Reyes Colon v. United States , 2017 U.S. Claims LEXIS 729 ( 2017 )

0
Jfn tbe Wniteb ~tates Qeourt of jfeberal Qelaimt 1LED
No. 16-391C
JUN 2 2 2017
(Filed: June 22, 2017)
U.S. COURT OF
) FEDERAL CLAIMS
LUIS A. REYES COLON, ) Claim for overseas living quarters
) allowance; application of the Overseas
Plaintiff, ) Differentials and Allowances Act, 5 U.S.C.
) § 5923(a)(2), and the Department of State
v. ) Standardized Regulations, DSSR § 031.12;
) jurisdiction; eligibi lity
UNITED STATES, )
)
Defendant. )
````````~- )
Luis A. Reyes Colon, prose, Armed Forces Pacific.
Joseph A. Pixley, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Depaiiment of Justice, Washington, D.C., for defendant. With him on the briefs were
Chad A. Readier, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr.,
Director, and Elizabeth M. Hosford, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. Of counsel was Annette T.
Perry, Attorney, Litigation Division, United States Army Legal Services Agency, Fort Belvoir,
Virginia.
OPINION AND ORDER
LETTOW, Judge.
Plaintiff, Luis A. Reyes Colon ("Mr. Reyes"), a civilian employee of the United States
Department of the Army ("Army"), seeks a living qua1iers allowance ("LQA") for his
employment at the Army Materiel Suppo1i Center in South Korea from May 1, 2014 to the
present. Mr. Reyes brings his claim pursuant to the Overseas Differentials and Allowances Act
("the Act"), Pub. L. No. 89-554, 80 Stat. 378, 510 (1966) (codified at 5 U.S.C. §§ 5921-28),
which authorizes LQA payments for certain federal employees stationed overseas, and Section
03 1.1 2 of the implementing Department of State Standardized Regulations ("DSSR"), which
establishes LQA-eligibility requirements for employees recruited outside the United States. Mr.
Reyes retired from active duty military service in May 2009 after serving in South Korea, and
subsequently was employed in South Korea by Serco Inc. ("Serco"), a United States company.
He resigned from that position in December 2009 to begin civilian employment with the Army in
South Korea, and was granted LQA payments from December 7, 2009 to May 1, 2014. In May
2013, however, the Army informed Mr. Reyes that he was not eligible for LQA payments
because an audit had revealed that he did not satisfy the eligibility requirements set fmih in
DSSR § 03 l.12(b). Mr. Reyes appealed that determination to the United States Office of
7017 1450 ODDO 1346 0188
Personnel Management ("OPM"), which ruled against him, and thereafter he brought suit in this
court to challenge the Army's interpretation and application of the DSSR.
Pending before the court are Mr. Reyes' and the government's motions for summary
judgment pursuant to Rule 56 of the Rules of the Court of Federal Claims ("RCFC"). For the
reasons stated, Mr. Reyes' motion is denied and the government's motion is granted.
BACKGROUND
A. The Overseas Differentials and Allowances Act and the DSSR
The Overseas Differentials and Allowances Act authorizes LQA payments to particular
federal civilian employees stationed in foreign areas. See 5 U.S.C. §§ 5922-25. The Act
specifically provides, in pertinent patt, that "[w]hen [g]overnment owned or rented quarters are
not provided without charge for an employee in a foreign area," LQA payments "may be granted
... for rent, heat, light, fuel, gas, electricity, and water." 5 U.S.C. § 5923(a)(2). The President
has the authority to promulgate regulations governing the payment of such allowances, 5 U.S.C.
§ 5922(c ), and that authority has been delegated to the Secretary of State, Exec. Order No.
