Thomas v. United States , 2015 U.S. Claims LEXIS 814 ( 2015 )

In the United States Court of Federal Claims
No. 10-303C
Filed June 30, 2015
* * * * * * * * * * * * * * * *
JOHN THOMAS, *
* Summary Judgment; Army Corps of
Plaintiff, * Engineers; Civilian Pay; Living
v. * Quarters Allowance; Overseas
* Differentials and Allowances Act, 5
UNITED STATES, * U.S.C. § 5921 et seq.
*
Defendant. *
*
* * * * * * * * * * * * * * * *
Lisa A. Kleine, Shaw, Bransford & Roth, P.C., Washington, D.C., for plaintiff. With
her was Debra L. Roth, Shaw, Bransford & Roth, P.C., Washington, D.C.
Jane C. Dempsey, Trial Attorney, United States Department of Justice,
Washington, D.C., for defendant. With her was Benjiman C. Mizer, Principal Deputy
Assistant Attorney General, Robert E. Kirschman, Jr., Director, Steven J. Gillingham,
Assistant Director, Department of Justice.
OPINION
HORN, J.
FINDINGS OF FACT
Plaintiff John Thomas, a civilian Army Corps of Engineers (Army Corps)
employee, alleges he has been wrongfully denied a Living Quarters Allowance (LQA)
since June 2004, when he began working for the Army Corps, or, alternatively, from
March 2009, when the Commander of Mr. Thomas’ Army Corps District requested he
receive LQA, or, as a further alternative, from October 2009, when the Commander
requested any requirements of the LQA regulation Mr. Thomas did not meet be waived.
Plaintiff estimates his lost compensation as a result of the denial of LQA to be
approximately $400,000.00.
Mr. Thomas currently lives and works in Aviano, Italy, where he has served as a
construction representative for the Army Corps since June 1, 2004. Prior to his
employment with the Army Corps, and within one year of his retirement from the United
States Air Force, Mr. Thomas was employed beginning in October 2003 as a civilian
United States government contractor with Wireless Communication Technical Services,
Inc. (Wireless), a United States firm, and was living and working in Italy under a United
States Forces sponsored visa. Mr. Thomas was recruited by Wireless in the United States
at his legal residence in Texas. He was hired with the understanding that he would return
to Texas when his contract ended. Mr. Thomas’ offer of employment with Wireless
provided that he would be reimbursed for the cost of return transportation to the United
States if he resigned or if employment was no longer available, “[u]pon completion of 12
months of employment.”
On April 17, 2004, Mr. Thomas applied for a position with the Army Corps under
Vacancy Announcement NEGE04786352. The vacancy announcement requested
applicants for a permanent, full-time, construction representative position in Aviano, Italy.
The announcement limited the selection pool to United States Army employees or to
United States citizens residing in the commuting area who were eligible for a family
member appointment. The vacancy announcement stated that permanent change of
station expenses were not authorized, but was silent as to whether LQA was authorized.
Mr. Thomas was initially notified that he did not meet the eligibility criteria for the position
and that he was not on the referral list. Subsequently, the Army Corps offered to appoint
Mr. Thomas, who had previously, honorably retired from the United States Air Force, to
the construction representative position, using the Veterans Recruitment Appointment
authority. On May 14, 2004, Mr. Thomas received and accepted the Army Corps’ offer of
employment via email. On May 17, 2004, he sent his letter of resignation to Wireless,
and, on May 28, 2004, he resigned from Wireless.
Even prior to the Army Corps’ formal job offer, there apparently was discussion
regarding whether Mr. Thomas could receive a LQA. On May 12, 2004, Mr. Lawrence
Riles, an Army Corps resident engineer, sent an email to Lt. Col. Joseph Gandara
regarding Mr. Thomas stating, “I need to see if we can get him LQA; supposedly, he
qualifies since he falls under the regulation requirements: GS-9 or higher, hard to fill
position, and separated from service less than one year.” On May 14, 2004, Mr. Riles
sent Mr. Thomas an email stating, “As soon as you are officially chosen, then we need to
get started on trying to get the LQA.”
On May 20, 2004, a human resources assistant for the Army Corps sent an email
to Mr. Thomas requesting that he complete certain forms to finish the hiring action. When
Mr. Thomas responded the same day with an email inquiring about the steps needed to
apply for LQA, the assistant replied “No LQA nor PCS [Permanent Change of Station
expenses] authorized.” Mr. Riles, who was copied on this email, then sent Mr. Thomas
an email advising him not to “bring this [LQA issue] up right now” because it “may
complicate the hiring action.” Mr. Riles continued: “Next week we will find the form and
submit the application based upon the regulations . . . . this is not their call if you fall under
the regs . . . .” (ellipses in original). Both the Army Corps’ Request for Personnel Action
(Standard Form 52) and the Notification of Personnel Action (Standard Form 50) related
to Mr. Thomas’ hiring state that he was a “Local hire - not entitled to LQA or transportation
agreement.” Similarly, the Army Corps’ Checklist for Recruit Actions completed for
Mr. Thomas states the he was “Locally recruited in Italy” and that a “Completed LQA
Eligibility Form” was “NA [not applicable].”
2
On June 21, 2004, Mr. Thomas submitted a request for LQA to Ms. Karen Lenhardt
of the Army Corps’ Employee Support Office, arguing that he was eligible under Army in
Europe Regulation (AER) 690-500.592, issued June 20, 2003. Mr. Thomas never
received a written response to this request, but, in his November 14, 2005 LQA request
to the Army Corps’ Employee Support Office discussed below, he indicated that
Ms. Lenhardt did verbally inform him that he would not be paid LQA because he was a
local hire and that AER 690-500.592 was inapplicable because he “work[ed] for the
Corps, not the US Army.”
The November 14, 2005 request Mr. Thomas submitted to the Army Corps’
Employee Support Office asked that his LQA request be “properly reviewed.”
Lt. Col. Angela Lungu, Deputy Commander of the Army Corps, Europe District,
responded to him with a memorandum indicating that the original decision not to offer him
LQA would not be reversed for two reasons: “First, as you were already living in the
overseas area, and, second, this allowance was not being offered to other applicants who
may have applied through the competitive process for the same position.” Lt. Col. Lungu
also indicated that Mr. Thomas had failed to provide “any mitigating circumstances that
would warrant a reversal of the original decision,” and that “[a]lso taken into consideration
is the fact that you were informed, prior to reporting for duty, that LQA would not be
authorized, and you still willingly accepted without LQA being authorized.”
On February 21, 2006, Mr. Thomas submitted a formal grievance to Col. Margaret
Burcham, Commander of the Army Corps, Europe District, regarding his request for LQA,
arguing that he was eligible under AER 690-500.592. On March 9, 2006, Col. Burcham,
responded with a memorandum denying Mr. Thomas’ grievance on the grounds that the
non-receipt of LQA was not grievable under the Administrative Grievance System.
Col. Burcham also noted two additional pieces of information: (1) “it was never the intent
to offer LQA for the position to which you were hired” and (2) AER 690-500.592 did not
apply to Mr. Thomas’ case because “[w]hile the Army Corps of Engineers are Army
employees in Europe, we follow a different chain of command, report to a different major
command (MACOM), and observe our own LQA policies.”
