Murphy v. United States

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No. 16-095

Filed: February 8, 2017 FEB - 8 20ti

* U.S. COURT OF

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FEDERAL CLAIMS

Overseas Differentials and Allowances

Act, 5 U.S.C. $$ 5922, 5923(a);

WILLIAM A. MURPHY, Department of State Standardized

Regulations C'DSSR ) $$ 132.4,

Plaintiff, pro se, 132.11. 136:

Department of Defense Instruction

("DoDI") | 400.25, Vol. I 250;

Army in Europe Regulation

THE UNITED STATES, ("AE Reg.") 690-500.592;

Rules ofthe United States Court of

Defendant. Federal Claims ("RCFC')

12(b)(6) (Failure To State Claim),

41(b) (Failure To Prosecute

Claim).

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William A. Murphy, Vicenza, Italy, Plaintiff, pro se '

Vito S, Solitro, United States Department of Justice, Commercial Litigation Branch, Civil

Division, Washington, D.C., Counsel for the Government.

MEMORANDUM OPINION AND F'INAL ORDER GRANTING THE GOVERNMENT'S

MOTION TO DISMISS

BRADEN,Jadge.

I. RELEVANTFACTUALBACKGROUND.'

william A. Murphy was a civilian employee of the-Department of the Army (the "Army")

who currently is living in Vicenza, Italy. Compl. at fl 3.2 Pursuant to the Department of State

Standardized Regularions C,DSSR') g 136(a),3 as of February 1,2002, Mr. Murphy received a

The facts discussed herein were derived from the January 19, 2016 Complaint

I ("compl.")

and attached documents ("Compl. Tab 1-9').

2

Mr. Murphy retired from Govemment service on October 14,2016' Court Ex' A'

I The DSSR 136(a), in relevant part, provides:

$

When quarters occupied by an employee are owned by the employee or the spouse,

or both, or by the employee or the domestic partner, or both, an amount up to 10

percent of original purchase price (converted to U.S. dollars at original exchange

?01,q 1',a00 00t]0 10c3 h5h5

living quarters allowance C'LQA) to pay for personally-owned quarters ('POQ) during his tour

of duty in Yicenza,ltaly. Compl. Tab 2, at 6. A LQA for a POQ includes "rent," i.e., an annual

amount up to ten percent of the original price of the POQ for a period "not to exceed ten years"

and a "utilities" subsidy that includes heat, light, fuel, and garbage disposal expenses. .!ee DSSR

$ 136(a).

In November 2010, the Army reassigned Mr. Murphy to the United States and terminated

the LQA. Compl. Tab 2, at 6-7 . But, on June 16,2012, the Army reassigned Mr. Murphy to his

former position in Vicenza, Italy and he resumed occupancy of his POQ. Compl. at tf 6.

On October 21,2013, the Army's Office of the Deputy Chief of Staff, G-l authorized a

LQA for Mr. Murphy's POQ, effective June 18, 2012, to expire on April 13, 2021. Compl. Tab

6. On November 27,2013, however, the Army terminated the rental portion of Mr. Murphy's

LQA, although, he continued to receive utility expenses. Compl. at !1fl l, 7. In response, Mr.

Murphy sent an e-mail and called the Army's G-l Civilian Human Resources Agency Office to

ask why payments for the rental portion of the LQA were terminated. Compl. at'lf 9. The Army

responded that, according to the DSSR, the rental portion of the LQA for Mr. Murphy's POQ was

limited to "one instance per employee" for a total period of ten years, 1.e., 120 months, and Mr.

Murphy had exhausted the rental portion of the LQA. Compl. at fl 9.