10903, 26 Fed. Reg. 217-18 (Jan. 12, 1961). The Secretary of State accordingly has established
LQA-eligibility requirements through the DSSR. See Roberts v. United States, 745 F.3d 1158,
1163 (Fed. Cir. 2014). In providing eligibility criteria, the DSSR distinguishes between
employees recruited within the United States, see DSSR § 031.11, and those recruited outside the
United States, see DSSR § 031.12. Relevant here, DSSR § 031.12 states in pertinent patt:
[LQAJ may be granted to employees recruited outside the United States, provided
that:
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 [g]overnment;
and
b. prior to appointment, the employee was recruited in the United States,
the Commonwealth of Puerto Rico, the Commonwealth of the
No1thern Mariana Islands, the former Canal Zone, or a possession of
the United States, by:
(1) the United States [g]overnment, including its Armed Forces;
(2) a United States firm, organization, or interest;
(3) an international organization in which the United States
[g]overnment patticipates; 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
2
Rico, the Commonwealth of the Northern Mariana Islands, the
former Canal Zone, or a possession of the United States ....
DSSR § 031.12. 1
The DSSR also delegates authority to the heads of agencies to implement further
regulations "with regard to the granting of and accounting for [LQA] payments." DSSR § 013;
see also Roberts, 745 F.3d at 1164 (quoting DSSR § 013 and noting that "the language of the Act
and the DSSR, as a whole, provides only baseline requirements for LQA eligibility and
contemplate[ s] further implementing regulations"). Pursuant to that authority, the United States
Department of Defense issued further implementing regulations related to LQA payments,
stating:
[This volume] establishes [Department of Defense] policy, delegates authority,
assigns responsibilities, and authorizes the payment of allowances and
differentials to [Department of Defense] appropriated fund civilian employees
who are U.S. citizens living in foreign areas pursuant to the [DSSR] and
[S]ections 5522, 5584, and 5922 of [T]itle 5, United States Code ....
Depat1ment of Defense Instruction No. 1400.25, Vol. 1250, DoD Civilian Personnel
Management System: Overseas Allowances and Differentials,§ l(b)(l) (Feb. 23, 2012) ("DoDI
No. 1400.25, Vol. 1250"); see also DoDI No. 1400.25, Vol. 1250, § 4(c) (explaining that LQA
payments are "intended to be recruitment incentives" and are not to be "automatically ...
granted"). That instruction delegated authority to the heads of the Depat1ment of Defense
Components with respect to, among other things, LQA payments under DSSR § 031.12. See
DoDI No. 1400.25, Vol. 1250, § 4(a)(l); see also Roberts, 745 F.3d at 1160, 1166 (noting that
DoDI No. 1400.25, Vol. 1250 implements the DSSR and also "further delegates LQA authority
to the heads of Department of Defense Components"). In accord with that delegation of
authority, the Army has authorized LQA payments for civilian employees in South Korea. See
Army in Korea Regulation 690-10, Overseas Allowances, Benefits and Entitlements (Sept. 9,
2016) ("AK Reg. 690-10"). 2
1DSSR § 031.12 also provides that "Subsection 03 l.12b may be waived by the head of
agency upon determination that unusual circumstances in an individual case justify such action,"
but there is no indication that such a waiver occmTed here. See generally Def.' s Mot. for
Summary Judgment ("Def.'s Mot."), ECF No. 14; Pl.'s Mot. for Summary Judgment ("Pl.'s
Mot."), ECFNo. 15.
2This 2016 regulation supersedes the previous Army in Korea Regulation 690-10, which
was issued on January 9, 2010. See Army in Korea Regulation 690-10, Overseas Allowances,
Benefits and Entitlements (Jan. 9, 2010) (appended to Def. 's Suppl. Br., ECF No. 20, at A27 to
A41 ). Because the two regulations are nearly identical with respect to LQA-eligibility and
authorization ofLQA payments, the court will only refer to the most recent 2016 regulation in
addressing Mr. Reyes' claim for LQA payments from May I, 2014 to the present.
