Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Camp Arifjan, Kuwait
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
05/23/2018
Date
The claimant is a Federal civilian employee of the Department of the Army (DA) at Camp Arifjan, Kuwait. She requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of her request for living quarters allowance (LQA). For the reasons discussed herein, the claim is denied.
While the claimant was employed with the U.S. Army Corps of Engineers (COE), she was on various temporary duty (TDY) orders in Afghanistan from July 2013 to September 2015. While on TDY orders in Afghanistan between the dates of April 19, 2015, and September 27, 2015, she applied for a DA position, announced by the agency between July 14, 2015, and July 28, 2015. The claimant was tentatively offered the position on September 9, 2015. Effective February 7, 2016, she was promoted to the Staff Operations Officer, GS-301-11, position with the DA’s Saudi Arabian National Guard Modernization Program in Riyadh, Saudi Arabia. She was subsequently promoted on November 13, 2016, to a Management Analyst, GS-343-12, position assigned to Camp Arifjan, Kuwait, with the U.S. Army Material Command, Expeditionary Contracting Command.
The Department of State Standardized Regulations (DSSR) contain 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, Department of Defense Instruction (DoDI) 1400.25-V1250 and the Army in Europe Regulation (AER) 690-500.592 implement the provisions of the DSSR but may not exceed their scope; i.e., extend benefits that are not otherwise permitted under the DSSR. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI, AER, or other agency implementing guidance may be applied.
The agency determined the claimant does not meet LQA eligibility provisions in DSSR section 031.11, which permit the granting of LQA to employees recruited in the United States, or DSSR section 031.12, which in part require 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 claimant does not dispute the agency’s determination that her hiring circumstances meet neither DSSR sections 031.11 or 031.12. Instead, she asserts LQA eligibility based on DSSR section 031.15, effective April 3, 2016, for “Employees Deployed to or Employed in Combat Zones.” It provides:
Notwithstanding the provisions of Section 031.12, quarters allowances prescribed in Chapter 100 may be granted to employees who, immediately prior to appointment or assignment to the position for which recruited, were deployed or employed in a combat zone…supporting contingency operations by:
(1) the United States Government, including its Armed Forces; or
(2) a single United States firm, organization, or interest not immediately preceded by any prior such employment overseas; or
(3) an international organization in which the United States Government participates; and
immediately prior to meeting one of the above circumstances, were customarily resident in the United States, its territories, or possessions, or had met one of the above conditions and returned to the United States, its territories, or possessions during recruitment.
The claims jurisdiction authority of OPM is limited to consideration of statutory and regulatory liability. OPM adjudicates compensation claims by determining whether the controlling statute, regulation, policy, or other written guidance, in effect at the time of the action, were correctly applied to the facts of the case. The February 7, 2016, effective date of the claimant’s position with DA’s Saudi Arabian National Guard Modernization Program predates the effective date of DSSR section 031.15, which was April 3, 2016, and thus not in force at the time of her LQA eligibility determination. It is a general principle of law that Federal regulations cannot be applied retroactively absent express authority. In this case, nothing in the DSSR authorizes OPM to apply its provisions retroactively. Therefore, we have no legal basis to apply 031.15 to the claimant’s hiring circumstances. As a consequence, the claimant’s speculations that she would have been eligible for LQA under DSSR section 031.15 are unsupported.
The claimant also asserts LQA eligibility based on AER 690-500.592, dated November 18, 2005, which she believes is relevant to her situation because the “[COE] TDY orders did not allow family member in the overseas assignment area, and provided for return transportation to the United States.” We conclude she is referring to section 7.a.(1) of AER 690-500.592, which requires employees who previously vacated an outside the continental United States civilian or contractor position to have resided permanently in the United States for at least one year immediately before accepting the formal job offer. Excluded from the one-year residency requirement are applicants who were civilian or contractor employees serving overseas in an area where family members were not authorized on an assignment that provided for their return transportation to the United States. Nonetheless, agency implementing guidance such as that contained in the AER may impose additional requirements but may not be applied unless the employee has first met the basic DSSR eligibility criteria, which in the claimant’s case have not been met. Furthermore, the claimant misconstrues the application of section 7.a.(1) of AER 690-500.592 as it relates to the facts of her claim. Because she cannot be considered an employee recruited in the United States or its possessions as provided for under section 7.a.(1) of AER 690-500.592 its provisions do not apply to her hiring circumstances.
The record also includes a January 25, 2017, letter from the U.S. Army Program Manager of the Saudi Arabian National Guard Modernization Program, recommending approval of a waiver for the claimant “to allow receipt of [DSSR] entitlements.” Although the letter was directed to the Civilian Personnel Directorate of the U.S. Army Europe, we will nonetheless note that 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 implementing regulations.
The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant LQA 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). As discussed previously, the claimant has failed to do so. Based on the facts, we find the agency’s decision to deny LQA was made in accordance with established statutes, regulations, and guidance in force at the time. 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 OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.