Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Wiesbaden, 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 Army (DA) in Wiesbaden, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency's denial of living quarters allowance (LQA). We received the claim on July 22, 2014, and the agency administrative report (AAR) on October 6, 2014. For the reasons discussed herein, the claim is denied.
The claimant separated from active duty military service on February 28, 2013, in Heidelberg, Germany. Prior to his separation he accepted a position with the Army and Air Force Exchange Service (AAFES) effective February 19, 2013. The claimant occupied this position from March 1, 2013, until he was appointed to his current Federal service position effective March 25, 2013.
At the time of the claimant’s appointment to the Federal service, the agency initially concluded he was eligible for LQA under the provisions of Department of State Standardized Regulations (DSSR) sections 031.12a and b in connection with Department of Defense Instruction (DoDI) 1400.25-V1250 and thus granted him LQA. On May 17, 2013, the agency notified the claimant that his AAFES employment, which he had not disclosed on his LQA questionnaire, had been brought to their attention and that their decision to grant him LQA was incorrect. As a result, his LQA payments were terminated.
The claimant requests “that an exception to policy is made to reinstate LQA” since “[his] plans to seek employment as a DA civilian with LQA eligibility was [sic] based on faulty information provided by the Civilian Personnel Office, USAREUR Regulation AER 690-500.592, and recommendation by the hiring officials.”
The DSSR contains 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. Thus, DoDI 1400.25-V1250 implements the provisions of the DSSR, but may not exceed their scope; i.e., extend benefits that are not otherwise permitted by the DSSR. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI or other agency 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.]
In its AAR to OPM, the agency states:
Because [the claimant’s] first appointment with AAFES is considered federal civilian employment, he essentially merely transferred from AAFES to the [DA] when the former ended on 25 March 2013 and the latter commenced on the same day in an appropriated fund position under a Career-Conditional Appointment. (This transfer may be considered analogous to an employee transferring from the U.S. Air Force to the U.S. Army).
The agency concludes that the claimant’s “employment with AAFES per se does not render him ineligible for LQA; rather, the ineligibility for the allowance stems from the restriction that the DoD imposes upon employees who transfer from a NAF [non-appropriated fund] to an AF [appropriated fund] position by requiring the employee to not only be eligible for the allowance but also be in receipt of the same for at least one year when in a NAF employment.” The agency thus determined the claimant's LQA eligibility based on the circumstances surrounding his appointment with AAFES, concluding he met the basic LQA eligibility criteria under DSSR sections 031.12a and b.
In its description of circumstances surrounding an employee’s recruitment and employment occurring immediately “prior to appointment” as the basis for LQA eligibility, the DSSR makes clear that eligibility is established at the time of appointment based on the recruitment circumstances immediately prior to that appointment; i.e., subsequent position changes such as reassignments do not prompt a reassessment of LQA eligibility. "Appointment" is construed as the immediate appointment for which LQA eligibility is being determined. The claimant’s Standard Form 50, Notification of Personnel Action, effective March 25, 2013, codes his current Federal service employment with DA as a “Career-Conditional Appointment.” The claimant's move from an NAF to an AF position was not, as the agency asserts, analogous to a transfer between agencies, which would be coded as a "Transfer" and would represent a continuation of the existing appointment and its associated employment benefits. Therefore, contrary to the agency determining the claimant's eligibility for LQA based on circumstances existing prior to his initial AAFES appointment, his eligibility must be based on the circumstances existing prior to his career conditional appointment to the Federal service with DA.
In considering the circumstances prior to his current DA appointment, we conclude the claimant does not meet the basic eligibility criteria under the DSSR. He was employed in a NAF position prior to his DA appointment. The NAF organization had recruited him in February 2013 from Germany following his retirement from military service. Although his actual place of residence was attributable to his employment by the United States Government, thus satisfying section 031.12a, he no longer retained his status as having been recruited in the United States or one of the enumerated territories or possessions as required by section 031.12b. As such, the claimant does not meet section 031.12b and on this basis alone is ineligible for LQA.
Further, there is no indication the claimant’s NAF employment provided for his return transportation to the United States or one of its enumerated territories or possessions as required by section 031.12b. DSSR section 031.12b clearly states return transportation must be provided by “such employer” listed in sections 031.12b(1) through (4) with whom the individual was employed immediately preceding appointment, which in this case was the NAF organization. Even if the claimant had been provided such benefits by the NAF organization, this would not be sufficient to establish his eligibility under section 031.12b as he had not been recruited by AAFES in the United States or one of its enumerated territories or possessions. See OPM file numbers 09-0045, August 3, 2010; and 12-0033, March 7, 2014.
The “substantially continuous employment” concept is introduced under DSSR section 031.12b covering employees recruited outside the United States. “Substantially continuous employment” must be with the employer (singular) which recruited the employee in the United States immediately prior to appointment and induced the employee to accept overseas employment. The claimant has provided no documentation to contradict that AAFES had recruited him in Germany, where he had separated from active duty military service. As such, prior to his appointment, the claimant had not been recruited in the United States or one of its enumerated territories or possessions by his previous employer.
OPM’s claims adjudication authority under 31 U.S.C. § 3702(a)(2) is narrow and limited to determining if the statutory and regulatory provisions applicable to the asserted claim have been correctly interpreted and applied. It does not include the authority to waive or grant exception to provisions of agency regulations. Therefore, OPM may not consider the claimant’s request for an "exception" within the context of the claims adjudication function it performs under section 31 U.S.C. § 3702(a)(2).
Concerning the claimant’s assertion that he was provided faulty information by the DA Civilian Personnel Office and hiring officials, 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 DA’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 may have been provided erroneous information on the effect his NAF employment would have on his future LQA eligibility does not confer such 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