3
B. Mr. Reyes' Employment in South Korea
On May 31, 2009, Mr. Reyes retired from active duty military service after serving with
the Army in South Korea. See Comp!. at I; Pl. 's Mot., Ex. 6 (Certificate of Release or Discharge
from Active Duty). In June 2009, he accepted a position in South Korea with Serco, a United
States corporation. Pl. 's Mot., Ex. 2 (Letter from Steven A. Sutton, Vice President, Serco Inc. to
Reyes (June 11, 2009) ("Serco Letter")). While employed at Serco, Mr. Reyes applied for a
civilian position with the Army and received an offer for that position in October 2009. Def. 's
Mot., App. ("Def.'s App.") at Al2 to Al5 (Letter from Frederick E. Schumacher, Branch Chief,
Dept. of the Army to Reyes (Nov. 2, 2009) ("Army Offer Letter")), ECF No. 14-1. 3 He
subsequently resigned from Serco in December 2009 to begin his civilian employment at the
United States Army Materiel Support Center in South Korea. See Pl.'s Mot., Ex. 10
(Resignation Letter from Reyes to Serco (Nov. 12, 2009)); Army Offer Letter at Al2 to Al 5.
Mr. Reyes applied for and received LQA payments from December 7, 2009 to May 1, 2014. See
Def.'s App. at A7 to All (Questionnaire for LQA Determinations from Reyes (Nov. 2, 2009)
("LQA Questiommire")); Pl. 's Mot., Ex. 1 (Letters from the Army to Reyes (Nov. 9, 2009 to
Apr. 22, 2014)).
On May I, 2013, the Army notified Mr. Reyes that he was not eligible for LQA payments
because he did not meet the requirements of DSSR § 03 l.12(b). Pl.'s Mot., Ex. 12 (Mem. from
Clifford M. Dickman, Deputy Director, Civilian Human Resources Agency, Army to Reyes
(May 1, 2013) ("Ineligibility Mem.")) at 1-2. Historically, the Depmiment of Defense had taken
the position that the "substantially continuous employment" requirement in DSSR § 031.12(b)
was "met by employment with one or more employers as long as all the basic eligibility criteria
in the DSSR were met and there was no break in service between employers." Comp!., Ex. F
(Depmiment of Defense Point Paper, Erroneous Payment a/Living Quarters Allowance to
Certain Employees (Jan. 3, 2013) ("Point Paper")) at I. In January 2013, however, the Office of
the Under Secretary of Defense distributed a memorandum stating that "as many as 2,000
employees may have been erroneously receiving LQA payments" due to an incorrect
interpretation of DSSR § 03 l. l 2(b ). Pl. 's Mot., Ex. 11 (Mem. from Jessica L. Wright, Acting
Principal Deputy, Office of the Under Secretary of Defense (Jan. 3, 2013)) at I. The
memorandum explained that "employees hired overseas after working for more than one
employer are not eligible to receive LQA," and thus directed for an audit "to identify employees
hired locally overseas who may have received LQA payments erroneously." Id. at I; see also
Point Paper at I ("LQA eligibility requires that an employee remain with the same employer ...
that recrnited the individual from the U.S. with no intervening employment prior to [Depmiment
of Defense] civilian appointment overseas."). The audit identified Mr. Reyes as an employee
improperly receiving LQA payments. Ineligibility Mem. at I. The Army therefore notified Mr.
Reyes that its previous LQA grant was "erroneous" under DSSR § 031.12 because Mr. Reyes
3The appendix to the government's motion for summary judgment consists of22 pages
relating to Mr. Reyes' employment positions in South Korea, his LQA application, and his
appeal to OPM after the Army determined that he was not eligible for LQA payments. The
appendix will be cited as "Def. 's App. at A_," showing the pe1iinent page number.
4
was "an employee recruited outside the United States who had more than one employer in the
overseas area prior to [his] appointment into ... [f]ederal civilian service." Id at 1-2. 4
Mr. Reyes appealed that ineligibility decision to OPM. Def.'s App. at Al6 to A22
(OPM Compensation Claim Decision (Sept. 18, 2015) ("OPM Decision")). OPM interpreted
DSSR § 03 I. I 2(b) as permitting LQA payments when "the employee, prior to appointment, had
'substantially continuous employment"' with a qualified entity that "recruited the employee in
and provided return transpo11ation to the United States or its territories or possessions." Id at
Al8. In accord with that interpretation, OPM determined that Mr. Reyes was ineligible under
DSSR § 031.12 on two independent grounds: (1) Serco, Mr. Reyes' previous employer before
his civilian employment with the Army, recruited Mr. Reyes in South Korea rather than in the
United States; and (2) Mr. Reyes failed to demonstrate that Serco "had provided him with return
transportation to the United States as an employment benefit." Id at Al 8 to Al 9. OPM
therefore denied Mr. Reyes' claim for LQA payments. Id. at Al 7 to A22.
