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Pay & Leave Claim Decisions

Office of Merit Systems Oversight and Effectiveness

Date: January 31, 2002
File Number: [01-0049]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant was a Counselor employed at an Air Base from January 3, 1999 to January 12, 2000. He is requesting living quarters allowance (LQA) for his tour of duty at the Air Base. On July 30, 2001, the office of Senator Bob Graham filed a LQA claim on behalf of the claimant with the [agency], at the claimant's request. On August 7, 2001, the [agency] forwarded the claim to the Office of Personnel Management (OPM), which has jurisdiction in these matters. OPM received the claim on August 13, 2001. We accepted the claim on August 16, 2001 and the agency provided information, dated October 25, 2001, which we received on November 20, 2001. For the reasons discussed herein, the claim is denied.

In November 1998, the claimant was offered and accepted a position at the Air Base in [country]. The claimant stated that, his acceptance of the position was based on the understanding that he would receive living quarters allowance in accordance with the Department of State Standardized Regulation (DSSR), Section 100, which includes Temporary Quarters Subsistence Allowance (TQSA). The claimant further stated that, he received TQSA for his accommodation expenses for the first 90 days of his stay at the Air Base, but not for the remainder of his tour of duty.

The agency confirmed that the claimant was offered and accepted the position at the Air Base. The claimant did not reside in permanent housing during his tour of duty from January 3, 1999 to January 12, 2000. The agency asserts that the claimant was "entitled to Temporary Quarters Subsistence Allowance (TQSA) up to 60 days, with a 30-day extension while looking for a permanent residence. Any time beyond the maximum of 90 days in TQSA is at the member's expense and not reimbursable." The agency further stated that, the claimant was granted a 30-day extension and was paid TQSA for a total of 90 days.

The agency stated that, the claimant was briefed on two separate occasions about obtaining a lease agreement for a permanent residence to cover his LQA. The briefing was done at [xxx] Air Force Base and once at [xxx] Air Force Base. The claimant was informed during his initial "in processing" about his entitlements and what was needed to receive them. According to the agency, the claimant was the only member assigned to [xxx] Air Force Base, who did not procure a contract a lease for permanent quarters with a local landlord. Rather, the claimant stayed in transient quarters such as billeting or an off-base hotel.

The agency also referenced the Department of State Standardized Regulations (DSSR), Section 100, and 5 U.S.C., title 5, Section 5923. It is the agency's belief that the claim should be denied because the claimant was reimbursed TQSA for 90 days and believes there is no authority to extend this allowance.

The DSSR, Section 122.1, states:

The temporary quarters subsistence allowance is intended to assist in covering the average cost of adequate but not elaborate or unnecessarily expensive accommodations in a hotel, pension, or other transient-type quarters at the post of assignment, plus reasonable meal and laundry expenses for a period not in excess of 90 days after first arrival at a new post of assignment in a foreign area, ending with the occupation of residence quarters if earlier, or 30 days immediately preceding final departure from the post following necessary vacating of residence quarters.

Section 123.2 of the DSSR supports the agency's decision to discontinue paying TQSA to the claimant after 90 days. The section reads,

The temporary quarters subsistence allowance granted upon first arrival at a new post shall terminate as of the earliest of the following dates:

  1. on the 91st day following first arrival of the employee or family member, if earlier, unless an extension is authorized under Section 122.2 by the head of agency;
  2. the date temporary quarters are no longer occupied;
  3. the date of occupancy of residence (permanent) quarters;
  4. the date of the employee's departure, or the date of departure of family members if later, under transfer orders. Where the employee's departure for transfer precedes that of family members, the temporary quarters subsistence allowance at his/her previous post shall not extend beyond the date immediately preceding the date of arrival at his/her new post; or
  5. the date of separation from a Federal agency.

In addition, the Overseas Differentials and Allowances Act, Pub. L. 86-707 74 Sat. 793, 794 (Sept. 6, 1960), as amended and codified at 5 U.S.C. 5922-5924, provides that, under regulations prescribed by the President, LQAs may be paid to federal employees in foreign areas. The President, by executive order, delegated this authority to the Secretary of State, who issued Standardized Regulations concerning eligibility to receive, and payment of, LQAs. Section 013 of the DSSR further delegates to the heads of federal agencies the authority to grant LQAs to agency employees. Section 013 of the DSSR specifies that the head of an agency may grant quarters allowances and issue further implementing regulations, as he or she may deem necessary for the guidance of the agency in granting such allowances. The DoD has issued further implementing regulations through its requirements for DoD civilian employment overseas, DoD 1400.25-M, CPM 592.

The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant LQAs to agency employees. Wesley L. Goecker, 58 Comp. Gen. 738 (1979). Thus, an agency may withhold LQA payments from an employee when it finds that the circumstances justify such action, and the agency's action will not be questioned unless it is determined that the agency's action was arbitrary, capricious, or unreasonable. Joseph P. Carrigan, 60 Comp. Gen. 243, 247 (1981); Wesley L. Goecker, 58 Comp. Gen. 378 (1979).

Where the agency's factual determination is reasonable; we will not substitute our judgment for that of the agency. See e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982. According to the agency, the claimant was entitled to TQSA up to 60 days, with a 30-day extension while looking for a permanent residence in [country]. The claimant never moved in a permanent residence during his tour of duty at the Air Base in [country]. In view of the permissive rather than mandatory language in the applicable statutes and regulations, as noted above, the degree of discretion that heads of agencies have in determining whether to authorize these allowances, and the facts of this claim, we cannot say the agency's application of the DoD regulation in this case was arbitrary or capricious. Accordingly, the claim is denied.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.

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