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
03/07/2022
Date
The claimant was a Federal civilian employee with the Department of the Army (DA) in Wiesbaden, Germany during the claim period. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of living quarters allowance (LQA). We received the claim on February 8, 2021, the agency administrative report (AAR) on August 26, 2021, and the claimant’s response to the AAR on October 7, 2021. For the reasons discussed herein, the claim is denied.
The claimant was recruited in the United States (Hawaii) by the U.S. firm CSRA (CITS II contract) for a contractor position in Stuttgart, Germany and began employment on November 26, 2018. On July 1, 2019, the U.S. firm General Dynamics Information Technology (GDIT), which acquired CSRA in early 2018, issued a letter to the claimant giving him 60 days of notice and informing him that as the CITS II contract was ending on August 31, 2019, his position with CSRA was ending on August 30, 2019. The claimant was also advised that as his International Assignment Letter (i.e., assignment agreement) was ending on August 30, 2019, he was required to leave the country at the time of, or shortly after, the termination of his employment, and his eligibility for allowances and/or incentive compensation would also end on August 30, 2019, or the day he departed the CITS II contract, whichever date came first. In its letter, GDIT encouraged the claimant to seek employment opportunities within GDIT by reviewing job vacancies posted on its websites or by contacting the Internal Mobility Team for assistance with job searches.
On July 31, 2019, the claimant entered into an employment agreement with GDIT (TMCC II contract) for a contractor position in Wiesbaden, Germany. The agreement shows the anticipated assignment start date of August 24, 2019, and ending date of January 31, 2020, or if assignment extended ending on January 31, 2021. While employed with GDIT and residing in Germany, the claimant was recruited for his Federal civilian position of Information Technology Specialist (Information Security), GS-2210-12, with DA in Wiesbaden, Germany and was appointed to it effective March 16, 2020.
Prior to appointment to his position with DA, the agency determined the claimant ineligible for LQA under the Department of State Standardized Regulations (DSSR) section 031.12b, which requires that an employee recruited outside the United States must, prior to appointment, have been recruited in the United States by his or her previous employer and have been substantially continuously employed by such employer under conditions providing for return transportation to the United States. The claimant requested reconsideration for LQA and in an email dated January 13, 2020, the Civilian Human Resources Agency (CHRA), Europe/Region, Wiesbaden Civilian Personal Advisory Center (CPAC), explains its decision as follows:
Unfortunately, the MFR [Memorandum for the Record] that was forwarded for your reconsideration of LQA will not change the outcome of our decision.
Although it is very unfortunate what happened with the Contractors, CSRA and GDIT, which puts you in a difficult position. The outcome of the determination has to comply with the regulations in place at this time.
You must be considered an employee recruited outside the United States, known as a local hire, for which the provisions of the DSSR Section 031.12a and b, find application.
[DSSR sections 031.12a and b]
You were recruited by a U.S. firm in the United States for a position in the overseas area and accepted follow-on employment with another contractor PRIOR to accepting Federal civilian employment, thus you are ineligible for LQA under DSSR Section 031.12b even if a valid transportation entitlement is provided by all companies throughout the contractor employment. The reason for ineligibility, (which is based on regulation in force at the time) is that the second contractor did not recruit you in the United States but rather in the overseas area.
Regrettably, as mentioned in our review, you are ineligible for LQA as you do not meet local hire requirements IAW DSSR 031.12b, in conjunction with AER 690-500.592, 7.e.(2).
In response, the claimant provided the following explanation:
“….I was hired to CSRA (known to GDIT proper as L-CSRA for Legacy-CSRA) 7 months later while being recruited from my HOR of Hawaii.
….I was with GDIT (L-CSRA) in Stuttgart continuously with GDIT missions in August 2019 due to contract loss. I was brought to Germany with a full repatriation package along with HOLA or Housing Allowance.”
Further, in his request to OPM the claimant states:
Prior to being reassigned to the GDIT TMCC II contract aboard Clay Kaserne Wiesbaden from Stuttgart, GDIT was in contract re-compete status to remain as the prime contracting company for AFRICOMs CITS III contract. Unfortunately, GDIT did not win the bid (See document “GDIT CSRA Separation Letter” [1] as the official termination letter for the noted CITS II contract) and as a result employees began preparation for repatriation departure from GDIT to the United States Homes of Record, assignment to another GDIT positions in the US, or reassignment to other European or Global GDIT contract sites.
In regard to his contract repatriation agreement [2] with GDIT, the claimant states:
As part of the contract repatriation agreement to my HOR [Home of Record] there is an additional statement which indicates “…or anywhere in the US or overseas not to exceed $27K.” The purpose of this additional statement is to allow the employee, at the end of a contract, the latitude to relocate to a different work site within the parent contracting company anywhere in the US or overseas not to exceed the designated amount. As long as the employee remains with the original contracting company the contracted benefits to include the repatriation agreement to the HOR remains intact. This is my case.