Sometime in late 2013,I\4r. Murphy filed a claim with the Office of Personnel Management

('OPM) requesting an "exception to policy for an extension to continue receiving [LQA] for

rental quarters in Italy beyond ten years[.]"4 Compl. Tab 2, at 6. The reason Mr. Murphy requested

an exception was that he was compelled to seek rental quarters suitable for his handicapped spouse,

but had been unable to sell his POQ. Compl. Tab 2, at 6. Therefore, Mr. Murphy requested

continuation of the rental portion of the LQA, either until he could sell his POQ or he met the Date

Eligibte For Retum From Overseas C'DEROS'), whichever occurred first. Compl. Tab 2, at 6'

On December 24,2013, OPM denied Mr. Murphy's request for an extension, because Department

of Defense Instruction 1400.25, Volume 1250 (the "DoDI") specifically prohibits granting a LQA

for rental quarters, if the employee owns a POQ in the local area of work. Compl. Tab 2, at 6

(citing DoDI 1400.25, Vol. 1250). Therefore, OPM determined that it did not have the authority

to consider Mr. Murphy's "exception" to the DoDI. Compl. Tab 2, at 6.

rate) of such quarters shall be considered the annual rate of his/her estimated

expenses for rent. Only the expenses for heat, light, fuel, (including gas and

electricity), water, garbage and trash disposal and in rare cases land rent, may be

added to determine the amount ofthe employee's quarters allowance in accordance

with Section 134. The amount of the rental portion of the allowance (up to 10

percent of purchase price) is limited to a period not to exceed ten years li.e., 120

monthsl at which time the employee will be entitled only to above utility expenses,

garbage and trash disposal, plus land rent.

DSSR g 136(a).

n Congress authorized the Director of OPM to settle claims involving federal civilian

employees' compensation and leave. See 31 U.S.C $ 3702(a)(2).

On April 10,2014, Mr. Murphy llled a second claim with OPM requesting reconsideration

of the Army's November 27 ,2013 denial of the rental portion of his LQA. Compl. Tab 2, at 6.

On November 25, 2014, OPM denied Mr. Murphy's request for reconsideration in Claim Decision

i4-0030. Compl. at'll 12. Therein, the OPM ruled that the ten-year period, prescribed by the

DSSR $ 136(a), is cumulative and "[Mr. Murphy] has received the full ten-year-grant lor the POQ

he owns and occupies . . . regardless of his intervening two-year-return to the United States."

Compl. atfl 14; Compl. Tab2,aI7-8.

On March 17,2015, Stars and Stripes, a newspaper published by the Department of

Defense, featured an article reporting that, under the current regulations, "[e]mployees are allowed

LQA for privately-owned quarters (POQ) in as many areas as they are assigned," but proposed

changes to the DSSR would "!]imit authorization ofLQA for privately-owned quarters to [one]

instance per employee and only when certified by the housing office and the budget office that

[the authorization] is in the best interests of the govemment[.]" Compl. Tab 8, at 38-39. The

March 17, 2015 article also stated that, if an employee retumed to the United States after a LQA-

eligible assignment, the employee would be eligible to receive LQA again, if the employee was

immediately assigned to another overseas job. Compl. Tab 8, at 39.

On May 28, 201 5, Mr. Murphy filed an appeal to the Merit Systems Protection Board ("the

Board"). Compl. Tab 3, at 1 1. On July 10, 2015, the appeal was dismissed because the Board

determined that it lacked jurisdiction over his appeal. Compl. Tab 3, at 14. Under 5 U.S.C. $

7512, the Board has jurisdiction to review aa appeal from a removal, a suspension of more than

14 days, a reduction in grade or pay, or a furlough action of 30 days or less. But, the Board

determined that it lacked jurisdiction, because the denial ofa LQA benefit was not a "reduction of

pay." Compl. Tab 3 at 13. The Board, noted, however, that Mr. Murphy could seek redress "with

an appropriate United States Court." Compl. Tab 3 at 14.

