Washington DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Piti, Guam
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
06/17/2024
Date
The claimant is a Federal civilian employee of the Commander, Navy Installations Command, Joint Region Marianas in Piti, Guam. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of her post differential request. We received the claim on October 31, 2022, and the agency administrative report on December 6, 2022. For reasons discussed herein, the claim is denied.
The record shows the claimant originally arrived in Guam from Colorado Springs, Colorado, on or about October 28, 2019, to accompany her spouse, an employee of the Federal Aviation Administration (FAA) who accepted a change of duty station to Barrigada, Guam. The record also shows that on/around September 10, 2019, the claimant applied for enrollment as a student to the 2020 spring semester at the University of Guam. At that time, she occupied a Contingency Operations Program Specialist, GS-0301-11, position with the United States Space Force in Peterson Air Force Base, Colorado. Although she was initially granted leave without pay to accompany her spouse to his post, she was subsequently separated from her Federal civilian position upon the expiration of the leave on October 14, 2020. While residing in Guam, she applied and was selected for her current Federal civilian position effective June 7, 2021. The Department of the Navy’s Office of Civilian Human Resources denied the claimant’s subsequent request for post differential in its September 27, 2022, memorandum, stating that her period of residence in Guam fails to meet eligibility criteria applicable to employees residing within the local area prior to assignment.
A post differential is an allowance paid under section 5941 of title 5, United States Code (U.S.C.), to persons employed in a nonforeign area where conditions of environment differ substantially from conditions of environment in the continental United States and warrant its payment as a recruitment incentive. Implementing regulations for post differentials are contained in sections 591.233 and 591.234 of title 5, Code of Federal Regulations (CFR), which provide the eligibility criteria for which an agency may authorize the allowance.
Section 591.233 of 5 CFR, “Who can receive a post differential?,” states:
An employee must meet all of the following conditions to be eligible to receive a post differential:
(a) The employee must be a citizen or national of the United States,
(b) The employee’s official worksite or detail to temporary duty must be in the post differential area, and
(c) Immediately prior to being assigned to duty in the post differential area, the employee must have maintained his or her actual place(s) of residence outside the post differential area for an appropriate period of time (generally at least 1 year or more), except as provided in 591.234.
In addition, 5 CFR 591.234, “Under what circumstances may people recruited locally receive a post differential?,” states:
(a) Current residents of the area qualify for a post differential if they were originally recruited from outside the differential area and have been in substantially continuous employment by the United States or by U.S. firms, interests, or organizations.
(b) Examples of persons recruited locally but eligible to receive a post differential include, but are not limited to-
(1) Those who were originally recruited from outside the area and have been in substantially continuous employment by other Federal agencies, contractors of Federal agencies, or international organizations in which the U.S. Government participates and whose conditions of employment provide for their return transportation to places outside the post differential area,
(2) Those who are temporarily present in the post differential area for travel or formal study at the time they are hired and have maintained actual places of residence outside the area for an appropriate period of time, and
(3) Those who are discharged from U.S. military service in the differential area to accept employment with a Federal agency and have maintained actual places of residence outside the differential area for an appropriate period of time.
The claimant contends she fully meets eligibility requirements under 5 CFR 591.233 and 591.234, explaining in her claim:
I’ve stated that I qualify under § 591.233 - I am a U.S. citizen, Guam is in the post differential area, and before coming to Guam I was in the United States for most of my life. If that weren’t enough, I also qualified under § 591.234 - while I was not directly hired from one agency to another, I was significantly employed by the [Department of Defense (DoD)] up until the point I needed to travel to Guam (under my husband’s order which provides return transportation to a place outside of Guam). § 591.234 (b) I was on Guam temporarily for formal studies (UoG), and we still own a house (residence) in Colorado that we plan on returning to after our tour ends.
The claimant must meet all eligibility requirements applicable to her situation to be considered eligible for post differential. As it relates to 5 CFR 591.233 “Who can receive a post differential?,” there is no dispute the claimant meets 5 CFR 591.233(a) and (b) as she is a U.S. citizen and her official worksite (Territory of Guam) is established as a post differential area under 5 CFR 591.231.
The claimant’s situation however does not meet 5 CFR 591.233(c). In its description of circumstances surrounding an individual’s employment occurring “[i]mmediately prior to being assigned to duty in the post differential area” as the basis for eligibility, the regulation establishes the claimant’s geographic location and actual residence at the time of assignment to duty as the determinant factor. To meet 5 CFR 591.233(c), an employee must demonstrate he or she maintained an actual place of residence outside the post differential area for at least one year prior to assignment of duty, i.e., one year prior to June 7, 2021, the start of the claimant’s position with the agency. It is undisputed that she accompanied her spouse in October 2019 to Guam, where she physically resided during the time she was assigned to her current Federal civilian position in June 2021. Because she physically resided in Guam for more than a year during that timeframe, the claimant’s situation fails to satisfy the requirement under 5 CFR 591.233(c) that she maintain an actual residence outside the post differential area for at least one year prior to assignment of duty with the agency.
Despite physically residing in Guam, the claimant contends that she maintains her actual residence in Colorado Springs, Colorado, as evidenced by documents she submitted including a tax document and lease agreement, dated October 9, 2019, showing she and her spouse agreed to rent their Colorado-based property to a tenant from October 14, 2019, to May 31, 2021. Although identifying she and her spouse as the property owners, the tax document and lease agreement do not distinguish whether that residence is used as a property investment or primary residence serving as her actual place of residence at least one year prior to June 7, 2021, as required by 5 CFR 591.233(c). Moreover, the lease suggests that from October 2019 to May 2021, the Colorado-based property could not be considered the claimant’s real place of residence as she would be unable to occupy it given the house served as the actual residence of, and presumably occupied by, the tenant. After careful consideration, we conclude the claimant’s statements and documents are inadequate for establishing her actual place of residence outside the post differential area as required by 5 CFR 591.233(c).
