Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Sembach, Germany
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
07/10/2015
Date
The claimant was a Federal civilian employee of the U.S. Army Medical Command in Sembach, Germany during the period of the claim. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s termination of her living quarters allowance (LQA). We received the claim on July 29, 2014, including a designation of representation and a copy of a Memorandum of Law, and the agency administrative report (AAR) on August 6, 2014. For the reasons discussed herein, the claim is denied.
The record shows the claimant, while on active duty military service in Germany, accepted employment with the Army and Air Force Exchange Service (AAFES), a non-appropriated fund (NAF) instrumentality, from August 4, 1993, to August 30, 1997. The position did not confer LQA or return transportation back to the United States. Meanwhile, she retired from military service at Ramstein Air Force Base, Germany, on January 31, 1997. The claimant subsequently applied for, was offered, and accepted an Administrative Support Assistant, GS-303-6, position with the Department of the Army (DA), effective August 31, 1997. She was later promoted to a GS-671-7, Health Systems Specialist, position with the DA on July 5, 1999.
Shortly after the claimant’s acceptance of her initial Federal service position in August 1997, the agency concluded she was eligible for and thus granted her LQA. However, on May 1, 2013, the agency notified the claimant that a review of her records had determined she had been erroneously found eligible for LQA, and that the allowance was therefore being terminated. The basis for this determination was that she did not meet LQA eligibility provisions in Department of Defense Instruction (DoDI) 1400.25-V1250. The agency explains in its May 2013 letter:
During this audit, you were identified as an employee recruited outside the United States to a non-appropriated fund position for a minimum of one year before beginning your appropriated fund position. Accordingly, you do not meet the requirements for LQA under DoDI 1400.25, Volume 1250, and the Agency’s previous determination that you were eligible to receive LQA was erroneous.
The Department of State Standardized Regulations (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, DoDI 1400.25-V1250 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 supplemental requirements of the DoDI or other agency implementing guidance may be applied.
DSSR section 031.12 states, in relevant part, that LQA may be granted to employees recruited outside the United States provided that:
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.]
In its AAR to OPM, the agency states:
Prior to her federal government position, [the claimant] had not been recruited in the United States or one of the enumerated territories or possessions by her previous employer, [AAFES] which falls under [NAF]. That her military transportation entitlements were still intact is not relevant for purposes of the DSSR Section 031.12(b) because that Section specifically refers to the employer “prior to appointment,” which in [the claimant’s] case was AAFES.
The claimant disagrees with her agency’s rationale, but she does not explain the basis for her assertion of LQA eligibility in her claim request to OPM. However, she submitted her October 30, 2013, hearing petition to the Defense Finance and Accounting Service (DFAS), contesting the validity and amount of the LQA debt and making various statements regarding her LQA eligibility. The claimant states in the petition:
I hereby contend that while working two jobs, my military job and my [NAF] job, for four (4) years from 1993 to 1997, unable to draw two allowances and ineligible to draw living quarters allowances as a part-time [NAF] employee per the applicable regulations and laws in place at my time of hire, that I am eligible for [LQA] as stated in the DSSR.
The claimant further states in her petition to DFAS that she was in “substantial continuous employment by the United States Armed Forces and in a [NAF] position for over three (3) years prior to accepting [her] initial Federal civil service position.” We conclude, based on her statements, that she is asserting her military service and later concurrent work as a NAF employee represent a single employer. Section 031.12b allows LQA eligibility in those instances where the employee, prior to appointment, had “substantially continuous employment” with one of the entities listed under b(1) through b(4), and which entity (i.e., the singular usage of “such employer”) recruited the employee in and provided return transportation to the United States or its territories or possessions. Therefore, by extension, an employee who has had more than one “employer” overseas prior to Federal appointment would be disqualified because the initial overseas employer rather than the employer immediately preceding appointment would have recruited the employee in the United States. For purposes of DSSR section 031.12b, the claimant was “employed” by the U.S. Air Force as evidenced by her DD Form 214, Certificate of Release or Discharge From Active Duty, showing she entered into active duty on June 28, 1974, until her retirement on January 31, 1997. The record also includes a NAF Instrumentality Notification of Personnel Action showing her appointment to the NAF position effective August 4, 2004. Regardless of the claimant’s assertion that her military service and NAF employment represent a single “United States Government” employer under DSSR section 031.12b(1), the U.S. Air Force and the NAF instrumentality, although under the “United States Government” umbrella, are separate and distinct employing entities. As such, the claimant’s assertion that her military service and NAF employer represent a single employer has no bearing on her LQA eligibility determination, which is based on the plain language of DSSR section 031.12b. The DSSR section 031.12b(1) refers to “the United States Government, including its Armed Forces” as a qualifying “employer.” Therefore, if not for the claimant’s continuing employment with AAFES after her military retirement and prior to appointment, her military service could have been considered as qualifying for the purpose of establishing LQA eligibility, if the military (i.e., “such employer”) had recruited her in the United States or one of its territories or possessions and if her military return transportation back to the United States was still intact.