On March 4, 2007, Mr. Thomas filed a claim for LQA with the United States Office
of Personnel Management (OPM). On April 18, 2008, OPM issued a decision sustaining
the Army Corps’ denial of LQA, finding that Mr. Thomas had failed to present clear and
convincing evidence that AER 690-500.592 should have been applied to his case, that,
absent such evidence, OPM must accept the Army Corps’ position that it set its own LQA
policy, and that the evidence supported the Army Corps’ position that it did not intend to
authorize LQA for Mr. Thomas’ position.
On September 15, 2008, Mr. Thomas sent a memorandum to Col. John Kem, who
had replaced Col. Burcham as Commander of the Army Corps, Europe District, asking
that his request for LQA be re-evaluated. On March 16, 2009, Col. Kem sent a
memorandum to the Army’s Civilian Personnel Directorate (CPD) requesting that it
approve LQA for Mr. Thomas on the grounds that Mr. Thomas satisfied the requirements
of Department of State Standardized Regulation (DSSR) § 031.12b and AER
690-500.592, that it would be more costly to lose him and have to recruit another
3
employee, and that his housing costs were minimal. This request was denied. Explaining
the reason for this denial, Ms. Brigitte Brown, Chief of the Overseas Services Division of
the Civilian Human Resources Agency, Northeast/Europe Region, stated that the Living
Quarters Allowance Policy, dated July 20, 2001, issued by the Army Corps, Europe
District (the 2001 LQA Policy), was the applicable LQA policy in effect at the time
Mr. Thomas was hired and that Mr. Thomas failed to meet the requirements of this policy
because he was a locally hired individual and his Commander had not approved LQA
prior to his selection. Ms. Brown also stated that she had reviewed paragraph 7a(3) of
AER 690-500.592 (November 18, 2005), which, she stated, became applicable to
Mr. Thomas when the Civilian Human Resources Agency began servicing the Army
Corps after he was hired, and that Mr. Thomas did not meet its requirements. Therefore,
according to Ms. Brown, her office could not authorize LQA for Mr. Thomas.
In November 2009, Col. Kem sent a second memorandum to the Army’s CPD
requesting that it waive the requirements of any portion of AER 690-500.592 that it
determined Mr. Thomas did not meet. This request was denied in a March 2, 2010
memorandum by Aleck Hernandez, Chief of the Employment Compensation Branch of
the CPD. In his memorandum, Mr. Hernandez explained that, when Mr. Thomas was
hired, the Army Corps itself administered its civilian personnel administration, and, at that
time, the Army Corps had issued the 2001 LQA Policy, exercising its authority to
supplement existing DSSR and Department of Defense guidance for overseas benefits
and allowances. Mr. Hernandez stated that, at the time Mr. Thomas was hired, he was
determined to be ineligible for LQA under the Army Corps’ 2001 LQA Policy because he
was a locally hired employee, he was not authorized for LQA, and there was no indication
of any expressed determination by the commanding officer to authorize LQA for him.
Mr. Hernandez further stated that, in April 2008, the servicing of civilian Army Corps
employees, including the administration of LQA, was assumed by the Army’s Civilian
Human Resources Agency, Europe Region (CHRA-E) and that, from that time forward,
eligibility for LQA was determined by AER 690-500.592, rather than the Army Corps’ 2001
LQA Policy. Mr. Hernandez found that Mr. Thomas did not qualify for LQA under
paragraph 7a(3) of AER 690-500.592 because the assumption of services by CHRA-E
did not constitute a “transfer” of the employee involved. In addition, Mr. Hernandez stated
that although the continuing eligibility for LQA provision of AER 690-500.592, paragraph
9, did not “fully meet Mr. Thomas’s situation,” it provided the “underlying rationale” for the
Army Corps’ inability to grant him a waiver. In particular, Mr. Hernandez pointed to
language in paragraph 9 stating that it “[w]ill not extend or reinstate payment of LQA when
law, regulation, or policy directed termination of payment” (alteration in original).1
Therefore, according to Mr. Hernandez, the Army Corps was unable to grant Mr. Thomas
LQA under AER 690-500.592 “since said regulation specifically prohibits to establish an
eligibility for the allowance when it was previously not authorized by that employee’s
agency.”
Mr. Thomas filed his original complaint in this court on May 19, 2010. Initially, the
case was assigned to, and heard by, Judge Lawrence Baskir, who held that the United
1 In his memorandum, Mr. Hernandez mistakenly says that this language is in AER
690-500.592, paragraph 10.
4
States Court of Federal Claims had jurisdiction to review Mr. Thomas’ case because the
combination of the statute authorizing LQA grants, the Overseas Differentials and
Allowances Act, 5 U.S.C. § 5921 et seq., and its implementing regulation, DSSR § 031.12,
provided money-mandating authority. See Thomas v. United States, No. 10-303C, 2011
WL 9976337, at *4 (Fed. Cl. Sept. 7, 2011). Judge Baskir awarded summary judgment to
Mr. Thomas on the issue of liability. See id. Following discussions between the parties
regarding damages, a Motion for Reconsideration was filed by the government on
February 6, 2012. Before a decision on the Motion for Reconsideration was issued, on
October 11, 2012, the above-captioned case was reassigned to Judge George Miller,
who denied the reconsideration motion on February 8, 2013, determining, “[s]ince
defendant relies only on its previous arguments and cites no contrary controlling law, the
Court declines to grant defendant's motion for reconsideration.” Thomas v. United States,
No. 10-303C, 2013 WL 514522, at *2 (Fed. Cl. Feb. 8, 2013). After further discussions
between the parties and the filing of a stipulation regarding damages, Judge Miller
entered judgment in favor of the Mr. Thomas on June 4, 2013.
The government timely filed a notice of appeal on August 2, 2013. On April 16,
2014, the United States Court of Appeals for the Federal Circuit vacated the judgment of
the United States Court of Federal Claims and remanded the case back to the trial court
“to examine its [the Court of Federal Claims’] decision in light of Roberts[ v. United States,
745 F.3d 1158 (Fed. Cir. 2014)],” which had been issued prior to the decision in the
Thomas appeal, but after Judge Miller’s decision.
Once remanded, the case, again, was reassigned, this time to the undersigned
judge for further proceedings. An amended complaint was filed on January 7, 2015, and
the issues were fully briefed on renewed Motions for Judgment on the Administrative
Record, or, in the alternative, Motions for Summary Judgment. Oral argument was held
on June 17, 2015, at which Mr. Thomas’ current attorney of record appeared for the first
time.
DISCUSSION
I. Jurisdiction
In general, the Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon 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). As interpreted by the United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United
States (1) founded on an express or implied contract with the United States, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
5
government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287,
290 (2009); United States v. Testan, 424 U.S. 392, 400 (1976); see also Chattler v. United
States, 632 F.3d 1324, 1130 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2011); Greenlee
Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d
1310, 1314 (Fed. Cir. 1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against the
United States . . . .” United States v. Mitchell, 463 U.S. 206, 216 (1983); see also United
States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); RadioShack Corp. v.
United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v.
United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a
substantive source of law that creates the right to recovery of money damages against
the United States.”). In Ontario Power Generation, Inc. v. United States, 369 F.3d 1298
(Fed. Cir. 2004), the United States Court of Appeals for the Federal Circuit identified three
types of monetary claims for which jurisdiction is lodged in the United States Court of
Federal Claims. The court wrote:
The underlying monetary claims are of three types. . . . First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act's waiver. . . . Second, the Tucker Act’s waiver
encompasses claims where “the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum.”
Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599,] 372 F.2d [1002,]
1007-08 [(1967)] (describing illegal exaction claims as claims “in which ‘the
Government has the citizen's money in its pocket’” (quoting Clapp v. United
States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954))) . . . . Third, the Court
of Federal Claims has jurisdiction over those claims where “money has not
been paid but the plaintiff asserts that he is nevertheless entitled to a
payment from the treasury.” Eastport S.S. [Corp. v. United States], 372 F.2d
at 1007. Claims in this third category, where no payment has been made to
the government, either directly or in effect, require that the “particular
provision of law relied upon grants the claimant, expressly or by implication,
a right to be paid a certain sum.” Id.; see also [United States v.] Testan, 424
U.S. at 401-02 (“Where the United States is the defendant and the plaintiff
is not suing for money improperly exacted or retained, the basis of the
federal claim-whether it be the Constitution, a statute, or a regulation-does
not create a cause of action for money damages unless, as the Court of
Claims has stated, that basis ‘in itself . . . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained.’” (quoting Eastport S.S. [Corp. v. United States], 372 F.2d at
1009)). This category is commonly referred to as claims brought under a
“money-mandating” statute.
Ontario Power Generation, Inc. v. United States, 369 F.3d at 1301.
6
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon “‘can fairly be
interpreted as mandating compensation by the Federal Government.’” United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see
also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v.
Mitchell, 463 U.S. at 217; Roberts v. United States, 745 F.3d at 1162; Blueport Co., LLC
v. United States, 533 F.3d 1374, 1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153
(2009). The source of law granting monetary relief must be distinct from the Tucker Act
itself. See United States v. Navajo Nation, 556 U.S. at 290 (The Tucker Act does not
create “substantive rights; [it is simply a] jurisdictional provision[] that operate[s] to waive
sovereign immunity for claims premised on other sources of law (e.g., statutes or
contracts).”). “‘If the statute is not money-mandating, the Court of Federal Claims lacks
jurisdiction, and the dismissal should be for lack of subject matter jurisdiction.’” Jan’s
Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008)
(quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876); Fisher v. United States,
402 F.3d 1167, 1173 (Fed. Cir. 2005) (The absence of a money-mandating source is
“fatal to the court’s jurisdiction under the Tucker Act.”); Peoples v. United States, 87 Fed.
Cl. 553, 565-66 (2009). “Further, the statute and regulations must be money-mandating
as to the class of which plaintiff claims to be a member.” Roberts v. United States, 745
F.3d at 1162 (citing Casa de Cambio Comdiv S.A. de C.V. v. United States, 291 F.3d
1356, 1361 (Fed. Cir. 2002)).
When the United States Court of Appeals for the Federal Circuit remanded the
above-captioned case to this court, the instruction was “to examine its [the Court of
Federal Claims’] decision in light of Roberts.” The two previous trial court judges who had
been assigned the case both had found that jurisdiction in this court for Mr. Thomas’ case
was proper, but both decisions were issued before the Federal Circuit issued Roberts v.
United States, 745 F.3d 1158. In Roberts, the Federal Circuit determined that the
Overseas Differentials and Allowances Act and the DSSR, standing alone, “are only
money-authorizing and are not money-mandating.” Id. at 1165. When, however,
additional regulations implementing the DSSR “provide that a particular class is entitled
to LQA and the plaintiff alleges that he is within that class, the regulations are money-
mandating and the court has jurisdiction.” Id. at 1167. The implementing regulation at
issue in Roberts v. United States was an Order issued by the Commander of the Marine
Corp Bases Japan (MCBJ), pursuant to a Secretary of the Navy Instruction delegating to
the Commandant of the Marine Corps, among others, the power to award LQA, a power
that was delegated to the Secretary of the Navy by the Secretary of Defense in
Department of Defense Instruction 1400.25, subchapter 1250, itself an implementing
regulation of the DSSR. See id. at 1166. The MCBJ Order limited the granting of LQA to
two situations: (1) for new hires, when the appointing officer had designated a position as
LQA-eligible based on recruitment need and expense; and (2) “[a]pplicants currently
receiving LQA from another DoD component on island may be granted continuance of
LQA at management's discretion.” Id. (alteration in original). The Federal Circuit
determined that the MCBJ Order, when combined with the Overseas Differentials and
Allowances Act and the DSSR, was money-mandating “because the payment of money
is required when the MCBJ Commander, acting pursuant to the Order, determines that a
particular post is LQA-eligible or an individual should receive an LQA-continuance (i.e.,
7
LQA ‘shall be paid,’ 5 U.S.C. § 5922(c), in these instances).” Id. (emphasis in original).
Because the plaintiff in Roberts alleged he was a member of one of these classes,
jurisdiction in the Court of Federal Claims existed. See id. at 1167.
In his complaint in this court, Mr. Thomas alleges that he met the requirements of
the 2001 LQA Policy at the time of his hire. Like the MCBJ Order in Roberts, the 2001
LQA Policy was issued pursuant to Department of Defense Instruction 1400.25,
subchapter 1250, and, thus, was published to implement the DSSR.2 The LQA-
authorizing provision of the 2001 LQA Policy states that “LQA will be authorized” for
employees who meet the criteria it lists. Such language is mandatory and requires the
payment of LQA to these employees. See Britell v. United States, 372 F.3d 1370, 1378
(Fed. Cir. 2004) (“This and other courts have repeatedly held that this type of mandatory
language, e.g., ‘will pay’ or ‘shall pay,’ creates the necessary ‘money-mandate’ for Tucker
Act purposes.”). Indeed, the language in the 2001 LQA Policy is actually stronger than
the language in the Roberts MCBJ Order, which stated that an LQA continuance “may be
granted . . . at management’s discretion.” Roberts v. United States, 745 F.3d at 1166
(emphasis added). Under Roberts, the Army Corps’ 2001 LQA Policy, therefore, is
money-mandating when combined with the Overseas Differentials and Allowances Act
and the DSSR. See id. Because Mr. Thomas argues that he met the requirements of the
2001 LQA Policy at the time he was hired, jurisdiction exists for this court to hear his case.
As noted in Roberts, “once the regulations provide that a particular class is entitled to
LQA and the plaintiff alleges that he is within that class, the regulations are
money-mandating and the court has jurisdiction.” Id. at 1167 (citing Doe v. United States,
463 F.3d 1314, 1325 (Fed. Cir. 2006)).
2 In Roberts, the Federal Circuit treated both Department of Defense Instruction 1400.25,
subchapter 1250, and the MCBJ Order as “regulations,” see Roberts v. United States,
745 F.3d at 1165-66, even though there was no indication that either document was
promulgated through notice-and-comment rule making. See 5 U.S.C. § 553 (2012)
(detailing the procedure to be used for agency rule making). Thus, it appears that the
Federal Circuit intended to take a broad, functional, view of published or generally
available guidance as sufficient implementing language to direct a money-mandating
circumstance establishing jurisdiction in this court. The 2001 LQA Policy, like the MCBJ
Order in Roberts, was not a classic regulation, but was issued to implement LQA policy
by a military commander and detailed specific criteria for the awarding of LQA to all
individuals serving in the command.
