Washington, DC

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

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


06/11/2015

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Date

The claimant is a Federal civilian employee of the Department of the Army (DA) in Heidelberg, 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 June 16, 2014, and the agency administrative report (AAR) on November 3, 2014.  For the reasons discussed herein, the claim is denied

The claimant retired from active duty military service in Heidelberg on July 31, 2010, and began employment with the U.S. firm SOS International (SOSI) in Heidelberg on November 1, 2010.  He was appointed to the Federal service with DA on December 20, 2010, and was initially granted LQA. 

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 states in its AAR that the claimant's "contractor employment rendered [him] ineligible for LQA as the firm neither recruited him in the United States nor provided a transportation entitlement that would return him to the United States at the conclusion of that employment," and his LQA was consequently terminated. However, he and other affected employees were granted a one-year waiver to continue receiving LQA until April 30, 2014.

In August 2012, in connection with the relocation of the Headquarters, United States Army, Europe, the claimant was offered and accepted a management-directed reassignment (MDR) from Heidelberg to Weisbaden, Germany, effective February 10, 2013.  The agency reports that his management requested his LQA be restored under the provisions of DSSR section 031.12c and Department of Defense Instruction (DoDI) 1400.25-1250, paragraphs E2.2.g. and h.  However, they were unable to do so because the claimant "did not physically relocate under official government travel orders to his new duty station."  Instead, the claimant chose to maintain his residency in Heidelberg and commute the sixty-mile distance to Weisbaden.

The DSSR contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas.  DSSR section 031.12 states 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; or 

c.  as a condition of employment by a Government agency, the employee was required by that agency to move to another area, in cases specifically authorized by the head of agency.

The claimant's place of residence in the place to which the quarters allowance applies (Weisbaden) is fairly attributable to his employment by the United States Government, and he thus meets DSSR section 031.12a.  However, prior to appointment, he was employed by SOSI, a qualifying employer under section 031.12b(2), but that firm had recruited him in Germany rather than in the United States or one of its 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.  Further, 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 included in his claim a copy of the "Questionnaire for LQA Determinations" signed by him on November 23, 2010.  Under Section D2:Contractor, where the claimant reported his "SOSI, Ltd." employment, he responded "no" to statement 4: "I have a current transportation agreement."  In addition, the SOSI job offer letter dated October 1, 2010, which he also included in his claim and which explains the benefits associated with the position, makes no mention of return transportation to the United States.   Therefore, the claimant does not meet DSSR section 031.12b because he was neither recruited in the United States or other qualifying location nor provided return transportation to the United States by SOSI.  Alternatively, the claimant does not meet DSSR section 031.12c because although he had received an MDR potentially requiring him to move to another area (Weisbaden), he chose to retain his residency in Heidelberg and incur the extended commute.  Physical relocation of residency is an inherent condition of section 031.12c and the entire basis on which the provision rests.

The claimant states:

I was notified verbally on 31 Mar 2014, that my LQA will be terminated effective 1 May 2014... Subsequently, I received my final determination dated 18 Mar 2014 [which] stated my LQA is terminated based on my Management Directed Move (MDR).[1]  When I signed my MDR in Feb 2013, the current G2 Human Resources representative, [name], stated there was no requirement for me to physically move my home, as long as I report to Weisbaden for work.  Had I known that this was not the case, and had I received my final LQA determination prior to Feb 2014, I would have prepared to physically move.  I was not informed otherwise until 31 March 2014.

However, the claimant then presents personal reasons for "why [he] prefers to stay in Heidelberg,” asserts it is more economical given that the Heidelberg LQA rate is lower than the Weisbaden rate, and states his supervisor "has no issue with [him] commuting."  Thus, the claimant appears to be requesting that OPM grant him LQA by waiving the provision of DSSR section 031.12c that the employee be required by the agency to "move to another area."

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 determining if monies are owed the claimant under the controlling statutes or regulations.  Section 3702 does not include the authority to waive provisions of the DSSR, which determine LQA eligibility.  Although 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, there is no provision for waiver of the provisions of section 031.12c by either the agency or OPM.  Therefore, OPM may not consider the claimant’s apparent request for a waiver within the context of the claims adjudication function it performs under section 31 U.S.C. § 3702(a)(2) and this portion of the claim is denied for lack of jurisdiction.

The claimant asserts he would have "prepared to physically move" had he been not been informed there was no requirement to do so by his human resources (HR) representative. 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 HR representative may have provided incorrect advice, or that the claimant may have misconstrued her statements in terms of the implications of his not relocating in relation to his LQA eligibility under DSSR section 031.12c, 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.

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