Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Ramstein Air Base, Germany
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/18/2015
Date
The claimant is a Federal civilian employee of the Department of the Air Force. He requests that the post allowance rate he received while stationed at Ramstein Air Base, Germany, be recalculated to include his children, who resided with his ex-wife, as family members. We received the claim on May 13, 2014, the agency administrative report (AAR) on July 24, 2014, and the claimant's response to the AAR on September 25, 2014. For the reasons discussed herein, the claim is denied.
Preceding his divorce on October 10, 2012, the claimant moved from the family domicile in Dittweiler, Germany, to a residence in Kaiserslautern, Germany, on July 1, 2012, his four dependent children remaining in the Dittweiler residence with his now ex-wife. Consequently, the agency reduced the number of his dependents for purposes of post allowance calculation from five to zero effective the date of his move.
The Department of State Standardized Regulations (DSSR) contain the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas, including post allowance, which it defines in section 221 as follows:
"Post allowance" means a cost-of-living allowance granted to an employee officially stationed at a post in a foreign area where the cost of living, exclusive of quarters costs, is substantially higher than in Washington, D.C.
The amount paid is a flat rate varying only by basic salary, size of family, and post, regardless of individual expenses (section 222), and the post allowance grant "shall be appropriately revised effective the date of change... in the employee's family size (section 227.1d). The terms "family" or "family member" are defined, in relevant part, in section 040m thus:
"Family" or "family member" means one or more of the following individuals [including unmarried children under 21 years of age or, regardless of age, incapable of self-support] residing in the same quarters as the employee at his/her post. [Italics added.]
The claimant challenges the agency's application of the above provisions on the basis that the DSSR does not define the term "quarters." He advances the definition of "quarter" from the Meriam Webster dictionary as "a division or district of a town or city" (as in "the immigrant quarter"), based on which he asserts his children resided in the same quarters as him.[1]
The plain language of DSSR section 222 in concert with section 040m makes clear that post allowance rate is based on the number of family members living in the same residence (i.e., "quarters") as the employee at his/her post. Although the DSSR does not define the term "quarters," the intended meaning of that term is clear from its context within the body of those regulations. DSSR section 112 discussing the scope of "quarters allowances" and clearly associating "quarters" with an individual residence reads, in relevant part, as follows:
The quarters allowance is intended to reimburse an employee for substantially all costs for either temporary or residence quarters wherever Government-owned or Government-rented quarters are not provided to the employee without charge. Such costs are those incurred for temporary quarters (temporary quarters subsistence allowance) or one unit of residence quarters (living quarters allowance). [Italics added.]
The claimant asserts that "[f]or the purposes of Post Allowance (not Living Quarters Allowance), quarters should be defined as the Post of Assignment at which the Post Allowance is earned." However, the DSSR definition of "family member” in section 040 applies to the term's usage throughout the DSSR. Therefore, we must conclude the interpretation of "quarters" within the context of the "family member" definition would be the same throughout the DSSR, otherwise a different term would have been introduced where a distinction was intended. Hence, substituting the term "post" for "quarters" would render the language "residing in the same quarters as the employee at his/her post" in section 040m redundant and nonsensical. Therefore, the claimant's attempt to substitute the Meriam Webster definition of "quarter" (singular usage) as "a division or district of a town or city" for the plural usage of "quarters," identified as synonymous with "lodgings" in the same dictionary, for the purpose of post allowance is unpersuasive. We conclude that during his assignment at Ramstein Air Base, the claimant’s post allowance was properly recalculated based on zero dependents when he moved to Kaiserslautern and his dependent children no longer resided in the same quarters (i.e., residence) with him, and this portion of the claim is denied on its merits.
The claimant provides a lengthy discourse asserting that his divorce did not alter his relationship to his children or his legal and financial obligations to them, and asserts that "[a] family member is someone with whom you have legal responsibilities and authorities regardless of where they 'reside.'" The claims adjudication authority of OPM under 31 U.S.C. 3702 is limited to determining if an agency has properly interpreted and applied the applicable statutes and regulations in determining the compensation or leave for which an employee may be eligible or entitled. This authority does not permit us to disregard regulatory provisions to arrive at what the claimant regards as a more equitable outcome.
The claimant also asserts that because his children entered Germany on his Government "orders," then "it is the federal government's responsibility to provide for them in accordance with established entitlement programs or to pay to return them to the United States," and he requests that should OPM deny his post allowance claim, that we “direct the Ramstein CPO to pay him the equivalent of four one-way move costs and airline tickets for his four children.” However, OPM does not have authority to consider this request or assert jurisdiction over any claim against the Department of the Air Force on this matter. The U.S. General Services Administration (GSA), not OPM, is responsible for issuing regulations on travel, transportation, and subsistence expenses and allowances for Federal civilian employees as authorized in chapter 57 of title 5, United States Code. GSA’s Civilian Board of Contract Appeals is responsible for settling travel, transportation and subsistence claims. (http://www.cbca.gsa.gov/). Therefore, this portion of the claim is denied for lack of jurisdiction.
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
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] We note that the claimant’s children did not reside in the same town or city as the claimant