Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Izmir, Turkey
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
05/31/2017
Date
The claimant is a Federal civilian employee of the 425th Air Base Squadron (ABS), Department of the Air Force, in Izmir, Turkey. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of living quarters allowance (LQA) and temporary quarters subsistence allowance (TQSA)[1]. We received the claim on November 24, 2015, the agency administrative report (AAR) on January 6, 2016, and the claimant’s response to the AAR on February 9, 2016. For the reasons discussed herein, the claim is denied.
The claimant retired from the U.S. Air Force (AF) on August 1, 2011, in Izmir, Turkey. Thereafter, she worked in Turkey as a self-employed contractor with the 425th ABS until December 2014. On February 6, 2015, the claimant returned to her official home of record in the U.S. from Turkey. The following day, February 7, 2015, AF offered the claimant a Federal position, which she accepted, as a Work/Life Consultant at Izmir Air Station, Izmir Turkey. In May 2015, the claimant returned to Turkey from the U.S. and officially began working in her current position on May 21, 2015. On November 9, 2015, the agency informed her that she was ineligible to receive LQA.
The agency contends that the claimant’s hiring circumstances render her ineligible for LQA as she doesn’t meet the requirements found in sections 031.12(a) and 031.12(b) of the Department of State Standardized Regulations (DSSR).
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. Thus, the Department of Defense Instructions (DoDI) 1400.25-V1250 and the U.S. Air Forces in Europe Instruction (USAFEI) 36-705 implement 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 or other agency implementing guidance may be applied.
DSSR section 031.11 states LQA may be granted to employees recruited in the United States:
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.
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.
As mentioned, AF presented the claimant with an offer for the Work/Life Consultant position one day after she returned to the U.S. from Turkey. Therefore, it is not unreasonable for us to conclude that the claimant could not have been physically present in the U.S. at the time of application and therefore did not reside permanently in the U.S. from the time she applied for the position until and including the date she accepted the formal offer of employment per the definition of “U.S. hire” in DoDI 1400.25, Volume 1250. Accordingly, she is excluded from being considered a U.S. hire, and is barred from receiving LQA under DSSR 031.11.
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; of
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.]
DSSR section 031.12b specifies the conditions under which employees "recruited outside the United States" may be granted LQA. In the claimant's case, we have concluded that the recruitment process began while she was outside of the U.S. and applied for the position, but continued and concluded after she had returned to the United States, where she was offered the position. Thus, upon her return to the United States she could no longer be considered to have been recruited outside the United States for purposes of section 031.12b and the employment conditions it describes, which are based on the premise that, prior to appointment, the employee is physically located overseas and employed by one of the qualifying entities with return transportation benefits to the United States.
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 U.S. 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.
Lastly, in response to the AAR the claimant writes “[an agency employee] encouraged me to acquire and sign rental agreement with a LQA amount of $2,100 in order to process the paperwork. He did this in an official capacity as Labor Relations Specialist on behalf of the 39th ABW Civilian Personnel Office.” 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).
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] Claims for TQSA are under the jurisdiction of the U.S. Civilian Board of Contract Appeals, which settles claims involving expenses incurred by Federal civilian employees for official travel and transportation, and for relocation expenses incident to transfers of official duty station. Therefore, the claim for TQSA is not addressed in this decision.