II. RELEVANTPROCEDURALHISTORY.

On January 19, 2016, Mr. Murphy ("Plaintiff ') filed a Complaint in the United States Court

of Federal Claims alleging that, because the Army terminated his LQA when he was transferred

back to the United States in October 2010, pursuant to the DSSR $ 132.4,s a new ten-year period

s

The DSSR g 132.4 provides:

When an employee is transfened (Section 040q) from a post at which an LQA has

been granted, such grant shall terminate as of the following dates, whichever is

earliest:

a. the date immediately preceding the effeclive date of the employee's pre-

departure temporary quarters subsistence allowance grant, except that the

agency head or designee may continue LQA for a pedod of five days

following commencement of the temporary quarters subsistence allowance

grant if it determines that it is necessary for the employee to vacate existing

quarters for such period in order to meet lease requirements for cleaning

and repair;

b. the date the employee commences travel under the transfer, or combined

leave and transfer order: or

for a LQA commenced, when the Army reassigned him to Italy for a second tour of duty, under

the DSSR $ 132.11.6 Compl. at !f 6. The January 19,2016 Complaint also alleges that the Army

unlawfully terminated the rental portion of Plaintiff s LQA on November 27, 2013, so that Plaintiff

is entitled to reinstatement, pursuant to the DSSR $ 132.1l, for payments until April 2021, i.e.,

approximately $1,600.00 per month for rent, including retroactive payments, dating back to

November 2013, in the amount of $34,000.00. Compl. at tf!{ 1 19.

On March 21,2016, the Govemment filed a Motion To Dismiss ("Gov't Mot."), pursuant

to Rule of the United States Court of Federal Claims ("RCFC') 12(b)(6), for failure to state a claim

upon which relief can be granted. Plaintiff failed to file a timely response.

On May 12,2016, the court issued an Order To Show Cause, pursuant to RCFC 4l(b),

requiring Plaintiffto establish why this case should not be dismissed for failure to prosecute or to

frle a Response to the Govemment's March 2l, 2016 Motion To Dismiss, no later than June 13,

2016.

On June 20,2016, Plaintiff filed a Response to the May 12,2016 Order To Show Cause

and the Govemment's March 21, 2016 Motion To Dismiss ("P1. Resp."), together with a October

21,2013 letter from the Department of the Army, Office of the Deputy Chief of Stafl G-1 ("P1.

Resp. Ex. l") that stated that Plaintiff s request for LQA had been processed, and that Plaintiff was

c. the effective date of transfer, when no travel by the employee under the

transfer is involved.

DSSR $ 132.4.

6

The DSSR $ 1 32.1 1, in relevant part, provides:

tA] LQA gtanted to a newly appointed or transferred employee shall commence at

his,trer post as of one of the following dates, whichever is latest:

a. the date of employee's anival, except: (1) when the employee's

anival at the new post is delayed because of his/her being ordered

to report to another place for consultation or temporary duty and

his,/her family arrives at the post before the employee, the grant shall

commence as of the date of arrival of his/her family, and (2) as

otherwise provided in Chapter 700 with respect to Defense

Department teachers;

b. the effective date of transfer if the employee is on detail or leave

at the post to which transferred;

c. the date of entrance on duty, if recruited locally;

d. the date following termination of a temporary lodging allowance;

or

e. the date expenses for quarters are incurred.

DSSR $ 132.1l.

entitled to rental LQA at an annual rate of $ 14,817, for a period running from June 18, 2012 until

April 13,2021. Pl. Resp. Ex. l.

On July 11, 2016, the court also issued an Order requiring the Govemment to file a Reply

by July 28, 2016. On July 28,2016, the Govemment filed a Reply ("Gov't Reply"). On August

24,2016, Plaintifffiled a Sur-Reply ("P1. Sur-Reply").

On October 27, 2016, the court issued an Order staying this case until November l, 20i6,

so that the court could convene a telephone status conference with the parties. On that date, the

court convened a telephone status conference to discuss whether Plaintiff was owed an additional

month of rental LQA.7 Thereafter, the court ordered the Govemment to show cause and provide

documentation to evidence whether Plaintiff had exhausted the 120 month rental LQA period.

