Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Einsiedlerhof, Germany
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/18/2015
Date
The claimant is a Federal civilian employee of the Department of the Air Force (AF) in Einsiedlerhof, Germany. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency's termination of her living quarters allowance (LQA). We received the claim on April 22, 2014, and the agency administrative report (AAR) on June 11, 2014. For the reasons discussed herein, the claim is denied.
The agency states the claimant originally came to Ramstein Air Base (AB), Germany, from Korea in July 2008 as a dependent spouse on her husband’s military orders without a travel and transportation entitlement of her own. She then held successive contractor positions with two different private firms in Germany. This employment commenced with the firm L3 Communications at Ramstein AB, Germany, for which the claimant worked from October 14, 2008,[1] until L3 lost the contract and the claimant transitioned in place and began working for the new contractor, PAE, a subsidiary of Lockheed-Martin, effective January 10, 2010.[2] The claimant was appointed to her first Federal civilian position on August 1, 2011, and was initially granted LQA. In April 2013 the claimant was notified that, as a result of a Department of Defense (DoD)-directed LQA audit, it was determined she did not meet the LQA eligibility provisions in the Department of State Standardized Regulations (DSSR) section 031.12b, which require that an employee recruited outside the United States must, prior to appointment, have been recruited in the United States by his or her previous employer and have been substantially continuously employed by such employer under conditions providing for return transportation to the United States.
The claimant appears to rest her assertion of LQA eligibility on three bases: (1) AF found her eligible for LQA prior to her appointment and the annual LQA audits for 2012 and 2013 verified she was still eligible to receive LQA; (2) she provided documentation from L3 Communications and PAE identifying the clauses in her contracts “that verified housing stipend and transportation allowance”; and (3) the “Memorandum of Law in Support of Appeal to OPM to Dispute Denial of LQA” signed by her duly appointed representative.
The Department of State Standardized Regulations (DSSR) contain the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. Within the scope of these regulations, the head of an agency may issue further implementing instructions for the guidance of the agency with regard to the granting of and accounting for these payments. See DSSR 013. Thus, Department of Defense Instruction (DoDI) 1400.25-V1250, most recently dated February 23, 2012, implements the provisions of the DSSR but may not exceed their scope; i.e., extend benefits that are not otherwise permitted by the DSSR. In addition, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoD or AF implementing guidance may be applied.
DSSR section 031.12 states, in relevant part, that LQA may be granted to employees recruited outside the United States provided that:
a. the employee's actual place of residence in the place to which the quarters allowance applies at the time of receipt thereof shall be fairly attributable to his/her employment by the United States Government; and
b. prior to appointment, the employee was recruited in the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States, by:
(1) the United States Government, including its 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
and had been in substantially continuous employment by such employer under conditions which provided for his/her return transportation to the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States. [Italics added.]
* * * * *
Subsection 031.12b may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action.
Prior to her appointment to her first Federal civilian position on August 1, 2011, the claimant was employed by two private firms, L3 Communications and PAE. In addition to the issue of the claimant having had more than one overseas employer prior to appointment to her Federal position (which renders her ineligible for LQA as discussed later in this decision), the claimant has not established that she was recruited in the United States or its territories or possessions by one of the qualifying employers listed under DSSR section 031.12b prior to that appointment. While the record does not show where the claimant resided when she initially applied for her position with L3, the record shows she entered Germany from Korea in July 2008 as a dependent spouse on her husband’s military orders. The claimant has not asserted nor has she submitted any documentation indicating she was recruited in the United States or any of the other enumerated locations in DSSR section 031.12b above. Thus, the claimant is ineligible for LQA under DSSR section 031.12b.
In addition to this initial disqualifying circumstance, the claimant has not established that she was in substantially continuous employment "under conditions which provided for [her] return transportation to the United States" or its territories or possessions with either employer. The September 23, 2008, L3 Communications job offer letter provided by the claimant states “after successful completion of continued employment subject to the following provisions” that:
The repatriation payment will be made upon receipt of documentation that you have moved at least 400 miles from your last LSG [L3 Communications Services Group] duty location and that your termination is classified as “eligible for rehire.” The payment schedule is as follows: $5,000 after the completion of three (3) full years of service from the date of hire; $7,500 after the completion of four (4) full years of service from the official date of hire; $10,000 after the completion of five (5) full years of service from the initial date of hire.
