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 Claim
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. She seeks a review of Army in Europe’s (USAREUR) decision to deny her request for combined, or “pooled”, living quarters allowance (LQA) in a shared quarters situation. The U.S. Office of Personnel Management (OPM) received the claim on June 29, 2017, and the agency administrative report on August 14, 2017. For the reasons discussed herein, the claim is denied.
The claimant was appointed to a Program Analyst, GS-0343-13 position in Stuttgart, Germany, effective September 6, 2016. At around the same time, her spouse also was appointed to a position in Stuttgart. Each spouse was determined eligible to receive LQA in their own right. After locating suitable housing and signing a rental agreement, the claimant and her spouse submitted a request to combine their individual allowances to cover the rental cost of the dwelling. However, the request to pool allowances was denied. As the higher graded partner of the couple, the agency authorized the LQA grant to the claimant at the family rate.
The claimant states she entered into a rental contract believing that she and her husband could combine, or “pool”, LQA grants since they were both determined LQA eligible. She asserts that because the agency failed to provide information outlining its policy on pooled LQA, the guidance given, only after signing a rental agreement, “is improper and fraudulent.” Furthermore, she states that “there is official[ly] no signed policy distributed [or] available on official mediums.” The claimant requests an OPM review to assess the agency’s “accuracy in their interpretation and authority,” regarding Army in Europe Regulation (AER) 690 – 500.592, effective May 23, 2016.
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, the agency has determined that both the claimant and her husband are eligible to receive LQA. It states that each spouse in their own right is 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.” The claimant believes that, as two LQA-eligible individuals, her and her husband 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 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.
The DoDI 1400.25 – V1250, paragraph 4.a.1.a.further delegates this responsibility down to the Army. The Army’s policy regarding pooled LQA can be found in their LQA Allowable Cost Guidance, an appendix of AER 690 – 500.592.
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 AER 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 questions the validity of the agency’s denial because the agency provided the guidance on pooled allowances only after they entered into a rental agreement. We find the agency’s policy regarding pooled LQA is not “improper or fraudulent” as described by the claimant. 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.
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). 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).
The claimant states that she “entered into a rental contract with the understanding that there would be pooled LQA – as both [her] husband and [she] are LQA eligible [and] which was not disputed by CPAC or housing or anyone in official capacity, or any information available on official mediums that offer facts to the contrary.” However, even if they have no actual knowledge, Federal employees are charged with constructive knowledge of statutory requirements pertaining to them and of the implementing regulations and policies authorized to be issued by statute. See B-173927, October 27, 1971; B-187104, April 1, 1977; and B-192510, April 6, 1979.
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.