Office of the General Counsel

Matter of: [xxx]
Date: March 17, 2000
File Number: S002862B

OPM Contact: Jo-Ann Chabot

An employee of the [xxx] stationed in [xxx -- a commonwealth, territory, or possession of the United States] submitted a claim for reinstatement of home leave and post differential benefits. For the reasons stated below, the claim is denied.

The claimant was born, raised, and educated in [xxx]. In November 1963, when the claimant was 18 years old, he accepted a position in [xxx] with a federal agency and, eight years later, the claimant accepted a position in [xxx] with the [xxx]. In June 1974, the claimant accepted an [xxx] position in [State A] and, in June 1975, the claimant accepted an [xxx] position in [State B]. The claimant notes that his family accompanied him from [State A] to [State B], the [xxx] paid their transportation costs, and he became a registered voter in [State B]. In May 1976, he accepted an [xxx] position in [xxx], and the [xxx] paid for transportation costs for him and his family. Thus, the claimant was employed with the Federal Government in [xxx] for 10 years before accepting [xxx] positions outside of [xxx], and he was employed in areas other than [xxx] for two years before returning to [xxx]. He has been employed with the [xxx] in [xxx] since his return in May 1976, or for the last 23 years.

In October 1988, the Inspector General (IG) for the Department of [xxx], the [xxx]'s parent agency, reported on his review of home leave and post differential benefits for the Department's overseas employees. The IG concluded that two [xxx] employees in [xxx] were not eligible for home leave or post differential because their actual place of residence was [xxx]. In reaching these conclusions, the IG considered place of birth, childhood home, and the amount of full time employment at or in the immediate geographic area. The IG also concluded that, when the [xxx] made its initial decision on actual residence, the [xxx] did not perform any analysis which considered established guidance for determining actual residence. The [xxx] accepted, and took action in accordance with, the IG's recommendations to cease home leave and post differential benefits for the employees identified in its review investigation. However, the [xxx] waived the claimant's indebtedness to the United States for the home leave, post differential, and travel benefits that he already had received.⁽¹⁾ On December 29, 1998, the [xxx] denied the claimant's appeal for loss of home leave and post differential.

Decisions on whether to grant home leave, and in what amount, are within the discretion of the agency. 5 U.S.C. 6305(a); 5 CFR 630.606(b); 62 Comp. Gen. 545, 549 (1983). The agency also is responsible for determining the location of an employee's residence based on the individual facts and circumstances in each case. Matter of Leon H. Liegel, B-212697 (December 23, 1983); Matter of Alexander Sambolin, B-196466 (December 2, 1982).⁽²⁾ An agency is not precluded from correcting errors in overseas assignment records when it is later shown clearly that an employee's place of actual residence was different than the place specified in the agreement and related documents. Matter of Leon H. Liegel, supra. Agency decisions on such matters are subject to reversal only upon a showing that they were clearly arbitrary, capricious, or contrary to law. Id. It is clear from the record that the agency weighed all of the facts and circumstances in reaching its decision on the claimant's place of residence and his entitlement to home leave. Considering all of the facts together, and as they are set forth in the claim file, the agency was not arbitrary or capricious in determining that the claimant's residence is in [xxx] and that he is not entitled to home leave. The claim for reinstatement of home leave is denied.

Section 591.209 of Title 5, Code of Federal Regulations, governs an employee's eligibility for a nonforeign post differential. Section 591.209(a)(3) provides that, to be eligible for a differential, "[a]ny prior residence in the area must be because of employment by the United States or by U.S. firms, interests, or organizations." Although the claimant was employed by the United States when he resided in [xxx] prior to June 1974, he was a resident of [xxx] prior to his initial employment by the United States Government. Accordingly, he is not eligible for a nonforeign post differential and his claim for reinstatement of this differential is denied.

Finally, the claimant suggests that the agency's decisions regarding his entitlement to home leave and post differential result from prohibited employment discrimination. OPM's claims adjudication authority does not include the authority to decide discrimination complaints. 31 U.S.C. 3702(a)(2). Therefore, this allegation is dismissed for lack of jurisdiction.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

¹The United States Office of Personnel Management's claim settlement authority is limited to claims for compensation and leave. 31 U.S.C. 3702(a)(2). The General Services Board of Contract Appeals (GSBCA) settles claims for official travel and transportation expenses. 31 U.S.C. 3702(a)(3). This claims settlement decision therefore does not apply to travel expenses.

²The fact that an employee originally was a local hire, however, should not be the sole criterion for making residency determinations. Id.