker 01:
Again, whether it's section B5 of the plan, which again tracks the language of the regulation that appellants concede is discretionary, all it's doing is establishing the maximum amount that can be paid under the regulation.

[00:16:22] Speaker 01:
to establish that maximum amount, you do take it.

[00:16:25] Speaker 01:
And I guess it's important to remember, too, is that this is done at the very beginning, before the employee ever enters into the service agreement, enters into

[00:16:43] Speaker 01:
into their period of service with the DEA, the amount is calculated and it's memorialized in the written service agreement.

[00:16:51] Speaker 01:
And that's what was done here.

[00:16:53] Speaker 01:
And again, the amount is discretionary in nature.

[00:16:57] Speaker 01:
It's flexible because there are a whole lot of factors that can go into the amount that is to be paid.

[00:17:04] Speaker 01:
And the plan is specific about that and explicit about that.

[00:17:08] Speaker 01:
And so are the statute and the regulations.

[00:17:11] Speaker 01:
Some of those factors are, is there money in the budget, in the agency's budget for the RIP?

[00:17:18] Speaker 01:
How much money is available for relocation incentive payments?

[00:17:22] Speaker 01:
And that can affect the amount that's paid in an RIP.

[00:17:29] Speaker 01:
Excuse me.

[00:17:31] Speaker 04:
Sorry to jump in on you there, but I had one question that I didn't want to forget about.

[00:17:37] Speaker 04:
You attached to your brief, I guess it's the DEA manual, which is kind of a, you would say, I guess, a supplement to the DOJ plan that Mr. Berger was discussing with the panel that you've been discussing a bit.

[00:17:54] Speaker 04:
And at page seven of your supplemental appendix,

[00:17:58] Speaker 04:
you direct our attention to section 2575.39 of the manual.

[00:18:07] Speaker 04:
What role does the manual play in this, and what language do you point to in the manual, that section, as helping your case?

[00:18:17] Speaker 01:
The DEA manual, as we set forth in our brief, is another example of how relocation incentive payments are discretionary in nature.

[00:18:33] Speaker 01:
The plan itself

[00:18:36] Speaker 01:
Looking specifically at the section on supplemental appendix page 7, your honor, that you pointed out, 2575.39 payment criteria, again, it uses the discretionary language of may.

[00:18:52] Speaker 01:
A relocation incentive may not be paid until the employee establishes

[00:18:57] Speaker 01:
a residence that goes through some of these criteria, relocating employees may be paid amounts up to 25% of the employee basic pay as defined by 5 CFR 575202 at the beginning of the service period multiplied by the length of the employee service agreement.

[00:19:19] Speaker 01:
So again, it's language that tracks the DEA plan and it tracks the regulation 575209.

[00:19:27] Speaker 02:
His argument would be the same for this as it is for B5, that the word multiply doesn't say may.

[00:19:33] Speaker 02:
That you can decide whether to award up to 25%, but once you decide to award 25%, you're required to multiply it by the number of years up to four years.

[00:19:44] Speaker 01:
Again, the plan does not, it doesn't include that, again, if you read it, it's setting forth the maximum amount that can be paid.

[00:19:55] Speaker 01:
It's up to, the employee may be paid up to this amount.

[00:20:01] Speaker 01:
And to determine the maximum amount, you do take the length of the service period, whether it's one years, two years, three years.

[00:20:09] Speaker 01:
You multiply that by what the employee's basic pay is at the beginning of the service agreement.

[00:20:16] Speaker 01:
And you take 25% of that amount.

[00:20:20] Speaker 01:
And that's the maximum.

[00:20:22] Speaker 01:
But there is no minimum.

[00:20:23] Speaker 01:
It could be zero.

[00:20:25] Speaker 01:
Relocation incentive payment, there

[00:20:27] Speaker 01:
It doesn't require that a relocation incentive payment is paid.

[00:20:32] Speaker 01:
It can be any amount from zero up to that maximum.

