Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
07/30/2020
Date
The claimant was a Federal civilian employee of the Department of the Army (DA), in Kaiserslautern and Wiesbaden, Germany, during the claim period. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of his request for living quarters allowance (LQA). We received the claim on November 7, 2019, the agency administrative report (AAR) on February 11, 2020, and the claimant’s comments to the AAR on February 13, 2020. For the reasons discussed herein, the claim is denied.
While serving in a Federal civilian service Human Resources Specialist (Military), GS-201-11, position in the United States, the claimant requested and was placed in a temporary Leave Without Pay (LWOP) status to assist his spouse with her medical care on November 1, 2015. While on LWOP, the claimant and his spouse travelled to Germany. On December 20, 2015, he returned to duty and was non-competitively placed in a Federal service HR position at grade 9 with the U.S. Army Installation Management Command, in Kaiserslautern, Germany. Upon placement into the position, the claimant was determined LQA ineligible. In 2018, he applied and was selected for another position. On July 22, 2018, the claimant was converted to a temporary Term Appointment and placed in a Federal service HR position at grade 11 with the Immediate Office of the Commander-in-Chief of U.S Army, in Wiesbaden, Germany. In October 2019, he emailed his LQA ineligibility determination concerns to the agency. In a memorandum, dated October 25, 2019, the claimant was notified by the agency that his previous LQA ineligibility determination was being upheld.
The agency contends that the claim should be denied because the claimant is not eligible for LQA under the applicable rules and regulations. The agency asserts that the claimant was recruited for his overseas position while in Germany. "As a result, he could not be considered an employee recruited in the United States…for which the provisions of the DSSR [Department of State Standardized Regulations] § 031.11 in connection with the DODI [Department of Defense Instruction] 1400.25 – V1250 are applicable." The agency goes on to state: "Although he returned to Germany whilst in a LWOP status from his stateside position, he returned with no U.S. Forces affiliation and of his own accord…Therefore, for all intents and purposes, [claimant’s] hiring circumstances could not be reconciled with the provisions of the DSSR § 031.12b. Consequently, we had to find [claimant] ineligible for LQA."
The DSSR contain 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. Thus, DoDI 1400.25 – V1250 implements the provisions of the DSSR but may not exceed their scope, i.e., extend benefits that are not otherwise permitted under the DSSR. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI or other agency implementing guidance may be applied.
LQA may be granted to employees recruited in the United States, as stated in DSSR section 031.11:
Quarters allowance 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, the Commonwealth of the Northern Mariana Islands, and the possessions of the United States.
Relative to these criteria, DoDI 1400.25, Volume 1250, defines "U.S. hire" as follows:
A person who resided permanently in the United States, or 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 which connotes physical presence in the United States during the recruitment process rather than maintenance of a physical or legal residence at some place other than where the employee was actually located at that time. Hence, an employee must be physically residing in the U.S. from the time of application until acceptance of a formal job offer. In this case, the claimant requested and was placed in a temporary LWOP status from his Federal civilian position in the U.S effective November 1, 2015. While on LWOP, the claimant and his spouse travelled to Germany. In December 2015, he returned to duty and was non-competitively placed in his first DA position in Germany. The record does not show the claimant remained in the U.S. prior to being recruited, until and including when he accepted the job offer. Therefore, because the claimant was not physically residing in the United States throughout the recruitment process, he may not be considered a U.S. hire for LQA purposes under DSSR section 031.11 and implementing regulations of the DoDI.
The claimant also does not meet the eligibility requirements for LQA under DSSR section 031.12. It 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 Germany is attributable to his employment with the DA. DSSR section 031.12b specifies the conditions under which employees "recruited outside the United States" may be granted LQA. In the claimant’s case, no one disputes he was in Germany throughout the entire recruitment process. However, the claimant could not be considered to have been recruited outside the United States for purposes of section 031.12b because he does not meet the employment conditions it describes, which are based on the premise that, prior to appointment, the individual is employed overseas by one of the qualifying entities with return transportation benefits to the United States. Therefore, the claim for LQA is denied.
As it relates to the claimant’s LQA eligibility for his Federal service HR position in Wiesbaden, Germany, DSSR section 031.11 is not met because he resided in Germany during the recruitment process and, so, was not physically residing in the United States from the time he applied for the temporary Term Appointment until and including when he accepted the formal job offer. For the reasons discussed previously, the claimant meets DSSR section 031.12a but not section 031.12b. Therefore, the claimant does not meet the eligibility requirements for LQA for his second overseas Federal service position and that claim is also denied.
The claimant appears to infer he should have been placed on pay retention after being non-competitively placed in a lower graded Federal service position in Kaiserslautern, Germany. However, the employing agency has not reviewed and issued a written decision specifically on the pay retention matter, as is required under section 178.102(a) of title 5, Code of Federal Regulations (CFR) before the claimant may submit this matter for review under OPM’s compensation claims authority. Because he has not received a final agency decision on the merits of the pay retention claim, it is not properly before OPM and is therefore not subject to review under the compensation claims authority under 31 United States Code (U.S.C.) 3702.
In his request to OPM and his comments to the AAR, the claimant requests OPM review "all hiring policies and laws… in this case to ensure" errors were not made. The claims jurisdiction of OPM is limited to consideration of statutory and regulatory liability. OPM adjudicates compensation claims by determining whether controlling statute, regulations, policy, and other written guidance were correctly applied to the facts of the case. OPM has no authority to authorize payment based on the hiring actions taken by an agency. Therefore, the claimant’s assertion has neither merit nor applicability to our claim determination.
The 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.