here it's great for the critics discretion in the commander as to whether to give the living quarters allowance or not so how do you deal with the fact that while a statute together with  final regulations that were dealing with are inconsistent with the regulations contained in the d s s are the d s s or although they delegated authority to the heads of agencies they specifically s statues completely discretionary when if you look at the d s s all regulations they don't make the statue completely discretionary if you need the eligibility framework under the d s s far then he should be looking for the allows is not going to be made available in conversations we have with other individuals he believes he would be allowed l q way and it's usually in the itself it did indicate that if you're already on the continuation of an agreement you would be able to receive else you act he was definitely not going to continue and he was not he may have mistakenly believe was not another marine but there was a former base commander who was in the marines i'm sorry was not just another marine who was telling his buddy that this is what happened but the person who informed him w rely on people upon whom i have no right to rely well no argument is that he has a relight right to rely upon the statute and the regulation case and that the statute mandates payment he meets the requirements of the regulations or if we disagree with the on that you're done well oh if you disagree with those on that particular issue we have a serious problem obviously because you know that  arguments that the statute and the regulations provide him with the mandates that he should proceed to way and the regulations i refer to are not those speak to the military regulations corps regulations but is the regulations from the department of state the president's designated the department of state to implement regulations but the department state regulations i think you recognized earlier provide for further regulations down the chain and the question is really the biggest you posted is whether the regulations which on their face make this discretionary are inconsistent with the  but despite the use of the word names it also has laid out a framework for determining whether an employee is out which is and that's the sound that as in the record at a three regulations and they have to be a united states citizen and he meets that test also so once he met this particular test and if you read this in conjunction with a o five which specifically states that the delegation is subject to the provisions of these regulations then miguel ability of fun and within the scope of these regulations the head of an agency may issue such eligibility language is exclusionary that it it says if you don't meet that you can't possibly qualify but else not mandatory that you get one but if you go back to the statute itself if you go back to not man to mandating payment well but as opposed to a situation where the individual does not meet the regulation so if the individual what was not court in the portico place in the thomas case the court correctly recognized that there is a problem when the regulations for the d s s are in the regulations implemented by the agency when they deviate to such an extent that the agency now has complete discretion to do whatever it wants because essentially if you say that the agency has complete discretion then they can decide if they're going to give it to women they're not going to give it to that they're not going to give it to national could the agency say we decided we're going to give it to non citizens living in the united states we're going to give one a little or no faith that you say they could god do that but if it's completely discretionary were inconsistent with the purposes behind that series wasn't one of the purposes behind statute for else away was the need to be able to recruit good people to the recruitment at all if it's not pretty anywhere within the statute what the statute does say and what the congressional here story also said this that the statue was intended to ensure that any american citizen who is serving their country five working in a foreign country that they are are basically not keen was for doing so that they have the funds that saved me in order to the front row at a law school if you're honest it was error for the court federal claims to entertain a complaint because it lacked the money mandating statutes noting its reluctance to exercise jurisdiction it nonetheless did feeling it was constrained by a single sentence in  there's no command in the statute whatsoever we begin with with the principle or the idea that the death of legislative history certainly and in authorizing agencies that beforehand did not pay  these sorts of allowances the congress not only wanted to establish a uniform system generally they also wanted to ensure that the government had the opportunity to facilitate recruiting the most the best qualified which of americans for service but your response  ensure that the government was served by the best qualified people when where when the statute actually got around to regulating it provided only three criteria no certainly could not be criteria that ensured the government server the best qualified americans first of all said the person overseas had to be a citizen second of all it said that that employee had to be paid according to a fixed pay scale or one that was based on pay scale the united states  quote the payment of allowances i cannot imagine a broader delegation of authority that second if the authorize the president to regulate concerning differential rates thirty eight allows them to designate him than for an arab it does make for areas for groups of positions a very broad general since categories of employees to which the rates rates apply and finally the capstone of the six area delegation other related matters again incredibly broad this indicat is actually clearly entitled under all the reg and the statute to help your way and they just refuse to get at them is your answer that there is no remedy but it just so happens that even under all those discretionary provisions this person would have satisfied and so you are under your theory they can't come to court and say yes i can see that there's some discretion in the regulations but under every one of those discretionary provisions i would qualify your answer would be that there would be zero remedies right this court would all have jurisdictions or regulation that is money mandating there may be other remedies for example if the agency's action was discriminatory certainly there would be remedies there from a jurisdictional standpoint kind of the tucker act isn't it isn't merely whether or not the statute and the regulation could conceivably result in a money mandating propagation and that that yes the discretion might there might be some discretion but that doesn't mean it's not it couldn't result in a money mandating obligation this court has said before this is not a need line we're talking the allowances are be paying and those parties state that all citizens overseas get paid that's money mandating that would be the end of it jumping the what i'm saying is that the problem is is that you are bargaining from the jurisdictional standpoint that we should all the way through the merits before we go back to see if there's jurisdiction doesn't it make more sense to say as long as the statute when combined with with regulations could result in a month man but then your argument says that discretion would go to them there i don't think we can go any lower than the regulations because a talker acts as money mandating relations provide a ground for jurisdiction so if the regulation provided the ground and does that does it work backwards you know where everybody's talking about the eighty eight right now and and how much trouble you'll get in if you voluntarily do things if those those folks overseas if they're continuing to live in those living here these delegations tie in from the congress the secretary of state to the to the department defense the navy the marine corps orders so everybody here is operating on some sort of a man base and very little discretion is exercised at least until we reach the command was being led and the fact that the delegations were very broad for example with respect to the statutes of the congress specified very few conditions for citizenship location in a foreign country being paid under certain pay statutes  state and the secretary of state that has much of that power on the secretary of state is regulations added very little he added only two or three further qualifications you had to be living in a foreign country if the government found you there was a major office employment they must find that you were there because you previously were there because you were hired by the government or some other specified lawyer most fine if you had continuous employment with that employer and they served under conditions where you could return to the united states only in those cases and those are sort of the baseline provisions however even either department state regulations put allowed deserve much more discretion the agency's much more discretion beyond that including the  so there is a host of another one is the authority to pass regulations concerning the granting of the payments that is very a very broad delegation provided the agencies may even waive the recruitment requirement to serve their purposes specifically to find employee eligible as determined by the relevant agency authority and for us one of the the greatest indy sure that this is not money mandating is the fact of the program state regulations even include the right to terminate altogether the allowances when quote the agency determined that determination to be to be equitable in the public interest again and the power to define eligibility is the power to exclude and here that power was clearly  who's a home in colorado now about to have a baby actually insurance on the question of whether the made the presumption that may mean that the government of the agency have complete discretion not only  further perfect that presumption in short can we can say the following about the act itself and the regulations first the act in the regulations preclude allowances for certain groups for example non citizens  the congress in order to form a state intended to mandate or with or require anything as confirmation the bride and supreme court case rogers stanch the proposition that even though the congress may only use the word may it may in fact intend to legislative history whether the legislative history of the statute is whether ideas of this if they were proven statutes come from comes from but if you look at the legislative history in the record eight five three zero there's nothing in the employment by the united states government so this is not merely a recruitment statute that limits that allows the marine corps to it does say shall pass which mandates which in our opinion were fires the government to pay and once that requirement is once they are required to pay then those statute this money mandating it goes