Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Okinawa, Japan
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/06/2018
Date
The claimant is a former Federal civilian employee of the Department of the Air Force (AF) at Kadena Air Base (AB) in Okinawa, Japan. She requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of living quarter’s allowance (LQA). We received the claim on April 12, 2016, and the agency administrative report on May 20, 2016. For the reasons discussed herein, the claim is denied.
In, or around, July 2010, the claimant was recruited from the United States to Iwakuni, Japan where she was granted LQA benefits as an eligible employee. She later transferred to Kadena AB in Okinawa, Japan, where she worked as a Work/Life Consultant from December 16, 2012, to January 11, 2014. Upon her transfer to Kadena AB, AF determined that the claimant was no longer eligible to receive LQA in accordance with Department of State Regulations (DSSR). The claimant disagrees with this determination and asserts that she was eligible for LQA because she was “not recruited locally,” but was recruited from Iwakuni, Japan, which is “639 miles away,” and that “at no point did they tell [her] [she] would be denied LQA because of local recruitment incentives.” [1] The claimant also insists that because the position was considered hard-to-fill, she “should not have been denied the opportunity to negotiate […] LQA.”
The agency maintains that the claimant was ineligible for LQA as there was nothing in the vacancy announcement or job offer that indicated LQA would be paid, and furthermore she didn’t meet the full requirements found in section 031.12(b) of the 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. Department of Defense Instructions (DoDI) 1400.25, Volume 1250, dated February 23, 2012, in effect when the claimant was appointed; implement 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. Therefore, an LQA applicant must fully meet relevant provisions of the DSSR before the supplemental requirements of the DoDI or other agency implementing guidance may be applied.
DSSR section 031.12 states 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; or
Under 031.12b an employee is considered eligible for LQA if their previous employer recruited them directly from the U.S., were employed by one of the listed authorized entities, and maintained substantially continuous employment with this employer. Before transferring to Kadena AB, the claimant’s previous employer did recruit her from the U.S. and is considered one of the authorized entities stipulated in the regulations, however AF states that she used her return transportation to relocate from Iwakuni to Okinawa. In doing so, she ended her substantially continuous employment thus rendering her ineligible under 031.12b. Though the record contains no direct evidence that the claimant used her return transportation to transfer to Okinawa, the claimant does not refute the statement. OPM accepts the facts asserted by the agency, absent clear and convincing evidence to the contrary. OPM does not conduct investigations or preside over adversary hearings in adjudicating claims, but relies on the written record submitted by the parties. See Frank A. Barone, B-229439, May 25, 1988. The burden of proof is on the claimant to establish the liability of the United States, and where the agency’s determination is reasonable, OPM will not substitute its judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, March 15, 1982, as cited in Philip M. Brey, B-261517, December 26, 1995.
The claimant points out that she was informed by a selecting official “that all of [her] benefits and allowances would continue when [she] transferred from Iwakuni to Kadena AB.” However, 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 was granted LQA when she began her Federal employment does not confer eligibility not otherwise permitted by statute or its implementing regulations.
The claimant states that the position was hard-to-fill, and this fact should have made it possible for her to negotiate LQA. She contends that had AF “selected a candidate from the U.S., they would have paid transportation and LQA costs.” She further states that she had previously been offered the position at a lower salary, but only accepted the position after AF offered it at a higher salary. She insists that in choosing her rather than a candidate from the U.S., AF demonstrated a “true recruitment need.” However, the claimant provides no direct evidence that the agency determined this was a hard-to-fill position. Furthermore, the Department of Defense Instructions (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. 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.
In this case, the agency restricted recruitment for the position to local candidates and stated in the vacancy announcement that LQA would not be offered, in keeping with the DoDI that LQA not normally be offered to job candidates already living in the foreign area. An agency decision which is consistent with stated policy or regulatory guidance cannot be considered arbitrary, capricious, or unreasonable. Accordingly, the claim for LQA is denied.
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] The claimant appears to take exception to being characterized as a "local hire" by her agency under DSSR section 031.12, apparently associating the term "local" with individuals who reside within a reasonable physical proximity to the duty station. However, the DoDI 1400.25-M, paragraph 1250.3.4, defines the term "locally hired" (as opposed to “U.S. hire”) as follows: "For the purpose of this Subchapter, locally hired refers to the country in which the foreign post is located."