Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Camp Zama, Japan
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
01/21/2016
Date
The claimant is a Federal civilian employee of the Department of the Army (DA) at Camp Zama, Japan. 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 request on November 6, 2014, and the agency administrative report on February 23, 2015. For the reasons discussed herein, the claim is denied.
The claimant was employed by the U.S. firm DynCorp International, duty-stationed at Camp Zama, Japan, from December 17, 1999, to April 30, 2009. At the time, DynCorp International had an established contract for maintenance support with DA. In January 2009, DA opened the contract up for bidding, and the U.S. firm Lear Siegler Services, Inc. (LSI) won the bid for the contract. The claimant was offered and accepted a position with LSI corresponding to the position he had held with DynCorp, effective May 1, 2009, and in January 2010, LSI changed its name to United Research Services (URS). The claimant subsequently applied for, was offered, and accepted a Federal service position with DA, to which he was appointed on June 18, 2012.
At the time of the claimant’s appointment to the Federal service, the agency initially concluded he was eligible for and thus granted him 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 notification letter stated that he had been "identified as an employee recruited outside the United States who had more than one employer in the overseas area prior to [his] appointment into appropriated fund Federal civilian service." The agency states in its AAR that the claimant is ineligible for LQA because “he has not demonstrated that: he had permanent residence back in the U.S. prior to and during this overseas employment, he was recruited from the U.S. or other enumerated territories or possessions with his employer, LSI/URS immediately prior to federal appointment, his overseas employment was temporary in nature (temporary duty (TDY)), or that his employment with LSI/URS contained conditions which provided for his return transportation to the U.S.”
The claimant appears to dispute that he had more than one employer overseas because LSI “won the delivery order on the same [contract] with no break in contract service” and that he had “right to first refusal” of the position with the new firm under Executive Order 13495. In addition, he suggests that “the company name change was possibly how the determination for LQA ineligibility was found.” The claimant also appears to assert that he had return transportation to the United States because "at the time the [LSI] contract started [they] were informed that all benefits from the previous employer would remain to include shipping of tools, excess baggage charges, wages and pedium [sic] in accordance with the basic contract and company policy being put in a TDY status," and that under "TDY or end of contract the company is required to return its employees to another work site or place of hire on record at the completion of the contract."
The DSSR contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. 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 agency’s language that the claimant had “more than one employer in the overseas area” as the basis for his LQA ineligibility is not used in the DSSR. Rather, it is an abbreviated way of characterizing section 031.12b, which 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. By extension, an employee who has had more than one “employer” overseas prior to Federal appointment would be disqualified because the initial overseas employer rather than the employer immediately preceding appointment would have recruited the employee in the United States. Therefore, DSSR section 031.12b requires that the employee have had substantially continuous employment with only one qualifying employer overseas, which recruited the employee in the United States or one of the other enumerated locations and which provided for the employee's return transportation to the United States or one of the other enumerated locations.
The claimant appears to suggest that the LSI contract was an extension of the DynCorp contract, with conveyance of the existing benefits. However, these were two separate, successive contracts, between the U.S. Government and two separate firms, and constitute two separate employers for purposes of LQA eligibility under DSSR section 031.12b.[1] See OPM File number 10-0037, September 14, 2011. Further, the claimant has provided no documentation that either DynCorp or LSI had provided him with return transportation to the United States at the time of his employment with those firms.
The claimant submitted his employment offer letter from LSI, dated April 30, 2009, which confirms their "offer of employment for an Aircraft Mechanic I position at [their] Camp Zama worksite location," and states that the claimant was eligible for "the Company benefit package consisting of medical, dental, disability and accident/life insurance, employee assistance program, 401(k) plan, vacation in accordance with company policy and an employee stock purchase plan." It makes no mention of return transportation to the United States or of the claimant having been hired, as he asserts, in a "TDY status," which would imply the assignment in Japan was temporary in nature and the existence of a permanent assignment elsewhere. He also submitted a letter dated August 6, 2014, from an individual identified as the "URS USARPAC CFT Area Manager," stating: "All employees under this CFT Contract where [sic] paid in Accordance With the JTR rates in a TDY status collecting Per-Diem during their Temporary duty and employment at Camp Zama, Japan URS Site." However, DSSR section 031.12b requires conditions be in place at the time of employment to specifically ensure return transportation to the United States or another of the enumerated locations. A letter from a URS representative, who may or may not be authorized to speak for the firm regarding its employee benefit obligations, and purporting past benefits that were not stated in the original employment offer letter, does not establish that LSI/URS had obligated itself at the time of the claimant's employment to provide him return transportation to the United States, and is not acceptable for purposes of LQA determination. The claimant provided no documentation relating to his preceding employment with DynCorp.
Therefore, the claimant does not meet DSSR section 031.12b because his employer immediately prior to appointment (LSI/URS) had recruited him in Japan rather than in the United States or one of the other enumerated locations and secondarily, because he has submitted no documentation establishing that LSI/URS had, at the time of his employment with that firm, provided him return transportation to the United States as an employment benefit.
The claimant asserts that “an employee hired four months before [him] that [he] worked side by side with for the same contract and companies… is still receiving his LQA…” Regardless that the hiring circumstances of this other employee may have differed from the claimant’s and thereby rendered him eligible for LQA, the claims jurisdiction of OPM is limited to consideration of legal and regulatory liability. OPM has no authority to authorize payment based solely on consideration of equity.
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 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). 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.
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 was erroneously determined to be eligible for LQA upon his appointment to the Federal service and had received LQA based on that determination does not confer eligibility not otherwise permitted by statute or its implementing regulations.
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.