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Policy, Data, Oversight Pay & Leave

Washington, DC

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

Jason Zeller
Department of the Army
Brussels, Belgium
Allowable costs for living quarters allowance
Denied
Denied
15-0012

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



04/04/2016


Date

The claimant is a Federal civilian employee of the Department of the Army in Brussels, Belgium.  He requests the U.S. Office of Personnel Management (OPM) grant him an exception to agency guidance concerning furniture rental as an allowable cost in connection with his approved living quarters allowance (LQA).  We received the claim on December 18, 2014.  For the reasons discussed herein, the claim is denied. 

The claimant asserts that while attending orientation for his current position, he was erroneously advised that "LQA can be used for furniture rental."  After signing a 24-month contract for furniture rental to commence on June 1, 2014, the claimant was informed on June 24, 2014, that the Civilian Human Resources Agency (CHRA)-Europe required "special permission to use LQA for furniture rental," and on July 24, 2014, that it would not be covered under his LQA and that he would not be reimbursed for the contract.   The claimant requests an exception to the CHRA-Europe guidance because he “made the decision to rent furniture when [he] was told it was acceptable” and "he signed a contract based on that information."

The Department of State Standardized Regulations (DSSR) set forth the basic criteria for the granting and payment of LQA.  DSSR Section 131.3, Scope, states LQA rates are intended to "cover substantially all of the average employee's costs for rent..."  Specifically, in relevant part, "rent" is addressed in DSSR section 131.2:

"Rent," exclusive of heat, light, fuel (including gas and electricity), water and taxes, means the annual cost of suitable, adequate living quarters for an employee and his/her family.  When approved by the head of agency as necessary to provide such living quarters, rent may include in addition to the basic annual rental, the cost of... (2) separate rental of necessary furniture at not to exceed 25 percent of the applicable maximum annual quarters allowance rate, meaning rental of necessary basic furniture and/or equipment, etc., but exclusive of pianos, other musical instruments, radios, television sets, etc. from source other than the landlord (rental of furniture and/or space from the same source under two agreements or contracts is considered to be rental of "furnished quarters")...

The language used in DSSR Section 131.2 is permissive rather than mandatory.  By the use of the permissive term “may” (i.e., in relation to “rent may include in addition to the basic annual rental…”), agencies are granted discretionary authority to determine the allowable costs that may be granted to an eligible employee for suitable, adequate living quarters. 

To this end, the July 29, 2013, memorandum issued by the Department of the Army, Office of the Deputy Chief of Staff, G1, CHRA-Europe, “Subject: Interim Guidance for Living Quarters Allowance (LQA)-Furniture Rental,” includes the following requirements:

Effective immediately, all requests for separate rental of furniture submitted by employees under the provisions of DSSR Section 131.2 and who are eligible for LQA under the relevant sections of the DSSR, cited at reference 1a., shall not be approved.  However, an exception to this rule may be considered for extraordinary circumstances.   All such requests for exception must be submitted to this office for review and approval.  The requests must include:        

(1)   a justification of the need for the separate rental of furniture;

(2)   an inventory listing of items shipped under official government travel and transportation orders; and

(3)   an endorsement by the employee’s supervisory chain-of-command, not below the deputy or equivalent level.

The claimant submitted with his claim a copy of the denial of his request by CHRA-Europe dated July 15, 2015.

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.  It does not include authority to grant an exception to agency regulations or policy.  The statutory and regulatory languages governing LQA are permissive, giving agency heads considerable discretion in determining whether to grant LQAs to agency employees and when costs are considered extraneous and unrelated to the basic annual rent.   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 section 178.105 of title 5, Code of Federal Regulations, 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 its discretionary authority as is evident in the present case cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision.

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 had erroneously been informed that furniture rental was an allowable cost under an LQA grant does not confer approval not otherwise permitted by the agency’s implementing policies.

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.

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