The conditions of DSSR 031.12b are not met by the promise of a repatriation payment which, in the case of L3 Communications, could be paid if the claimant moved at least 400 miles from her last L3 Communications duty station. Thus, the language of the agreement did not obligate the company to repatriate her to the United States or the other enumerated locations stipulated in DSSR 031.12.b upon the termination of her employment.
Contrary to the claimant's assertion that the agency found her eligible for LQA prior to her appointment, the agency states their initial LQA determination was based on a waiver of DSSR section 031.12b rather than a finding of eligibility. DoDI 1400.25-V1250 delegates to the Heads of the DoD Components "[t]he authority pursuant to section 031.12c of [DSSR] to waive the requirements of 031.12b of [DSSR] in individual cases when unusual circumstances exist." However, DoDI 1400.25-V1250, Enclosure 2, specifies the situations that must have occurred for such waiver to be approved by a Head of Component, most of which relate to situations involving the loss or incapacitation of a sponsoring spouse or domestic partner. The claimant was granted a waiver of DSSR section 031.12b under a specific clause in DoDI 1400.25-V1250 (dated June 26, 2006), Enclosure 2, paragraph 1.e. (now paragraph 2.e.), which allows such waiver for “locally hired U.S. citizen employees who have, immediately prior to appointment, been directly employed by the United States as foreign nationals under third-country citizen contracts or agreements that provided them with a living quarters allowance or housing at no cost.” Since there is no indication the claimant was a foreign national employed under a third-country citizen contract prior to her appointment to the Federal service, this waiver clause was improperly applied to her case and may not serve as a basis for LQA continuation.
Included in the claim to OPM was the aforementioned Memorandum of Law submitted by legal counsel on behalf of eighty-one individuals challenging the “Department of Defense’s … recent determination that they are not eligible to receive living quarters allowance (‘LQA’) in the future due to the fact that DoD has now decided that the LQA it had granted to these employees for the past several decades – pursuant to its consistently applied interpretation of its own regulations – was in error….” We note the Memorandum relates exclusively to the termination of LQA grants on the basis of the employee having had more than one overseas employer prior to appointment to his or her Federal position. Since the Claimant is not eligible for LQA for the reasons outlined above, the Memorandum is inapplicable to the merits of this claim. However, since the Claimant has included the Memorandum in her claim, we will address certain assertions made in it.
OPM adjudicates compensation claims for certain Federal employees under the authority of section 3702(a)(2) of title 31, United States Code (U.S.C.). The authority in 31 U.S.C.§ 3702(a)(2) is narrow and limited to deciding if the governing statutes and regulations have been properly interpreted and applied in determining the pay and/or benefits which an employee may be entitled to or granted.
When OPM adjudicates a claim for compensation submitted pursuant to 31 U.S.C. § 3702(a)(2), OPM starts by reviewing the relevant statutory authority. In this case, the Overseas Differentials and Allowances Act of 1960 (Act) establishes the statutory authority for Federal agencies to provide LQA to employees serving overseas. 5 U.S.C. § 5921 et seq. One of the stated purposes of the Act is to “facilitate[e] for the Government the recruitment and retention of the best qualified personnel for civilian service overseas” in order “to improve and strengthen the administration of overseas activities of the Government[.]” Section 101 of Pub. Law. 86-707, 74 Stat. 792 (1960); Trifunovich v. United States, 196 Ct. Cl. 301, 305 (1971).
The Act provides in relevant part:
(a) When Government owned or rented quarters are not provided without charge for an employee in a foreign area, one or more of the following allowances may be granted when applicable:
(1) A temporary subsistence allowance . . .
(2) A living quarters allowance for rent, heat, light, fuel, gas, electricity, and water . . .
(3) Under unusual circumstances, payment or reimbursement for extraordinary, necessary, and reasonable expenses . . .
5 U.S.C. § 5923(a) (emphasis added).
Section 5922 (“General Provisions”), which governs all allowances and differentials authorized under the Act, reiterates that such allowances “may be granted to an employee officially stationed in a foreign area.” 5 U.S.C. § 5922(a) (emphasis added). It also provides that the allowances “shall be paid under regulations prescribed by the President.” 5 U.S.C. § 5922(c).
