Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Army
Waegwan, Republic of Korea
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/19/2016
Date
The claimant is a Federal civilian employee of the U.S. Army Pacific, Department of the Army (DA), in Waegwan, Republic of Korea (Korea). He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of his request for living quarters allowance (LQA). We received the request from the claimant on May 22, 2014, and the agency administrative report (AAR) on March 13, 2015. For the reasons discussed herein, the claim is denied.
The record shows the claimant began employment with the URS Corporation at Camp Carroll, South Korea, in June 2012. While employed with the U.S. firm, the claimant applied for, was selected, and subsequently appointed to his Federal service position effective January 14, 2013.
The agency initially determined the claimant ineligible for LQA at the time of appointment, citing eligibility provisions in Army In Korea (AK) Regulation 690-10. The claimant requested reconsideration of the servicing human resources office’s initial denial from the DA’s Civilian Human Resources Agency. Although sustaining the initial denial of LQA eligibility, their February 25, 2014, decision states:
On 20 December 2012, [claimant] accepted employment in a foreign area having been advised that LQA would not be authorized. It is for this reason that LQA will not be granted, as there is no longer a need to incentivize [claimant] to accept employment in a foreign area in accordance with the [Department of Defense Instruction (DoDI) 1400.25, Volume 1250].
The Department of State Standardized Regulations (DSSR) contain 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 under the DSSR. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI, AK Regulation, or other agency implementing guidance may be applied.
The agency does not provide an explanation of the claimant’s ineligibility for LQA by comparison to provisions of the DSSR. The claimant asserts his eligibility for LQA as a “U.S. hire,” stating he maintains a residence in the United States. He explains in a June 4, 2013, email to his agency:
All of my documents for my current position as a DA Civilian state that I was hired from the United States. They paid for me to come here and shipped my household goods from my stateside residence.
LQA may be granted to employees recruited in the United States, as stated in DSSR section 031.11:
Quarters allowance prescribed in Chapter 100 may be granted to employees who were recruited by the employing government agency in the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and the possessions of the United States.
Relative to these criteria, DoDI 1400.25, Volume 1250, defines “U.S. hire” as follows:
A person who resided permanently in the United States, or the Northern Mariana Islands, from the time he or she applied for employment until and including the date he or she accepted a formal offer of employment.
An employee’s status as a “U.S. hire” is thus based on physical residency at the time of recruitment for the position in question. In this case, the record shows the claimant was employed by URS at Camp Carroll, South Korea, from June 2012 to December 13, 2012. While employed with the U.S. firm, he applied for the Federal service position open for recruitment from October 26, 2012, to November 4, 2012. After receipt of the tentative job offer from DA, the claimant resigned from URS and subsequently returned to his Wisconsin-based home on December 15, 2012. He accepted the DA’s formal offer of employment on December 20, 2012. The record clearly shows the claimant was employed and resided in Korea for portions of the recruitment process and was not permanently or physically residing in the United States from the time he applied for employment until and including the date he accepted the formal job offer. Therefore, he may not be considered a U.S. hire for LQA purposes under DSSR section 031.11 and implementing regulations of the DoDI.
The claimant suggests the agency’s shipping of his household goods from a U.S. address as indicative of his being hired from the United States. We presume he returned to the United States in preparation of moving his family, who would accompany him, to Korea prior to his Federal service appointment. Regardless, transitory returns to the United States at junctures in the recruitment process, and in this case post-recruitment process, are contrary to the DoDI’s definition of a U.S. hire as a person residing in the United States “from the time he or she applied for employment until and including the date he or she accepted a formal offer of employment.” Therefore, the claimant’s assertion that he was in the United States prior to appointment, as evidenced by the agency providing transportation to him and his family and shipping his household goods from his home in Wisconsin, as rendering him eligible for LQA is unsupportable as transitory returns to the United States are not qualifying under DSSR section 031.11 and implementing regulations of the DoDI. See OPM File Number 15-0022.
