Case: 14-5004      Document: 15      Page: 1     Filed: 04/16/2014




                NOTE: This order is nonprecedential.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 PROST, O’MALLEY, and TARANTO, Circuit Judges.
 TARANTO, Circuit Judge.
                           ORDER
     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: 2    Filed: 04/16/2014



 2                                              THOMAS   v. US



 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: 3     Filed: 04/16/2014



 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,
       IT IS ORDERED THAT:
     (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.
                                       FOR THE COURT

                                       /s/ Daniel E. O’Toole
                                       Daniel E. O’Toole
                                       Clerk of Court
 s25
 ISSUED AS A MANDATE: April 16, 2014