C. Mr. Reyes ' Present Suit
Mr. Reyes filed suit in this court on March 28, 2016, seeking LQA payments for his
civilian employment at the Army Materiel Support Center in South Korea from May 1, 2014 to
the present. See Comp!. at 1. In accord with the court's scheduling order issued on September 1,
2016, ECF No. 11, the parties completed fact discovery, and both parties filed motions for
summary judgment in May 2017, see Pl.'s Mot.; Def.'s Mot. After the court sua sponte raised
the question of whether it had jurisdiction over Mr. Reyes' claim, Order of May 31, 2017, ECF
No. 16, the parties also filed supplemental briefs regarding jurisdiction, see Pl.'s Resp. to the
Court, ECF No. 19; Def.'s Suppl. Br. In moving for summary judgment, Mr. Reyes disputes the
Army's interpretation of DSSR § 031.12, arguing that he is eligible for and entitled to $94,250 in
LQA payments for his employment with the Army in South Korea. See generally Pl. 's Mot.
The government, relying upon the Army's interpretation ofDSSR § 031.12, takes the position
that Mr. Reyes is ineligible for LQA payments under the DSSR. See Def. 's Mot. at 7-8.
,JURISDICTION
As plaintiff, Mr. Reyes has the burden of establishing jurisdiction. See Reynolds v. Army
& Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). Pursuant to the Tucker Act, the
court has 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
4
The Army also info1med Mr. Reyes that he was required to repay the LQA payments he
had received since 2009, but that he could seek a waiver of indebtedness from the Defense
Finance and Accounting Service ("DFAS"). Ineligibility Mem. at 2; see also Pl.'s Mot., Ex. 13
(Letter from Michael Presley, Supervisor, Debt Processing Branch, DFAS to Reyes (Aug. 14,
2013)). Mr. Reyes applied for such a waiver, Pl.'s Mot., Ex. 14 (Waiver/Remission of
Indebtedness Application (Feb. 19, 2014)), and DFAS waived Mr. Reyes' debt of$93,033.25 in
LQA payments received from December 7, 2009 to April 30, 2013, Pl.'s Mot., Ex. 16 (Letter
from Silvia L. Gibson, Director, Debt and Claims Management, DFAS to Reyes (Apr. 29,
2014)).
5
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. § 149l(a)(l). The Tucker Act
waives sovereign immunity and thus allows a plaintiff to sue the United States for money
damages, United States v. Mitchell, 463 U.S. 206, 212 (1983), but it does not provide a plaintiff
with any substantive rights, United States v. Testan, 424 U.S. 392, 398 (1976). "[A] plaintiff
must identify a separate source of substantive law that creates the right to money damages."
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant part) (citing
Mitchell, 463 U.S. at 216; Testan, 424 U.S. at 398).
In Roberts, 745 F.3d 1158, the Federal Circuit considered the court's jurisdiction over a
claim for LQA payments and determined that "[t]he Act and the DSSR, standing alone," do not
provide this court with jurisdiction because they "are only money-authorizing, not money-
mandating." Id at 1162-65. The court of appeals found jurisdiction in that case, however, when
it examined the Act and the DSSR in combination with provisions of DoDI No. 1400.25, Vol.
1250 and Marine Corps Bases Japan Order Pl2000.2A ("Marine Corps Order"). Id. at 1160,
1165-67. The combination was constrned as money-mandating "because the payment of money
[was] required when the [Marine Corps] Commander, acting pursuant to the [Marine Corps
Order], determine[d] that a particular post [was] LQA-eligible or an individual should receive an
LQA-continuance (i.e., LQA "shall be paid," 5 U.S.C. § 5922(c), in these instances)." Id at
1166 (emphasis in original) (footnote and citation omitted); see also 5 U.S.C. § 5922(c) ("The
allowances and differentials authorized by this subchapter shall be paid under regulations
prescribed by the President governing ... payments of the allowances and differentials and the
respective rates at which the payments are made.").