The claimant was recruited in the United States by the U.S. Air Force, as evidenced by her DD 214 showing her place of entry into active duty as Chicago, Illinois. However, prior to her Federal service appointment in August 1997, she was employed by AAFES, which had recruited her while on active duty military service in Germany rather than in the United States or one of the enumerated territories or possessions as required under section 031.12b. Thus, she no longer retained her status as having been recruited in the United States or one of the enumerated territories or possessions as required by section 031.12b. As such, the claimant does not meet section 031.12b and on this basis alone is ineligible for LQA.
Further, there is no indication the claimant’s NAF employment provided for her return transportation to the United States or one of its enumerated territories or possessions as required by DSSR section 031.12b. DSSR section 031.12b clearly states return transportation must be provided by “such employer” listed in section 031.12b(1) through (4) with whom the individual was employed immediately preceding appointment, which in this case was the NAF organization. Even if the claimant had been provided such benefits by the NAF organization, this would not be sufficient to establish her eligibility under section 031.12b as she had not been recruited by AAFES in the United States or one of its enumerated territories or possessions. See OPM file numbers 09-0045, August 3, 2010; and 12-0033, March 7, 2014.
The claimant states in her petition to DFAS, “I have never used my transportation entitlement and I extended every year with the final extension until January 31, 2003.” She also cites provisions from DoDI 1400.25-V1250[1], which states:
Under the provisions of Section 031.12b of the DSSR (reference (a)), former military and civilian members shall be considered to have “substantially continuous employment” for up to 1 year from the date of separation or when transportation entitlement is lost, or until the retired and/or separated member or employee uses any portion of the entitlement for Government transportation back to the United States, whichever occurs first.
The fact that the claimant’s military transportation entitlements were still intact upon her appointment in August 1997 is not relevant for purposes of DSSR section 031.12b because that section specifically refers to the employer “prior to appointment,” which in her case was AAFES.
Even if she had met the basic LQA qualifying provisions of the DSSR, the claimant does not meet the supplemental provisions applicable to situations involving movement from NAF to appropriated fund positions. Specifically relevant to her situation, the DoDI 1400.25-V1250 in force at the time of her LQA eligibility determination states: “[NAF] employees who were eligible for a living quarters and related allowances upon their initial hire and who are appointed to an appropriated fund position without a break in service, continue to be eligible for allowances… provided they had received the allowances for at least one year.” The claimant asserts in her petition to DFAS that she was not offered LQA or other benefits as part of her NAF position since, while on active duty at the time and drawing a military housing allowance, she was only “entitled to one housing allowance.” Regardless, the record shows she did not receive LQA in her NAF position as required by the applicable qualifying provisions of DoDI 1400.25-V1250.
The claimant states the position she later applied for and was promoted to in July 1999; i.e., the GS-671 Health Systems Specialist position, was hard-to-fill and that she was the only qualified applicant on the certificate. In keeping with the stated purpose of LQA as a recruitment incentive, LQA eligibility is established at the time of initial appointment. In its description of circumstances surrounding an employee’s recruitment and employment occurring immediately “prior to appointment” as the basis for LQA eligibility, the DSSR makes clear that eligibility is based on the circumstances existing prior to the employee’s initial appointment to the Federal service and not later promotion or other personnel actions.
The claimant also asserts in her petition to DFAS:
On or about April 13, 1999, I was directed by the Europe Regional Medical Command, under a Management Directed Re-assignment, to move the office to Heidelberg, Germany from Landstuhl, Germany…Had I known the implications or the re-writing and re-interpretation of rules would change years later, I would have moved my house at this time or obtained an apartment in Heidelberg.
The claims jurisdiction authority of OPM is limited to consideration of statutory and regulatory liability. OPM adjudicates compensation claims by determining whether controlling statute, regulations, policy, and other written guidance were correctly applied to the facts of the case. Therefore, the claimant’s statements that she would have made different housing decisions had she known beforehand of the later LQA ineligibility determination have no bearing on our claim determination and will not be addressed further.
Included in the claim to OPM was the aforementioned Memorandum of Law submitted by legal counsel on behalf of individuals challenging the “Department of Defense’s … recent determination that they are not eligible to receive living quarters allowance (“LQA”) in the future due to the fact that DoD has now decided that the LQA it had granted to these employees for the past several decades – pursuant to its consistently applied interpretation of its own regulations – was in error…” We note the Memorandum relates exclusively to the termination of LQA grants on the basis of the employee having had more than one overseas employer prior to appointment to his or her Federal position. Although we outline the reasons for the claimant’s ineligibility for LQA above, she has included the Memorandum in her claim and we will address certain assertions made in it.