8
II. The Cross-Motions for Summary Judgment3
Having determined that this court has jurisdiction of Mr. Thomas’ case, the court
turns to disposition of the motions filed by the parties. As indicated in Roberts, “[t]he
question of whether [plaintiff] in fact is within a class and entitled to LQA is a merits issue.”
Id. Rule 56 of the Rules of the United States Court of Federal Claims (RCFC) (2014) is
similar to Rule 56 of the Federal Rules of Civil Procedure in language and effect. Both
rules provide that “[t]he court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” RCFC 56(a); Fed. R. Civ. P. 56(a) (2014); see also Alabama v. North
Carolina, 560 U.S. 330, 344 (2010); Hunt v. Cromartie, 526 U.S. 541, 549 (1999);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Adickes v. S. H. Kress &
Co., 398 U.S. 144, 157 (1970); Biery v. United States, 753 F.3d 1279, 1286 (Fed. Cir.),
reh’g and reh’g en banc denied (Fed. Cir. 2014); Ladd v. United States, 713 F.3d 648,
651 (Fed. Cir. 2013); Minkin v. Gibbons, P.C., 680 F.3d 1341, 1349 (Fed. Cir. 2012);
Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1309-10 (Fed. Cir. 2012); Advanced Fiber
Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1372 (Fed. Cir.), reh’g and
reh’g en banc denied (Fed. Cir. 2012); Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 1325
(Fed. Cir.), reh’g denied (Fed. Cir. 2010); Consol. Coal Co. v. United States, 615 F.3d
1378, 1380 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2010), cert. denied, 131
S. Ct. 2990 (2011); 1st Home Liquidating Trust v. United States, 581 F.3d 1350, 1355
(Fed. Cir. 2009); Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375, 1378 (Fed. Cir.
2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283 (Fed. Cir. 2008),
reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed. Cir. 2009); Moden v. United States,
404 F.3d 1335, 1342 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2005); Am.
Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed. Cir.), reh’g en
banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005); Mata v. United States,
114 Fed. Cl. 736, 744 (2014); Leggitte v. United States, 104 Fed. Cl. 315, 317 (2012);
3 In their briefings to this court after the remand, both parties argued, in the alternative,
that there were no genuine issues of material fact, and, that, therefore, they were entitled
to Summary Judgment for the same reasons they were entitled to Judgment on the
Administrative Record. The Administrative Record, after remand, was not certified. See
RCFC 52.1(a) (2014). Therefore, out of an abundance of caution, the court is deciding
the parties’ motions as Motions for Summary Judgment under RCFC 56, rather than as
Cross-Motions for Judgment on the Administrative Record under RCFC 52.1. In doing so,
the court notes that Mr. Thomas’ previous attorney, Ms. Roth, did not immediately object
that the Administrative Record was not certified. In its initial scheduling Order after the
above-captioned case was remanded by the Federal Circuit, this court ordered the
government to file an Administrative Record by August 29, 2014 “after consultation and
review by plaintiff,” and the Administrative Record was filed on that date. Mr. Thomas’
attorney raised her objection about the Administrative Record’s lack of certification for the
first time in Plaintiff’s Motion for Judgment on the Administrative Record, which was filed
on November 14, 2014, two and half months after the Administrative Record was filed,
and four weeks after the government filed its Cross-Motion for Judgment on the
Administrative Record.
9
Arranaga v. United States, 103 Fed. Cl. 465, 467-68 (2012); Cohen v. United States, 100
Fed. Cl. 461, 469 (2011); Boensel v. United States, 99 Fed. Cl. 607, 610 (2011).
A fact is material if it will make a difference in the result of a case under the
governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Marriott
Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. at 248); Mata v. United States, 114 Fed. Cl. at 744;
Arranaga v. United States, 103 Fed. Cl. at 467-68; Thompson v. United States, 101 Fed.
Cl. 416, 426 (2011); Cohen v. United States, 100 Fed. Cl. at 469. Irrelevant or
unnecessary factual disputes do not preclude the entry of summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48; see also Scott v. Harris, 550 U.S.
372, 380 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir.
2001); Gorski v. United States, 104 Fed. Cl. 605, 609 (2012); Walker v. United States, 79
Fed. Cl. 685, 692 (2008); Curtis v. United States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213,
216 (1958), cert. denied, 361 U.S. 843 (1959), reh'g denied, 361 U.S. 941 (1960).
When reaching a summary judgment determination, the judge’s function is not to
weigh the evidence and determine the truth of the case presented, but to determine
whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
at 249; see, e.g., Schlup v. Delo, 513 U.S. 298, 332 (1995); Ford Motor Co. v. United
States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts
do not make findings of fact on summary judgment.”); TigerSwan, Inc. v. United States,
118 Fed. Cl. 447, 451 (2014); Dana R. Hodges Trust v. United States, 111 Fed. Cl. 452,
455 (2013); Cohen v. United States, 100 Fed. Cl. at 469-70; Boensel v. United States, 99
Fed. Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 717 (2011); Dick
Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed. Cl. 113, 126 (2009);
Johnson v. United States, 49 Fed. Cl. 648, 651 (2001), aff’d, 52 F. App’x 507 (Fed. Cir.
2002), published at 317 F.3d 1331 (Fed. Cir. 2003). The judge must determine whether
the evidence presents a disagreement sufficient to require submission to fact finding, or
whether the issues presented are so one-sided that one party must prevail as a matter of
law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52; Jay v. Sec’y of Dep’t of
Health and Human Servs., 998 F.2d 979, 982 (Fed. Cir.), reh’g denied and en banc
suggestion declined (Fed. Cir. 1993); Leggitte v. United States, 104 Fed. Cl. at 316. When
the record could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Advanced Fiber Techs. (AFT) Trust
v. J & L Fiber Servs., Inc., 674 F.3d at 1372; Marriott Int’l Resorts, L.P. v. United States,
586 F.3d at 968; Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262, 1266 (Fed. Cir.),
reh’g en banc denied (Fed. Cir. 2008); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d
1306, 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n.3 (Fed.
Cir. 1996). In such cases, there is no need for the parties to undertake the time and
expense of a trial, and the moving party should prevail without further proceedings.
In appropriate cases, summary judgment:
saves the expense and time of a full trial when it is unnecessary. When the
material facts are adequately developed in the motion papers, a full trial is
10
useless. “Useless” in this context means that more evidence than is already
available in connection with the motion for summary judgment could not
reasonably be expected to change the result.
Dehne v. United States, 23 Cl. Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex,
(U.S.A.) Inc., 739 F.2d 624, 626 (Fed. Cir. 1984)), vacated on other grounds, 970 F.2d
890 (Fed. Cir. 1992) (citation omitted); see also Vivid Techs., Inc. v. Am. Sci. & Eng'g,
Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) (“The purpose of summary judgment is not to
deprive a litigant of a trial, but to avoid an unnecessary trial when only one outcome can
ensue.”); Metric Constr. Co., Inc. v. United States, 73 Fed. Cl. 611, 612 (2006).
