It is well settled that an agency’s interpretation of its own regulations is entitled to deference unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). That principle applies whether the regulation in question is ambiguous or simply silent on the issue in question. See White v. United States, 543 F.3d 1330, 1337-38 (Fed. Cir. 2008). Moreover, an agency’s interpre- tation of its regulations is entitled to that generous degree of deference even when that interpretation is offered in the very litigation in which the argument in favor of deference is made, as long as there is “no reason to sus- pect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Auer, 519 U.S. at 462; Reizenstein v. Shinseki, 583 F.3d 1331, 1335 (Fed. Cir. 2009); Abbott Labs. v. United States, 573 F.3d 1327, 1331 (Fed. Cir. 2009); Gose v. U.S. Postal Serv., 451 F.3d 831, 838 (Fed. Cir. 2006) (“Legitimate agency interpretations may be made even during the very administrative determination that has become the subject of review.
There is no reason to believe that the Defense Department’s interpretation of its NSPS regulations is merely a “convenient litigating position” or a “post hoc rationalization” in this case. See Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 881 (2011); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988).
The "Little Tucker Act" was involved:
The Little Tucker Act, 28 U.S.C. § 1346(a), allows a plaintiff to bring an action in district court if the action is based on a claim against the United States “not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department.” The Act both creates jurisdiction in the district court and waives sovereign immunity for an action falling within the jurisdictional grant. It does not, however, create a cause of action; for that, the plaintiff must look elsewhere. Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in pertinent part). As the Supreme Court has explained, the plaintiff must “identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties,” after which “the court must then determine whether the relevant source of substantive law can fairly be inter- preted as mandating compensation for damages sus- tained” as a result of the breach.
The amount in question as to Mr. Price was $4,777.