Acker v. United States

6 Cl. Ct. 503, 21 Educ. L. Rep. 239, 1984 U.S. Claims LEXIS 1271
CourtUnited States Court of Claims
DecidedOctober 30, 1984
DocketNos. 213-78, 399-78, 76-79, 266-79C, 580-79C, 57-80C, 137-80C and 543-82C
StatusPublished
Cited by4 cases

This text of 6 Cl. Ct. 503 (Acker v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acker v. United States, 6 Cl. Ct. 503, 21 Educ. L. Rep. 239, 1984 U.S. Claims LEXIS 1271 (cc 1984).

Opinion

OPINION

MAYER, Judge.

These approximately 400 plaintiffs are now, or have been, employed as teachers in foreign areas by the Department of Defense Overseas Dependents Schools System (Dependents Schools). They claim living quarters allowances and travel agreements which have been denied them. The case is before the court on cross-motions for summary judgment.

I. Background

Plaintiffs were recruited and hired overseas by Dependents Schools. They fall into a broad category of Dependents Schools teachers known as “local hires,” and are distinguished from another category of teachers in the system who were recruited and hired in the United States known as “stateside hires.” Generally, stateside hires receive living quarters allowances, separate travel agreements, and associated benefits during their period of employment solely because they were recruited and hired in the United States. Local hires generally do not receive living quarters allowances, travel agreements, or any associated benefits because, although United States citizens, they were hired in the foreign areas where they teach. The local hires and the stateside hires have similar living and working conditions and qualifications.

Receipt of a living quarters allowance means the government will provide housing, or a stipend so the recipient can pay for comparable housing if quarters are not available. Travel agreements cover the move to and from an overseas area, and travel of the recipients and their families back to the United States during the overseas tour. Other benefits are associated with these. For example, receipt of a quarters allowance and travel agreement could qualify one for a post differential of up to 25% more than the employee’s pay to compensate for difficult conditions in a particular foreign area. So if plaintiffs were authorized living quarters allowances and travel agreements, they would receive the other benefits as well.

Dependents Schools grants a living quarters allowance subject to the provisions of Department of State Standardized Regulations (Standardized Reg.) §§ 031.1 and 031.-3, as implemented by Department of Defense Directive (Directive) 1400.13, Salaries and Personnel Practices Applicable to Teachers and Other Employees of the DoD Overseas Dependents’ Schools System, ¶ IV.F.l.a (July 8, 1976), and Department of Defense Instruction (Instruction) 1418.1, Payment of Differentials and Allowances in Foreign Areas, 1J III.B (Sept. 16, 1974).1 A travel agreement is issued under the provisions of Department of Defense Joint Travel Regulations (JTR), vol. 2, C4002-3.

For purposes of the challenges to the regulations here, but not for entitlement under the regulations as they stand, the plaintiffs in these cases are assumed not to fall within the express provisions of Standardized Reg. § 031.12b and c, as modified by Instruction 1418.1, 11 III.B, or JTR, vol. 2, ¶ C4002-3b, which in some instances al[506]*506low locally hired employees to be granted a living quarters allowance and a travel agreement. Therefore, it is assumed that: (A) these plaintiffs were recruited and hired outside the United States, Puerto Rico, the Canal Zone, and the possessions of the United States, and prior to appointment they were not recruited by (1) the United States government, including the armed forces; (2) a United States firm, organization, or interest; (3) an international organization in which the United States government participates; or (4) a foreign government; (B) they were not required to move to their assignments as a condition of employment, for example, as a result of a management-generated transfer; and (C) they were not married to federally sponsored employees who died, were divorced or separated from the plaintiffs, departed the foreign area, or left a common domicile.2

It is stipulated that all plaintiffs were United States citizens at the time of their employment. They were recruited and hired by Dependents Schools in the foreign areas to teach where they were temporarily residing. Some of them are dependents of federally employed or military spouses; some were tourists who happened to be in the areas; some were students temporarily residing in the foreign areas; and some were in the foreign areas for other reasons.

II. Issues And Discussion

A. Entitlement to travel agreements.

Plaintiffs first say they are entitled to travel agreements regardless of whether they are stateside or local hires because they have had two or more years of continuous service.

The general rule applicable to all federal employees is that those recruited and hired by the government may not be paid the expenses of traveling and moving to the first duty station. Federal Travel Regulations (FTR) ¶ 2-1.5e(l)(b). One exception, pertinent here, is that employees hired in the United States for service abroad are entitled to reimbursement for the cost of moving from the United States to the official overseas station. Id. II2-1.-5g(2). The employee typically enters into a travel agreement for a specific period, usually two years, and that permits the government to pay the expenses of traveling and moving overseas. See Directive 1400.13, II IY.G. If that tour is extended for a similar period, the employee enters into a renewal agreement. This entitles him or her to a government paid round trip home leave from the duty station to the actual residence in the United States. See FTR 112-1.5.h. As a further general rule, persons already in the overseas area hired by the government, local hires, are not entitled to a travel agreement. JTR, vol. 2, ¶ C4002-3.

This so called point of hire distinction is at issue here. Essentially, plaintiffs ask the court to find an exception to these general rules for them. They believe that as overseas teachers they are a special class Congress intended to treat differently from the rest of the federal work force.

Relying on a statute specifically addressed to them, the Overseas Teachers Pay and Personnel Practices Act, 20 U.S.C. §§ 905, 906, plaintiffs made this same argument about the point of hire criterion as dispositive of their entitlement to living quarters allowances and post differentials in Acker v. United States, 620 F.2d 802, 223 Ct.Cl. 281 (1980) (Acker I). The court rejected the argument and held that Congress intended to treat plaintiffs the same as any other federal employee. The analysis there informs this court’s consideration of the point of hire distinction as determinative of the same plaintiffs’ rights to travel agreements. The Court of Claims said,

Congress’ purpose in enacting the Overseas Differentials and Allowances Act is again clear from the legislative [507]*507history. The Senate Report explicitly states that the bill was designed to establish uniformity of benefits to overseas employees regardless of agency. S.Rep. No. 1647, 86th Cong., 2nd Sess. (1960), reprinted in 1960 U.S.Code Cong. & Admin.News p. 3388. Plaintiffs argue that the Overseas Teachers Act controls exclusively their entitlement to benefits. Yet that Act’s legislative history clearly shows an intent to provide teachers living quarters allowance and post differential on the same basis as other employees, supra.

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110 Fed. Cl. 668 (Federal Claims, 2013)
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Hart v. United States
17 Cl. Ct. 481 (Court of Claims, 1989)

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Bluebook (online)
6 Cl. Ct. 503, 21 Educ. L. Rep. 239, 1984 U.S. Claims LEXIS 1271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acker-v-united-states-cc-1984.