Roberts v. United States

• Decision Date: 10 February 2014
• Docket Number: Nos. 2012–5113,2012–5114.,s. 2012–5113
• Citation: 745 F.3d 1158
• Parties: Mark ROBERTS, Plaintiff–Appellant, v. UNITED STATES, Defendant–Cross–Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

745 F.3d 1158

Mark ROBERTS, Plaintiff–Appellant,

v.UNITED STATES, Defendant–Cross–Appellant.

Nos. 2012–5113, 2012–5114.

United States Court of Appeals,Federal Circuit.

Feb. 10, 2014.

Danielle B. Obiorah, Employment Rights Law Firm of Danielle Obiorah, PC, of McDonough, Georgia, argued for plaintiff-appellant.

Steven J. Gillingham, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-cross-appellant. On the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and K. Elizabeth Witwer, Trial Attorney. Of counsel on the brief was Frederick A. Congdon, Pacific Area Counsel Office, United States Marine Corps, of Okinawa, Japan.

Before DYK, O'MALLEY, and WALLACH, Circuit Judges.

DYK, Circuit Judge.

Plaintiff Mark Roberts appeals a decision of the United States Court of Federal Claims granting defendant United States' motion for summary judgment on his claim for living quarters allowance (“LQA”). The United States cross-appeals from the trial court's order denying its motion to dismiss for lack of subject-matter jurisdiction.¹ We conclude that the trial court's exercise of jurisdiction over Roberts' claim was appropriate, and we affirm the grant of summary judgment in the United States' favor.

Background

Roberts asserts that he is owed LQA in connection with his current civilian position as Deputy Camp Commander (“DCC”) for Camp Hansen, a Marine Corps base in Okinawa, Japan. LQA is a payment given to civilian employees for the annual cost of suitable housing for the employees and their families. As discussed below, payment of LQA is authorized for particular classes of employees by the Overseas Differentials and Allowance Act (“Act”), 5 U.S.C. § 5921 et seq., and implementing regulations issued by the Department of State (the Department of State Standardized Regulations or “DSSR”). Further implementing regulations—the Department of Defense (“DoD”) Civilian Personnel Management Instruction No. 1400.25, Vol. 1250 (“ Instruction ”) and the Marine Corps Bases Japan (“MCBJ”) Order P12000.2A (“ Order ”) issued by the Commander of the MCBJ—generally limit LQA to situations in which the appointing officer has designated the position as LQA-eligible based on recruitment need and expense to the agency.

When deciding whether to offer LQA for the DCC position at Camp Hansen pursuantto the Instruction and the Order, the deputy commanding general of the MCBJ considered both the recruitment need and the expense to the agency. The deputy commanding general's prior experience showed that there were many qualified, locally-available candidates for the various DCC positions for whom LQA was not needed as a recruitment incentive. Indeed, it was known that many active-duty Marines like Roberts wished to remain in Okinawa in civilian positions after retirement. The deputy commanding general also determined that there were insufficient funds to support LQA for DCC positions in Okinawa without reallocating funds from other programs. After considering both recruitment need and expense, the deputy commanding general determined that LQA was not necessary for these DCC positions. In April 2008, the Marine Corps posted Job Announcement number OK–08–058 (“ Job Announcement ”), which listed a job vacancy for “Deputy Camp Commander for Camp Operations” at Camp Hansen. J.A. 163. The hiring process confirmed the lack of recruitment need determination when fourteen qualified, locally-available candidates responded to the Job Announcement.

The Job Announcement noted that “[t]his position does not incur overseas allowances. Payment of travel and transportation expenses is not authorized. However, anyone on a transportation agreement with LQA entitlements may be granted continuance.” J.A. 165 (emphasis added). Subsequently, Roberts applied for and was appointed to the DCC position at Camp Hansen upon conclusion of his active duty service with the Marine Corps in Okinawa, Japan. When he was offered the position, Roberts was again informed that his salary would be “$57,146 with no LQA.” J.A. 491.