111112016 Order, ECF No. 10.

On January 9,2017, the Govemment filed a Status Report ("1/9/2017 Status Rep.") and

the January 6,2017 Declaration of Lawrence B. Mendy ("11612017 Mendy Decl."), the Chief of

the Defense Civilian Pay System Theater Support Office-Europe, stating that he had "personal

knowledge of the documents and records showing the LQA payments made to [Plaintiffl," had

conducted an "audit" ofthe LQA payments, and concluded that Plaintiffreceived the rental portion

of the LQA for the full 120 month period. 11612017 Mendy Decl. at flfl l-5. Mr. Mendy also

stated that the audit payments were made on a biweekly basis and that Plaintiff received a total of

$170,159.80 in LQA payments over 260 bi-weekly pay periods, i.e., the equivalent often years of

payment with 26 pay-periods per year. l/612017 Mendy Decl. at fl 5. On January 1 l, 2017 , the

cowt requested that the Govemment supplement the January 9, 2017 Status Report with Mr.

Mendy's audit and the records of the LQA payments made to Plaintiff.

On January 23,2017, the Government filed an additional Status Report ("1/23117 Status

Rep."), and attached, as Exhibit A, records of the rental LQA payments made to Plaintiff. The

payment records evidence that Plaintiff received 262 biweekly LQA payments. l/23117 Status

Rep. Ex. A.

On January 26,2017, the court convened a telephone status conference with the parties to

ascertain whether Plaintiff was satisfied with the audit and whether he wished voluntarily to

dismiss the January 19, 2016 Complaint or have the court issue an opinion regarding the

Govemment's March 21, 2016 Motion To Dismiss, therefore allowing Plaintiff to file an appeal.

ilI. DISCUSSION.

A, Jurisdiction,

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C.

$ 1491, "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

7

Based on the record, the court was concemed that Plaintiff received rental LQA for only

119 months, as opposed to the full 120 months to which he was entitled to under DSSR $ 136.

111112016 Order, ECF No. 10.

cases not sounding in tort." 28 U. S.C. g 1a91(a)(The Tucker Act, however, is "a j urisdictional

I ).

statute; it does not create any substantive right enforceable against the United States for money

damages. . . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal

Claimsl whenever the substantive right exists." United States v. Testan,424U.5.392,398 (1976).

To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an

independent contractual relationship, constitutional provision, federal statute, and/or executive

agency regulation that provides a substantive right to money damages. See Toddv. United States,

386 F.3d 1091, 1094 (Fed. Cir. 200a) ("[J]urisdiction under the Tucker Act requires the litigant to

identify a substantive right for money damages against the United States separate from the Tucker

Act[.]"); see also Fisher v. United States, 402 F.3d 1167 , 1172 (Fed. Cir. 2005) (en banc) (The

TuckerAct... does not create a substantive cause ofaction; ... a plaintiffmust identify a separate

source of substantive law that creates the right to money damages. . . . [T]hat source must be

'money-mandating."'). Specifically, a plaintiff must demonstrate that the source of substantive

law upon which he relies "can fairly be interpreted as mandating compensation by the Federal

Govemment[.]" Testan, 424 U.S. at 400. And, plaintiff bears the burden of establishing

jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv. ,

846 F.2d 746,'148 (Fed. Cir. 1988) ("[O]nce the ftrial] court's subject matter jurisdiction [is] put

in question . . . [plaintiffl bears the burden of establishing subject matter jurisdiction by a

preponderance of the evidence.").

Plaintiff s claims are made pursuant to the Overseas Differentials and Allowances Act (the

"Act"), 5 U.S.C. $$ 592213, and the DSSR $$ l32.ll

and 136(a). The Act authorizes a

govemment-wide framework goveming allowances for federal employees assigned to duty outside

ofthe United States. See 5 U.S.C. $ 5922(a) (stating that the Act applies to "employee[s] officially

stationed in a foreign area"). Section 5923(a)(2) ofthe Act authorizes LQAs for federal employees

when govemment-owned quarters are not otherwise available. See 5 U.S.C. $ 5923(aX2)

(authorizing a "living quarters allowance for rent, heat, light, fuel, gas, electricity, and water").

Regulations promulgated by the Department of State implement the Act. See Executive Order

10903, January 9, 1961, 26 FED. REc.21743,217-18 (designating and empowering the Secretary

of State to promulgate the DSSR to implement the Act).