Here, the relevant Department of Defense Instrnction "authorizes the payment of
allowances and differentials to [Department of Defense] appropriated fund civilian employees
who are U.S. citizens living in foreign areas pursuant to [the Act and the DSSR]." DoDI No.
1400.25, Vol. 1250, § l(b)(l). As a further elaboration, an Army Regulation addresses LQA
payments for civilian employees in South Korea, specifically providing:
a. ELIGIBILITY. LQA is authorized for U.S. civilian employees who resided
permanently in the U.S. from the time they applied for employment until and
including the date he or she accepted a formal offer of employment in a foreign
area. Certain employees, such as military members who retire or separate locally
in the overseas area, who were recruited outside of the U.S. may also be eligible
when the criteria outlined in [the DSSR and DoDI No. 1400.25, Vol. 1250] are
met.
AK Reg. 690-10, Ch. 2-2(a). This regulation also states that "locally hired employees may be
granted [LQA payments]" when the position is "announced worldwide," the eligibility
requirements in DSSR § 031.12 are met, and the employee "did not previously accept a position
for which LQA was not offered." AK Reg. 690-10, Ch. 2-2(c). Mr. Reyes alleges that he was
recruited in South Korea, see Pl. 's Mot. at 9-10, and therefore falls within the class of employees
recruited outside the United States and hired locally.
6
The Department of Defense Instruction and Army Regulation, when viewed in
combination with the Act and the DSSR, can be money-mandating. In Roberts, a Marine Corps
Order stated that an LQA-continuance "may be granted ... at management's discretion,"
Roberts, 745 F.3d at 1166 (emphasis added), but the Federal Circuit nonetheless held that such
an Order, examined in conjunction with the Act, the DSSR, and the same Department of Defense
Instruction at issue in this case, required payment when the Marine Corps Commander
determined that an individual should receive an LQA-continuance, id. (citing 5 U.S.C. §
5922(c)); see also Thomas v. United States, 122 Fed. Cl. 53, 60 (2015) (relying on Roberts to
find jurisdiction over an LQA claim where an Army policy "authorized" LQA payments if
ce1iain criteria were met). Similarly, although the Army regulation for South Korea provides
that a locally hired employee "may be granted" LQA payments when certain requirements are
met, see AK Reg. 690-10, Ch. 2-2(c) (emphasis added), payment is nonetheless required
pursuant to 5 U.S.C. § 5922(c) when an appropriate Army official dete1mines that such an
employee has satisfied the eligibility conditions of AK Reg. 690-10 and therefore should receive
LQA payments.
Contrastingly, shortly after the decision in Roberts, the Federal Circuit determined that
this court lacked jurisdiction over a claim for danger pay allowances brought under the Act, 5
U.S.C. § 5928, because there were no implementing instructions or orders that could be fairly
construed as money-mandating when viewed in conjunction with the Act and the DSSR.
Acevedo v. United States, 824 F.3d 1365, 1370 (Fed. Cir. 2016) (explaining that the letters and e-
mails relied upon by appellants in that case did not represent an agency-wide policy or constitute
a binding directive that would provide a money-mandating substantive source of law). That
decision is distinguishable from the facts presented here, however, because the Department of
Defense Instruction and Army Regulation pertaining to South Korea are agency-wide policies.
See Murphy v. United States, 130 Fed. Cl. 554, 559 (2017) (finding that the Act, DSSR, DoDI
No. 1400.25, Vol. 1250, and an Army Regulation provided the comi with jurisdiction over a
claim for LQA payments).
