Washington, DC
U.S. Office of Personnel Management
Compensation and Leave Claim Decision
Under section 3702 of title 31, United States Code
Agency
SHAPE, Belgium
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/25/2017
Date
The claimant was a Federal civilian employee of the U.S. Army Installation Management Agency at SHAPE, Belgium, during the claim period. He subsequently returned to the United States upon his transfer to a Federal civilian position with the Air Force Materiel Command, effective November 1, 2015. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of his request for living quarters allowance (LQA). We received the request from the claimant on May 10, 2016, the agency’s administrative report (AAR) on June 21, 2016, and the claimant’s comments on the report on June 23, 2016. For the reasons discussed herein, the claim for LQA is denied.
While residing in the United States, the claimant applied and was selected for his Transportation Assistant, GS-2102-7, position at Supreme Headquarters Allied Powers Europe (SHAPE), Belgium, effective December 10, 2006. There is no dispute the claimant met LQA eligibility requirements under the Department of State Standardized Regulations (DSSR) section 031.11, where LQA may be granted to employees recruited in the United States by the employing agency. However, he was determined ineligible for LQA at the time of recruitment because the position for which he was selected did not meet the minimum grade level eligibility requirements established by Army in Europe Regulation (AER) 690-500.592. On April 15, 2007, the claimant’s position was converted to a Transportation Technician, YB-2102-02, position under the National Security Personnel System (NSPS). He was subsequently promoted to a Supervisory Traffic Management Specialist, YA-2130-02, position on December 7, 2008. As a result of the repeal of the NSPS, the claimant’s position was converted to a Supervisory Traffic Management Specialist, GS-2130-9, position on August 15, 2010.
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-V1250 and the AER implement 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 AER or other agency implementing guidance may be applied.
The agency determined the claimant ineligible for LQA in its May 10, 2016, decision based on AER 690-500.592, paragraph 7.a.(1), which stipulates that LQA will be granted for the following employees:
Employees recruited in the United States or its possessions for positions at grades GS-09 (or equivalent), WG-11, WL-09, WS-05, and above. This includes employees selected for entry-level positions with target grades at or above these grade levels. Grade restrictions do not apply to applicants selected for hard-to-fill positions or career program positions…below the GS-09 (or equivalent) level.
The agency explains its denial of LQA, as follows:
…Mr. Byron J. Whitesides was found ineligible for LQA when he arrived in Belgium in December 2006 to be appointed/re-instated to a position at the GS-2102-07 grade level. Even though Mr. Whitesides seemed to have been recruited in the United States at that time (he held a temporary appointment until April 2006 at Fort Polk, Louisiana), and thus meeting the requirements for the allowance under the DSSR § 031.11, as an employee recruited stateside for a position in the overseas area, he did not meet the required minimum grade level of GS-09 imposed by AER 690-500.592[1]…As a result, the BENELUX [civilian personnel advisory center] properly denied him the allowance at the time.
The agency further explains in its AAR to OPM:
The quarters allowance is a discretionary allowance and may be used as a recruitment incentive for U.S. civilian employees in the United States to accept positions in the overseas area. Thus, eligibility for the allowance under the DSSR, the [Department of Defense] guidance, or the locally developed guidance, is established at the time of the initial appointment to a position in the overseas area and not when a situation in the professional career of the employee occurs, such as a promotion that would favorably consider the grant of LQA. In other words, the initial appointment to a position for which LQA may be granted as defined in the agency’s guidance, coupled with having met the eligibility requirements provided by the basic regulatory framework, is of relevance for a favorable or non-favorable consideration for the grant of the allowance. Subsequent changes in an individual’s employment cannot account for the grant of allowance when the previous situation did not warrant the grant.
The claimant disagrees with the agency’s rationale, evidently taking issue with the agency’s reliance on the AER. He states in his claim request:
Apparently, the [AER], takes precedence over the DSSR, even though the Army regulation that governs LQA in the Pacific, utilized during this time period, reflected exactly the same as the DSSR, unlike in Europe.
Section 013 of the DSSR allows agencies to issue further implementing regulations as follows:
When authorized by law, the head of an agency may defray official residence expenses for, and grant post differential, difficult to staff incentive differential, danger pay allowance, quarters, cost-of-living, representation allowances, compensatory time off at certain posts and advances of pay to an employee of his/her agency and require an accounting thereof, subject to the provisions of these regulations and the availability of funds. Within the scope of these regulations, the head of an agency may issue such further implementing regulations as he/she may deem necessary for the guidance of his/her agency with regard to the granting of and accounting for these payments.
As previously noted, agency implementing guidance such as the AER may be more restrictive than the DSSR but not more permissive, hence the more restrictive language relating to the minimum grade level eligibility requirements established by the AER. Moreover, OPM’s claims adjudication authority under section 3702(a)(2) of title 31, United States Code, is narrow and limited to determining if the statutory and regulatory provisions applicable to the asserted claim have been correctly interpreted and applied. Section 3702 does not provide authority to make LQA considerations based on assertions concerning the variations between agency implementing regulations, which are issued by the head of an agency under DSSR section 013.
The claimant raises issues concerning the grade equivalency of his initial overseas position, stating in his claim request to OPM:
If [AER 690-500.592, paragraph 7.a.(1)] takes precedence over the DSSR, careful attention must be paid to the word, “equivalent”, which is clearly defined as something of equal value or measure. This word has a literal meaning and can’t lawfully be open to loose interpretation.