The Act and the DSSR were regarded by the United States Court ofAppeals for the Federal

Circuit to be money-mandating, when additional implementing regulations, in that case the DoDI

and Marine Corps Bases Japan Order P12000.2A, designated a particuiar class of employees as

LQA eligible. See Roberts v. United States,745 F.3d 1158, l166 (Fed. Cir.2014) ("The

[Department of Defense] Instruction and the [Marines Corps] Order, combined with the statute

and DSSR regulations, are fairly construed as money-mandating because the payment of money

is required when [the relevant official] determines that a particular [class] is LQA-eligible or an

individual should receive an LQA-continuance . . . ." (emphasis original)); see also 5 U.S.C. $

5922(c) ("The allowances and differentials atthorized shall be paid under regulations prescribed

by the President goveming . . . payments of the allowances and differentials and the respective

rates at which the payments are made."). 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. RobertsT45 F.3dat I166.8

In this case the DoDI serves to "authorize the payment of [LQA] to [Department of

Defense] appropriated fund civilian employees who are [United States] citizens living in foreign

areas pursuant to the Department of State Standardized Regulations fi.e., the DSSR] and sections

5522, 5584, and 5922 of title 5, United States Code." See DoDI No. 1400.25, Vol. 1250 $ 1(bxl).

And, an additional Army implementing regulation, Army in Europe Regulation 690-500.592 (the

"Army Regulation"), mandates the payment of LQA to certain classes of civilian employees in

Europe, including those that are grade GS-09 or higher, provided that they meet the other

requirements of the DSSR. See Army In Europe Regulation ("AE Reg.") 690-500.592 g 7(a)

(stating that "LQ A will be granted for the following [civilian] employees" (emphasis added)).

The January 16,2016 Complaint alleges that Plaintiff was a GS-13 civilian employee of

the Army, stationed in Vicenza,Italy. Compl. Tab. 9. Therefore, the January 16,2016 Complaint

alleges that Plaintiff is within a class that is LQA eligible. Accordingly, the United States Court

ofFederal Claims has jurisdiction over the claims alleged therein.

B. Standard Of Review For Pro Se Litigants.

Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants

represented by counsel. See Haines v. Kerner,404 U.S. 519, 520 (1972) (holding that pro se

complaints, "however inartfully pleaded," are held to "less stringent standards than formal

pleadings drafted by lawyers"). This court traditionally examines the record "to see if [a pro se]

plaintiff has a cause of action somewhere displayed." Ruderer v. United States, 188 Cl. Ct. 456,

468 (t969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiff s complaint,

the court "does not excuse [a complaint's] failures." Henke v. United States,60 F.3d795,799

(Fed. Cir. 1995).

C. Standard Of Review For Motion To Dismiss Under RCFC 12(bX6).

A challenge to the United States Court of Federal Claims' "[ability] to exercise its general

power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule] l2(bx6)

motion[.]" Palmer v. United States,168 F.3d 13l0, 1313(Fed.Cir. 1999);see alsoRCFC l2(bX6)

("Every defense to a claim for relief in any pleading must be asserted in the responsive pleading .

. . . But a party may assert the following defenses by motion: . . . (6) failure to state a claim upon

which relief can be granted[.]").

When considering whether to dismiss an action for failure to state a claim, the court must

assess whether "a claim has been stated adequately" and then whether "it may be supported by [a]

showing [of] uny set of facts consistent with the allegations in the complaint." Bell Atl.

Corp. v. Twombl),, 550 U.S. 544, 563 (2007). The plaintiff s factual allegations must be

substantial enough to raise the right to relief "above the speculative level." Id. at 555. The courl

8

"The question of whether [plaintiffl in fact is within a class [that is] entitled to LQA is a

merits issue." Roberts 745 F.3d at 1166.

must accept all factual allegations in the complaint as true and make all reasonable inferences in

favor ofthe plaintiff. /d

D. The Government's March 21,2016 Motion To Dismiss.

1. The Government's Argument.

The Govemment argues that the Army's interpretation of the DSSR $ 136 is neither

erroneous nor inconsistent, because the plain language limits the rental portion of a LQA for a

POQ to ten years.e Gov't Mot. at 5-7. After ten years, an employee is paid the equivalent of 100

percent of the purchase-price ofthe POQ, and the rental LQA ceases. Gov't Mot. at 6. Nothing

in the DSSR, however, supports Plaintiff s position that he is entitled to another ten years ofrental

LQA for his POQ, beginning June 2012. Gov't Mot. at 6.