Further, the claimant attempts to characterize his URS employment as a “temporary duty assignment,” thus meeting LQA eligibility requirements by reference to the September 19, 2013, policy advisory issued by the U.S. Department of Defense regarding the U.S. hire definition. The advisory states, in part, that “[t]emporary absences from the U.S. for reasons such as vacations, temporary duty assignments…do not alter a person’s “U.S. hire” status.” Although rescinded in May 2015, the policy advisory was in force at the time of the claimant’s LQA eligibility determination. Regardless, a temporary duty assignment refers to a travel assignment to a location other than the employee’s permanent duty station. In such situation, there is an identifiable permanent duty station and temporary duty station to which the employee is assigned on a time-limited basis. In contrast, URS hired the claimant to work exclusively in South Korea, thus the characterization of that locale as a temporary duty station would be inappropriate. We conclude the policy advisory is inapplicable to his situation as his absence from the United States is inconsistent with that of a vacation, temporary duty assignment, or other temporary absence described by the September 2013 policy advisory.
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.]
The claimant meets section 031.12a because his presence in Korea is attributable to his employment with DA. Section 031.12b allows LQA eligibility in those instances where the employee, prior to appointment, had “substantially continuous employment” with one of the entities listed under b(1) through b(4), and which entity (i.e., the singular usage of “such employer”) recruited the employee in and provided return transportation to the United States or its territories or possessions. Further, the plain language of DSSR section 031.12b of “recruited in the United States” clearly connotes physical presence at the time of recruitment.
To determine if URS (his employer prior to his Federal service appointment) had recruited the claimant from the United States, we must first address the various statements made by the agency. For example, the agency states in a March 13, 2015, email to OPM:
[The claimant] was prior military stationed in Korea. It is not clear if He [sic] separated in Korea and was picked up by the Contractor overseas or if he was hired from the states; he has been in Korea for 9 years.
However, the agency’s statements are inconsistent with the “Certificate of Entry & Exit” issued by the Korean immigration office to document the claimant’s arrivals and departures to the country. During the period in question (i.e., circa June 2012 when he began employment with URS), the certificate shows the claimant departed Korea on September 30, 2010, and returned on June 26, 2012, apparently to begin his employment with URS. We therefore conclude he had not been in Korea for 9 years as stated by the agency. To support his presence in the United States at the time of his recruitment by URS, the claimant provided a rental agreement for a Wisconsin-based apartment with a lease term from August 1, 2011, to July 31, 2012. The agency questions the rental agreement in a June 5, 2015, email to OPM, stating “Exhibit B rental agreement looks like he changed a few dates (last page vacating apartment looks like it was 2011 and he wrote over it to reflect 2012).” What the agency appears to refer to is the block where the apartment manager provides a signature and date showing satisfactory condition of the apartment at the time of vacancy. Having the manager sign to the satisfactory condition of the apartment at the time of vacancy on June 16, 2011, as suggested by the agency, would not be plausible as the inspection of the apartment upon vacancy would then predate the term of the lease which began on August 1, 2011, as noted on the first page of the rental agreement.
The claimant identifies current and former residences in his Questionnaire for Overseas Benefits Determination, dated November 29, 2012. The questionnaire shows that although he apparently maintained a home in Wisconsin, he physically resided at the Wisconsin-based apartment from June 2011 to June 2012 when he was recruited for employment with URS. The May 18, 2012, job offer letter and employment agreement from URS was, however, mailed to the claimant’s Wisconsin-based home. In a December 7, 2013, email to his agency, the claimant explains:
I supplied [the agency] with a rental agreement that I had for a previous position that I had (too far to drive) so that I could show residency. This included bills that I paid: internet, cable, electric. This was not my permanent address though. I have maintained permanent residence at [Wisconsin-based home address] since 1997. All of my tax records and any information for anything that I have refers to this address to include my stateside hire address for the government and this is also where they shipped my household goods from the current position I have with the government.
In the absence of satisfactory evidence to suggest otherwise, the record shows URS recruited the claimant (i.e., he applied, interviewed, and was selected for the position) while he was physically residing in the United States or one of its enumerated territories or possessions as required by DSSR section 031.12b.
The agency states they were unable to determine if the claimant’s employment with URS satisfied section 031.12b which requires an employee to have been in substantially continuous employment by such employer which provided for his/her return transportation to the United States. We reviewed his May 2012 employment agreement, which describes his employment benefits in regard to return transportation as follows: “After your Assignment, or if URS terminates this Agreement for its convenience prior to the completion of your Assignment, URS shall pay for transportation of Employee back to Point of Origin.” As discussed previously, the claimant’s point of origin was the United States. As it shows specific commitment and expectation on the part of URS to return the claimant to the United States upon termination of his employment, the employment agreement on record establishes the U.S. firm’s commitment to provide him with return transportation to the United States or another of the enumerated locations stipulated by DSSR section 031.12b.
