Lohmann v. United States
| Decision Date | 29 June 2021 |
| Docket Number | No. 19-cv-994C,19-cv-994C |
| Parties | PAUL LOHMANN, et al., Plaintiffs, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Before the Court are Plaintiffs' Motion for Class Certification and Appointment of Class Counsel (ECF No. 13) and Amended Motion for Class Certification and Appointment of Class Counsel (ECF No. 27), as well as Defendant's alternative request to stay the administration of any class until a dispositive ruling in this matter (ECF No. 29). For the reasons that follow, Plaintiffs' motions are DENIED and Defendant's alternative request is DENIED AS MOOT.
Named Plaintiffs are ten reserve component ("RC") soldiers who were temporarily mobilized from the RC to active duty and assigned to Fort Hood, Texas, for multiple temporary tours of duty between fiscal years ("FYs") 2014 and 2017. Pls.' Compl. at ¶¶ 1-2, ECF No. 1. Plaintiffs allege that they were released from active duty and ordered to return to their homes of record ("HOR") at the conclusion of each temporary duty assignment. Id. ¶ 4. Each served on Temporary Change of Station ("TCS") orders that authorized per diem at a rate of 55% of the locality rate, pursuant to paragraph 4950 of the Joint Travel Regulations ("JTR") dated October 1, 2014 and paragraph 4250(A)(1)(b) of subsequent JTRs dated November 1, 2014 through April 1, 2017. Id. ¶¶ 5-6. Some of the Plaintiffs served on Permanent Change of Station ("PCS") orders at Fort Hood immediately before their TCS tour(s) began. Id. ¶ 3.1
Plaintiffs claim that while at their TCS location, they were all required to live off of the installation due to the unavailability of government-provided housing, ultimately requiring Plaintiffs to maintain two households—i.e., their primary/permanent residence at their HOR and their off-installation housing at Fort Hood. See id. ¶ 45. Despite devoting time and money to accommodating off-installation housing, with an authorization to receive a 55% per diem allowance, Plaintiffs allege they were wrongly denied per diem payments for FYs 2015 through 2017. Id. ¶ 30. They further allege that the Army based these denials on an erroneous rule requiring a multi-day break in service between PCS and TCS duty assignments. Id. ¶¶ 8-9. This rule resulted from a 2015 U.S. Army Audit Agency report that investigated the circumstances surrounding the potentially unauthorized payment of TCS entitlements to 146 First Army soldiers. See Mobilized Soldiers on [TCS] Orders: Audit Report A-2015-0087-FMX ("2015 Audit Report") at 32, ECF No. 38-1. According to Plaintiffs, the 2015 Audit Report rule contravened the applicable JTRs, which required a minimum break in service of only one day. ECF No. 1 ¶¶ 29-30.
Plaintiffs allege that the injury caused by the Army's application of this erroneous rule extended beyond their individual claims. According to Plaintiffs, as of July 2016, there were 405 RC soldiers assigned to long-term temporary duty at Fort Hood and more than 1,000 additional RC soldiers assigned to long-term temporary duty at other locations throughout the Continental United States. Id. ¶ 46. Plaintiffs believe most of these Reservists were denied per diem for FYs 2015 through 2017 based on the 2015 Audit Report rule. Id.
Prior to initiating this suit, Plaintiffs attempted for several years to press their claims for per diem both within and outside the Army. Id. ¶ 49. Plaintiffs claim that they repeatedly inquired about the alleged payment error to Army officials and contacted several members of Congress for assistance. See id. ¶¶ 10-11, 16-17, 194. They assert that "these inquiries reached the Army's Deputy Chief of Staff for Manpower and Personnel Plans, Programs, and Policies (Army G-1) office at the Pentagon[;]" however, the Army never issued a final decision on the matter. Id. ¶ 194. From October 2016 through mid-2017, Plaintiff Lohmann on behalf of all Plaintiffs submitted several congressional inquiries and an Article 138 Complaint to no avail. Id. ¶ 70. Finally, in March 2018, Plaintiffs sent a letter through counsel to the Office of the Secretary of the Army requesting per diem payments or a statutory or regulatory basis for the denial of their payments. Id. ¶ 18. The Army provided an interim response in April 2018, indicating that it would provide a decision or further correspondence by June 2018. Id. ¶ 19. By July 2019, after Plaintiffs provided documentation requested by the Army to evaluate their cases and after numerous exchanges of correspondence, the Army had not issued a decision. Id. ¶¶ 20-23.
