Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Stuttgart, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/20/2018
Date
The claimant is a Federal civilian employee of the Department of the Army (Army) in Stuttgart, Germany. He seeks an exception to Army in Europe’s (USAREUR) policy on combining, or “pooling” living quarters allowance (LQA) in shared quarters situations. The U.S. Office of Personnel Management (OPM) received the claim on February 21, 2017, and the agency administrative report on May 1, 2017. For the reasons discussed herein, the claim is denied for lack of jurisdiction.
The claimant was appointed to a Logistics Management Specialist, GS-0346-12, position in Stuttgart, Germany, effective September 4, 2016. In an offer letter dated April 8, 2016, the claimant was informed that he was eligible to receive LQA. At around the same time, the claimant’s spouse was also appointed to a position with USAREUR in Stuttgart, and determined eligible for LQA in her own right. When the claimant arrived in Germany on September 5, 2016, he and his spouse sought suitable quarters. He states that at the time of their arrival housing inventory was low, “especially those that also permitted two dogs.” However, the two were eventually able to find housing and on November 8, 2016, the claimant and his family moved into the dwelling. On November 14, 2016, the claimant and his spouse requested reimbursement for the rental costs of the dwelling, with “each using their own LQA entitlement and combining their allowance, for one dwelling.” This request to pool LQA was denied by the Civilian Human Resources Agency. The agency instead only allowed the claimant’s spouse to receive LQA at the family rate.
The claimant contends that without pooled LQA their rental property would place an “undue financial burden” on him and his family and that despite the denial, there had been “no mention of this restriction in the regulations.” The claimant then requested an exception to policy. On December 8, 2016, Army denied the request.
The Department of State Standardized Regulations (DSSR) contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. Section 031.11 states LQA may be granted to employees recruited in the United States:
Quarters allowance 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.
As noted above, the agency has determined the claimant is eligible to receive LQA. It states that each spouse in their own right are eligible to receive LQA “under the provisions of the DSSR § 031.11 and the Department of Defense Instruction (DoDI) 1400.25 – V1250 as employees recruited in the United States.”
As the claimant and his wife are both eligible for LQA under section 031.11 of the DSSR, the claimant believes they should receive LQA in accordance with DSSR 134.13(a), which states:
If both are civilian employees of the United States Government eligible for a quarters allowance (Sections 031.11 and 031.12) and have members of family (Section 040m), one employee at his/her option may receive the basic “with family” allowance rate plus increments for additional family members. The other employee may receive the “without family” rate. In determining the increment for additional family members both employees should be excluded. Where the couple has no additional members of family each employee may be granted the “without family” rate.
While section 134.13(a) of the DSSR provides for a special rate application for married couples living in shared quarters, section 013 of the DSSR allows heads of 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 allowances, 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 and accounting for these payments.
Thus, within the scope of DSSR regulations, an agency may, as done here, issue further implementing instructions for the guidance of its agency with regard to the granting of and accounting for LQA payments. As authorized by section 013 of the DSSR, and DoD’s established delegated authorities, USAREUR, G1 civilian personnel directorate issued further implementing guidance concerning LQA allowable costs, effective May 23, 2016. This guidance, which is to be used in connection with the provisions found in Army in Europe Regulation 690-500.592, states, in pertinent part:
Pooling of LQA is restricted in shared quarters situations. Total reimbursement for shared quarters by two civilian employees shall not exceed the LQA of the highest quarters group occupant. LQA is intended to offset the costs of suitable, adequate quarters, not extravagant arrangements. Pooling escalates local housing costs making it difficult for Soldiers and civilians to find reasonably affordable premises. Exceptions to this policy may be requested from HQ USAREUR G1, Civilian Personnel Directorate (CPD) in cases involving extraordinary circumstances in the public interest, (e.g., family needs or size with adequate housing otherwise available.
The claimant challenges the agency’s policy concerning LQA allowable costs. He states that “throughout [the] housing search and contract signing, there were no briefs, regulations, and/or signed policy that detailed any restrictions on pooling LQA.” He also contends that there was “no information available on referenced resources nor [were they] informed by CPAC/Installation that pooled LQA [would] not [be] allowed” until LQA was requested on November 14, 2016. He questions whether the policy can be enforced since he and his spouse were informed only after requesting the allowance. We find it can. Because LQA is a discretionary allowance, agency implementing regulations and/or policy 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. Thus, OPM applies agency-developed policies to the extent such guidance is in agreement with the DSSR. Here, the agency has not abused its authority in implementing further guidance concerning allowable costs for LQA in shared quarters situations and we find no reason to disturb its decision.
As noted, the claimant seeks an exception to the agency policy. As written, exceptions to the policy may be requested from HQ USAREUR G1, Civilian Personnel Directorate, which has already denied the claimant's request for exception. OPM adjudicates compensation claims for certain Federal employees under the authority of section 3702(a)(2) of title 31, United States Code (U.S.C.). The authority in 31 U.S.C. § 3702(a)(2) is narrow and limited. Section 3702 does not include the authority to waive agency policy. Therefore, OPM does not consider the claimant's request for an exception to policy within the context of the claims adjudication function it performs under section 31 U.S.C. § 3702(a)(2).
LQA is an overseas allowance and, as such, not an automatic salary supplement, nor an entitlement. 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 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). In addition, even if they have no actual knowledge, Federal employees are charged with constructive knowledge of their agency's policies and procedures pertaining to them. Therefore, the claim is denied for lack of jurisdiction.
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.