The DSSR are the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. However, under section 013, they allow agencies to issue implementing regulations as follows:
When authorized by law, the head of an agency may defray official residence expenses for, and grant post differential, difficult to staff incentive differential, danger pay allowances, quarters, cost-of-living, representation allowances, compensatory time off at certain posts and advances of pay to an employee of his/her agency and require an accounting thereof, subject to the provisions of these regulations and the availability of funds. Within the scope of these regulations, the head of an agency may issue such further implementing regulations as he/she may deem necessary for the guidance of his/her agency with regard to the granting and accounting for these payments.
The agency cites the AK Regulation for denying LQA to the claimant, specifically provisions of Chapter 2-2(b) stating that LQA for locally hired employees “may” be granted under the following conditions:
(1) The position is announced worldwide, and;
(2) The employee meets basic eligibility requirements to receive LQA as defined by the DSSR, section 031.12a and b, and;
(3) The employee did not previously accept a position for which LQA was not offered.
The agency determined the claimant fails to meet Condition (3). The record shows URS provided him with a per diem of $61. Regarding his housing and transportation benefits, the URS employment agreement specifically states:
Housing is the Employee’s responsibility and modest accommodations will be reserved for you (at your expense) for the first week. At which point you can make arrangements to stay at that location or move to another location (at your expense) as you may choose.
In addition to asserting that Condition (3) applies only to previous Federal rather than contractor employment, the claimant asserts the $61 per diem he received is equivalent to LQA and he thus satisfies the Condition (3) requirement. The agency, however, determined Condition (3) applicable to both prior Federal civilian and contractor employment, and that the claimant’s employment agreement with URS fails to demonstrate the contractor’s obligation to provide him with LQA or suitable, adequate living quarters at the work location as required by Condition (3). When the agency’s factual determination is reasonable, we will not substitute our judgment for that of the agency. See e.g., Jimmie D. Brewer, B-205452, March 15, 1982. 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.
Even if the claimant had met all the conditions for locally hired employees, the plain text of the AK Regulation, by indicating that such employees “may” be granted LQA, does not compel payment of such. This is in line with the DSSR section 031.12, which applies to employees recruited outside the United States, and provides that “[q]uarters allowances…may be granted to employees recruited outside the United States…” (emphasis added). The DSSR does not state that an agency shall or must grant LQA once an employee meets the prescribed eligibility requirements. The DSSR establishes only basic LQA eligibility parameters and bestows considerable discretion on agency heads to decide under what circumstances they will actually grant LQA to eligible individuals. See Mark Roberts v. United States, 104 Fed. Cl. 598 (2012).
The claimant maintains he would have declined the Federal service job offer if he was not provided LQA. He states that servicing human resources officials convinced him to accept the job offer without benefit of LQA by suggesting his eligibility would be reviewed again upon his arrival overseas. He does not explain why he believed his eligibility for LQA would be reversed upon reconsideration. 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 statute, and erroneous advice given by a Government employee cannot bar the Government from denying benefits 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 given such advice or led to believe a subsequent review of his LQA eligibility would be favorable does not confer eligibility not otherwise permitted by statute or its implementing regulations.
The claimant also makes various statements regarding reprisal and prohibited personnel practices, stating in his claim request to OPM that agency officials indicated they would seek reimbursement for the cost of transporting him and his family and shipping their goods overseas if he filed a claim with OPM. He also states in a July 23, 2015, email to OPM that his agency advised him of his eligibility for LQA and other “benefits,” only for their determination to be reversed later. He asks if “someone could look into the multiple inconsistencies and changes in paperwork that seem to be repeating themselves.” The claims jurisdiction authority of OPM is limited to consideration of statutory and regulatory liability. OPM adjudicates compensation claims by determining whether controlling statute, regulations, policy, and other written guidance were correctly applied to the facts of the case. Therefore, the claimant’s reprisal, prohibited personnel practice, and other allegations are not subject to review under OPM’s claims adjudication authority of 31 U.S.C. 3702(a)(2) and will not be addressed further.
DoDI 1400.25-V1250 specifies that overseas allowances are not automatic salary supplements, nor are they entitlements. They are specifically intended as 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 a foreign area, that inducement is normally unnecessary. Furthermore, 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 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.