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NOTE: This order is nonprecedential.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