Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


06/03/2015

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Date

The claimant is a current Federal civilian employee of the Department of the Army (DA) and at the time the claim accrued, was assigned to the United States Africa Command (AFRICOM) with the Department of Defense (DoD) in Stuttgart, Germany.  He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s termination of his living quarters allowance (LQA).[1]  We received the claim on June 9, 2014, and the agency administrative report (AAR) on December 2, 2014.  For the reasons discussed herein, the claim is denied.

The claimant retired from active duty military service on September 30, 2003, in Ramstein, Germany, and was appointed to a Federal service position with the Defense Threat Reduction Agency (DTRA) in Darmstadt, Germany, on September 22, 2003, presumably while on terminal military leave.  Effective May 12, 2008, he accepted a position with the Organisation for the Prohibition of Chemical Weapons (OPCW) in The Hague, Netherlands, an international organization in which the U.S. Government participates, on what the agency reports as a fixed term appointment not-to-exceed July 10, 2010.  DTRA initially placed him in a leave-without-pay (LWOP) status until June 25, 2008, later extended to September 27, 2008, until his resignation from his DTRA position on October 27, 2008.  Following the termination of his OPCW employment, he was reinstated to a Federal service position with AFRICOM in Stuttgart, Germany, on July 19, 2010, and was initially granted LQA.

In May 2013 the claimant was notified that, as a result of a Department of Defense (DoD)-directed LQA audit, it was determined he did not meet the LQA eligibility provisions in the Department of State Standardized Regulations (DSSR) section 031.12b, which requires that an employee recruited outside the United States must, prior to appointment, have been recruited in the United States by his or her previous employer and have been substantially continuously employed by such employer under conditions providing for return transportation to the United States.  The notification letter stated that he had been "identified as an employee recruited outside the United States who had more than one employer in the overseas area prior to [his] appointment into appropriated fund Federal civilian service."  The agency reiterates in its AAR that the claimant is ineligible for LQA because "prior to his federal government position, [he] had not been recruited in the U.S. or one of the enumerated territories or possessions by his previous employer."

The claimant asserts three bases to support his claim: 

[F]unctionally I was a federal civil servant at all times, from my initial recruitment into federal civil service in 2003 until the present, IAW 5 CFR 352; I factually challenge the assertion in the rationale regarding my place of recruitment in 2010; and finally I believe I had a reasonable expectation that I could rely on the expertise of the analysis provided by the local CPAC when LQA was originally granted to me in June 2010.

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.  Thus, Army in Europe Regulation (AER) 690-500.592, cited by the claimant, implements the provisions of the DSSR, but may not exceed their scope; i.e., extend benefits that are not otherwise permitted by the DSSR.  Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the DA implementing guidance may be applied.

Section 031.11 states LQA may be granted to employees recruited in the United States:

Quarters allowances 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.

DSSR section 031.12 states, in relevant part, that LQA may be granted to employees recruited outside the United States under the following circumstances:

a. the employee's actual place of residence in the place to which the quarters allowance applies at the time of receipt thereof shall be fairly attributable to his/her employment by the United States Government; and

b. prior to appointment, the employee was recruited in the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States, by:

(1) the United States Government, including its Armed Forces;

(2) a United States firm, organization, or interest;

(3) an international organization in which the United States Government participates; or

(4) a foreign government

and had been in substantially continuous employment by such employer under conditions which provided for his/her return transportation to the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States.  [Italics added]

