# t

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## - 8 20ti U.S. COURT OF FEDERAL CLAIMS Overseas Differentials and Allowances 

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

### of State Standardized Regulations C'DSSR

## ) $$ 132.4, 132.11. 136: Department 

### of Defense Instruction 

### ("DoDI") |400.25, 

### Vol. I250; 

### Army in Europe Regulation 

### ("AE Reg.") 690-500.592; Rules 

### ofthe United States Court

### of FederalClaims 

### ("RCFC') 12(b)(6) (Failure To StateClaim), 41(b) (Failure To Prosecute Claim). *** * *,t :**'f * * * :+* * * * * * * * * r' *(* **,t * * * *,1 * +* *** 

### *
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 ofthe-Department of the

### Army (the 

### "Army") who currently 

### is 

### living in Vicenza, 

### Italy. Compl. at

### fl3.2 Pursuant 

### to the Department 

### of State Standardized Regularions 

### C,DSSR') 

### g 136(a),3 as

### of February 

### 1,2002, 

### Mr. Murphy received a

IThe facts discussed herein were derived from theJanuary 19, 2016 Complaint 

### ("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 bythe 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 

# lln tbe 

# @ntte! 9.tstes @ourt 

# of

# Jfelerut @fij-tp6 No. 16-095 Filed: February 8,2017

* * * :t rr {.* * * *'* * *'1. * * * * * *'* *,i.,t rr* * * rr* * + r( :l +* {, :t r(

### *



### WILLIAM A. 

### MURPHY, Plaintiff, 

### pro se,

THE 

### UNITED STATES,
Defendant.

### living quarters allowance 

### C'LQA) to pay for personally-owned quarters 

### ('POQ) during histour



### of duty in

### Yicenza,ltaly. Compl. Tab 2, at

### 6. A LQAfor 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 tothe United States andterminated the 

### LQA. Compl. Tab 2, at 6-7

## . But, onJune 16,2012, the

### Army reassigned 

### Mr. Murphy to his former position in Vicenza, 

### Italy and he resumed occupancy of his 

### POQ. Compl. attf 6. On October 

### 21,2013, the

### Army's Office of the Deputy 

### Chief 

### of Staff, 

### G-l authorized a 

### LQAfor 

### Mr. Murphy's POQ, effective June 18, 2012,to expire on

### April 13,

### 2021. Compl. Tab 

## 6. On November 

### 27,2013, however, the

### Army terminatedthe 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 askwhy 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 ofthe 

### LQA for 

### Mr. Murphy's POQwas 

### limited to "one instance per employee" 

### for atotal period 

### of tenyears, 1.e., 120 months, and 

### Mr. Murphy had exhausted the rental portion ofthe 

### LQA. Compl. atfl 9. Sometime in late2013,I\4r. Murphy filed aclaimwith theOffice of Personnel Management 

## ('OPM) requesting an "exception 

### to policyfor an extension 

### to continue 

### receiving 

### [LQA] for rental quarters in Italy beyond tenyears[.]"4 Compl. Tab 2, at

### 6. The reason Mr. Murphy requested an exception was that hewas compelled to seek rental quarters suitable for his handicapped spouse, 

### but had been unable

### to sell 

### his 

### POQ. Compl. 

### Tab2, 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 theauthority to consider 

### Mr. Murphy's "exception" tothe 

### 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 tenyears 

### li.e., 120 

### monthsl atwhich time the employee

### will beentitled 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 theten-year period, prescribed 

### by the DSSR $ 136(a), iscumulative 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 asthey are assigned," but proposed changesto 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 statedthat,

### if an employee retumed tothe United States after a 

### LQAeligible 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 3at 14. 

# II. RELEVANTPROCEDURALHISTORY.
On January 19, 2016, 

### Mr. Murphy 

### ("Plaintiff ')filed aComplaint in the United States Court 

### of FederalClaims alleging that, because the

### Army terminated his 

### LQA when he was transferred back tothe United States 

### in October 2010, pursuanttothe DSSR $ 132.4,s a new ten-year period

sThe DSSR g 132.4 provides: When an employee istransfened (Section 040q) 

