Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Wiesbaden, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
11/28/2017
Date
The claimant is a Federal civilian employee of the Department of the Army (DA), in Wiesbaden, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of living quarters allowance (LQA). We received the claim on October 18, 2016 and the agency administrative report (AAR) on December 8, 2016. For the reasons discussed herein, the claim is denied.
In August 2015, while serving as a military reservist on active duty orders for the Army National Guard stationed in Germany, the claimant applied for his current Federal civilian position with the DA in Wiesbaden, Germany. He received a tentative offer for the position on November 25, 2015, and completed an LQA questionnaire for the position on December 2, 2015. He was determined ineligible for LQA prior to appointment because he did not meet eligibility provisions in Department of State Standardized Regulations (DSSR) section 031.11 in connection with the definition of “U.S. hire” in the Department of Defense Instruction (DoDI) 1400.25, Volume 1250. Specifically, the agency determined that because the claimant was not physically residing permanently in the U.S. when he applied for the position that he did not meet the provisions of DSSR 031.11. Nonetheless, the claimant accepted the final job offer without LQA.
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. DoDI 1400.25, Volume 1250, dated February 23, 2012, in effect when the claimant was appointed, implements the provisions of the DSSR for DoD and DA 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 031.11 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 defines “U.S. hire” as follows:
A person who physically resided permanently in the United States or the Commonwealth of 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.
An employee’s status as a “U.S. hire” is thus based on physical residency at the time of recruitment for the position in question. Therefore, an employee must be physically residing in the United States from the time of application until acceptance of a formal job offer. In this case, the claimant was a military reservist on active duty orders in Wiesbaden, Germany, from March 23, 2015, to September 30, 2015. In August 2015, while stationed in Wiesbaden, he applied for his current position. Upon completion of his September 30, 2015 tour, he returned to the United States where he was offered and accepted his Federal service position and subsequently appointed to effective March 7, 2016. Therefore, since the claimant applied for his current position while he was physically residing in Germany, as opposed to in the United States, he does not meet LQA eligibility criteria under DSSR section 031.11 in connection with the implementing regulations in DoDI.
The claimant asserts that his presence in Germany due to his military activation should not affect his status as a “U.S. hire.” To support this assertion he references a September 19, 2013, policy advisory issued by the Department of Defense (DoD) regarding the U.S. hire definition. The advisory states, in part, that “[t]emporary absences from the U.S. for reasons such as vacations, temporary duty assignments (including the private industry equivalent) or deployments by Reservists and National Guard members do not alter a person’s ‘U.S. hire’ status…” Although the policy advisory was rescinded as stated by the agency in its AAR to OPM,[1] and not in force at the time of the claimant’s LQA eligibility determination, we offer the following clarification. OPM applies agency-developed policies to the extent such guidance is in agreement with the DSSR, when such implementing instructions do not exceed the scope, meaning, or intent of the DSSR. However, the DSSR does not exempt particular categories of employees, such as military reservists mobilized overseas, from the provisions of section 031.11. Thus, agencies are precluded from doing so either explicitly or implicitly in their implementing regulations as this would exceed the scope of the DSSR. See OPM File Numbers 13-0038 and 13-0040. Therefore, even if this policy was in effect at the time of the claimant’s LQA determination, an LQA applicant must fully meet relevant provisions of the DSSR before other agency implementing guidance may be applied. Thus, because the claimant did not meet LQA eligibility criteria under section 031.11, this policy would have exceeded the scope of the DSSR and would not be applied to the claimant’s situation.
Further, the claimant appears to characterize his presence in Germany as temporary, attributing his presence in Germany to a “short” unaccompanied tour, thus not affecting his permanent residency in the United States. He states that during his tour he “was still residing in and employed inside the U.S. with [his] civilian employer,” and because it was an unaccompanied tour his wife remained in their “permanent residence in the U.S.” However, the presence of all U.S. citizens abroad would be considered temporary unless they have obtained either citizenship or permanent residency status allowing their permanent presence in the foreign country. Therefore, the term “resided permanently in the United States” as it is used in the DoDI 1400.25 definition of “U.S. hire” cannot be construed in a manner that would grant LQA eligibility to essentially all U.S. citizens recruited overseas as de facto “U.S. hires,” as this would render DSSR section 031.12b superfluous. It is a cardinal principle of statutory construction that a statute should be construed such that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). This principle also applies in interpreting regulations, including the DSSR.
The claimant cites what appear to be provisions afforded by the Uniformed Services Employment and Reemployment Rights Act (USERRA), but does not provide an explanation on the application of these provisions to his LQA eligibility. OPM adjudicates compensation and leave claims for certain Federal employees under the authority of section 3702(a)(2) of title 31, United States Code (U.S.C.). The authority in 31 U.S.C. § 3702(a)(2) is narrow and limited to determining if monies are owed the claimant under the controlling statutes or regulations. In the present case, this would be limited to determining if the claimant was eligible for LQA under the DSSR. Therefore, the claimant’s unidentified application of USERRA provisions to his situation is not subject to review under OPM’s claims adjudication authority and will not be addressed further.
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 the OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.