Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Menwith Hill, United Kingdom
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/25/2016
Date
The claimant is a Federal civilian employee of the Department of the Air Force (AF) in Menwith Hill, United Kingdom (UK). He requests reconsideration of his agency’s denial of living quarters allowance (LQA)[1]. The U.S. Office of Personnel Management (OPM) received the claim request on May 21, 2015, the agency administrative report (AAR) on October 15, 2015, and the claimant’s response to the AAR on October 30, 2015. For the reasons discussed herein, the claim is denied.
The claimant states he began his employment with the U.S. firm CH2MHILL assigned to their Denver, Colorado, office on May 18, 2009, and was issued U.S. military reactivation orders for deployment to Afghanistan from November 30, 2012, to November 23, 2013. Towards the end of this deployment, he states his wife moved to the UK (on November 1, 2013), to work as a Department of Defense contractor. He asserts that on November 15, 2013, he “checked in with CH2MHILL while on terminal leave from [the] U.S. Navy,” then flew to the UK “on his spouse’s orders and Visa” on November 16, 2013, “to stay with [his] spouse while waiting for CH2MHILL transfer to UK or return to States after end of military leave.” In April 2014, the claimant applied for and subsequently accepted his AF position in Menwith Hill, UK, and resigned from his position with CH2MHILL on July 25, 2013, prior to his appointment to the AF position on July 28, 2014. The claimant further states: “During the entire hiring process, I was a full time, U.S. based, CH2MHILL employee (for 5 years) on approved military leave from November 2012 until July 25th 2014. I retained return rights to my U.S. post during the hiring process and had planned to exercise them until I received my current DAFC post.”
The agency states in its AAR, “Mr. Bellamy’s claim does not meet the requirements of DSSR [Department of State Standardized Regulations] 031.12b. Prior to employment with USAFE [U.S. Air Force Europe] he was not recruited from another employer who had recruited him from USA who would have provided for his return transportation to USA.”
The claimant appears to rest his assertion of LQA eligibility on being a U.S. hire.[2] He states he was in the UK with his spouse when he applied for his current AF position but retained employment and a residence in the U.S. He also states: “I was in the UK temporarily while finishing military leave from my former employer (CH2MHILL – Lockwood Greene Engineers) and attempting to transfer to a UK office or return to my protected position.”
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. Department of Defense Instruction (DoDI) 1400.25, Volume 1250, cited by the claimant, implements the provisions of the DSSR for DoD employees. Because LQA is a discretionary allowance, agency implementing regulations may be more restrictive, but not more permissive, than the DSSR; i.e., they may impose additional limitations on the granting of LQA but may not extend benefits that are not otherwise permitted by the DSSR.
DSSR section 031.11 states LQA may be granted to employees recruited in the United States:
Quarters allowances 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:
U.S. Hire. A person who resided permanently in the United States or the Northern Mariana Islands, from the time he or she applied for employment until the date he or she accepted a formal offer of employment.
Thus, an employee’s status as a “U.S. hire” is based on physical residency at the time of recruitment for the position in question.
Although the claimant does not directly assert LQA eligibility under DSSR section 031.11, he appears to characterize himself as a U.S. hire and states that although he was “physically in the UK with his wife at the time of application,[3] [he] maintained [his] own substantial employment as a U.S. based employee and a residence in the U.S.” The claimant asserts he retains a Colorado driver’s license and a vehicle registered in the State, pays Colorado State taxes, and is registered to vote in Colorado. However, the plain language of the term “resided in the United States” clearly connotes physical residency in the United States during the entire recruitment process per the definition of “U.S hire” in DoDI 1400.25, Volume 1250; i.e., from initial application through acceptance of employment. This language does not allow for a more expansive interpretation such as maintenance of a residence, employment, or other associations in the United States. Therefore, whether an employee is deemed to be recruited in the United States or outside the United States is dependent on the actual physical residency of the employee when recruited, not the maintenance of a residence or employment status at some other place other than where the employee is actually residing at this time. Therefore, the claimant does not meet LQA eligibility criteria under DSSR section 031.11 or its implementing regulations in DoDI 1400.25, Volume 1250.