### from apost atwhich 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 predeparture temporary quarters subsistence allowance grant, except that the agency head 

### or designee 

### may continue 

### LQAfor a pedod 

### of five days 

### following commencement ofthetemporary 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 andtransfer order: orfor 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. attf!{ 

## 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 aclaim uponwhich relief can be granted. 

### Plaintiff failedto

### 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

### fromthe 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 notravel by the employee under the transfer is involved. DSSR $ 132.4.

6The DSSR $ 132.1 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 atthe 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 atthe 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 atthe posttowhich transferred; c.the date

### of entrance on duty, 

### if recruited 

### locally; d. the date

### following termination of atemporary 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 Govemmentto

### file a Reply byJuly 28,

### 2016. On

### July28,2016, the Govemment 

### filed a Reply 

### ("Gov't Reply"). OnAugust 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, sothat the court could convene atelephone status conference 

### with the 

### parties. On that date, the court convened atelephone status conferenceto discuss whether 

### Plaintiff was owed anadditional month of rental 

### LQA.7 Thereafter, the court orderedthe Govemmentto show cause and provide documentation 

### to evidencewhether 

### 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, statingthat he had "personal knowledge

### of the documents and records showingthe 

### 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 statedthat the audit payments were made on a biweekly basis andthat 

### Plaintiff received atotal

### 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 andthe 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 atelephone status conference 

### with the partiesto 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 theTucker 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

7Based on the record, the court was concemed that 

### Plaintiff received rental 

### LQA for only 119 months, as opposed tothe

### full 120 months towhich hewas entitled to under DSSR $ 136. 111112016 Order, ECF 

### No. 10.cases not sounding in

### tort." 28 U. S.C. g 1a91(a)( I

### ). The Tucker 

### Act, however, is "a jurisdictional

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 wheneverthe substantive right 

### exists." United Statesv.

### Testan,424U.5.392,398 (1976). To pursue a substantive 

### right under theTucker

### Act, a

### plaintiff must 

### identify and plead an independent contractual relationship, constitutional 

### provision, federal statute, and/or executive agency regulation that provides asubstantive right to money damages. See 

### Toddv. United States, 386 F.3d 1091, 1094 (Fed. 

### Cir. 200a) 

### ("[J]urisdiction under theTucker 

### Act requires the litigant to identify asubstantive 

### right for money damages against the United States separatefrom the Tucker 

### Act[.]"); see also Fisher 

### v. United States, 402 F.3d 1167 

### , 1172 (Fed. 

### Cir. 2005) (en banc) 

## (The TuckerAct... does not create asubstantive cause 

### ofaction;


## ... a

### plaintiffmust identify aseparate source

### of substantive 

### law that createsthe 

### right 

### to money damages.



### . 

### . 

### . [T]hat source must be 

### 'money-mandating."'). Specifically, a 

### plaintiff must demonstrate thatthe 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]ncethe

### 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 sclaims are made pursuant to the Overseas Differentials andAllowances 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 theAct applies to "employee[s] 

### officially stationed in aforeign 

### 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).
TheAct 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 andthe [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."). Oncethe regulations provide that a particular class isentitled

### to 

### LQA and the

### plaintiff alleges that he 

### iswithin that class,the regulations are moneymandating and the court has

### jurisdiction. RobertsT45 

### F.3dat I166.8 

### In this case

### the 

### DoDI serves 

### to "authorizethe payment 

### of [LQA]

### to [Department 

### of Defense] appropriated fund 

### civilian employees who are 

### [United States]citizens 

### living inforeign areas pursuant tothe Department 

### of State Standardized Regulations fi.e., the DSSR] and sections 5522, 5584, and 5922of

### 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"), mandatesthe 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 grantedfor the