In addition, neither the October 21,2013 letter from the Army nor the March 17,2015

Stars and Stripes article proposed any policy change that affects the Army's November 27,2013

denial ofPlaintiffs request fora second ten years ofrental LQA. Gov'tMot. at 7-8. The October

21,2013 letter from the Army, is not a contract, because it lacks adequate consideration. Gov't

Mot. at 7. And, the March 17, 2015 Stars and Stripes article is not binding. Gov't Mot. at 8.

2. Plaintiff s Response.

Plaintiff responds that he is entitled under the DSSR $ 132.11 to a LQA as of June 18,

2012, because he was a transferred employee. Pl. Resp. at2. The DSSR $ 136 does not provide

that a LQA is cumulative, but instead that, when an employee is transferred overseas, a LQA grant

commences onthe date ofthe employee's arrival. Pl.Resp.at2. Inthis case, an October 21,2013

letter from the Department of the Army, Office of the Deputy Chief of Staff, G-1, authorized

Plaintiffto receive a purchase-price allowance for the period June 18, 2012 to April 13, 2021. Pl.

Resp. Ex. 1. The October 21, 2013 letter was never rescinded. Pl. Resp. at 2. That Plaintiff

previously held the same position is irrelevant, since transfer was a separate action that was not a

continuation nor cumulative, as the Government contends. Pl. Resp. at 3.

3. The Government's Reply.

The Govemment replies that the DSSR $ 136 limits the rental LQA for a POQ to ten years.

Gov't Reply at 2-3. Plaintiff s June 20, 2016 Response neither addresses how compensating an

employee for 183.33% of the purchase-price makes sense, nor whether an employee is limited to

rental LQA for ten years. Gov't Reply at 2-3. The October 21,2013 form letter from the Army

has no legal effect, because there was no independent consideration or detrimental reliance by the

Plaintiff. Gov't Reply at 3-4. Finally, the March 17 ,2015 Stars and Stripes article is irrelevant

as it discusses proposed changes that would curtail the allowance of purchase-price to a one-time

assessment. Gov't Reply at 4. Therefore the issue before the court is whether Plaintiff is entitled

to 183.33Yo of the purchase-price of his POQ in Vicenza, Italy. Gov't Reply at 5.

' The DSSR states that an amount up to ten percent of the original purchase-price of the

POQ shall be considered as the annual estimated expense for the rental portion of the POQ. See

DSSR $ 136(a).

4. Plaintiff s Sur-Reply.

Plaintiffs Sur-Reply contends that the October 21,2013 letter from the Army is legally

binding, because it is the same document that the Army used to grant a LQA to all civilian

employees. Pl. Sur-Reply at 2. In addition, the October 21, 2013 letter authorizes the exact

monthly payments, when the monthly payments should start and end, and requests immediate

notification of any issue that may affect allowance of the LQA. Pl. Sur-Reply at 2. Plaintiff adds

that he is not attempting to obtain 183% of the purchase-price of his POQ. Pl. Sur-Reply at 3.

"[E]stimated expense for rent" is the precise text used in the DSSR and the October 2l , 2013 letter

from the Army because the LQA does not reimburse an employee for purchase-price of a POQ,

but reimburses the employee for a rent-equivalent. Pl. Sur-Reply at 3. Plaintiff adds that the

March 17, 2015 Stars and Stripes article is relevant, because Plaintiff was a transfer employee,

although he was assigned to same location as a prior transfer. Pl. Sur-Reply at 4.

E. The Court's Resolution,

The payment of LQAs to federal employees is govemed by the Overseas Differentials and

Allowances Act, 5 U.S.C. $ 5922, as implemented through the DSSR. For purposes of the Act, an

"employee" is defined as "an employee in or under an agency" and "agency" is defined as "an

.