The government notes that AK Reg. 690-10 is different from the Army Regulation
authorizing LQA payments in Europe, as the latter provides that "LQA will be granted" for
particular employees stationed in Europe. See Def.'s Suppl. Br. at 9-10; Army in Europe
Regulation 690-500.592, Civilian Personnel Living Quarters Allowance,§ 7(a)(l) (Nov. 18,
2005). Nonetheless, given the strong similarities between the instruction and order in Roberts
and the instruction and regulation at issue here, the court is bound by the Federal Circuit's
precedent set forth in Roberts, rather than the contrasting decision by the Circuit in Acevedo. By
asserting that he has satisfied the LQA-eligibility requirements and should receive payment as an
employee recruited overseas, see Comp!. at l; Pl.'s Mot. at 9-10, and taking into account DoDI
No. 1400.25, Vol. 1250 and AK Reg. 690-10, Mr. Reyes has sufficiently alleged that he falls
within the class of employees identified in AK Reg. 690-10. The court accordingly has
jurisdiction over Mr. Reyes' claim. See Roberts, 745 F.3d at 1167 (finding jurisdiction where
the implementing instruction and order provided for LQA payments to a particular class and
plaintiff alleged that he fell within that class) (citation omitted). 5
5 Whether Mr. Reyes is in fact within that class or entitled to LQA payments is "a merits
issue." Roberts, 745 F.3d at 1167.
7
ST AND ARD FOR DECISION
Pursuant to RCFC 56(a), a grant of summary judgment is proper when the pleadings,
affidavits, and evidentiary materials of the case demonstrate that "there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter oflaw." See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). A genuine dispute exists when the issue "may
reasonably be resolved in favor of either paity," id. at 250, and a fact is considered material when
it "might affect the outcome of the suit under the governing law," id. at 248. The moving paity
has the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The court therefore draws all factual inferences "in the
light most favorable to the paity opposing the motion." Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369
U.S. 654, 655 (1962)). Summary judgment will be appropriate if"the record taken as a whole
could not lead a rational trier of fact to find for the non-moving paity." Id. at 587 (citation
omitted).
ANALYSIS
In seeking LQA payments, Mr. Reyes challenges the Army's determination that he is
LQA-ineligible under DSSR § 031.12. See generally Pl.'s Mot. Generally, the comt defers to an
agency's interpretation of its own regulation unless that interpretation is "plainly erroneous or
inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989) (in turn quoting Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945))). Where an agency interprets regulations
promulgated by a different agency, such an interpretation is also afforded deference when the
interpreting agency is authorized to adopt or implement the regulations at issue. See Pauley v.
BethEnergy Mines, Inc., 501 U.S. 680, 698 (1991) (affording deference to the Department of
Labor's ("DOL") interpretation of regulations promulgated by the Department of Health,
Education and Welfare ("HEW") because Congress provided DOL with "the authority to
interpret HEW' s regulations and the discretion to promulgate interim regulations based on a
reasonable interpretation thereof'); Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1, 6-7
(D.C. Cir. 2003) (affording deference to DOL's interpretation of regulations issued by another
agency, where DOL was authorized to adopt and administer those regulations) (citations
omitted). Because the Army is authorized to adopt and administer the DSSR, see DSSR § 013;
DoDI No. 1400.25, Vol. 1250, its interpretation ofDSSR § 031.12 is entitled to deference, see
Murphy, 130 Fed. Cl. at 559, 562 (granting deference to the Army's interpretation of the DSSR)
(citing cases); Bartone v. United States, 110 Fed. Cl. 668, 676 (2013) (granting deference to the
Navy's interpretation of the DSSR) (citing cases).
Here, DSSR § 03 l.12(b) provides that an employee will only be eligible for LQA
payments if, "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." DSSR § 03 l.12(b) (emphasis added); see also
Thomas, 122 Fed. Cl. at 67 (noting that plaintiff satisfied the "recruited in" requirement ofDSSR
§ 03 l .12(b) because plaintiff was recruited in Texas and worked for the firm that recruited him
8
"continuously" until May 2004, when he began his employment with the Army). When Mr.
Reyes applied for and accepted his civilian position at the Army Materiel Suppmi Center in
South Korea, he was employed in South Korea by Serco. See Serco Letter; Army Offer Letter at
A12 to A15. Mr. Reyes acknowledges as much when he states that he "resid[ed] in [South]
Korea" prior to his appointment and "was recruited outside of the United States." Pl.'s Mot. at 9;
see also LQA Questionnaire at A 7 (stating that Mr. Reyes applied for his civilian position while
living outside the United States). 6 Mr. Reyes was not recruited in the United States by Serco, his
previous employer, as required by DSSR § 03 l.12(b), but rather was already living in South
Korea at that time.