Summary judgment, however, will not be granted if “the dispute about a material
fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see
also Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir.), reh’g
and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 555 U.S. 812 (2008); Eli Lilly &
Co. v. Barr Labs., Inc., 251 F.3d 955, 971 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2001), cert. denied, 534 U.S. 1109 (2002); Gen. Elec. Co. v. Nintendo Co., 179
F.3d 1350, 1353 (Fed. Cir. 1999); TigerSwan, Inc. v. United States, 118 Fed. Cl. at 451;
Stephan v. United States, 117 Fed. Cl. 68, 70 (2014); Gonzales-McCaulley Inv. Group,
Inc. v. United States, 101 Fed. Cl. 623, 629 (2011). In other words, if the nonmoving party
produces sufficient evidence to raise a question as to the outcome of the case, then the
motion for summary judgment should be denied. Any doubt over factual issues must be
resolved in favor of the party opposing summary judgment, to whom the benefit of all
presumptions and inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Yant v. United
States, 588 F.3d 1369, 1371 (Fed. Cir. 2009), cert. denied, 131 S. Ct. 69 (2010);
Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed. Cir. 2001),
reh’g and reh’g en banc denied, 293 F.3d 1364 (Fed. Cir. 2002), cert. denied, 539 U.S.
957 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v.
Fedders Corp., 145 F.3d 1461, 1463 (Fed. Cir.), reh’g denied and en banc suggestion
declined (Fed. Cir. 1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371
(citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed. Cir. 2000)); Dana R.
Hodges Trust v. United States, 111 Fed. Cl. at 455; Boensel v. United States, 99 Fed. Cl.
at 611 (“‘The evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor.’”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Casitas
Mun. Water Dist. v. United States, 543 F.3d at 1283; Lathan Co. Inc. v. United States, 20
Cl. Ct. 122, 125 (1990))); see also Am. Seating Co. v. USSC Grp., Inc., 514 F.3d at 1266-
67; Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807. “However, once a moving
party satisfies its initial burden, mere allegations of a genuine issue of material fact without
supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank,
F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. at 247-48.
The initial burden on the party moving for summary judgment to produce evidence
showing the absence of a genuine issue of material fact may be discharged if the moving
11
party can demonstrate that there is an absence of evidence to support the nonmoving
party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Riley &
Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed. Cir. 2005); Crown
Operations Int’l Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.), reh’g denied (Fed.
Cir. 2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741
(Fed. Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed. Cir. 1994),
reh’g denied and en banc suggestion declined (Fed. Cir. 1995)), reh’g denied and en
banc suggestion declined (Fed. Cir. 1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565,
1569 (Fed. Cir. 1997); Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807; RQ
Squared, LLC v. United States, 119 Fed. Cl. 751, 757-58 (2015). If the moving party
makes such a showing, the burden shifts to the nonmoving party to demonstrate that a
genuine dispute regarding a material fact exists by presenting evidence which establishes
the existence of an element essential to its case upon which it bears the burden of proof.
See Celotex Corp. v. Catrett, 477 U.S. at 322; see also Wavetronix LLC v. EIS Elec.
Integrated Sys., 573 F.3d 1343, 1354 (Fed. Cir. 2009); Long Island Sav. Bank, FSB v.
United States, 503 F.3d at 1244; Florida Power & Light Co. v. United States, 375 F.3d
1119, 1124 (Fed. Cir. 2004); Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1207
(Fed. Cir. 2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103, 1108 (Fed. Cir. 2000);
Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807; Rasmuson v. United States,
109 Fed. Cl. 267, 271 (2013). However, “a non-movant is required to provide opposing
evidence under Rule 56(e) only if the moving party has provided evidence sufficient, if
unopposed, to prevail as a matter of law.” Saab Cars USA, Inc. v. United States, 434 F.3d
1359, 1369 (Fed. Cir. 2006).
Even if both parties argue in favor of summary judgment and allege an absence of
genuine issues of material fact, the court is not relieved of its responsibility to determine
the appropriateness of summary disposition in a particular case, and it does not follow
that summary judgment should be granted to one side or the other. See Prineville Sawmill
Co. v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988) (citing Mingus Constructors, Inc.
v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)); see also Marriott Int’l Resorts,
L.P. v. United States, 586 F.3d at 968–69; B.F. Goodrich Co. v. U.S. Filter Corp., 245
F.3d 587, 593 (6th Cir. 2001); Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d
1138, 1148 (10th Cir. 2000); Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1037 n.5
(9th Cir. 2000), cert. denied, 532 U.S. 942 (2001); Bubble Room, Inc. v. United States,
159 F.3d 553, 561 (Fed. Cir. 1998) (“The fact that both the parties have moved for
summary judgment does not mean that the court must grant summary judgment to one
party or the other.”), reh’g denied and en banc suggestion declined (Fed. Cir. 1999);
Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir. 1998); Massey v. Del Labs.,
Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997); LewRon Television, Inc. v. D.H. Overmyer
Leasing Co., 401 F.2d 689, 692 (4th Cir. 1968), cert. denied, 393 U.S. 1083 (1969);
Rogers v. United States, 90 Fed. Cl. 418, 427 (2009), subsequent determination, 93 Fed.
Cl. 607 (2010); Consol. Coal Co. v. United States, 86 Fed. Cl. 384, 387 (2009), aff’d, 615
F.3d 1378, (Fed. Cir.), and reh’g and reh’g en banc denied (Fed. Cir. 2010), cert. denied,
131 S. Ct. 2990 (2011); St. Christopher Assocs., L.P. v. United States, 75 Fed. Cl. 1, 8
(2006), aff’d, 511 F.3d 1376 (Fed. Cir. 2008); Reading & Bates Corp. v. United States, 40
Fed. Cl. 737, 748 (1998). The court must evaluate each party’s motion on its own merits,
taking care to draw all reasonable inferences against the party whose motion is under
12
consideration, or, otherwise stated, in favor of the non-moving party. See First Commerce
Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1322 (Fed.
Cir. 2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338–39 (Fed. Cir.), reh’g and reh’g en
banc denied (Fed. Cir. 2001), cert. denied, 534 U.S. 1114 (2002); Oswalt v. United States,
85 Fed. Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v. United States, 71 Fed. Cl.
114, 119 (2006).
Cross-motions are no more than a claim by each party that it alone is entitled to
summary judgment. The making of such inherently contradictory claims, however, does
not establish that if one is rejected the other necessarily is justified. See B.F. Goodrich
Co. v. United States Filter Corp., 245 F.3d at 593; Atl. Richfield Co. v. Farm Credit Bank
of Wichita, 226 F.3d at 1148; Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d at 2;
Rogers v. United States, 90 Fed. Cl. at 427; Reading & Bates Corp. v. United States, 40
Fed. Cl. at 748.
“Questions of law are particularly appropriate for summary judgment.” Oenga v.
United States, 91 Fed. Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d
1344, 1347 (Fed. Cir. 1999) (“Summary judgment was appropriate here [in Dana Corp.]
because no material facts were disputed, many being stipulated, and the only disputed
issues were issues of law. Moreover, on each issue one party or the other is entitled to
judgment as a matter of law.”)); see also Santa Fe Pac. R.R. v. United States, 294 F.3d
1336, 1340 (Fed. Cir. 2002) (“Issues of statutory interpretation and other matters of law
may be decided on motion for summary judgment.”).