The Act specifically authorizes the President to promulgate regulations governing “(1) payments of the allowances and differentials and the respective rates at which the payments are made; (2) the foreign areas, the groups of positions, and the categories of employees to which the rates apply; and (3) other related matters.” Id. The President has delegated his authority to issue such regulations to the Secretary of State. (Exec. Order 10903, 26 Fed. Reg. 217 (Jan. 9, 1961)). The Secretary of State discharged this responsibility by promulgating the Department of State Standardized Regulations (DSSR). The DSSR prescribes the allowances and benefits available to civilian employees assigned to foreign areas. Section 031 of the DSSR sets abaseline for employee eligibility for LQA and emphasizes in numerous subsections that LQA “may be granted” to employees serving overseas. (DSSR §§ 031.11, 031.12, 031.14).
Since the language of the statute makes clear the granting of LQA (and separate maintenance allowance) and post differential are discretionary, we then look to the DSSR as the controlling basic regulations implementing the provisions of law pertaining to specific allowances and differentials. “The statute [5 U.S.C. § 5922] and DSSR regulations, standing alone, are only money-authorizing and are not money-mandating” and therefore, are discretionary. Roberts v. United States, 745 F.3d 1158, 1165 (Fed. Cir. 2014). Where the DSSR gives discretion to employing agencies to issue implementing regulations, we look to those which may further restrict the granting of the discretionary allowance. See, e.g., DSSR §§ 013, 40(d)-(e). However, if agency implementing regulations or policies conflict with the DSSR, the DSSR controls. Also, where the DSSR is silent on an issue, agency implementing regulations or policies control unless they are in conflict with the statute.
Claimant’s representative alleges that “nothing in the words ‘substantially continuous employment’ can be read to limit the number of qualified employers an employee could have prior to appointment to one employer” and cites various definitions from multiple editions of Black’s Law Dictionary in support of his argument. We find these arguments unpersuasive. Substantially continuous employment, as used in DSSR 031.12b(4), must be with an employer (singular) which recruited the employee in the United States and induced the employee to accept overseas employment. Therefore, claimant does not meet LQA eligibility criteria under DSSR section 031.12b that prior to appointment, she was recruited in the United States by one of the listed employers, and was in substantially continuous employment by “such employer” (singular) under conditions providing for her return transportation back to the United States by that employer. Accordingly, her claim is denied. See OPM File Numbers 08-0009, 09-0021, 10-0018, 10-0037, 11-0005, 11-0012, 12- 0019, and 12-0020 at http://www.opm.gov/policy-data-oversight/pay-leave/claimdecisions/decisions/.
Section 3702(a)(2) does not include the authority to waive provisions of the DSSR, which determine LQA eligibility. The applicable regulation in this case, DSSR section 031.12c, authorizes the head of the employee’s agency to waive section 031.12b upon determination that unusual circumstances in an individual case justify such action. Therefore, OPM may not consider the claimant’s request for LQA continuance within the context of the claims adjudication function it performs under section 31 U.S.C. § 3702(a)(2).
Further, it is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by law, and erroneous advice or information provided by a Government employee cannot bar the Government from denying benefits which are not otherwise permitted by law. See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990). Therefore, that the claimant was originally granted LQA when she began her Federal employment does not confer eligibility not otherwise permitted by statute or its implementing regulations.
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. Under 5 CFR 178.105, the burden is upon the claimant to establish the liability of the United States and the claimant’s right to payment. Joseph P. Carrigan, 60 Comp. Gen. 243, 247 (1981); Wesley L. Goecker, 58 Comp. Gen. 738 (1979). As discussed previously, the claimant has failed to do so. Since an agency decision made in accordance with established regulations as is evident in the present case cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.
[1] The claimant states she was “originally hired in Sep 2008 by L-3 Corporation” and provided a September 23, 2008, job offer letter from L3 Communications Services Group, which she signed and dated September 24, 2008, accepting the position. However, neither the claimant nor the agency provided documentation establishing the date the claimant officially started working for L3 Communications.
[2] The claimant states: “December 21, 2009 L3 Corporation lost the bid on the contract… On 8 January 2010 Lockheed Martin offered the job that I had held with L3 - I accepted.”