Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Services
Defense Logistics Agency
Sasebo, Japan
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/19/2019
Date
The claimant is a Federal civilian employee of the Defense Logistics Agency (DLA) in Sasebo, Japan. She requests the U.S. Office of Personnel Management (OPM) reconsider DLA’s termination of her living quarters allowance (LQA) in connection with her position with DLA in Camp Arifjan, Kuwait. We received the claim on April 16, 2018, and the agency administrative report (AAR) on July 6, 2018. For the reasons discussed herein, the claim is denied for lack of jurisdiction.
In January 2018, the Department of Defense (DoD) directed its components and agencies to conduct an audit of LQA eligibility in accordance with the Office of the Under Secretary of Defense Personnel and Readiness Memorandum, “New Living Quarters Allowance Guidance,” dated January 3, 2018. As a result of this audit, on February 21, 2018, the claimant was notified by the DLA that she no longer met LQA eligibility requirements according to the new criteria. Specifically, the agency asserts that the claimant is no longer eligible to receive LQA because she was on a temporary duty (TDY) assignment overseas for more than 90 days during the recruitment process. The agency further points out it considered the claimant’s eligibility for LQA under the provisions of DSSR section 031.15, implemented on April 3, 2016, providing criteria for “Employees Deployed to or Employed in Combat Zones.” The agency determined the claimant would have met “the intent of [DSSR section 031.15] for eligibility and grant of Living Quarters Allowance.” However, it could not apply DSSR section 031.15 to the claimant’s situation because it was not in effect at the time of the claim.
Section 7121(a)(1) of title 5, United States Code (U.S.C.) directs that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive administrative remedy for resolving matters that fall within the coverage of the CBA. The Court of Appeals for the Federal Circuit has found the plain language of 5 U.S.C. § 7121(a)(1) to be clear, and as such, limits the administrative resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA. Mudge v. United States, 308 F.3d 1220, 1228 (Fed. Cir. 2002). Further, the Federal Circuit also found that all matters not specifically excluded from the grievance process by the CBA fall within the coverage of the CBA. Id. at 1231. As such, OPM cannot assert jurisdiction over the compensation or leave claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employee’s agency and labor union for any time during the claim period, unless the matter is or was specifically excluded from the CBA’s NGP. See 5 CFR 178.101(b).
Information provided by the agency (i.e., Standard Form 50, showing the claimant’s bargaining unit status in block 37) shows she occupied a bargaining unit position during the period covered by the claim. The CBA between The Defense Logistics Agency and the American Federation of Government Employees, Council 169, dated May 2016, and covering the claimant during the period of the claim, does not specifically exclude compensation issues from the NGP. Thus, this LQA claim must be construed as covered by the NGP the claimant was subject to during the claim period. Therefore, OPM has no jurisdiction to adjudicate this claim.
Although we do not have claim settlement jurisdiction over this claim, we examined whether the claimant’s agency interpreted and applied the DSSR as intended. The record shows that while the claimant held the position of Property Disposal Specialist, GS-1104-09, at DLA Disposition in Fort Meade, Maryland, she was deployed on Temporary Duty orders with the DLA Civilian Expeditionary Workforce to Afghanistan from October 1, 2015, to April 12, 2016. While in Afghanistan, on November 29, 2015, she applied for the position of Property Disposal Specialist, GS-1104-11 in Camp Arifjan, Kuwait. After completion of her civilian deployment, on April 10, 2016, she returned to her duty location in Fort Meade, Maryland. The claimant received the final offer of employment for the position of Property Disposal Specialist, GS-1104-11 in Kuwait on April 29, 2016, and was appointed to the position effective June 12, 2016. Subsequently, on January 1, 2018, the claimant’s position was reassigned to her current duty location in Sasebo, Japan.
DSSR section 031.11 states LQA may be granted to employees who were recruited by the employing government agency in the United States, or one of the enumerated territories or possessions. Relative to these criteria, DoDI 1400.25 defines “U.S. hire” as 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. 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. This language does not allow for a more expansive interpretation such as the maintenance of a place of residence in the United States as believed by the claimant. In this case, the claimant was physically residing in Afghanistan, not the United States, when she applied for the position in Kuwait. Therefore, she may not be considered a U.S. hire for LQA purposes under DSSR section 031.11 and implementing regulations of the DoDI.
DSSR section 031.12 specifies the conditions under which employees “recruited outside the United States” may be granted LQA. In this case, the claimant’s recruitment circumstances do not reconcile with the fundamental premise of DSSR section 031.12, which is to permit the granting of LQA to “employees recruited outside the United States,” because the recruitment process began when she resided in Afghanistan and applied for the Federal position, continued in Afghanistan, but concluded after she returned to the United States, where she received and accepted the firm job offer. 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 DSSR section 031.12. Therefore, since the claimant cannot be considered an employee “recruited outside the United States,” DSSR section 031.12 is inapplicable to her situation.
Under DSSR section 031.15, LQA may be granted when employees who, immediately prior to appointment to the position for which recruited, were deployed or employed in a designated “combat zone” (e.g., Afghanistan) by the United States Government. The record shows the claimant returned to her duty location in Fort Meade, Maryland effective April 12, 2016. Thus, based on the record, we conclude the claimant, immediately prior to her June 12, 2016, Federal service appointment to the position for which she was recruited while in Afghanistan, was in the United States rather than in a combat-zone designated locale like Afghanistan as required by DSSR section 031.15. See OPM File Numbers 15-0051 and 16-0060. Thus, even if DSSR section 031.15 was in effect at the time of the claimant’s eligibility for LQA, she would have been ineligible for LQA under this section.
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.