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 deciding if the governing statutes and regulations have been properly interpreted and applied in determining the pay and/or benefits which an employee may be entitled to or granted.
When OPM adjudicates a claim for compensation submitted pursuant to 31 U.S.C. § 3702(a)(2), OPM starts by reviewing the relevant statutory authority. In this case, the Overseas Differentials and Allowances Act of 1960 (Act) establishes the statutory authority for Federal agencies to provide LQA to employees serving overseas. 5 U.S.C. § 5921 et seq. One of the stated purposes of the Act is to “facilitate[e] for the Government the recruitment and retention of the best qualified personnel for civilian service overseas” in order “to improve and strengthen the administration of overseas activities of the Government[.]” Section 101 of Pub. Law. 86-707, 74 Stat. 792 (1960); Trifunovich v. United States, 196 Ct. Cl. 301, 305 (1971).
The Act provides in relevant part:
(a) When Government owned or rented quarters are not provided without charge for an employee in a foreign area, one or more of the following allowances may be granted when applicable:
(1) A temporary subsistence allowance . . .
(2) A living quarters allowance for rent, heat, light, fuel, gas, electricity, and water . . .
(3) Under unusual circumstances, payment or reimbursement for extraordinary, necessary, and reasonable expenses . . .
5 U.S.C. § 5923(a) (emphasis added).
Section 5922 (“General Provisions”), which governs all allowances and differentials authorized under the Act, reiterates that such allowances “may be granted to an employee officially stationed in a foreign area.” 5 U.S.C. § 5922(a) (emphasis added). It also provides that the allowances “shall be paid under regulations prescribed by the President.” 5 U.S.C. § 5922(c).
The Act specifically authorizes the President to promulgate regulations governing “(1) payments of the allowances and differentials and the respective rates at which the payments are made; (2) the foreign areas, the groups of positions, and the categories of employees to which the rates apply; and (3) other related matters.” Id. The President has delegated his authority to issue such regulations to the Secretary of State. (Exec. Order 10903, 26 Fed. Reg. 217 (Jan. 9, 1961)). The Secretary of State discharged this responsibility by promulgating the DSSR, which prescribes the allowances and benefits available to civilian employees assigned to foreign areas. Section 031 of the DSSR sets a baseline for employee eligibility for LQA and emphasizes in numerous subsections that LQA “may be granted” to employees serving overseas. (DSSR §§ 031.11, 031.12, 031.14).
Since the language of the statute makes clear the granting of LQA is discretionary, we then look to the DSSR as the controlling basic regulations implementing the provisions of law pertaining to specific allowances and differentials. “The statute [5 U.S.C. § 5922] and DSSR regulations, standing alone, are only money-authorizing and are not money-mandating” and therefore, are discretionary. Roberts v. United States, 745 F.3d 1158, 1165 (Fed. Cir. 2014). Where the DSSR gives discretion to employing agencies to issue implementing regulations, we look to those which may further restrict the granting of the discretionary allowance. See, e.g., DSSR §§ 013, 40(d)-(e). However, if agency implementing regulations or policies conflict with the DSSR, the DSSR controls. Also, where the DSSR is silent on an issue, agency implementing regulations or policies control unless they are in conflict with the statute.
The claimant’s representative alleges that “nothing in the words ‘substantially continuous employment’ can be read to limit the number of qualified employers an employee could have prior to appointment to one employer” and cites various definitions from multiple editions of Black’s Law Dictionary in support of his argument. We find these arguments unpersuasive. Substantially continuous employment, as used in DSSR 031.12b(4), must be with an employer (singular) which recruited the employee in the United States and induced the employee to accept overseas employment. Therefore, the claimant does not meet LQA eligibility criteria under DSSR section 031.12b that prior to appointment, she was recruited in the United States by one of the listed employers, and was in substantially continuous employment by “such employer” (singular) under conditions providing for her return transportation back to the United States by that employer. Accordingly, her claim is denied. See OPM File Numbers 08-0009, 09-0021, 10-0018, 10-0037, 11-0005, 11-0012, 12- 0019, and 12-0020 at http://www.opm.gov/policy-data-oversight/pay-leave/claimdecisions/decisions/.
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 a foreign area, that inducement is normally unnecessary. Furthermore, 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 DAsis upon which to reverse the decision.
Further, it is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. 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 Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990). Therefore, that the claimant was erroneously determined to be eligible for LQA upon her appointment to the Federal service and had received LQA based on that determination does not confer eligibility not otherwise permitted by statute or its implementing regulations.
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.