The claimant states that the GS-7, step 8, rate at which his pay was set for his initial overseas position is equivalent to the rate of a GS-9, step 2, position, thus asserting his position meets AER 690-500.592, paragraph 7.a.(1) requiring that employees be recruited at the GS-9 (or equivalent) level or above. He also provided Table 3-1 of the AR 210-50, Installations Housing Management, showing grade comparisons between military and civilian positions. He asserts the grade equivalencies identified by Table 3-1 contradict those identified by AER 690-500.592, paragraph 7.a.(1). He explains his rationale in an October 17, 2011, letter to the President of the United States, which he provided to OPM:
Reflecting back on [AER] 690-500.592, it said that WG-11 and WS-5 (blue-collar) grades are authorized LQA. Table 3-1 was very specific that both of those grades are GS-6 (white-collar) equivalents, not GS-9 equivalents, yet they are authorized LQA. Also, when an analysis is made of the word equivalent, the only logical meaning would be that it is something of equal value or measure. If a GS-9, step 1, is authorized LQA, wouldn’t a GS-7, step 7, also be authorized LQA, seeing as it is equal in value, as per standard dictionary definition??? That thought it [sic] perhaps irrelevant now, since I am a GS-9, but noteworthy, nonetheless.
Table 3-1, titled “Military and civilian schedule of equivalent grades for housing assignment purposes,” is clearly a tool for the sole purpose of making housing assignments. Thus, the claimant’s assertions regarding the applicability of Table 3-1 to LQA determinations are misplaced, and his reliance on the table to the LQA determination process is contrary to the basic principles of statutory and regulatory construction. The only relevant factor to determine is whether the initial overseas position is classified to at least the GS-9 or equivalent level. The purpose of establishing an equivalency to the GS-9 level is for the consideration of white-collar positions assigned to non-GS personnel systems such as demonstration projects and other alternative personnel systems (e.g., the NSPS prior to its repeal). If a position is classified to the GS, then the only comparison to be made is to determine if the position meets minimum grade level requirements. In contrast to the claimant’s assertions, AER 690-500.592, paragraph 7.a.(1) does not allow for salary comparisons to consider grade equivalences. In this case, the claimant’s initial overseas position was classified to the GS-7 grade level and thus his position did not meet the minimum grade level requirements established by AER 690-500.592, paragraph 7.a.(1).
The claimant asserts he met LQA eligibility requirements on December 7, 2008, upon promotion to his GS-9 equivalent position (classified as YA-2130-02 at the time). However, 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 the foreign area, that inducement is normally unnecessary. In keeping with the stated purpose of LQA as a recruitment incentive, LQA eligibility is established at the time of initial appointment overseas. Any subsequent position changes (i.e., promotions or reassignments) are not “appointments” but rather internal placements occurring within the context of that initial overseas appointment. In other words, LQA may only be conferred at the time of appointment if eligibility requirements are met. See OPM File Numbers 10-0043, July 1, 2011; 12-0038, February 4, 2014; and 15-0018, October 1, 2015. LQA may not be conferred as a result of a later position change except as permitted by DoDI 1400.25-V1250 in the case of a management-generated relocation to another area. Therefore, the subsequent positions held by the claimant after his December 10, 2006, reinstatement to his GS-7 position do not constitute his initial overseas appointment and may not be considered for LQA eligibility purposes.
In his AAR comments to OPM, the claimant apparently asserts that his initial overseas position was hard-to-fill, thus exempt from the grade restrictions established by AER 690-500.592, paragraph 7.a.(1). He states he was assigned to a “hard-to-fill position that has a history of which was restricted to local hires only, before [him].” We, however, noted that in the July 27, 2007, “Exception to policy for [LQA],” the Quality Control Division’s Regional Supervisor (i.e., the supervisor of the claimant’s initial overseas position) stated, “[a]lthough the slot isn’t designated as hard-to-fill, it was only filled locally using a temporary promotion, prior.” Considering neither the agency nor claimant provided documentation showing the position was hard-to-fill combined with the supervisor’s statements in July 2007 that the position was not considered hard-to-fill and the decade-old recruitment action, we will not address further the claimant’s statements in his AAR comments to OPM regarding the difficulties of filling his initial overseas position.
The claimant cited other employees who reportedly received LQA under circumstances similar to his. Our review of LQA determinations must be based on controlling regulations and policies and case facts since there is no assurance other cases which were cited by the claimant have been properly decided.
The claimant states he received advice from a servicing human resources official suggesting he would be eligible for LQA upon promotion to a GS-9 equivalent position, as well as from management and human resources officials outside his servicing human resources office asserting to his LQA eligibility. It is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law. See OPM v. Richmond, 496 U.S. 414, 425-426 (1990); Falso v. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen 417 (1981). Therefore, that the claimant was provided erroneous advice concerning his eligibility for LQA does not confer eligibility not otherwise permitted by statute or its implementing regulations.
Furthermore, the statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant LQA 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 section 178.105 of title 5, Code of Federal Regulations, 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] The claimant states in his AAR comments that his employment at Fort Polk, Louisiana, was a term, not temporary, appointment.