s004184

Office of the General Counsel

Matter of: [xxx]
Date: March 21, 2000
File Number: S004184

OPM Contact: Jo-Ann Chabot

An employee of a nonappropriated fund (NAF) activity, who is stationed overseas, filed a claim for a living quarters allowance (LQA). The claim is dismissed because it does not fall within the claims adjudication authority of the United States Office of Personnel Management (OPM).

Section 3702(a)(2) of Title 31, United States Code (U.S.C.), limits OPM's claims adjudication authority to "claims involving Federal civilian employees' compensation and leave." Title 31 does not define "Federal civilian employee" in association with the claims adjudication authority that it grants to OPM in section 3702(a)(2). Title 5, U.S.C., however, concerns government organization and employees, and 5 U.S.C. 2105 defines term "employee" for the purposes of that title. According to section 2105(c)(1)(B), an employee of a NAF activity is "deemed not an employee for the purpose of laws administered by [OPM] except as otherwise specifically provided in [title 5, U.S.C.]."⁽¹⁾ Thus, OPM's jurisdiction to adjudicate claims for compensation and leave does not extend to the claims of employees of NAF activities unless a provision in title 5, U.S.C., specifically provides authorizes OPM to consider their claims.

Chapter 59, subchapter III of title 5, United States Code, governs foreign allowances, section 5923 governs LQAs, and section 5921 defines the terms in subchapter III. According to section 5921(3), the term "employee" means "an employee in or under an agency, and more specifically defined in regulations prescribed by the President." Section 101 of Executive Order 11137, dated January 10, 1964, as amended, specifies that "[t]he term 'employee' as defined in 5 U.S.C.  5921(3) is . . . further defined as including civilian employees, compensated from non-appropriated funds, of the instrumentalities of the United States under the jurisdiction of the armed forces covered by 5 U.S.C. 2105(c)." Thus, Executive Order 11137, as amended, declares employees of NAF activities to be employees of the United States for the purposes of the provisions in 5 U.S.C. Chapter 59, subchapter III, including the LQA provisions of 5 U.S.C.  5923.

The Executive Order, however, does not declare employees of NAF activities to be employees within the meaning of 5 U.S.C. 2105, or for the purposes of considering their claims under 31 U.S.C.  3702. Moreover, title 5, U.S.C. does not include any provision that authorizes OPM to consider claims from employees of NAF activities concerning their entitlement to an LQA. Accordingly, this claim is dismissed because OPM does not have the authority to consider it.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

¹ Section 2105(c) includes other exceptions that are not relevant to the question of OPM's authority to consider NAF employees' claims for LQAs.