### following 

### [civilian] employees" (emphasis added)). The January 

### 16,2016 Complaint alleges that 

### Plaintiff was a GS-13 

### civilian employee 

### of theArmy, 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 scomplaint, 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 tothe 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 aclaim 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 aclaim upon which relief can be granted[.]").
When considering whether to dismiss an action 

### for failure to state aclaim, the court must assess whether "a claim has been stated adequately" andthenwhether 

### "it may besupported 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 enoughto 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 astrue 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 

### thatthe 

### 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 sposition 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

### fromthe

### 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 respondsthat he 

### is entitled under the DSSR 

### $ 132.11 

### to a 

### LQA as

### of June 18, 2012, because hewas atransferred employee. Pl. Resp.

### at2. The DSSR 

### $ 136 does not provide that a

### LQA iscumulative, but instead that,when an employee istransferred 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 apurchase-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 POQto ten years. 

### Gov't Reply at

## 2-3. Plaintiff sJune 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 

### 21,2013form letter from the

### Army has no legal effect, becausethere 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 statesthat an amount upto ten percent 

### of the

### original purchase-price 

### of the POQ shall be considered asthe annual estimated expense for the rental portion 

### of the 

### POQ. See DSSR $ 136(a).4. 

### Plaintiff s

### Sur-Reply.



### Plaintiffs Sur-Reply contends thatthe October 

### 21,2013 letter 

### from the

### Army is legally 

### binding, because

## it isthe 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 ofthe 

### 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" isthe 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 atransfer employee, although hewas assigned to same location as aprior transfer. Pl. Sur-Reply at 4. 

## E. The

### Court's Resolution, The payment 

### of LQAstofederal employees is govemed by the Overseas Differentials and Allowances 

### Act, 5 U.S.C. $ 5922, as implemented through the DSSR. For purposes of theAct, 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 statesthat 

### 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 ofthe 

### 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

l0The 

### 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

### oftitle 5, United States Code (Reference (d)). DoDI 

### No. 1400.25,

### Vol. 1250 $

### (l)(b)(l).
I1

### The

### Army Regulation statesthat 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 usedwith the Department 

### of State Standardized Regulations and 

### [DoDI No.1400.25, 

### Vol. 1250]."1d $ 1(b).previously assigned andthe employee moves into the same POQfor which he previously received

rental 

### LQA. Compl. fl 6; Pl. Resp. at

### 2. The

### Army interprets the DSSR g 136 to 

### limit employees to atotal 

### 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 ofthe POQ over aten-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 isauthorized 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 wasstatutorily 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); seealso 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 theAct that govem the payment 

### ofLQAs for federal employees, and has done sothrough promulgation 

### ofthe DSSR. Executive Order 10903, January 9, 1961,26 FED. REc.

### 21743,217-18 (designating and empoweringthe 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 exceedten 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 aten-year period. Were the court

### to accept 

### Plaintiff s interpretation, i.e.,thalthe 

### LQA began anew when 

### Plaintiff was reassigned tothe 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 anew ten-year period 

### of rental 

### LQA began 

### in June 2012, as 

### Plaintiff argues, then 

### Plaintiff would receive atotal ofeighteen years andten months 

### ofrental 

### LQA fbr the same POQ, thereby receiving an amount approximately equivalent 

### to 188.33%

### ofhis purchase price. 

### l0This is notto say, however, that the

### Army ceasedto 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 andtrash disposal," after thetenyear 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 notthe rent 

### portion.") 

### With respect

### to Plaintiff s other arguments, the October 

### 21,2013 letterfrom the

### Army granting 

### Plaintiffthe rental portion of the 

### LQA from June 18, 2012 

### to 

### April13,2021,is not binding onthe 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[,] evenwhere the claimant relied on the mistaken advice of a govemment 

### official or agency"); see also 

### Ofice 

## of Personnel Managementv. 

### Richmond,496 U.S. 414, 434 (1990) (an agency is not authorized to make payment to aclaimant 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

# APage 

### 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