LQA is a payment awarded to eligible civilian employees of the United States
government serving overseas for the annual cost of suitable housing for the employees
and their families. See Roberts v. United States, 745 F.3d at 1160. The granting of LQA
is dictated by the Overseas Differentials and Allowances Act, 5 U.S.C. § 5921 et seq.
(2012), and its implementing regulations. Under 5 U.S.C § 5923(a), LQA may be granted
“[w]hen Government owned or rented quarters are not provided without charge for an
employee in a foreign area.” The President is empowered to prescribe regulations
governing such allowances, see id. at § 5922(c), an authority which the President has
delegated to the Secretary of State. See Exec. Order No. 10903, 26 Fed Reg. 217-03,
217-18 (Jan. 9, 1961).
The Secretary of State has used this authority to set “baseline requirements for
LQA eligibility” in the DSSR. See Roberts v. United States, 745 F.3d at 1164. The relevant
portion of the DSSR makes a distinction between “Employees Recruited in the United
States” (DSSR § 031.11) and “Employees Recruited Outside the United States” (DSSR
§ 031.12). DSSR § 031.11 states that LQA “may be granted to employees who were
recruited by the employing government agency in the United States.” By contrast, DSSR
§ 031.12 states, in relevant part, that:
[LQA] may be granted to employees recruited outside the United States,
provided that:
13
a. the employee’s actual place of residence in the place to which the
quarters allowance applies at the time of receipt thereof shall be fairly
attributable to his/her employment by the United States Government;
and
b. prior to appointment, the employee was recruited in the United
States, the Commonwealth of Puerto Rico, the Commonwealth of the
Northern Mariana Islands, the former Canal Zone, or a possession
of the United States, by:
(1) the United States Government, including its Armed Forces;
(2) a United States firm, organization, or interest;
(3) an international organization in which the United States
Government participates; or
(4) a foreign government
and had been in substantially continuous employment by such
employer under conditions which provided for his/her return
transportation to the United States, the Commonwealth of Puerto
Rico, the Commonwealth of the Northern Mariana Islands, the former
Canal Zone, or a possession of the United States . . . .
DSSR § 031.12.
The DSSR delegates to agency heads such as the Secretary of Defense the power
to issue implementing regulations regarding the granting of LQA, “[w]ithin the scope of
[the DSSR],” see DSSR § 013, an authority which the Secretary of Defense has delegated
to the heads of the Department of Defense’s components. See Department of Defense
Instruction 1400.25, subchapter 1250.4.1 (Dec. 1996). It was pursuant to this authority
that the Army Corps’ 2001 LQA Policy and AER 690-500.592, the two documents that
have relevance to Mr. Thomas’ LQA entitlement claim at various times during his
employment with the Army Corps, were promulgated.
The Army Corps’ 2001 LQA Policy, a memorandum titled “Living Quarters
Allowance (LQA) Policy,” was addressed to “All Europe District Employees,” dated July
20, 2001, and signed by Col. Michael R. Pelkey, Commander of the Army Corps, Europe
District. The 2001 LQA Policy governed the awarding of LQA to all employees in the Army
Corps, Europe District, including Mr. Thomas, from the time he was hired at least through
March 2008. The operative portion of the 2001 LQA Policy states:
If adequate and suitable Government quarters are not available, LQA will
be authorized for the following employees:
a. Recruited from the United States, U.S. territories, possessions, or
protectorates with a period of one year or more continuous residence
not OCONUS [outside the continental United States].
b. Transferred from another overseas activity, agency, or command
that originally recruited the employee from the United States, eligible
to receive or receiving LQA, and has not exceeded five years
14
overseas in the EUCOM [United States European Command] Area
of Responsibility (AOR) at the time of selection.
c. Transferred from another overseas activity, agency, or command in
the EUCOM AOR, eligible to receive or receiving LQA, and has not
exceeded five years overseas at the time of selection.
d. For locally hired individuals selected for positions for which
recruitment from the U.S. is normally made if approved by the
Commander prior to selection and the selectee meets the criteria of
Section 031.12a and b or Section 031.12c of [the DSSR].
2001 LQA Policy ¶ 8.
The second document at issue in Mr. Thomas’ case is AER 690-500.592, issued
November 18, 2005. This regulation became applicable to employees of the Army Corp,
Europe District, supplanting the 2001 LQA Policy, in April 2008, when the CHRA-E
assumed responsibility for servicing them. The operative portion of the regulation, titled
“LQA Authorization,” states:
LQA will be granted for the following APF [appropriated fund] employees:
(1) Employees recruited in the United States or its possessions for
positions at grades GS-09 (or equivalent), WG-11, WL-09, WS-05,
and above. . . . Employees who previously vacated an outside the
continental United States (OCONUS) civilian or contractor position
must have resided permanently in the United States for at least 1
year immediately before accepting the formal job offer. This 1-year
residency requirement does not apply to— . . . .
(b) Applicants hired into hard-to-fill positions. . . .
(2) Employees who are recruited from outside the United States or its
possessions for positions in grades GS-09 (or equivalent) WG-11,
WL-09, WS-05, and above. . . . Former military members and civilian
employees will be considered to meet the DSSR, section 031.12,
eligibility requirement of “substantially continuous employment” if
they are appointed within 1 year after the date of separation or when
the transportation entitlement is lost, whichever occurs first. . . .
(3) Federal civilian or NAF [nonappropriated fund] employees selected
for or converted from NAF to positions in grades GS-09 (or
equivalent) WG-11, WL-09, WS-05, and above . . . who meet all of
the following:
(a) Are transferring to the European theater from another overseas
Government activity or agency without a break in service.
(b) Meet basic eligibility criteria of DSSR, section 031.11 or 031.12a
and b.
(c) Were already receiving or eligible to receive LQA at the time of
selection.
15
AER 690-500.592 ¶ 7a. Also relevant to Mr. Thomas’ claim is paragraph 9 of AER
690-500.592, titled “Continuing Eligibility,” which states: “Unless otherwise prescribed, all
employees who met the eligibility criteria in prevailing regulations at the time of
appointment but who do not meet the criteria of this regulation will continue to receive
LQA.” Paragraph 9 further states that this provision “[w]ill not extend or reinstate payment
of LQA when law, regulation, or policy directed termination of payment.” AER
690-500.592 ¶ 9b.
DSSR §§ 031.11 and 031.12 provide the “baseline requirements for LQA
eligibility,” Roberts v. United States, 745 F.3d at 1164, establishing when LQA “may be
granted” to employees, DSSR § 031, and any grant of LQA must be made “subject to
[their] provisions.” DSSR § 013. Cf. AER 690-500.592 ¶ 4 (Nov. 18, 2005) (“To be
considered eligible for allowances covered by this regulation, employees must meet the
basic eligibility requirements of DSSR, section 031.11 and section 031.12a and b.”).
Therefore, to have been eligible to receive LQA, Mr. Thomas first must have met the
criteria contained in either DSSR § 031.11 or § 031.12.
DSSR § 031.11 authorizes LQA for employees “recruited by the employing
government agency in the United States.” Before this court, Mr. Thomas argues that the
structure of this sentence means that “[w]hat is significant is not the location of the
employee, but the location of the employing government agency” (emphasis in original).
This argument ignores the basic structure of the DSSR § 031, which creates two separate
classes of employees: “Employees Recruited in the United States” (DSSR § 031.11) and
“Employees Recruited Outside the United States” (DSSR § 031.12). This distinction
furthers the purpose of LQA under the Overseas Allowances and Differentials Act, which
was “designed to give something extra to employees who must go overseas.” Acker v.
