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Office of Merit Systems Oversight and Effectiveness

Date: January 23, 2001
File Number: [00-0030]
Matter of: [Claimants Name]

OPM Contact: Melissa Drummond

The claimant is a former military member hired locally overseas, who is requesting reconsideration of his agency's decision regarding his entitlement to receive a living quarters allowance (LQA). We accepted the claim on October 11, 2000 and the agency provided information, dated November 29, 2000, which we received on December 12, 2000. For the reasons stated below, we do not have the authority to settle this claim.

The claimant retired from active duty with the [agency] on February 1, 1987, while he was stationed in [country]. He accepted and was appointed to an overseas limited appointment as a "locally hired" civilian employee with the [agency] on September 20, 1987. The claimant did not meet the criteria for LQA entitlement at the time of this appointment. On November 12, 1992, the civilian personnel office (CPO) at [agency], [country] offered the claimant a position. The CPO job offer message stated that, upon arrival in [country], the claimant would be authorized LQA. The claimant accepted the position and was transferred from [country] to [country] on January 19, 1993.

The agency reports that, during his processing on January 19, 1993, the claimant was asked by a personnel staffing specialist if he had received entitlements at his last duty station. The claimant informed the personnel specialist that he had only received post allowance (COLA). The personnel specialist subsequently informed the claimant that he was not entitled to LQA because he was not authorized those entitlements in [country].

The agency stipulates that the claimant agreed to remain in [country], fully aware of his ineligibility. The claimant states that he met with the Civilian Personnel Officer on

January 21, 1993 regarding his ineligibility. The Civilian Personnel Officer informed him that his request for LQA was denied and that the only options would be for the claimant to either return to [country] to another position (because his previous position was already filled) or stay in [country] without allowances.

Within the claim, the claimant gave several reasons for the waiver request, due in part to financial hardships and that the agency had made a breach of contract with their job offer that the claimant had accepted in good faith. However, we have decided that his claim is time barred because he did not file the claim within 6 years after it first accrued as required by 31 U.S.C. 3702 (b).

The 6-year limitation begins running from the date a claim first accrues. Accordingly, any claim for the leave in question first accrued no later than January 19, 1993 (which was the claimant's appointment date in [country], and expired no later than 6 years thereafter on January 19, 1999. The claimant originally filed a claim with his agency on July 24, 2000. We received the first notice of the claim on October 11, 2000. Since on January 19, 1999, the claim expired due to the running of the statutory 6-year limitation period, the claim is barred from our consideration and may not be allowed. B-221252, Matter of John E. Denton, September 19, 1986.

This determination is in accordance with the Barring Act, 31 U.S.C. 3702(b)(1), which states that every claim against the United States is barred unless such claim is received within six years after the date such claim first accrued. Matter of Robert O. Schultz,

B-261461 (November 27, 1995). The Barring Act does not merely establish administrative guidelines; it specifically prescribes the time within which a claim must be received in order for it to be considered on its merits. Matter of Nguyen Thi Hao, B-253096, (August 11, 1995). OPM does not have any authority to disregard the provisions of the Barring Act, make exceptions to its provisions, or waive the time limitation that it imposes. See Matter of Nguyen Thi Hao, supra; Matter of Jackie A. Murphy , B-251301 (April 23, 1993); Matter of Alfred L. Lillie, B-209955, May 31, 1983. Thus, the law precludes us from considering this claim.

We did review the merits of the agency's denial of the LQA. The Overseas Differentials and Allowances Act, Pub. L. 86-707, 74 Stat. 793, 794 (Sept. 6, 1960), as amended and codified at 5 U.S.C. '' 5922-5924, provides that, under regulations prescribed by the President, LQAs "may" be paid to federal employees in foreign areas. The President, by executive order, delegated this authority to the Secretary of State who issued Standardized Regulations concerning eligibility to receive, and payment of, LQAs. Section 013 of the Department of State Standardized Regulations (DSSR) further delegates to the heads of federal agencies the authority to grant LQAs to agency employees. Section 013 of the DSSR specifies that the head of an agency "may" grant quarters allowances and issue further implementing regulations as he or she may deem necessary for the guidance of the agency in granting such allowances. The Department of Defense (DoD) has issued further implementing regulations through its requirements for DoD civilian employment overseas, DoD 1400.25-M, CPM 592.

Section 031.12 of the DSSR provides that quarters allowances "may" be granted to employees recruited outside the United States, when:

a. the employee's actual place of residence in the place to which the quarters allowance applied at the time of receipt shall be fairly attributable to his employment by the United States Government; and

b. prior to appointment, the employee was recruited in the United States . . by the United States Government, including its Armed Forces, . . . and has been in substantially continuous employment by such employer under conditions which provided for his/her return transportation to the United States . . . *

The DSSR further provides that Section 031.12b "may" be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action. Thus, the DSSR authorizes, but does not require, agency officials to grant an LQA when an employee fulfills the basic eligibility requirements in the DSSR. DoD regulations further specify that, except in unusual circumstances, an LQA is to be used as an incentive to persuade employees in the United States to apply for overseas positions. Subchapter 1-1b of DoD 1400.25-M, CPM 592 provides in relevant part:

The foreign post differential and the foreign area allowances (except the post allowance) are not automatic salary supplements attached to all positions in the foreign area. They are intended to be recruitment and/or retention 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 in the foreign area, that inducement normally is unnecessary. The specific circumstances under which an employee who is hired in a foreign area may be granted the allowances are provided in section 031.12 of the DSSR, as supplemented by this chapter. (Emphasis added.)

In view of the permissive rather than mandatory language in the applicable statutes and regulations, as noted above, the heads of agencies have a degree of discretion in determining whether to authorize these allowances. Where 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, Mar. 15, 1982, as cited in Philip M. Brey, supra.

In summary, the claim for LQA, concurrent with the claimant's appointment in [country] effective January 19, 1993, is barred, because the claim was not received until on or around July 24, 2000, which is more than six years from the date it first accrued.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimants right to bring an action in an appropriate United States Court.

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