Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Stuttgart, Germany
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
06/29/2015
Date
The claimant is a Federal civilian employee of the Department of the Army (DA) in Stuttgart, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of living quarters allowance (LQA). We received the claim on February 2, 2015, the agency administrative report (AAR) on March 5, 2015, and the claimant's response to the AAR on March 9, 2015. For the reasons discussed herein, the claim is denied.
On July 1, 2012, the claimant transferred from his DA position at Sierra Army Depot in Herlong, California, to a DA position in Seoul, Korea, for a 36-month overseas tour. He was granted LQA in connection with this assignment and statutory return rights to the position at Sierra Army Depot. While duty-stationed in Korea, he applied for a term-limited (not to exceed two years) DA position in Stuttgart, Germany. (The vacancy announcement was open from May 9-23, 2014.) On June 16, 2014, the claimant was notified that his overseas tour in Korea would be curtailed early, effective August 9, 2014, and he exercised his statutory return rights back to the position at Sierra Army Depot, using his civilian transportation entitlement to depart Korea and return to California on August 10, 2014. On November 1, 2014, he received a tentative job offer without LQA for the position in Stuttgart, which he accepted on November 3, 2014, and he arrived in Germany for his current position on December 28, 2014.
The basis for the agency's denial of LQA was their determination that the claimant did not meet the LQA eligibility provisions in the Department of State Standardized Regulations (DSSR) section 031.11, which permits the granting of LQA to employees recruited in the United States, or section 031.12b, which permits the granting of LQA to employees recruited outside the United States but only under the conditions that, prior to appointment, the employee was recruited in the United States by his or her previous employer and has been substantially continuously employed by such employer under conditions providing for return transportation to the United States. The claimant asserts eligibility under DSSR sections 031.11, 031.12b, and additionally, section 031.12c, which permits the granting of LQA to employees who are required to relocate by their agencies.
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. Department of Defense Instruction (DoDI) 1400.25, Volume 1250, cited by the claimant, implements the provisions of the DSSR for DoD employees. Because LQA is a discretionary allowance,[1] agency implementing regulations may be more restrictive, but not more permissive, than the DSSR; i.e., they may impose additional limitations on the granting of LQA but may not extend benefits that are not otherwise permitted by the DSSR. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the DoD implementing guidance may be applied.
DSSR section 031.11 permits the granting of LQA to employees recruited in the United States as follows:
Quarters allowances... 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.
The claimant does not meet section 031.11 because he was stationed in Korea when he applied for the position in Stuttgart. The plain language of "recruited in the United States" or one of the other qualifying locations is construed to encompass the entire recruitment process commencing with the action of applying for the position, as specified in DoDI 1400.25-M, which defines a "U.S. hire" as "[a] person who physically 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."[2] Although the claimant states he "was/is a permanent employee of Sierra Army Depot" and has a mailing address and pays taxes there, OPM has consistently found that the underlying principle under section 031.11 is that the employee have been actually residing in the United States when recruited, not merely maintaining an address, owning property, or paying taxes there. See OPM File Numbers 08-0098, February 16, 2010; 10-0013, June 6, 2011; 12-0019, October 9, 2012; and 13-0022, February 25, 2014.
Section 031.12 of the Department of State Standardized Regulations (DSSR) permits the granting of LQA to employees recruited outside the
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
(1) the United States Government, including its Armed Forces;
(2) a
(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; or
c. as a condition of employment by a Government agency, the employee was required by that agency to move to another area, in cases specifically authorized by the head of the agency.
The prefacing of section 031.12b with “prior to appointment” makes clear this section provides LQA eligibility criteria in the case of those employees entering onto the rolls of a Federal agency on an appointment action following employment by one of the listed entities. Since the claimant was a current DA employee when he assumed the DA position in Stuttgart and therefore entered that position on a reassignment action rather than an appointment action, section 031.12b is not applicable to his situation.
In his response to the AAR, the claimant challenges the agency's consideration of the term "recruitment" within the context of section 031.12b and asserts he "resided in the United States for the entire recruitment process." Although section 031.12b does not apply to his case, we address this point as the term "recruited" is also used in section 031.11 (i.e., "Employees Recruited in the United States"). The claimant states:
The DSSR or the DoDI 1400.25, Volume 25 does not define recruitment as it does US Hire, which makes an LQA determination to deny my claim unreasonable. The determinations from the Agency lower representatives were arbitrary because they determined ineligibility without defining, where does the recruitment process begin. OPM.GOV Hiring Authorities... shows the recruitment process in 5 CFR Part 332... Based on the CFR, recruitment starts in Subpart D-Consideration for Appointment.