Roberts accepted the DCC position. Thereafter, he requested a continuance of LQA. The Marine Corps determined that, since the DCC position was Roberts' first civilian appointment, he was not currently receiving LQA and was ineligible for LQA under a continuance theory. In July 2009, after the denial of his LQA request, Roberts appealed to the Office of Personnel Management (“OPM”), which is authorized to decide the issue of employee allowances.² In March 2010, OPM denied Roberts' claim, explaining that the decision not to offer LQA was “consistent with stated policy [and] regulatory guidance,” J.A. 526, and “it was made clear that the salary would be $57,146 with no LQA.” J.A. 522.

On November 3, 2010, Roberts filed a complaint in the Court of Federal Claims (“Claims Court”) seeking damages, and alleging that the Marine Corps improperly denied him an award of LQA under the Act and its implementing regulations. The Claims Court rejected the government's argument that it lacked jurisdiction, but granted summary judgment for the government on the merits. Both parties appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(3). We review de novo the jurisdictional issue and the Claims Court's grant of summary judgment. Cambridge v. United States, 558 F.3d 1331, 1335 (Fed.Cir.2009).

Discussion

I. Jurisdiction

The United States argues that the Claims Court should have dismissed on subject-matter jurisdiction grounds. The Tucker Act provides that the Claims Court

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).

In previous cases, the Supreme Court and we have addressed the standard for determining whether jurisdiction exists under the Tucker Act with respect to a claim for money under a statute and regulations. For jurisdiction to exist, the statute and regulations must be such that they “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003) (quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). It is enough “that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages.” Id. at 473, 123 S.Ct. 1126. Further, the statute and regulations must be money-mandating as to the class of which plaintiff claims to be a member. Casa de Cambio Comdiv S.A. de C.V. v. United States, 291 F.3d 1356, 1361 (Fed.Cir.2002) (holding that, even if “[the regulations] were money-mandating as to [third party],” they “are not money-mandating as to [plaintiff] since there is no indication that they were designed to convey rights to [members of plaintiff's class]”). The United States' main argument is that the Act and its implementing regulations are discretionary, and therefore, are not money-mandating, as required for Tucker Act jurisdiction. See Testan, 424 U.S. at 398, 96 S.Ct. 948;Fisher v. United States, 402 F.3d 1167, 1171–72 (Fed.Cir.2005) (en banc).

Roberts argues that the Claims Court's exercise of jurisdiction over his claim was proper under two separate theories. First, Roberts alleges that the statute and the DSSR, standing alone, entitle him to LQA, relying on Trifunovich v. United States, 196 Ct.Cl. 301 (1971). Second, in the alternative, he argues that he is entitled to LQA under a combination of the statute, the DSSR, the further implementing regulations, and the Job Announcement.

A. Roberts' First Argument in Support of Jurisdiction

Under his first theory, Roberts argues that the Act and the DSSR, standing alone, confer the right to LQA, and that he satisfies the requirements of those provisions. We disagree. The Act and the DSSR, standing alone, are only money-authorizing, not money-mandating.

The Act sets forth general requirements for awarding LQA:

(a) When Government owned or rented quarters are not provided without charge for an employee in a foreign area, one or more of the following quarters allowances may be granted when applicable:

...

(2) A living quarters allowance for rent, heat, light, fuel, gas, electricity, and water....

5 U.S.C. § 5923(a) (emphasis added). The Act also delegated the authority to promulgate requirements for LQA to the President, stating that:

(c) The allowances and differentials authorized by this subchapter shall be paid under regulations prescribed by the President....Id. § 5922(c). The President has delegated authority to promulgate regulations to the Secretary of State. SeeExecutive Order 10903, January 9, 1961, 26 Fed.Reg. 217–03, 217–18. Under this authority, the Secretary of State promulgated the DSSR, setting forth additional requirements for LQA:

Quarters allowances prescribed in Chapter 100 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 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 [various foreign and domestic governmental authorities, organizations, and firms] and had been in substantially continuous employment by such employer under conditions which provided for his/her return transportation to the United States [or...