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Pasternack v. United States

September 18, 1986

HOWARD PASTERNACK, APPELLANT,
v.
THE UNITED STATES, APPELLEE



Appealed from: U.S. Claims Court Judge Margolis

Bennett

Before FRIEDMAN, Circuit Judge, BENNETT, Senior Circuit Judge, and SMITH, Circuit Judge.

BENNETT, Senior Circuit Judge.

Appellant's claim for tuition and related overseas schooling costs for his two children, covering the years 1981-84, was denied by the United States Claims Court (Margolis, J.). We affirm.

BACKGROUND

Pro se appellant, Howard Pasternack, an architect and civil engineer, has spent his professional career abroad, working for the Navy in London in the 1960s and thereafter for a succession of private contractors engaged in military construction in England, Iran, and Israel. In September 1981 he was employed by the United States Air Force in England, initially on a 1-year contract. His two children had previously attended private schools in England, expenses therefore being reimbursed by his employers.

It is uncontested that before beginning his work for the Air Force in 1981 he was officially informed that he would not qualify for an educational allowance for the private schooling of his dependent children but could send them to schools operated by the Department of Defense within commuting distance from his duty station. He rejected this opportunity claiming that it would be a hardship, inappropriate, and unconscionable to interrupt his children's education in British schools where, since 1978, they had been exposed to an English-type curriculum. With persistence and skill, Pasternack has for 5 years pursued all available potential remedies to accomplish his goal of having the government pay for the education of his children in British schools which they continued to attend.

When the Air Force and the Department of Defense Dependent's School System (DoDDS) in 1982 rejected his claim made on October 5, 1981, he filed a formal grievance with the Air Force in 1983. The claim was denied in a written opinion by the grievance examiner on December 3, 1983. His decision was adopted by the Air Force. Pasternack next brought suit in the Claims Court alleging that the decision of the Air Force and the DoDDS was arbitrary, capricious, and contrary to law, and he sought money damages in the amount of $18,189.42 plus interest. The parties cross-moved for summary judgment and, on October 10, 1985, the Claims Court granted the government's motion and dismissed appellant's complaint. The present appeal followed and has been submitted on the briefs.

The Claims Court opinion is unreported. In sum, however, it held that Pasternack's reliance on Department of State Standardized Regulations was misplaced since he was an employee of the Department of Defense. The Defense Dependents' Education Act of 1978, 20 U.S.C. § 921-23 (1982), does provide for an educational allowance for dependents in overseas areas as a part of the DoDDS. See also 5 U.S.C. § 5924 (1982). However, the Act permits an allowance only when a DoDDS school is not reasonably available and the Department of Defense is authorized to issue regulations providing circumstances in which such tuition may be granted. Despite this authorization, the court noted that the DoD Instruction Manual says that no allowances are available. DoD 1400.25-M, Civilian Personnel Manual, Chapter 592 (November 9, 1981). The Claims Court further noted that although 1400.25-M became effective after appellant accepted his position with the Air Force, it replaced DoD Instruction 1418.1 (September 16, 1974), which also disallowed payment of educational allowances for DoD employees abroad.

The Claims Court rejected plaintiff's arguments that DoDDS schools were not adequate to prepare his children for entrance into British universities and therefore could be regarded as "inappropriate" under subchapter 7-1 of DoD 1400.25-M. The court noted that DoD Directive 1342.13 (July 8, 1982) suggests that the use of non-DoDDS schools is based on the nonavailability of DoDDS schools and not their suitability to provide education to ensure acceptance into British universities.

Finally, the Claims Court held that reimbursement of transportation costs between the employee's overseas duty station and a DoD-approved school could not be authorized where, as here, plaintiff had been advised of this but nevertheless chose to reside outside the commuting area. DoD 4500.36-R, ch. 6, § II, PP6-7.c. On all of these grounds the Claims Court upheld the rulings of the Department of the Air Force as correct in fact and law.

In this appeal, Pasternack persists in relying upon entitlement under the Department of State Standardized Regulations, arguing that when his claim was first denied in 1981 it was on the basis of these regulations. It is true that then, and for some time thereafter, the Air Force exhibited some confusion about the source of its authority in this matter. This, however, provides no legal basis to support the claim on appeal. Pasternack is not an employee of the Department of State. Those regulations do not apply to him, and in any event have not been shown to benefit him even if they did. The Claims Court properly rejected any arguments by appellant based thereon.

Pasternack contends there is further authority to support his claim. First, he alludes to DoD Instruction 1342.4 Part II (November 14, 1957), which remained in effect until May 4, 1970, until amended and finally superseded on July 8, 1982, by DoD Directive 1342.13. The 1957 authority relied on by Pasternack, ...


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