John Thomas v. United States

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN THOMAS,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
______________________
2014-5004
______________________
Appeal from the United States Court of Federal
Claims in No. 1:10-cv-00303-GWM, Judge George W.
Miller.
______________________
ON MOTION
______________________
Before P ROST , O’MALLEY , and T ARANTO, Circuit Judges.
T ARANTO, Circuit Judge.
O R D E R
The parties initially moved to stay proceedings pend-
ing this court’s decision in Roberts v. United States, Nos.
2012-5113, -5114 (“Roberts”). The court's decision in
Roberts having recently issued, Roberts v. United States, -
-- F.3d ---, Nos. 2012-5113, -5114, slip op. (Fed. Cir. Feb.
10, 2014), the United States now moves to remand the
Case: 14-5004 Document: 15 Page: 1 Filed: 04/16/2014

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THOMAS v. US 2
case to the United States Court of Federal Claims for that
court to apply Roberts in the first instance. John Thomas
responds that he takes no position with respect to this
motion.
The legal issue raised in this appeal is closely related
to that decided in Roberts v. United States. Both cases
involve whether the United States Court of Federal
Claims has subject matter jurisdiction, pursuant to the
Tucker Act, to decide a claim for a living quarters allow-
ance.
Specifically, in the current appeal, the Court of Fed-
eral Claims held that it possessed jurisdiction pursuant to
5 U.S.C. § 5923 and Department of State Standardized
Regulation 031.12 (“DSSR”), because those provisions
mandate the payment of money when certain conditions
are met. The Court of Federal Claims further explained
that it “disregards the other regulations and guidances
implemented pursuant to the DSSR insofar as they con-
flict with the DSSR.” The court stated that the other
regulations and guidances conflict with the DSSR "be-
cause they give the agency discretion to disallow a living
quarters allowance when the DSSR provisions would
otherwise mandate the allowance." The court awarded
damages and the United States appealed.
In Roberts, this court concluded that “the statute and
the DSSR, standing alone, are not money-mandating.
They could only become money-mandating if further
regulations were implemented requiring payment.”
Roberts, slip op. at 5. This court then conducted an anal-
ysis of the implementing regulations applicable in that
case (Civilian Personnel Management Instruction No.
1400.25, Vol. 1250 and the Marine Corps Bases Japan
Order P12000.2A) and determined that the statute, the
combination of the two implementing regulations, and
DSSR required payment and thus were money-
mandating.
Case: 14-5004 Document: 15 Page: 2 Filed: 04/16/2014

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THOMAS v. US 3
We agree with the parties that the appropriate course
here is to vacate the Court of Federal Claims judgment
and remand for that court to examine its decision in light
of Roberts.
Accordingly,
I T I S O RDERED T HAT :
(1) The motion is granted to the limited extent that
the judgment is vacated and the case is remanded to the
Court of Federal Claims for further proceedings con-
sistent with this order.
(2) The motion to stay is denied as moot.
(3) Each side shall bear its own costs.
F OR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s25
ISSUED AS A MANDATE: April 16, 2014
Case: 14-5004 Document: 15 Page: 3 Filed: 04/16/2014

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