Additionally, DSSR § 03 l. l 2(b) requires that, prior to appointment, the employee was
"in substantially continuous employment ... under conditions which provided for his[] return
transportation to the United States." The offer and acceptance letter from Serco did not provide
any return transportation for Mr. Reyes, see Serco Letter, and Mr. Reyes has not argued
otherwise, see generally Pl. 's Mot. Rather, Mr. Reyes contends that the Army provided for his
return transpo1iation when he retired in May 2009 and when he began his civilian employment in
December 2009. See id. at 10. Such provisions from the Army, even if accepted as true, do not
support Mr. Reyes' LQA claim because DSSR § 031.12(b) requires that Serco, Mr. Reyes'
employer immediately before his civilian appointment, must have agreed to provide the return
transportation. See Bartone, 110 Fed. Cl. at 680 (affording no weight to the return transportation
provisions from plaintiffs current government employer on the ground that "DSSR § 031.12 by
its plain terms requires that the employee demonstrate that he had a return agreement in place
with the previous employer") (emphasis added). Because Mr. Reyes has failed to show that
Serco provided for such return transportation, he is not eligible for LQA payments under DSSR §
031.12(b ). See Thomas, 122 Fed. Cl. at 67 (holding that plaintiff failed to satisfy DSSR §
031.12(b) because, at the time plaintiff resigned from his previous employment and was hired by
the Army, his previous employer's contract did not include return transportation) (citing Urban
v. United States, 119 Fed. Cl. 57 (2014)); Bartone, 110 Fed. Cl. at 680 ("Where, as here, the
undisputed facts demonstrate that the plaintiff had no return agreement with the previous
employer, the plaintiff cannot successfully claim LQA eligibility under DSSR § 031.12 even if
all the remaining elements are established or in dispute."). 7
6
In addressing DSSR § 031.12(a), Mr. Reyes asse1is that his "actual place of residence in
the place to which the quarters allowance applies at the time of receipt thereof [was] fairly
attributable to his[] employment by the United States [g]overnment." Pl. 's Mot. at 9 (quoting
DSSR § 03 l .12(a)). This assertion is con"ect, but unpersuasive in context because DSSR §
031.12 provides that Subsection 031.12(a) and Subsection 03 l.12(b) must be satisfied before an
employee may qualify for LQA payments. See DSSR § 031.12; see also Thomas, 122 Fed. Cl. at
67 ("[T]o qualify for LQA, [plaintiff] must have met the requirements of DSSR §§ 03 l.12a and
b.").
7Mr. Reyes emphasizes that the Army previously granted him LQA payments, see
generally Pl.'s Mot., but such an occu1Tence does not bind the government or alter the court's
analysis here, see Office ofPers. Mgmt. v. Richmond, 496 U.S. 414, 426 (1990) ("[T]he equitable
doctrine of estoppel cannot grant respondent a money remedy that Congress has not
authorized.") (citing Immigration Naturalization Serv. v. Pangilinan, 486 U.S. 875, 883 (1988));
9
In sum, Mr. Reyes is not eligible for LQA payments because he does not meet the
requirements set forth in DSSR § 031.12. The A1my's ineligibility determination was therefore
not "plainly erroneous or inconsistent" with that regulation.
CONCLUSION
For the reasons stated, Mr. Reyes' motion for summary judgment is DENIED and the
government's motion for summary judgment is GRANTED. The clerk shall enter judgment in
accord with this disposition.
No costs.
c~
It is so ORDERED.
Judge
Falso v. Office of Pers. Mgmt., 116 F.3d 459, 460 (Fed. Cir. 1997) ("[T]he government cannot be
estopped from denying benefits that are not permitted by law[,] even where the claimant relied
on the mistaken advice of a govermnent official or agency.") (citing Richmond, 496 U.S. at 416,
434); see also Thomas, 122 Fed. Cl. at 67-68 ("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.") (citations and footnote omitted).
10