Adde v. United States

95 Fed. Cl. 4, 2010 U.S. Claims LEXIS 782, 2010 WL 3914707
CourtUnited States Court of Federal Claims
DecidedOctober 7, 2010
DocketNo. 07-248 C
StatusPublished
Cited by2 cases

This text of 95 Fed. Cl. 4 (Adde v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adde v. United States, 95 Fed. Cl. 4, 2010 U.S. Claims LEXIS 782, 2010 WL 3914707 (uscfc 2010).

Opinion

OPINION AND ORDER

BUSH, Judge.

This is a civilian pay case brought by an employee of the National Institutes of Health (NIH), which is part of the United States Public Health Service (PHS) of the United States Department of Health and Human Services (DHHS). Plaintiff Melissa Adde has been posted to Brussels, Belgium for a number of years. In an earlier opinion ruling upon defendant’s motion to dismiss, this court narrowed the focus of the dispute to Ms. Adde’s claim for a “post allowance” for her service from April 23, 2001 to October 3, 2004 in Brussels.1 Adde v. United States, 81 Fed.Cl. 415, 422 (2008) (“Plaintiff has, however, established jurisdiction, and properly stated a claim, for post allowance claims accruing between April 23, 2001 and October 3, 2004.”). Defendant later brought a counterclaim against plaintiff, asserting that Ms. Adde has been overpaid by approximately $50,000 during her service in Belgium.

The parties filed cross-motions for summary judgment under Rule 56 of the Rules of the United States Court of Federal Claims (RCFC), and these motions have been fully briefed.2 For the reasons set forth below, the court finds that defendant’s counterclaim is well-founded, but that its overpayment counterclaim must be set off by the post allowance due Ms. Adde. Defendant’s summary judgment motion on its counterclaim is granted, plaintiffs cross-motion for summary judgment is denied, and plaintiffs motion for partial summary judgment on her post allowance claim is granted.

BACKGROUND

For decades, Ms. Adde has worked as a nurse for NIH. Compl. ¶¶ 7-12. Her duty [7]*7station was changed from Bethesda, Maryland to Brussels, Belgium on approximately April 19, 2000, when she was posted to an international health organization, the International Network for Cancer Treatment and Research (INCTR). Id. ¶¶ 11, 13. The disputes in this case focus on whether she has been receiving the correct pay and allowances from NIH over the course of her employment in Belgium from April 19, 2000 through February 2, 2008. It is undisputed that for approximately eight years, Ms. Adde’s salary in Brussels, and her step raises, remained consistent with the salary schedule that applied to her position in the United States.

According to defendant, Ms. Adde mistakenly received a salary which was based on a special salary schedule that was applicable to her former duty station, the Washington, D.C. metropolitan area, but that was inapplicable to Brussels. Although plaintiff disagrees with this argument, the facts before the court show beyond dispute that while Ms. Adde worked in Belgium, NIH paid her a salary that was contrary to NIH policy and that was not in accordance with applicable pay statutes. The only explanation that can logically be derived from the parties’ allegations of fact is that Ms. Adde’s incorrect pay status went unnoticed until it was discovered in 2006.

Turning to the post allowance dispute, Ms. Adde began receiving a post allowance for her service in Brussels in early 2005, which was made retroactive to the beginning of that fiscal year, October 3, 2004. Defendant has conceded that plaintiffs claim to a post allowance for the period of April 23, 2001 to October 3, 2004 has a strong foundation. Unfortunately for plaintiff, this concession yields only a limited victory, because any post allowance awarded to her by this court will be offset by the government’s counterclaim for overpayment of her salary.

DISCUSSION

I. Jurisdiction

As this court held in its prior opinion, jurisdiction lies for plaintiffs post allowance claim under the Tucker Act, 28 U.S.C. § 1491 (2006); the Back Pay Act, 5 U.S.C. § 5596 (2006); 5 U.S.C. § 5924 (2006) (governing cost of living allowances for overseas duty), and Department of State Standardized Regulations (DOSSR) § 220 (regarding cost of living allowances for overseas duty). Adde, 81 Fed.Cl. at 417-19. As for defendant’s counterclaim, there is no dispute that the provisions set forth in 28 U.S.C. §§ 1503, 2508 (2006) give this court jurisdiction over the overpayment claim brought against Ms. Adde. See United States v. Burchard, 125 U.S. 176, 180, 8 S.Ct. 832, 31 L.Ed. 662 (1888) (approving a government counterclaim for an overpayment to a retired naval officer); Campbell v. United States, 137 Ct.Cl. 742, 149 F.Supp. 199, 202 (1957) (stating that “it has long been held that payments made to an officer because of a mistaken construction of the law by a Government department may be recovered by the United States”) (citations omitted); Haustechnik v. United States, 34 Fed.Cl. 740, 744 (1996) (“Our counterclaim jurisdiction is to be construed broadly.”) (citations omitted). Thus, both plaintiffs post allowance claim and defendant’s overpayment claim are within this court’s jurisdiction.

II. Standard of Review for RCFC 56 Cross-Motions

“[S]ummary judgment is a salutary method of disposition designed to secure the just, speedy and inexpensive determination of every action.” Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed.Cir.1987) (internal quotations and citations omitted). The moving party is entitled to summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” RCFC 56(c)(1). A genuine issue of material fact is one that could change the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A summary judgment “motion may, and should, be granted so long as whatever is before the ... court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

[8]*8“[A] party seeking summary judgment always bears the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. (quoting former version of Fed.R.Civ.P. 56(e)). However, the non-moving party has the burden of producing sufficient evidence that there is a genuine issue of material fact in dispute which would allow a reasonable finder of fact to rule in its favor. Anderson, 477 U.S. at 256, 106 S.Ct. 2505.

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Bluebook (online)
95 Fed. Cl. 4, 2010 U.S. Claims LEXIS 782, 2010 WL 3914707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adde-v-united-states-uscfc-2010.