DSSR section 031.12 states, in relevant part, that LQA may be granted to employees recruited outside the United States under the following circumstances:\
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 record shows the claimant’s residency in the UK at the time of appointment cannot be considered fairly attributable to his Federal employment because he had already moved to the UK on his wife’s orders with a UK Visa permitting his residency there several months before applying for his AF position. Therefore, section 031.12a is not met.
The claimant provided a letter from CH2MHILL dated October 25, 2015, stating he was on military leave from his position from November 30, 2012, to November 22, 2013, but was an active employee with the company until his resignation on July 25, 2014, although he had moved to the UK in November 2013 to join his wife. He also included a copy of a pay record presumably provided by the company showing he received a minimal amount of pay for the years 2013 and 2014. He asserts he was “on approved military leave from November 2012 until July 25, 2014,” but this is contradicted by the information in his letter from CH2MHILL and the separation date from active duty military service documented on his DD-214, i.e., November 23, 2013. However, regardless of the claimant’s employment status with CH2MHILL during the Federal recruitment process, this employment is not qualifying under DSSR section 031.12b, which is predicated on an employee, prior to appointment, being employed by one of the qualifying entities in an overseas location, and that entity having recruited the employee in the United States and having provided the employee with return transportation back to the United States at the conclusion of the employment. Since the claimant’s employment with CH2MHILL was entirely U.S.-based, the provisions of section 031.12b are not applicable to his situation.
The claimant also asserts that “[a]s a U.S. based employee [he] was never transferred overseas and by proxy had inherent return rights to [his] posting there under The Uniformed Services Employment and Reemployment Rights Act (USERRA),” and he cites guidance provided in a September 19, 2013, policy advisory issued by the Office of the Secretary of Defense (OSD) which stated: “USERRA allows for employment benefits that would accrue as if a deployment had not occurred. Personnel physically residing in the U.S. before being deployed overseas should be considered for LQA eligibility as if they were not deployed.” Although rescinded in May 2015, the policy advisory was in effect at the time of the claimant’s LQA eligibility determination. However, OPM had previously declined to consider and apply this policy instruction as contradictory to the language of DSSR section 031.11. See OPM File Number14-0047, April 30, 2015. Regardless, the claimant appears to be attempting to associate his presence in the UK during the Federal recruitment process with his earlier deployment. However, this is an inaccurate characterization as the claimant’s active duty deployment ended on November 23, 2013, and he acknowledges that he moved to the UK towards the end of the deployment period, apparently while on military terminal leave, to join his wife. Therefore, he was not “deployed” to the UK. That he may still have had return rights to his CH2MHILL position under USERRA has no bearing on his eligibility under either DSSR section 031.11 or 031.12.
The claimant asserts that his presence in the UK was “temporary,” again citing the aforementioned OSD policy memorandum which stated, in part, that “[t]temporary absences from the U.S. for reasons such as vacations, temporary duty assignments…do not alter a person’s “U.S. hire” status.” The claimant states:
During the hiring process, I was initially unaware that I was being hired as a local hire. At the time, I was in the UK with my wife while I was on military leave from my civilian engineering firm following a non-voluntary deployment. I was a full time employee of CH2MHILL (for 5 years) based in the Denver office until the day before receiving this post. During that time, I maintained a residence in the United States in case I needed to return for work prior to transferring to a UK based CH2MHILL office or find another job. I am still an active USN Reservist assigned to NOSC Jacksonville, FL.
The claimant appears to be attempting to characterize his stay in the UK as temporary in nature. However, his continued presence in the UK for five months, as a dependent of his spouse on government orders and with a UK Visa, is not consistent with a short-term, temporary presence but rather with residency.
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.
[1] In the claimant’s initial claim request he states he “should have been eligible to negotiate an initial agreement (under JTR Vol II, CH5, Part B 5836E 2(a), and 2(b) and 2(c)) and be granted orders assigning [him] overseas, SOFA status, Visa support and all other benefits of a standard employee.” However, in his response to the AAR he states he submitted a claim to the General Services Administration’s Civilian Board of Contract Appeals concerning these issues and “is only requesting LQA from this point forward.”
[2] The claimant appears to erroneously conflate the term U.S. hire, which is addressed in 031.11, with 031.12, which addresses local hires.
[3] The claimant’s resume and job application cover letter show him residing at a UK address, and the Form I-9, Employment Eligibility Verification, he completed in connection with his Federal employment includes an overseas address.