The claimant asserts that he was "transferred to OPCW in 2008, working there officially under detail by the USG [United States Government] until 2010, and when offered a position back with the USG in Stuttgart with my present federal agency and so there was not a break in federal employment continuity with the United States Government."  However, this is contradicted by his later statement that he "resigned from [his] position with DTRA effective 27 Oct 2008," as documented by an SF-50 obtained by OPM.  For purposes of pay and benefits, a detailed employee continues to encumber the position from which detailed and remains on the agency's rolls, whereas the claimant's resignation removed him from DTRA rolls.  The September 22, 2008, letter from DTRA to the Director of Administration, OPCW, "approves Mr. Davis' transfer to [OPCW] and states that "[d]uring the period of the transfer, the OPCW is responsible for paying Mr. Davis' salary."  That the claimant retained Federal service reemployment rights and that his time at OPCW is considered "creditable service" under 5 CFR 352.311, which extends such benefits to employees either detailed or transferred to international organizations, is not germane to consideration of his eligibility under DSSR section 031.12b.  Thus, prior to his appointment to the AFRICOM position, the claimant was employed by OPCW, which had recruited him in Darmstadt, Germany, rather than in the United States as required under section 031.12b.[2]

The claimant states that on the date he resigned from his position with DTRA, he "was a federal employee and clearly not recruited [by OPCW] from Germany proper but from [his] federal employment location with DTRA in Darmstadt, Germany, considered a non-OCONUS location due to [his] appointment orders as a civilian employee of DTRA."  He also asserts: "Based on the DTRA Director's transfer memo, I claim OPCW should be considered a non-OCONUS facility overseas from which I was recruited and thus my offer of a position in Stuttgart with AFRICOM is as though I was hired from the United States."  The claimant's attempt to assert LQA eligibility as a United States hire cannot be reconciled with the plain language of DSSR section  031.11, which allows the granting of LQA to employees recruited in the United States.  The phrase "in the United States" has a clear geographic connotation; i.e., physical presence in the United States at the time of recruitment.  It does not allow for a more expansive interpretation such as the claimant's characterization of The Hague, Netherlands, and Darmstadt, Germany, as "non-OCONUS locations," which has no merit within the language of DSSR section 031.11. See OPM File Numbers 10-0007, January 11, 2011; 11-0037, July 11, 2012; and 12-0017, September 26, 2013.

The claimant also cites the AER 690-500.592 provision that "[f]ormer military and civilian employees (italics added) will be considered to meet the DSSR, section 031.12, eligibility requirement of ‘substantially continuous employment’ if they are appointed one year after the date of separation or when the transportation entitlement is lost, whichever occurs first."  He states: "I was employed by DTRA immediately upon my retirement from the USAF in 2003 and with AFRICOM immediately after leaving OPCW in 2010... [u]nder all circumstances I was employed by the USG well within a year of each USG employment location and never used my USG transportation entitlement."  The AER 690-500.592 essentially allows former military and civilian employees a period of up to one year of unemployment after separation (or loss of transportation entitlement) to be considered "substantially continuously employed" by the military or civilian employer, which is presumed to have recruited the employee in the United States.   However, as noted previously, agency implementing regulations such as AER 690-500.592 supplement but do not supplant the requirements of the DSSR.  Therefore, the above-cited provision related to "substantially continuous employment" must be interpreted within the context of DSSR section 031.12b, which addresses an LQA applicant's employment status "prior to appointment."  The claimant's employment status immediately preceding his appointment to the AFRICOM position was not that of a "former civilian employee" but rather an employee of an international organization, as the OPCW is not a "USG employment location."  Thus, the cited provision of USAEUR Regulation 690-500.592 does not apply to his circumstances.

It is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials, such as that resulting in DoD’s erroneous granting of LQA to the claimant.  Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law.  See OPM v. Richmond, 496 U.S. 414, 425-426 (1990); Falso V. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981).  Therefore, that the claimant was erroneously determined to be eligible for LQA upon his appointment to the AFRICOM position and had received LQA based on that determination does not confer eligibility not otherwise permitted by statute or its implementing regulations.

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 5 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).  As discussed previously, the claimant has failed to do so.  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. 

This settlement is final.  No further administrative review is available within the OPM.  Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.

 

[1] The claimant requests reinstatement of LQA from May 1, 2014, which was the date of the expected termination, until he is "placed into a new federal civilian employee position in the United States under DoD's Priority Placement Program."  An SF-50 obtained by OPM shows his reassignment to a DA position duty-stationed in Warren, Michigan, effective November 11, 2014. 

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