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OPM.gov / Policy / Pay & Leave / Claim Decisions / Compensation & Leave
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Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

John Kriendler
George C. Marshall Center
Defense Security Cooperation Agency
Department of Defense
Garmisch-Partenkirchen, Germany
LQA (reimbursable assignment to NATO while on Federal rolls)
Denied
Denied
14-0033

Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


06/03/2015


Date

The claimant is a former Federal civilian employee of the Department of Defense (DoD) in Garmisch-Partenkirchen, Germany.  He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s termination of his living quarters allowance (LQA).  We received the claim on April 22, 2014, and the agency administrative report (AAR) on May 13, 2014.  For the reasons discussed herein, the claim is denied.

The claimant reports that while employed with the Department of State as a Foreign Service Officer at the U.S. Mission to the United Nations in New York, he was offered a three-year assignment with the North Atlantic Treaty Organization (NATO) in Brussels, Belgium, commencing the week of July 9, 1990.  The claimant states:  “During the three-year period in which I served in the above position, I was seconded by the State Department to the NATO International Staff.  I was a NATO employee, and NATO repaid the U.S. government for the salary which the State Department paid me.”  However, the claimant remained on State Department rolls during this assignment until his retirement from the Foreign Service on September 30, 1993.[1]  The claimant also states: "Prior to completing my three year assignment, I sought and was promised a subsequent position on the NATO international staff, which I was informed I had been granted on 26 November 1993, and I remained in Brussels awaiting that position."  This employment with NATO commenced on February 1, 1994, and continued until the claimant's appointment by DoD to a Schedule A time-limited appointment at the George C. Marshall Center in Garmisch-Partenkirchen, Germany, on January 27, 2002, for which position he was initially granted LQA.[2]  The claimant retired from the Federal service on December 16, 2014.

In May 2013 the claimant was notified that, as a result of a Department of Defense (DoD)-directed LQA audit, it was determined he did not meet the LQA eligibility provisions in the Department of State Standardized Regulations (DSSR) section 031.12b, which requires 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 agency stated that the basis for this determination was that the claimant, prior to his selection for the position at the Marshall Center, identified Brussels, Belgium, as his place of hire.  The agency reiterated in its AAR that the claimant is ineligible for LQA because "prior to his federal government position, [he] had not been recruited in the United States or one of the enumerated territories or possessions by his previous employer."

The DSSR contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas.  DSSR section 031.12 states, in relevant part, that LQA may be granted to employees recruited outside the United States under the following circumstances:

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. 

The claimant's place of residence in the place to which the quarters allowance applies (Garmisch-Partenkirchen, Germany) is fairly attributable to his employment by the United States Government, and he thus meets DSSR section 031.12a.  However, prior to his appointment to the DOD position, he was employed by NATO, a qualifying employer under section 031.12b(3), but that organization had recruited him in Brussels at some point before his retirement from the Foreign Service rather than in the United States or one of the enumerated territories or possessions.  The singular usage of "such employer" in section 031.12b requires that the employee have had only one such qualifying employer prior to appointment and consequently, that the employer immediately preceding appointment be the same employer that recruited the employee in the United States or one of the other qualifying locations.[1]  Therefore, the claimant does not meet DSSR section 031.12b because he was not recruited in the United States or other qualifying location by NATO in connection with the NATO employment which commenced on February 1, 1994.

The claimant bases his assertion of LQA eligibility on the following reasoning:  "To summarize, I was recruited by NATO in New York, worked for NATO for three years and was subsequently reemployed by NATO, after a brief period awaiting my second NATO position (two months attached to the U.S. mission to NATO and four in retirement)."  As such, he attempts to characterize his entire time in Brussels as a period of NATO employment, even though acknowledging that "during my initial three years at NATO, I worked for NATO and was paid by NATO but was also carried on the State Department rolls as a serving Foreign Service officer."  The claimant's retention on State Department rolls during this period is not an irrelevant fact that can be disregarded.  For purposes of LQA eligibility under DSSR section 031.12b, the claimant was still a Federal employee during the period of this NATO assignment as evidenced by his retirement from the Foreign Service on September 30, 1993, which was apparently two months after the conclusion of the NATO assignment during which time he remained in Brussels as a State Department employee "attached to the U.S. mission to NATO."  This was followed by four months of unemployment (in a retired status) before he was hired directly by NATO as one of their employees.  Therefore, prior to his appointment by DoD, the claimant was employed by NATO which had recruited him in Brussels as he was concluding his Foreign Service career.[3]

Included in the claim to OPM was a “Memorandum of Law in Support of Appeal to OPM to Dispute Denial of LQA,” signed and submitted by the claimant's duly appointed representative on behalf of eighty-one individuals and 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….”  Although we have fully considered the merits of the claimant's case above in relation to the relevant provisions of the DSSR, we will address certain assertions made in the Memorandum.

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 “facilitat[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 a baseline 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. 

The 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, the claimant does not meet LQA eligibility criteria under DSSR section 031.12b that prior to appointment, he 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 his return transportation back to the United States by that employer.  Accordingly, his 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 031.12, 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).

The claimant submitted documentation showing that his LQA had been continued throughout his several term appointment extensions.  However, it is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials, such as that resulting in DoD’s erroneous granting of LQA to the claimant.  Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law.  See OPM v. Richmond, 496 U.S. 414, 425-426 (1990); Falso V. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981).  Therefore, that the claimant was erroneously determined to be eligible for LQA upon his initial DoD appointment and had continued to receive LQA based on that determination 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 the OPM.  Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.


[1] The claimant indicates in his claim that the three-year NATO assignment ended around late July 1993, in that he states he spent "a brief period awaiting [his] second NATO position (two months attached to the U.S. mission to NATO and four in retirement)." 

[2] The claimant's Federal service employment records accessed by OPM show this initial Schedule A appointment was not to exceed April 6, 2005.  The claimant was subsequently given a second Schedule A appointment effective October 2, 2005, not to exceed February 1, 2007.  The gap between these two appointments is unexplained.  The second appointment was extended several times until the claimant's retirement from the Federal service.

[3] Section 031.12 also requires that the employee have been substantially continuously employed by such employer under conditions providing for return transportation to the United States.  The claimant provided a copy of a March 29, 1994, letter from the NATO "Head of Personnel Administration Service" stating that the claimant "will be entitled to reimbursement of removal costs from Brussels to Homer, Alaska, when he leaves NATO."

[4] That the claimant was advised by a representative of the Stuttgart Civilian Personnel Advisory Center that ""actual residence"... under the Transportation Agreement [granted him by DoD] should be the New York address" is not germane to his LQA eligibility determination under DSSR section 031.12b.

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