Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Management Command
Department of the Army
Vicenza, Italy
Damon B. Ford
Pay and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/17/2017
Date
The claimant is a Federal civilian employee of the U.S. Army Installation Management Command, Department of the Army (DA), in Vicenza, Italy. He requests the U.S. Office of Personnel Management (OPM) reconsider the Agency’s denial of his request for living quarters allowance (LQA). The request was transferred to OPM from the U.S. Civilian Board of Contract Appeals on April 26, 2016, the agency administrative report (AAR) on June 28, 2016, and the claimant’s comments to the AAR on July 26, 2016. For the reasons discussed herein, the claim is denied.
In January 2013, the claimant began his employment with the U.S. firm Engility Corporation, duty-stationed in Afghanistan. While working in Afghanistan, he applied for a Federal civilian position in May 2014, and on July 11, 2014, received and accepted a tentative job offer. Based on information provided in an LQA Questionnaire, signed and dated, July 16, 2014, the agency initially determined the claimant eligible for LQA. However, the initial determination was subsequently reversed by the Civilian Human Resources Agency(CHRA)-Northeast Region/Europe. CHRA concluded the claimant was ineligible for LQA because he used his return transportation entitlement from his previous contractor employer and therefore did not satisfy the requirements of the Department of State Standardized Regulations (DSSR) section 031.12(b). The claimant was appointed to his Federal service position with DA on January 12, 2015.
The claimant asserts that DSSR 031.12(b) supports his claim. He asserts Engility provided clear return transportation to the United States in their offer letter to him. He further believes that reversing the initial determination because he used his return transportation entitlement is incorrect because Engility did not pay for him to leave Afghanistan. He asserts he paid for his own transportation.
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 claimant meets section 031.12a because his presence in Italy is attributable to his employment with DA. Section 031.12b 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 recruited the employee in and provided return transportation to the United States or its territories or possessions.
There is no dispute that Engility recruited the claimant from the United States as required by DSSR section 031.12b. However, the claimant has not established he was in substantially continuous employment “under conditions which provided for [his] return transportation to the United States” or its territories or possessions with Engility. The claimant’s employment offer letter from Engility, dated November 28, 2012, and the accompanying Employment Agreement, states, under section 13. TRAVEL:
Employer will furnish transportation for Employee from Employee’s point of origin (permanent residence at the time of hiring) to Employee’s workplace. All transportation costs must be authorized in advance of travel and will be reimbursed upon submission of receipts and the Engility Travel Expense Report in accordance with Employer’s policies. ITR rates will prevail unless rates are not available. Employee will be reimbursed at the per diem rate while in travel status. Employer or the Employer’s Agent will arrange all travel. Reimbursement will not be made for travel scheduled or performed independently by the Employee.
The Agreement makes no mention of return transportation to the United States. Therefore, the requirements of section 031.12(b) of the DSSR are not met here.
The claimant also submitted a Letter of Authorization (LOA), dated August 27, 2013, which states in pertinent part:
The government…in its mission support capacity under the contract, authorizes the individual employee identified herein, to proceed to the locations(s) listed for the designated deployment period set forth above. Upon completion of the mission, the employee will return to the point of origin.
As stated earlier, the claimant received his offer letter from Engility on November 28, 2012 and began his employment there in Jan 2013. However, the LOA is dated August 27, 2013. The 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. Therefore the LOA does not establish that Engility had obligated itself at the time of the claimant’s employment to provide him return transportation to the United States. Further, the LOA makes no mention of return transportation specifically to the United States. Therefore, the claimant does not meet DSSR section 031.12b here either.
The claimant has submitted no documentation establishing that Engility had, at the time of his employment with that firm, provided him return transportation to the United States as an employment benefit.
In a July 29, 2016, email to OPM the claimant responded to his agency’s comments about his LQA eligibility and asserts DSSR section 031.15 applies to him. DSSR section 031.15 states:
Notwithstanding the provisions of Section 031.12, quarters allowances prescribed in Chapter 100 may be granted to employees who, immediately prior to appointment or assignment to the position for which recruited, were deployed or employed in a combat zone (see definition in Section 040t) supporting contingency operations by:
1) the United States Government, including its Armed Forces; or
2) a single United States firm, organization, or interest not immediately preceded by any prior such employment overseas; or
3) an international organization in which the United States Government participates; and
immediately prior to meeting one of the above circumstances, were customarily resident in the United States, its territories, or possessions, or had met one if the above conditions and returned to the United States, its territories, or possessions during recruitment.
Effective April 3, 2016, DSSR section 031.15 was implemented for employees deployed to or employed in combat zones. However, the present claim predates its implementation and thus this section was not in force at the time of the claimant’s LQA eligibility determination. Therefore, it is not applicable to his situation.
DoDI 1400.25 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 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.