On July 11, 2019, Plaintiffs filed the instant action on behalf of themselves and a proposed class of similarly situated RC soldiers. Plaintiffs' Complaint seeks back pay for the per diem entitlements that the Army allegedly owes Plaintiffs and the proposed class under 37 U.S.C. § 474(a)(4) (Travel and Transportation Allowances) and the JTRs. See ECF No. 1 ¶ 27; see also id. at 28 ("Prayer for Relief"). Additionally, Plaintiffs seek pre-judgment and post-judgment interest, costs, and attorneys' fees, as well as an incentive payment to compensate Plaintiffs for their efforts and participation in the proposed class action. Id. at 28 ("Prayer for Relief").
One week later, on July 18, 2019, the Principal Deputy Assistant Secretary of the Army for Manpower and Reserve Affairs ("PDASA") sent a letter to Plaintiffs' counsel responding to counsel's March 2018 letter. See Pls.' Mot. for Class Certification & Appointment of Class Counsel, Ex. A (Letter from Principal Deputy Assistant Sec'y Marshall M. Williams to Michael E. Silverman (July 18, 2019)), ECF No. 13-1. The PDASA determined, after reviewing Plaintiffs' materials, that Plaintiffs are authorized to per diem entitlements for their active duty periods in FYs 2016 and 2017. Id. at 1-2. He requested that Plaintiffs submit supporting documentation to Army Headquarters to initiate the processing of those per diem payments. Id. at 2. The PDASA further determined that Plaintiffs are not authorized per diem entitlements for their active duty period in FY 2015 because Plaintiffs' TCS orders were retroactively amended several weeks after they were released from active duty under their PCS orders to create a two-day break in service between their then-current TCS orders and previous PCS orders. Id. at 1. The PDASA noted that the JTR prohibits changing a permanent duty station once travel is complete and also prohibits retroactively modifying orders to create or change a per diem allowance. Id.; see, e.g., JTR ¶ 4950(A)(4) (Oct. 1, 2014), ECF No. 38-1 at 6. Since Plaintiffs were already residing at Fort Hood on PCS orders and did not have a break in service between their PCS and TCS orders (as those TCS orders were originally drafted), the PDASA found they are not entitled to per diem for FY 2015. See ECF No. 13-1 at 1. Additionally, he found the retroactive amendment of Plaintiffs' orders to be contrary to the JTR. Id.
On March 9, 2020, Defendant moved pursuant to Rule 52.2(a) of the Rules of the United States Court of Federal Claims ("RCFC") for an order remanding this matter to the Secretary of the Army with instructions to submit Plaintiffs' claims to the Army Board for Correction of Military Records ("ABCMR" or "the Board") and staying further proceedings pending the remand decisions.2 See Def.'s Mot. for Voluntary Remand and a Stay of Ct. Proceedings at 1, ECF No. 12. Defendant argued that the "interests of efficiency and justice" weighed in favor of giving the Army the opportunity to address Plaintiffs' claims in the first instance. Id. at 3. Plaintiffs disagreed. They objected to remand on the grounds that it would unduly delay resolution of Plaintiffs' and the proposed class's claims. See Pls.' Resp. to Def's Mot. for Voluntary Remand and for a Stay of Ct. Proceedings at 6-10, ECF No. 14. Despite Plaintiffs' opposition, on March 26, 2020, the court entered an order staying proceedings and remanding the case to the ABCMR. See Order (Smith, J.), ECF No. 16. The court was persuaded by Defendant's argument that the ABCMR's decisions could provide complete relief to Plaintiffs or, at the very least, limit the issues before the court. Id. at 1. In addition, the court noted that potential future class members would not be prejudiced by a remand because, in the event the ABCMR provided complete or partial relief to Plaintiffs, Defendant committed to notifying similarly situated Army soldiers that they might be entitled to compensation. Id. at 2 (quoting ECF No. 12 at 5).
In November 2020, the ABCMR issued decisions in Plaintiffs' remand proceedings. See Joint Status Report, ECF No. 22.3 In each case, the Board agreed with the PDASA's decision, finding Plaintiffs are entitled to per diem payments for FYs 2016 and 2017 but are not entitled to per diem payments for FY 2015 due to the JTR's requirement that there be a break in service of at least one day. See, e.g., Lohmann Decision at 15-16, ECF No. 22-1. With respect to FY 2015, the ABCMR found that the retroactive amendment of Plaintiffs' orders "to create a false break in service" was "extraordinary" and violated the JTR's prohibition on retroactive revocation and/or modification of orders. Id. The Board recommended correcting each Plaintiff's military records to show eligibility for per diem entitlements for FYs 2016 and 2017 and paying Plaintiffs per diem based on this correction, less payments Plaintiffs already received, if any, as authorized by the PDASA's letter. Id. at 17. The ABCMR recommended denial of any other relief. Id.
It appears, at least in the case of Plaintiff Lopez, that the Office of the Secretary of the Army has since acted on the ABCMR's recommendation and corrected Plaintiffs' records. See Pls.' Reply Br. in Support of Mot. for Class Certification & Appointment of Class Counsel at 24 ...
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