The claimant states “my move [to GDIT] supported my continued service with GDIT.” He also states, “accepting reassignment due to the loss of the previous GDIT contract kept the repatriation to my original HOR [Home of Record] intact as long as I met the new contract commitment requirements which were to complete three years or until contract end which ever came first.” The claimant’s statements appear to suggest that he considers he was continuously employed by GDIT under different contracts with the same repatriation benefits and not by CSRA as an independent contractor employer.
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. Thus, Department of Defense Instruction (DoDI) 1400.25, Volume 1250 and the Army in Europe Regulation (AER) 690-500.592 implement the provisions of the DSSR for DA employees 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 relevant provisions of the DSSR before the supplemental requirements of the DoDI or other agency implementing guidance may be applied.
DSSR section 031.12 states, in relevant part, that LQA may be granted to employees recruited outside the United States provided that:
- 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
- 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 met DSSR section 031.12a because his place of residence in the place to which the quarters allowance applies (Germany) was fairly attributable to his employment by the United States Government. DSSR 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 “such employer” recruited the employee in and provided return transportation to the United States or one of the enumerated territories or possessions. The singular usage of “such employer” in section 031.12b requires that the employee have had only one such qualifying employer prior to appointment and consequently, that the employer immediately preceding appointment be the same employer that recruited the employee in and provided return transportation to the United States or one of the enumerated territories or possessions.
Therefore, the claimant would be eligible for LQA under section 031.12b, only if he could establish that “prior to appointment” to his position with DA, he was recruited in the United States and had been in “substantially continuous employment” by GDIT under conditions which provided for his return transportation to the United States or one of the enumerated territories or possessions. The claimant has not submitted any documentation indicating that he was recruited in the United States by GDIT and not by CSRA as an independent contractor employer or to show that CSRA no longer existed as a separate entity upon its acquisition by GDIT. [3] Rather, the record is clear that immediately prior to his Federal civilian appointment with DA, the claimant was employed by GDIT, a qualifying employer under section 031.12b (2), but the firm recruited him in Germany where he was residing and employed by his initial overseas employer CSRA. Therefore, the claimant’s subsequent overseas employment with GDIT broke the continuity of employment by a single employer (i.e., “such employer that recruited him in the United States”). Since the claimant was not recruited in the United States prior to appointment by his previous employer (GDIT), this initial circumstance renders him ineligible from meeting basic LQA eligibility requirements under DSSR 031.12b for locally hired employees. When the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See e.g., Jimmie D. Brewer, B-205452, March 15, 1982. Accordingly, the claim for LQA is denied.
Moreover, even if the claimant had established by documentation that he had been recruited in the United States and had been in substantially continuously employment by GDIT, based on the information provided, he was not employed by GDIT “under conditions which provided for his return transportation to the United States” or one of its enumerated territories or possessions. The only documentation submitted by the claimant mentioning a repatriation benefit is found in his International Assignment Letter dated July 31, 2019, which specifies under “RELOCATION: To Assignment Location and From Assignment Location to Home of Record” that the claimant would be eligible for a repatriation payment “not to exceed $27,000.00 for repatriation to home of record” and “[t]his would include traveling… to Employee home of record in the United States (or an alternate mutually agreed location) upon completion of Employee assignment.” [emphasis added]. However, the return transportation conditions stipulated in DSSR 031.12b are not met by the promise of a repatriation payment which the employee may use to relocate to any “alternative mutually agreed location.” Therefore, the language in this agreement is not a specific commitment and does not fully obligate GDIT to ensure return transportation to the United States or one of its enumerated territories or possessions stipulated in DSSR 031.12b upon termination of the claimant’s employment. See OPM File Numbers: 13-0059, dated June 10, 2014 and 14-0022, dated August 10, 2015.
We note that the CHRA Wiesbaden CPAC referenced supplemental agency instructions, i.e., AER 690-500.592 paragraph 7.e.(2) in its response denying the claimant’s request for reconsideration of LQA. AER 690-500.592 paragraph 7.e.(2) states that applicants recruited by a U.S. firm in the United States for a position in the overseas area who accept follow-on employment with other firms overseas before accepting Federal civilian employment will not be eligible for LQA, even if all firms employed them under conditions that provided for their return transportation to the United States. However, as previously explained an LQA applicant must fully meet relevant provisions of the DSSR before the supplemental agency requirements may be applied. As this claim is denied on failure to meet the requirements of DSSR section 031.12b, the agency’s implementing requirements are not applicable.
DoDI 1400.25-V1250 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 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.
[1] A copy of this letter was not included in the record.
[2] A copy of this agreement was not included in the record.
[3] The only information the claimant provides regarding GDIT’s acquisition of CSRA is found in the claimant’s response to the AAR where he states, “ I was employed by CSRA of which was acquired by GDIT but was not scheduled to change the name until January 2020.” However, the entity’s name change has no bearing on our claim determination.