U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Mission Support Element-Europe
Intelligence Support Division
Department of the Army
Wiesbaden, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/13/2021
Date
The claimant is a Federal civilian employee of the U.S. Army Europe and Africa (USAER-AF) Mission Support Element, Intelligence Support Division, Department of the Army (DA), in Wiesbaden, Germany. He requests an exception to agency policy for authorization of living quarters allowance (LQA). The U.S. Office of Personnel Management (OPM) received the claim on January 29, 2021, and the agency administrative report (AAR) on May 18, 2021. For the reasons discussed herein, the claim is denied.
While residing in the United States, the claimant was recruited for the position of Postal Operations Assistant, GS-0303-06, with the U.S. Army Garrison in Wiesbaden, Germany. He met eligibility requirements for LQA 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, the agency determined him ineligible for LQA at the time of recruitment because the position for which he was selected did not meet minimum grade level requirements under the Army in Europe Regulation (AER) 690-500.592. Nevertheless, the claimant accepted the position without LQA and was appointed to it effective September 16, 2019. Subsequently, on May 24, 2020, while still in Germany, the claimant was temporarily appointed to his current position of Security Specialist, GG-0080-11,[1] and states he was denied LQA while in this position based on the following reasoning:
- “Employee does not meet the definition of an OCONUS Hire per DSSR 031.12 due to initial non eligibility for LQA upon first assignment. Employee was not on PCS order when accepting the initial assignment in Germany in 2019.”
While the claimant does not explain the basis for his request for an exception to agency policy, information provided in the record suggests he requests LQA as of May 24, 2020, when he was assigned to his GG-11 position, which put him above the GS-09, grade level threshold for LQA under the AER 690-500.592. He further justifies approval for LQA due to “hardship of living quarters that exceed a 50 miles radius to execute sensitive requirements of new job assignment.”[2]
Regarding the claimant’s ineligibility for LQA, in a memorandum dated January 27, 2021, the agency states:
Based on information available, CHRA [Civilian Human Resources Agency] found [claimant] ineligible for LQA when he was appointed to his current position as Security Specialist, GG-0081-11, with the USAREUR-AF Office of the Deputy Chief of Staff, G2, in Wiesbaden, Germany, effective 24 May 2020. [Claimant’s] ineligibility for the allowance is a continuation of ineligibility from when he was initially appointed to a GS-06 position in Germany, a position that is below the GS-09 threshold for receiving LQA.
The agency further explains in its AAR to OPM:
…the AER 690-500.592 limits the grant of LQA to individuals occupying certain positions when being initially appointed to those positions. Granting the allowance at a later time, here May 2020, would be inconsistent with the purpose of authorizing LQA to an individual who is already in the overseas area. The quarters allowance is discretionary 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 DOD guidance, and/or 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 consider the grant of LQA….Subsequent changes in an individual’s employment status or condition cannot account for the grant of the allowance when the previous situation did not warrant the grant….Neither the DSSR nor the DODI 1400.25-V1250 or the AER allow for an exception to policy in a hiring circumstance such as [the claimant’s]. As a consequence, where no exception to policy exists, none can be granted.
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. DoDI 1400.25, Volume 1250, dated February 23, 2012, and AER 690-500.592, dated September 6, 2018, in effect when the claimant was appointed, implement the provisions of the DSSR for DoD and DA employees. Because LQA is a discretionary allowance, 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 relevant provisions of the DSSR before the supplemental requirements of the DoDI or other agency implementing guidance may be applied.
The claimant met LQA eligibility criteria under DSSR section 031.11, as an employee recruited in the United States. However, paragraph 7a.(1) of AER 690-500.592 limits LQA to employees recruited in the United States for positions at or above the GS-09 grade level (or GG, WG, WS, WL, or other pay-plan equivalents) or to a position that is designated as “hard-to-fill.” The claimant was appointed to the Federal Service on September 16, 2019, to a position at the GS-06 grade level that was not designated as “hard-to-fill,” thus found ineligible for LQA under the AER criteria. While the claimant does not dispute the agency’s initial denial for LQA during his initial overseas appointment to his GS-06 position, he seeks LQA while in his Security Specialist, GG-0080-11 position. 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 to the Federal Service. This is based on the DSSR, which set forth basic eligibility criteria for granting LQAs. Thus, any subsequent position changes (i.e., promotions, 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 and if the agency has offered it as a recruitment incentive for the position. Therefore, since any subsequent positions held by the claimant after his September 16, 2019, appointment do not constitute his initial appointment to Federal service, it may not be considered for LQA eligibility purposes. See OPM File Numbers 10-0043, July 1, 2011; 12-0038, February 4, 2014; 15-0018, October 1, 2015; and 16-0049, October 25, 2017.
Further, the claimant specifically requests “an exception to policy for Living Quarters Allowance while assigned as a Security Specialist/GG-11…” 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 to determining if monies are owed the claimant under the controlling statutes or regulations. Section 3702 does not include the authority to waive any provisions of regulation, such as the DSSR, which determines LQA eligibility, or associated agency policy. Therefore, OPM is without authority to grant the request for an exception to agency policy. Accordingly, the claim is denied.
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 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). Since an agency decision made in accordance with established regulations and within its discretionary authority 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.
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[1] Standard Form 50, dated May 24, 2020, shows this assignment as a “Conv to Excepted Appointment NTE 23-MAY-2023.”
[2] Under 5 CFR 178.102(a)(3), a claimant must receive a final agency claim denial before the claim may be brought before OPM. Therefore, this decision will not address the claimant’s request for approval of LQA associated with a residence located outside a 50-miles radius to the post of assignment since the agency has neither issued a decision nor provided a response on this matter. However, we note that a residence located outside a 50-mile radius of the post of assignment is in conflict with provisions of paragraph 11.a. of AER 690-500.592 for the grant of LQA.