The claimant's reliance on 5 CFR 332, Subpart D, as a definition for the term "recruitment" is inexplicable. Sections 332.401 through 332.406 constituting Subpart D are OPM regulations relating to the certification, referral, and selection of eligibles for appointment. They do not serve as a definition for the term "recruitment," nor could any such definition contained in title 5, CFR, pertaining to the employee selection process be taken out of its specific context and imported to the DSSR as the basis for determining LQA eligibility.
The term "recruitment" is not defined in 5 U.S.C. section 5923, the statutory provision authorizing LQA, 5 U.S.C. section 5922, the provision granting the President authority to promulgate regulations governing the administration of LQA, or the DSSR. However, deference is to be afforded to an agency's interpretation of regulations drafted by another agency where, as here, the interpreting agency adopts and administers the subject regulations, and particularly when an agency is given the authority to implement the regulations of another agency. Bortone v. U.S., 110 Fed.Cl. 668 (2013). The DA's interpretation of the term "recruitment" as encompassing the entire recruitment process, from applying for to accepting the position, is consistent with the purpose of LQA as an incentive for prospective employees to move overseas to work for the Federal Government; i.e., those individuals already living abroad when applying for a position do not need such an incentive. Therefore, the claimant's attempt to truncate the "recruitment" process by disregarding the step of actually applying for the position is unsupportable.
The claimant asserts LQA eligibility under DSSR section 031.12c, which permits the granting of LQA when an employee duty-stationed overseas and not currently in receipt of LQA is required to move to another overseas area as a condition of employment, in cases specifically authorized by the head of the agency. The claimant states:
Overall a management-generated action curtailed my assignment [in Korea] three months before my Tentative Offer to Stuttgart, Germany. I should not be precluded from a benefit, based on a decision I did not make myself.
Thus, the claimant appears to assert that had it not been for the management decision to curtail his assignment in Korea resulting in his return to the United States, he would have transferred directly from Korea to Germany and his LQA grant would have been continued. However, this set of circumstances is neither encompassed nor qualifying under DSSR section 031.12c as the claimant was not required to relocate from one overseas area to another overseas area but rather from an overseas area to the United States. His intervening employment in the United States, regardless of the reason for that employment, renders section 031.12c inapplicable to his situation. Further, the claimant’s assumption that the agency would have authorized continuation of his LQA if he had transferred directly from Korea to Germany is speculative.
The claimant states that "DoDI 1400.25-V1250 does not adequately conclude that [his] particular determination can be categorized as either recruited in the United States or outside the United States," thereby apparently asserting that because his "unique" situation does not meet LQA eligibility criteria presented in the DSSR under either section 031.11 or 031.12, he should therefore be found eligible. However, the inverse conclusion is operative. The DSSR and the DoDI are specific as to the conditions under which LQA may be granted and if those conditions are not met, then the employee, as is the case with the claimant, must be found ineligible.
The claimant also requests that OPM determine his LQA eligibility in connection with an impending relocation from Stuttgart to Baumholder, Germany, and asks “to have this particular instance rectified in advance.” However, OPM’s authority under 31 U.S.C. § 3702(a)(2) is limited to settling claims involving Federal civilian employees’ compensation and leave. A claim for monies owed may not be based on future events or speculative circumstances, as a possible debt on the part of the Government has not yet been incurred. Therefore, we decline to address the claimant’s LQA eligibility in connection with the cited impending relocation.
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
This settlement is final. No further administrative review is available within the OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.
[1] Mark Roberts v. United States, 104 Fed. Cl. 598, (Apr. 30, 2012, reissued May 21, 2012), subsequently upheld by the Federal Circuit Court of Appeals in Roberts v. United States, 745 F.3d 1158 (Fed. Cir. Feb. 10, 2014).
[2] The claimant asserts that "the DSSR and DoDI 1400.25-V1250 does [sic] not correlate and the only one that provides succinct determination in [his] unique case is the DSSR," and cites specifically the difference between the DoDI definition of U.S. hire and DSSR sections 031.11 and 031.12. However, as noted previously, agency implementing guidance may be more restrictive than the DSSR but not more permissive, hence the DoDI's more restrictive language in terms of who may be considered a U.S. hire. Therefore, the claimant's apparent attempt to exempt his case from coverage by the DoDI on this basis is without merit.