Executive agency." 5 U.S.C. $ 5921 As a civilian employee of the Army, Plaintiff was an

employee of an executive agency. See 10 U.S.C. $ 111 (stating that the Army is an executive

department of the United States). The DoDI instructs that LQAs are to be paid to civilian

employees pursuant to the DSSR. ,See DoDI No. 1400.25, Vol. 1250.10 The Army Regulation

states that it "must be used with" the DoDI and the DSSR, and also states that LQA will be paid

to certain classes ofcivilian employees, provided that they "meet the basic eligibility requirements

of [the] DSSR." AE Reg. 690-500.592 $ 4.rr Therefore, the DSSR governs whether Plaintiff is

eligible for the rental portion of the LQA.

Plaintiff interprets the DSSR $ 136 to mean that the ten-year period for the rental portion

ofthe LQA should restart from zero when an employee is reassigned to a position where he was

l0 The DoDI in relevant part, states that:

Reissues Volume 1250 of DoD Instruction (DoDI) 1400.25 (Reference (b)) and

establishes DoD policy, delegates authority, assigns responsibilities, and authorizes

the payment of allowances and differentials to DoD appropriated fund civilian

employees who are U.S. citizens living in foreign areas pursuant to the Department

of State Standardized Regulations (Reference (c)) and sections 5522, 5584, and

5922 of title 5, United States Code (Reference (d)).

DoDI No. 1400.25, Vol. 1250 $ (l)(b)(l).

I1 TheArmy Regulation states that the purpose of the Regulation is to "[i]mplement[]

policy for paying [LQA] to appropriated fund (APF) civilian employees of the U.S. Army in

Europe." AE Reg. 690-500.592 $ 1(a). It further states that it "[m]ust be used with the Department

of State Standardized Regulations and [DoDI No.1400.25, Vol. 1250]."1d $ 1(b).

previously assigned and the employee moves into the same POQ for which he previously received

rental LQA. Compl. fl 6; Pl. Resp. at 2. The Army interprets the DSSR g 136 to limit employees

to a total often years of rental LQA for a POQ, at an annual rate of ten percent of the purchase

price of such quarters, thereby compensating the employee for hundred percent of the purchase

price of the POQ over a ten-year period. Gov't Reply at 3; Gov't Mot. 6-7.

The court is required to defer to an agency's interpretation of a regulation, "unless that

interpretation is plainly erroneous or inconsistent with the regulation." Decker v. Northwest

Environmental DeJbnse Center, 133 S. Ct. 1326, 1337 (2013) (citing Auer v. Robbins,5l9 U.S.

452, 461 (1997)). In this case, however, Plaintiff challenges the Army's interpretation of a

regulation promulgated by the Department of State. Courts afford deference to an agency's

interpretation ofregulations drafted by another agency, when the non-drafting agency is authorized

to adopt or implement the subject regulations. See Pauley v. BethEnergt Mines, Inc.,50l U.S.

680, 698 (1991) (affording deference to the Department of Labor's C'DOL) interpretation of

regulations promulgated by the Department of Health, Education and Welfare ("HEW"), because

the DOL was statutorily required to draft regulations "not more restrictive" than those promulgated

by the HEW); Sec'y of Labor v. Excel Mining, LLC,334 F.3d l,7 (D.C. Cir. 2003) (affording

deference to the DOL's interpretation ofHEW regulations); see also Bortone v. United States,l10

Fed. Cl. 668, 676 (2013) (affording deference to the Department of the Navy's interpretation of

the DSSR). The Department of State was tasked with implementing the portions of the Act that

govem the payment ofLQAs for federal employees, and has done so through promulgation ofthe

DSSR. Executive Order 10903, January 9, 1961,26 FED. REc. 21743,217-18 (designating and

empowering the Secretary of State to promulgate regulations implementing the Act). And, the

Army has adopted the DSSR for determining when to pay LQAs. AE Reg. 690-500.592 $ 1

(stating that the Army's regulation implementing payment of LQA "[m]ust be used with the

Department of State Standardized Regulations"). The courl therefore owes deference to the

Army's interpretation of the DSSR.