United States, 223 Ct. Cl. 281, 290 (1980); see also Bortone v. United States, 110 Fed.
Cl. 668, 677 (2013) (“[I]t appears from the statute that the purpose of LQA is to provide
an incentive to prospective employees to move overseas to work for the federal
government.”). DSSR § 031.11 applies only to those employees who were physically
located in the United States at the time of their hire. Because Mr. Thomas was living and
working in Italy at the time of his recruitment, this provision does not apply to him,
regardless of where his employing agency was located. See Bortone v. United States,
110 Fed Cl. at 677 (holding that the Navy properly construed DSSR § 031.11 “to exclude
individuals who live abroad, are encouraged to apply for a job and then apply for a job in
the foreign location but travel to the United States for the purposes of being formally hired
and sworn in”).
Therefore, to qualify for LQA, Mr. Thomas must have met the requirements of
DSSR §§ 031.12a and b. Mr. Thomas met the requirement of DSSR § 031.12a that his
place of residence in the place to which the LQA applies be “fairly attributable to his/her
employment by the United States Government,” as it is undisputed that it was understood
Mr. Thomas would return to Texas when his contract with Wireless ended. Mr. Thomas
also met the requirements of DSSR § 031.12b(2) that prior to his appointment he be
recruited in the United States by a United States firm and that his employment with this
firm have been “substantially continuous,” as it is also undisputed that he was recruited
16
in Texas by Wireless, a United States firm, where he worked continuously from October
2003 until May 2004.
Contested is whether Mr. Thomas also met the requirement of DSSR § 031.12b
that his previous employment have been “under conditions which provided for his/her
return transportation to the United States.” The government argues that, because
Mr. Thomas’ offer letter from Wireless entitled him to return transportation only “[u]pon
completion of 12 months of employment,” and Mr. Thomas, in fact, had completed only
eight months of employment with Wireless before joining the Army Corps, his return
transportation entitlement never vested, and, therefore, his previous employment did not
provide for his return transportation to the United States, as required by DSSR § 031.12b.
In support of this argument, the government cites to Urban v. United States, 119 Fed. Cl.
57 (2014). In Urban, the plaintiff’s prior employer had a policy entitling employees to return
transportation to the United States if they worked there for at least twelve months. See id.
at 59-60. The Urban plaintiff worked at his employer for only three months before
resigning to take an overseas civilian position with the Army, for which he was denied
LQA on the grounds that his previous work agreement failed to provide return
transportation to the United States. See id. at 60. In upholding this denial, the court in
Urban noted that the plaintiff’s entitlement under the return policy had never vested
because he failed to satisfy its twelve month requirement. See id. at 62. Thus, the court
found, the plaintiff had failed to satisfy DSSR § 031.12b’s requirement “that the conditions
already be in place to insure return transportation to the United States.” Id. at 63.
Mr. Thomas argues that Urban is distinguishable because, unlike his offer letter,
“the agreement in question in the Urban case did not ensure return transportation.” The
relevant terms of Mr. Thomas’ Wireless offer letter, however, which provided for return
transportation to the United States “[u]pon completion of 12 months of employment” are
very similar to those in the employer policy at issue in Urban, which provided for return
transportation “as long as [the employee had] been on board for at least twelve months.”
Id. at 59. As in Urban, Mr. Thomas resigned from his employer before the twelve months
his contract required for return transport. Therefore, as in Urban, Mr. Thomas’ entitlement
to return transportation had failed to vest at the time he was hired by the Army Corps, for
which reason the conditions were not in place to ensure his return transportation to the
United States. Thus, Mr. Thomas failed to satisfy the requirements of DSSR § 031.12b.
Mr. Thomas also argues that because the Army Corps never made a determination
of his eligibility, or lack thereof, for LQA under the DSSR before denying him LQA, the
government cannot now rely on his ineligibility under the DSSR to justify its decision after
the fact. Regardless of how it justified its decision, the Army Corps had no power to grant
LQA in situations not authorized by the DSSR, and to have done so would have been
without a basis in the law.4 See Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 416
4DSSR § 031.12 provides that DSSR § 031.12b “may be waived by the head of agency
upon determination that unusual circumstances in an individual case justify such action.”
The version of the regulation delegating authority to Department of Defense component
heads to implement regulations regarding LQA that is included in the Administrative
Record, Department of Defense Instruction 1400.25, subchapter 1250.5.1.3 (December
17
(1990) (“[P]ayments of money from the Federal Treasury are limited to those authorized
by statute . . . .”); Poillucci v. Dep’t of Justice, 459 F.3d 1351, 1355-56 (Fed. Cir. 2006)
(holding there was no legal basis for granting plaintiff retirement benefits to which he is
not entitled by statute, “even though a government agency expressed the view that he
was eligible for those benefits”) (citing Office of Pers. Mgmt. v. Richmond, 496 U.S. at
416). Because he did not meet the baseline requirements laid out in the DSSR at the time
of his hire, Mr. Thomas was not, and is not, eligible to receive LQA.
Even assuming that he did meet the requirements of the DSSR at the time of his
hire, Mr. Thomas would not be now, nor have been, at any point during his employment
with the Army Corps, entitled to receive LQA. To have an entitlement to LQA, an
employee must meet not only the requirements of the DSSR, but also any implementing
regulations promulgated pursuant to it. See Roberts v. United States, 745 F.3d at 1167
(“[Plaintiff’s] recovery turns on whether he is a member of a class entitled to LQA under
the Order and the Job Announcement.”) (emphasis in original). Based on the information
provided by the parties, Mr. Thomas failed, however, at any point during his employment
with the Army Corps, to meet the requirements of either of the two implementing
regulations applicable to him, the 2001 LQA Policy or AER 690-500.592.
Mr. Thomas failed to meet any of the criteria in the 2001 LQA Policy, which was
applicable to him from the time he was hired until April 2008. He was not recruited in the
United States, but had been living and working in Italy for five months at the time he was
hired by the Army Corps. See 2001 LQA Policy ¶ 8a. He was not transferred to the Army
Corps from another overseas activity, agency, or command, but was hired after working
for a civilian contractor. See id. ¶¶ 8b, c. His Commander did not approve LQA for his
position prior to his selection. See id. ¶ 8d. Rather than contest these facts, Mr. Thomas
argues that the Army Corps erred in denying him LQA at the time of his hire because it
failed to follow its own procedures in doing so. In particular, Mr. Thomas argues that the
2001 LQA Policy provision authorizing LQA for local hires, “if approved by the
Commander prior to selection,” paragraph 8d, actually “required” the Commander to
personally review and consider LQA for Mr. Thomas’ position prior to his selection.
Mr. Thomas argues that the evidence shows that the decision not to approve LQA for his
position was not made by the Commander, but “was apparently made by a Human
Resources clerk based on some undisclosed criteria,” and that this clerk “effectively
usurped the Commander’s authorizing authority.” Mr. Thomas further argues that the
evidence shows that the clerk’s decision was “based on two erroneous assumptions: 1)
that local hires were not eligible for LQA; and 2) that if LQA had been authorized that
authorization would have been contained in the vacancy announcement.” Because of
these alleged failures, Mr. Thomas argues the Army Corps’ decision that he was not
1996), states that such a waiver will be approved only if the employee “entered the country
in which the foreign post is located as the spouse of a sponsor who was eligible for the
quarters allowance” or “[t]he employee is an incumbent of a position designated as
emergency-essential according to DoD Directive 1404.10.” Plaintiff has not alleged any
facts that would allow him to meet these requirements.