Because the claimant does not meet 5 CFR 591.233(c), we compared her situation to the exceptions in 5 CFR 591.234 which allow for the grant of post differential to employees recruited locally under specific circumstances. She does not meet 5 CFR 591.234(a) because she was not originally recruited from outside the differential area nor been substantially continuously employed by the United States or by U.S. firms, interests, or organizations.
The claimant does not meet 5 CFR 591.234(b) because she does not meet any of the three circumstances described under (b)(1)-(3). Regarding (b)(1), none of the sub-requirements are met, i.e., she was not originally recruited from outside the differential area; she was not substantially continuously employed by other Federal agencies, contractors of Federal agencies, or international organizations; and she was not employed under conditions of employment providing for her return transportation to places outside the post differential area. The claimant asserts she was “significantly employed by the DoD up until the point [she] needed to travel to Guam (under [her] husband’s order which provides return transportation to a place outside of Guam).” The “substantially continuous employment” test is met when an individual moves from one civilian or other covered position to a civilian position in the Federal sector. The Standard Form 50 shows she was separated from her prior Federal civilian position on October 14, 2020, and the record shows she remained unemployed until she was assigned to her current Federal civilian position on June 7, 2021. Therefore, the claimant does not meet the substantially continuous employment test and other requirements under (b)(1).
The claimant does not meet the intent of the (b)(2) provision, which is meant to provide post differential to individuals who are temporarily present in the post differential area for the purpose of either travel or formal study at the time they are hired and have maintained actual places of residence outside the area for an appropriate period of time. To ascertain the claimant’s reason for being in Guam, we considered statements made in her claim such as:
In 2019 my husband, [name], received his orders to move to Guam from [Department of Transportation]/FAA. At the time of receiving his paperwork I was fully employed by DOD/Air Force. Rather than splitting the household, I decided to move to Guam with my family under my husband’s orders and travel authorization. I would put a pause on my career and make the best of that decision attending University of Guam.
Although the record shows the claimant applied for enrollment to the university while in the United States, we conclude based on her statements that her primary purpose for being in Guam was to accompany her spouse on his work assignment. Because she was in Guam first and foremost to accompany her spouse rather than to pursue formal study, her situation fails to meet the intent of (b)(2). Furthermore, for reasons previously discussed, the claimant failed to demonstrate her maintenance of an actual place of residence outside the post differential area for an appropriate period of time as required by (b)(2). As an additional disqualifying matter, the 19-month duration of her presence in the post differential area commencing upon her arrival in Guam to the time of assignment to her current Federal civilian position is inconsistent with being “temporarily present” in the area as described by (b)(2).
The claimant does not meet (b)(3) because she was not discharged from service in the armed forces to accept Federal civilian employment.
In asserting she meets post differential criteria, the claimant misconstrues the eligibility requirements under 5 CFR 591.233 and 591.234, when in fact we find she does not fully meet any of the cited requirements.
The plain language of 5 U.S.C. 5941 and its implementing regulations make it clear that post differentials are not automatic entitlements granted simply when eligibility requirements are met. As defined by 5 CFR 591.201:
Post differential means an allowance OPM establishes under 5 U.S.C. 5941 at a location in a nonforeign area where conditions of environment differ substantially from conditions of environment in the contiguous United States and warrant its payment as a recruitment incentive. [emphasis added]
The discretionary nature of the allowance is further reinforced by 5 CFR 591.234, which describes “[u]nder what circumstances may people recruited locally receive a post differential [emphasis added].” The regulation does not state the agency “shall” or “must” grant a post differential when an employee meets the prescribed eligibility requirements. Instead, the regulation establishes basic post differential eligibility parameters and bestows considerable discretion on employing agencies to decide under what circumstances they will actually grant the allowance to eligible individuals. Under statutes that vest a degree of discretion to administrative agencies, our review is generally confined to deciding whether an agency’s action must be viewed as arbitrary, capricious, or so at variance with established facts as to render its conclusion unreasonable. When the agency’s factual determination is reasonable, we will not substitute our judgment for that of the agency. 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. Accordingly, the claim for post differential is denied.
As a final matter, the claimant believes she is eligible for home leave as provided by 5 CFR 630.602, explaining in her claim to OPM that the “language is very similar to the post differential titles.” With respect to this part of her claim, as a procedural matter, the claimant does not provide OPM with a final agency decision from her employing agency as required by 5 CFR 178.102(a). Because she has not received a final agency decision regarding her home leave request, it is not properly before OPM and is therefore not subject to review. However, we note that an employee serving outside the United States who meets the requirements of 5 U.S.C. 6304(b) for the accumulation of a maximum of 45 days of annual leave earns and may be granted home leave under 5 U.S.C. 6305(a). As stated by the claimant, the eligibility criteria for 45-day annual leave accumulation set forth in 5 U.S.C. 6304(b) are similar to post differential eligibility parameters set forth for individuals recruited locally in 5 CFR 591.234(b). However, home leave is a separate benefit authorized by a separate statutory provision and can be provided only for employees serving outside the United States who meet the requirements of 5 U.S.C. 6304(b). While the eligibility provisions for home leave and post differential may be similar, they are not identical. Eligibility for post differential is not relevant to eligibility for home leave. In any event, as previously discussed, the claimant does not meet any of the three circumstances described under 5 CFR 591.234(b)(1)-(3).
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.