The court has determined that the Army's interpretation of the DSSR $ 136(a) is neither

"plainly enoneous [n]or inconsistent" with the regulation. Decker,l33 S. Ct. at 1337. The phrase

"[t]he amount ofthe rental portion ofthe allowance (up to ten percent ofpurchase price) is limited

to a period not to exceed ten years," as set forth within the DSSR $ 136(a), is not ambiguous.

When an employee is reassigned to a location where the employee previously received LQA for a

POQ, the LQA does not restart from zero upon transfer. This is because the rental portion of the

LQA serves to compensate the employee for the purchase price ofthe POQ over a ten-year period.

Were the court to accept Plaintiff s interpretation, i.e., thal the LQA began anew when Plaintiff

was reassigned to the same location and moved into the same POQ, Plaintiff would be entitled to

an amount of rental LQA significantly higher than the purchase price of his POQ.r2 Plaintiff has

received the equivalent of the purchase price as permitted under the DSSR $ 136, and the

regulation precludes him from receiving additional rental LQA. See l/23/2011 Status Rep. Ex. A.

(evidencing 262 biweekly LQA payments made to Plaintiff).

'' If a new ten-year period of rental LQA began in June 2012, as Plaintiff argues, then

Plaintiff would receive a total ofeighteen years and ten months ofrental LQA fbr the same POQ,

thereby receiving an amount approximately equivalent to 188.33% ofhis purchase price.

l0

This is not to say, however, that the Army ceased to provide for Plaintiff s living expenses

entirely once Plaintiff had received the full amount t}re rental portion of the LQA. The DSSR $

136 provides that an employee will continue to receive LQA payments for utilities, i.e., "heat,

light, fuel (including gas and electricity), water, [and] garbage and trash disposal," after the ten-

year period for rental LQA payments has ended. See DSSR g 136(a). Plaintiff concedes that he

continued to receive LQA payments for utilities. Compl. !f7 ("1 cunently still receive utility

expenses but not the rent portion.")

With respect to Plaintiff s other arguments, the October 21,2013 letter from the Army

granting Plaintiffthe rental portion of the LQA from June 18, 2012 to April13,2021,is not binding

on the Government. ,See Falso v. Office of Pers. Mgmt.,1 l6 F.3d 459, 460 (Fed. Cir. 1997) ("The

Govemment cannot be estopped from denying benefits that are not permitted by law[,] even where

the claimant relied on the mistaken advice of a govemment official or agency"); see also Ofice of

Personnel Management v. Richmond,496 U.S. 414, 434 (1990) (an agency is not authorized to

make payment to a claimant in contravention of regulation requirements). Finally, the March 17,

2015 Stars and Stripes article has no effect on the court's interpretation ofthe DSSR $ 136(a).

IL CONCLUSION.

For these reasons, the Govemment's March 21,2016 Motion To Dismiss is granted. See

RCFC 12(bX6). The Clerk is directed to dismiss the January 19,2016 Complaint.

IT IS SO ORDERED.

Judge

ll

COURT EXHIBIT A

Page I of I

Court Exhibit A

From: "Murphy, William A (Bill) CIV USARMY IMCOM EUROPE (US)'

<william.a.murphy5.civ@mail.mil >

To: "Peter_Terenzio@cfc. uscourts. gov" < Peter_Terenzio@cfc. uscourts.gov >

Dates Friday, October 28,2Ot6 10:11AM

subject: Automatic reply: INon-DoD Source] Murphy v. United States (No. 16-95) Telephone

Status Conference

I have retired from Civil Service as of 1-4 Oct 16. Please call Gerry Sovie at 314- 637-8011 or

Karen Riney at 31,4-637 -8012 for assistance. Thanks, Bill Murphy

http://usmail02d.uscmail.dcn/mail/cfc/pterenzi.nsf/(%24lnbox)/F2A2499E40D3362C3DE9... 2lll2O17