[00:20:36] Speaker 01:
The maximum is calculated by, like I said, by taking whatever it is, the length of the service period, multiply it by what the person's salary is, and you take 25% of it.

[00:20:49] Speaker 01:
And that's the maximum.

[00:20:51] Speaker 01:
But it's not saying that that maximum is

[00:20:55] Speaker 01:
what that person has to pay.

[00:20:57] Speaker 02:
Even if we didn't agree with you regarding the plain language of either, whether it be the manual or the plan, B5, wouldn't your argument be that it takes a very, I'd have to not just find the language potentially ambiguous, potentially susceptible to his proposed interpretation.

[00:21:17] Speaker 02:
I'd have to find the language very strongly and clearly

[00:21:22] Speaker 02:
as he wants it to be in order to overcome the very strong presumption that our court created when you have a statute and a reg that are not money mandating that are discretionary.

[00:21:33] Speaker 02:
And so it isn't part of your argument, as I understand it, that you want to go for the home run when all you need is a base hit and then you'll get your RBI and the game's over.

[00:21:45] Speaker 02:
But you don't need the home run.

[00:21:46] Speaker 02:
All you need is for this language not to be crystal clear in his favor.

[00:21:51] Speaker 02:
If it's susceptible to any ambiguity, then don't you win?

[00:21:55] Speaker 01:
Yes, Your Honor, I agree with you.

[00:21:56] Speaker 01:
You're right.

[00:21:57] Speaker 01:
To your point, the appellants have a high burden to overcome the presumption that, with all the discretionary language within the statute regulations and in the plan, that the presumption is that this is discretionary in nature.

[00:22:13] Speaker 01:
You're correct.

[00:22:15] Speaker 01:
And for all those reasons, unless the court has further questions, the government asks that you affirm the trial court's dismissal.

[00:22:25] Speaker 02:
Thank you, Mr. Carson.

[00:22:26] Speaker 02:
Mr. Berger, a summary on rebuttal time?

[00:22:34] Speaker 03:
Yes.

[00:22:34] Speaker 03:
Thank you.

[00:22:34] Speaker 03:
I'd like to make one correction to my adversary's point.

[00:22:40] Speaker 03:
in the statute or in the regulation at 575.209 is not tracked in B5 or even in their own manual.

[00:22:51] Speaker 03:
The language in the statute and in the regulation point out that the amount of the bonus cannot exceed 25 percent of the base pay for the first year multiplied by

[00:23:04] Speaker 03:
services, cannot exceed, shall not exceed.

[00:23:07] Speaker 03:
When you get to B5, and even when you get to the manual, which is on page four of the agency's separate appendix, it's the same language as B5.

[00:23:21] Speaker 03:
The amount that may be paid for an individual incentive is generally up to 25% in effect at the beginning, multiplied by the number of years.

[00:23:31] Speaker 03:
I would say, and I do say that,

[00:23:34] Speaker 03:
That distinction between the language, the choosing of the different texts, abandoning that shall exceed language in favor of determining the percentage to be multiplied, overcomes that very heavy presumption.

[00:23:51] Speaker 03:
I think it's very clear what the DEA planners decided to do.

[00:23:57] Speaker 03:
Very clear.

[00:23:58] Speaker 03:
And I also want to point out that the judge in the Federal Claims Court

[00:24:02] Speaker 03:
When they looked at the B-5 language, the judge looked at the B-5 language, she only went as far as to say up to 25%, but never addressed this issue of the multiplier.

[00:24:14] Speaker 03:
So for all these reasons, we think that because there was a concerted effort to distinguish the B-5 plan from the statute, that there was a determination of a money mandate once they decide what that annual salary was.

[00:24:30] Speaker 02:
Thank you, Mr. President.

[00:24:31] Speaker 03:
I want to thank you very much for this time.

[00:24:33] Speaker 02:
Thank both counsels.

[00:24:33] Speaker 02:
This case is taken under submission.