18
eligible for LQA at the time of his hire was “arbitrary, capricious and not based on law,
and therefore should be overturned.”
In arguing that the Army Corps’ actions were arbitrary, capricious, and not based
on law, Mr. Thomas must overcome a high hurdle. “[M]ilitary administrators are presumed
to act lawfully and in good faith like other public officers, and the military is entitled to
substantial deference in the governance of its affairs.” Dodson v. U.S. Gov’t, Dep’t of
Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993). The plaintiff bears the burden of overcoming
the “‘strong, but rebuttable, presumption’ that the military discharges its duties ‘correctly,
lawfully, and in good faith.’” Bernard v. United States, 59 Fed. Cl. 497, 501 (quoting Hary
v. United States, 223 Ct. Cl. 10, 17, 618 F.2d 704, 707 (1980) (citations omitted)), aff'd,
98 F. App’x 860 (Fed. Cir.), reh'g denied (Fed. Cir. 2004); see also Spellissy v. United
States, 103 Fed. Cl. 274, 283 (2012); Boyle v. United States, 101 Fed. Cl. 592, 596 (2011)
(citing Richey v. United States, 322 F.3d 1317, 1326 (Fed. Cir. 2003)).
Mr. Thomas has not proven that the Army Corps actually committed the errors he
alleges. First, there is evidence that a senior official in Mr. Thomas’ command did consider
whether to provide LQA for his position prior to his hiring, but declined to do so. In
explaining why Mr. Thomas had initially been denied LQA, Col. Burcham stated that “it
was never the intent to offer LQA for the position to which you were hired.” Similarly,
Lt. Col. Lungu explained that Mr. Thomas was denied LQA, in part, because “[LQA] was
not being offered to other applicants who may have applied through the competitive
process for the same position.” While these statements were made after the fact, they are
consistent with the record created contemporaneously to Mr. Thomas’ hiring, which
demonstrates that there was no intent by the Army Corps to offer Mr. Thomas LQA. The
vacancy announcement for Mr. Thomas’ position made no mention of the availability of
LQA if hired. Notes on Mr. Thomas’ Standard Forms 50 and 52 stated “Local hire - not
entitled to LQA.” A note on his Checklist for Recruit Actions indicated that a “Completed
LQA Eligibility Form” was not applicable. Moreover, an Army Corps administrative
assistant told Mr. Thomas six days after he was offered the position that “No LQA nor
PCS [was] authorized.”
More fundamentally, Mr. Thomas’ argument fails because the 2001 LQA Policy did
not impose a requirement on the Commander to personally consider the applicability of
LQA to his particular position or to personally consider LQA for every hire. In fact, the
language of the 2001 LQA Policy stating that LQA would be granted “if approved by the
Commander prior to selection” required the Commander to review and make such a
decision only if LQA was to be granted to a local hire. See 2001 LQA Policy ¶ 8d.
Additionally, there is strong evidence that such LQA grants to local hires were meant to
be exceptional, with the 2001 LQA Policy stating “Living Quarters Allowance (LQA) is not
an automatic salary supplement or an entitlement. . . . When an individual is already
residing in a foreign area, LQA as a recruitment incentive is not normally required.” Thus,
the most logical reading of the 2001 LQA policy is that, absent an express determination
by the Commander that LQA should be provided for a position, a determination that in
most cases would not be made, no LQA would be provided to local hires. See Roberts v.
United States, 745 F.3d at 1167 (finding plaintiff was not entitled to LQA because his
“position was not designated as LQA-eligible” in its job announcement).
19
Nor can Mr. Thomas find relief based on AER 690-500.592, which has governed
his LQA status since April 2008. While AER 690-500.592’s Continuing Eligibility provision
might have entitled Mr. Thomas to continue receiving LQA had he already been receiving
it under the 2001 LQA Policy, no other provision of the AER 690-500.592 provided
Mr. Thomas with an LQA entitlement, as apparently was conceded by Mr. Thomas’ new
attorney at the June 16, 2015 oral argument. AER 690-500.592 authorizes LQA for three
types of employees: (1) employees recruited in the United States at grade GS-09 and
above; (2) employees recruited outside the United States at grade GS-09 and above; and
(3) employees transferring to the European theater from another overseas Government
activity or agency who were already receiving or eligible to receive LQA. AER
690-500.592 ¶ 7a. Mr. Thomas had already been recruited at the time CHRA-E began
servicing the Army Corps and, thus, (1) and (2) are not applicable. See id. ¶ 5a(1) (“The
CHRA-E will . . . Determine the employee’s eligibility for LQA before the employee is
appointed.”) (emphasis added). Nor was Mr. Thomas transferred from another overseas
government activity or agency. Since he was hired in April 2004, Mr. Thomas has worked
in the same construction representative position for the Army Corps. Although the 2001
LQA Policy was supplanted by AER 690-500.592, he remained in the same job and no
transfer was made. Therefore, even if he had met the DSSR eligibility requirements,
Mr. Thomas would not, at any point during his employment with the Army Corps, have
had an entitlement to receive LQA under either the 2001 LQA policy or AER 690-500.592.
The two requests made by the Commander of Mr. Thomas’ Army Corps District,
Col. Kem, to Army CPD in 2009, that Mr. Thomas be granted LQA and that any provisions
of AER 690-500.592 that Mr. Thomas did not meet be waived, do not change this
conclusion. There are two waiver provisions in AER 690-500.592: paragraph 8c and
paragraph 8d. Paragraph 8c discusses “waivers of unauthorized allowances based on
eligibility factors that are not locally governed” and states that “[t]he CPD will review claims
and forward them with appropriate recommendations to the decision-making authority.”
Although it is unclear whether this provision applied to Col. Kem’s waiver request, even if
it did, the CPD would have fulfilled its obligations through the response, dated March 2,
2010, of Aleck Hernandez to Col. Kem’s request. Paragraph 8d governs waivers
exercised under the provisions of Department of Defense Instruction 1400.25, subchapter
1250, “paragraph 5.1.1.2.2,” a provision which is not contained in the version of
Department of Defense Instruction 1400.25, subchapter 1250 (December 1996), that was
provided in the Administrative Record. Regardless, paragraph 8d simply repeats the
requirements that the Administrative Record’s version of Department of Defense
Instruction 1400.25, subchapter 1250.5.1.3, lists for waivers of the requirements of DSSR
§ 031.12b, and, states that, in addition, “employees must meet the requirements of this
regulation (AE Reg 690-500.592).” Thus, Mr. Thomas’ failure to meet the requirements
of AER 690-500.592 made him ineligible for such a waiver.
20
CONCLUSION
For the foregoing reasons, the defendant’s Motion for Summary Judgment is
GRANTED. Plaintiff’s Motion for Summary Judgment is DISMISSED. Plaintiff’s amended
complaint is DISMISSED. The Clerk of Court shall enter JUDGMENT for the defendant
consistent with this opinion.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
21