Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Molesworth, United Kingdom
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/25/2015
Date
The claimant is a Federal civilian employee of the Defense Intelligence Agency in Molesworth, United Kingdom (U.K.). He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s termination of his living quarters allowance (LQA). We received the initial claim request on July 14, 2014, the agency administrative report (AAR) on November 18, 2014, and the claimant's response to the AAR on November 25. 2014. For the reasons discussed herein, the claim is denied.
The claimant retired from active duty military service on July 31, 2000, in the U.K. Based on his resume submitted with the AAR, on May 1, 2000, he began a series of positions with various private firms in the U.K. including Man Tech, Computer Sciences Corporation, and CACI, presumably while on military terminal leave prior to his retirement. He was appointed to the Federal Service on or about February 28, 2011, and was granted LQA. The agency reports that 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 U.S. Based on the information provided by the agency regarding the claimant's employment history, which is consistent with his resume and not disputed by him, the claimant does not meet the LQA eligibility criteria of DSSR section 031.12b because his employer immediately prior to his Federal appointment (Man Tech) did not recruit him in the United States.
The claimant, in his claim request, acknowledges that he "does not fully comply" with DSSR section 031.12b, but questions whether he may have been granted LQA as a result of the agency waiver provision contained in section 031.12 which states: "Subsection 031.12b may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action."[1] He reiterates in his response to the AAR that he does not challenge his ineligibility under DSSR section 031.12b, but asserts that his written job offer which included LQA constituted in effect a binding employment contract: "An offer extended across the table, especially one in writing, during recruitment negotiations, that in turn results in an employment action, must be binding and irrevocable."
It is well established that where a Federal employee holds his or her position by virtue of appointment, any entitlement to compensation must be based solely on the applicable statutes and regulations, and those statutes and regulations do not give rise to an implied-in-fact contract. See Chu v. United States, 773 F.2d 1226, 1229 (Fed.Cir.1985) (“[A]bsent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government”; see also Schism v. United States, 316 F.3d 1259, 1275 (Fed.Cir.2002)(noting that “[f]ederal employees, both military and civilian, serve by appointment, not contract…”)) Therefore, the Government’s offer letter for the claimant’s position and by extension any benefits extended therein does not constitute a “binding and irrevocable” contract as asserted by the claimant. See OPM File Number 13-0001, December 24, 2013.
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 granted LQA when he began his Federal employment does not confer eligibility not otherwise permitted by statute or its implementing regulations.
The claimant states that LQA was "used as a recruitment incentive to get [him] to leave the company [he] was working for and take the offer of employment from the US Government." However, the Department of Defense (DoD) implementing instructions for the DSSR, DoD Instruction 1400.25, Volume 1250, administratively reissued July 31, 2009, and in effect at the time of the claimant's appointment, specifically states:
Overseas allowances and differentials (except the post allowance) are not automatic salary supplements; nor are they entitlements. They are specifically intended to be recruitment incentives for U.S. citizen civilian employees living in the United States to accept Federal employment in a foreign area. If a person is already living in the foreign area, that inducement is normally unnecessary.
Since documentation in the record indicates the claimant had been residing overseas for at least eleven years prior to his Federal appointment, he would not meet DoD's intent for the granting of LQA as a recruitment incentive as described above.
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] The agency gave no indication in the AAR that an official waiver of section 031.12b had originally been granted. Further, beyond the issue of the claimant having had multiple overseas employers prior to his Federal appointment, the agency provided no explanation for their initial granting of LQA given that the claimant's resume shows his continuing residency in the U.K. between his military retirement and his initial private sector employment, in which case he would not have been recruited in the United States by such employer.