Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Navy
Rota, Spain
Damon B. Ford
Compensation 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 Department of Navy (DON) in Rota, Spain. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of living quarters allowance (LQA). We received the claim on June 17, 2016, and the agency administrative report (AAR) on September 6, 2016, from the Director of Civilian Human Resources, Bureau of Medicine and Surgery. For the reasons discussed herein, the claim is denied.
The claimant was recruited in June 2016 for a position at U.S. Naval Hospital, Rota, Spain while serving as a U.S. Government contractor with Synensis, LLC, a U.S. firm at Kadena Air Base in Okinawa, Japan. At the time of the claimant’s recruitment, the agency concluded she was ineligible for LQA. The agency determined that the claimant failed to meet basic LQA eligibility criteria under the Department of State Standardized Regulations (DSSR), section 031.12.
The claimant challenges the agency’s findings, stating: “I was recruited as a contractor for the current GS position that I am currently holding. However, I was in the GS system for several years prior to becoming a contractor. I am requesting a review of all documentation and hoping that your office can reconsider LQA eligibility based on the evidence of record.”
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, 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 031.12 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.
The record reveals that Synensis recruited the claimant while she physically lived in Temple, Texas. There is no dispute that prior to appointment, the claimant was recruited in the United States by a qualifying employer as required by DSSR section 031.12(b). However, the claimant has not established that she was in substantially continuous employment "under conditions which provided for [her] return transportation to the United States." Synensis’ job offer letter dated May 22, 2015, states: “Synensis will provide a relocation allowance in the amount of $3,500 and will also cover the cost of initial air travel from the U.S. to Kadena AB.” However, the promise of a relocation allowance as stated in the letter does not ensure return transportation to the United States or one of its territories, as required by DSSR section 031.12(b).
The record also contains a letter dated, February 26, 2016, provided by the claimant, stating the following:
This letter serves to inform you that Synensys will provide a repatriation allowance in the amount of $3,500 and (1) return flight to the USA after 12 months of active service. No repatriation allowance will be provided should you resign from your position prior to June 9, 2016.
However, this letter from a Senior HR Consultant, who may or may not be authorized to speak for the firm regarding its employment benefit obligations, does not establish that the firm had committed itself at the time of hire to provide the claimant return transportation to the United States. Thus, this letter is not acceptable for purposes of LQA determination because it is not a contemporaneous piece of documentation. The letter is dated over eight months after commencement of the claimant’s employment with Synensis and therefore does not represent whatever return transportation benefits may have been offered to the claimant at the time of hire. The claimant has not established that she fully meets the requirements of DSSR 031.12b. Accordingly, the claim is accordingly denied.
Under the DoDI 1400.25, Volume 1250, 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 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.