Washington, D.C.
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of the Air Force
Rota, Spain
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/22/2024
Date
The claimant is a Federal civilian employee of the Air Mobility Command, Department of the Air Force (AF), in Rota, Spain. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of his request for living quarters allowance (LQA). We received the claim on December 6, 2022, the agency administrative report (AAR) on February 3, 2023, and additional information from the claimant in May 2023. For the reasons discussed herein, the claim is denied.
The claimant states he retired from the U.S. Air Force on June 30, 2021, while overseas. His family subsequently settled in Spain, and he travelled to the U.S. to search for employment. It appears the claimant lived in Virginia between November 2021 and May 2022, and in Texas between May 2022, and October 2022. The claimant applied for a Federal position with AF on April 10, 2022, and accepted a final job offer on August 19, 2022. On September 26, 2022, he completed a LQA Questionnaire, in which he states he was outside the U.S. 40 days during the recruitment process. In a memorandum, dated October 6, 2022, the claimant was notified he did not meet the LQA eligibility criteria established in the January 3, 2018, guidance. On October 11, 2022, the claimant was appointed to his Federal service position as an Equipment Specialist (Airframe), GS-1670-12, without LQA.
The agency contends the claimant is not eligible for LQA under the applicable guidance. The agency states the claimant was determined ineligible because he was away from his U.S home during the recruitment process more than 30 days.
The Department of State Standardized Regulations (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, Department of Defense Instruction (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 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, 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 states in his incoming claim and completed LQA Questionnaire he was outside the U.S. 40 days during part of the recruitment process. We were not given travel dates, but the agency contends the claimant travelled to Spain to be with his family during “the application period.” Although the claimant maintained a residence in Virginia and then Texas, he travelled to and resided in Spain for a portion of the recruitment process and was not physically residing in the United States from the time he applied for employment until and including when he accepted the formal job offer. Consequently, he may not be considered a U.S. hire for LQA purposes under DSSR section 031.11 and implementing regulations of the DoDI. Therefore, the claim for LQA is denied.
In his claim to OPM, the claimant requests temporary quarters subsistence allowance (TQSA) and all applicable entitlements and benefits for his position. DSSR section 111 defines “quarters allowance” as an allowance granted under sections 120 (TQSA) or 130 (LQA) of these regulations. Eligibility requirements for quarters allowances set forth in section 031 do not distinguish between LQA and TQSA, the latter of which covers only transient quarters occupied before the permanent quarters covered by LQA are secured. Thus, eligibility for TQSA is dependent on eligibility for LQA and may not be considered separately. However, we may not render a decision on this matter in that TQSA is a lodging expense. As such, TQSA claims fall under the jurisdiction of the General Services Administration’s Civilian Board of Contract Appeals. Additionally, the employing agency has not reviewed and issued a written decision specifically on the entitlements and benefits 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 entitlements and benefits 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.
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. 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.