Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Sigonella, Italy
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/19/2019
Date
The claimant is a Federal civilian employee of the U.S. Department of the Navy (Navy) in Sigonella, Italy. He requests the U.S. Office of Personnel Management (OPM) reconsider Navy’s decision to terminate his living-quarters allowance (LQA). We received the claim request on or about June 14, 2018, and the agency administrative report on October 9, 2018. For the reasons discussed herein, the claim is denied.
On January 31, 2017, while working for Navy in Norfolk, VA, the claimant applied for a Logistics Management Specialist, GS-346-11, position with Navy, duty station in Sigonella, Italy. Shortly thereafter, beginning on March 14, 2017, the claimant began serving on a temporary assignment outside of the Continental United States (OCONUS), in Edinburgh, Australia. On August 26, 2017, while OCONUS, the claimant accepted Navy’s official offer of the position. He returned to Norfolk, VA on or about September 2, 2017, after 139 days OCONUS, and was appointed to the position, effective November 29, 2017.
At the time of his appointment, the agency determined the claimant was eligible to receive LQA. However, in its April 27, 2018, notification regarding continued eligibility for LQA, the agency informed the claimant that a review of his records revealed that he was no longer eligible based on new guidance, outlined in the Under Secretary of Defense memorandum, dated January 3, 2018.
The agency asserts the claimants initial LQA determination was based on a Department of Defense (DoD) policy advisory, dated September 19, 2013, that allowed applicants who were temporarily absent from the U.S during the recruitment process to be considered as a U.S. Hire for LQA determination purposes. However, the September 19, 2013, policy advisory was rescinded and replaced by new LQA guidance dated January 3, 2018. The agency determined that employees who were determined eligible for LQA in accordance with the September 19, 2013, policy advisory are now ineligible under the January 3, 2018 guidance.
The claimant asserts “I firmly believe I was recruited in the United States. The recruitment process started and concluded in Norfolk, VA, where I actually worked…Although I was on temporary assignment OCONUS in the middle of my civil service application, I have not terminated my U.S. residency or established residency outside of the U.S.”
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, the Department of Defense Instruction (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 under the DSSR. Therefore, the 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.
In providing eligibility criteria, the DSSR distinguishes between employees recruited within the United States, see DSSR section 031.11, and those recruited outside the United States, see DSSR section 031.12. Relevant here, DSSR section 031.11 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.
Relative to these criteria, DoDI 1400.25,Volume 1250, defines “U.S. hire” as follows:
“A person who resided permanently in the United States or the Northern Mariana Islands, from the time he or she applied for employment until and including the date he or she accepted a formal offer of employment.”
In addition to the authority above, the agency adheres to the Under Secretary of Defense January 3, 2018, policy advisory. This memorandum, which supersedes the September 19, 2013, policy advisory, established new DoD guidance on determinations of LQA eligibility consistent with section 031.11 of the DSSR. The memorandum states U.S. hires include:
a. Employees on temporary duty (TDY) orders (or the private sector equivalent) of a clearly short duration, up to 90 days, for any portion of the recruitment process who otherwise occupy a position at a United States duty station, reside permanently in the United States, and are expected to return to their United States duty station at the conclusion of the TDY assignment.
An employee’s status as a “U.S. hire” is based on physical residency at the time of recruitment for the position in question. Thus, an employee must be physically residing in the United States from the time of application until acceptance of a formal job offer. This language does not allow for a more expansive interpretation such as the maintenance of a place of residence in the United States. Therefore, whether an employee is deemed to be recruited in the United States or outside the United States is dependent on the location of the employee when recruited, not the existence of a legal residence at some other place other than where the employee is actually located at that time. In this case, the claimant was travelling OCONUS for portions of the recruitment process and was not permanently or physically residing in the United States from the time he applied for employment until and including the date he accepted the formal job offer. Therefore, he may not be considered a U.S. hire for LQA purposes under DSSR section 031.11, implementing regulations of the DoDI, and implementing agency guidance, dated January 3, 2018.
The claimant also requests a waiver to allow him to receive LQA for the duration of his current assignment at Sigonella, Italy;
“I am specifically requesting a waiver to allow me to complete my three year obligation (November 2020), with LQA, which will at least allow my son to graduate from Sigonella High School…”
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 provisions of the DSSR, which determine LQA eligibility. Therefore, OPM has no jurisdiction, within the context of the claims adjudication function OPM performs under section 31 U.S.C. § 3702(a)(2), to consider the claimant’s request for a waiver to continue receiving LQA for the duration of his current assignment.
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 has the authority to withhold LQA payments from an employee when the circumstances justify such actions. OPM does not question an agency’s decision to discontinue providing LQA unless the agency’s actions are determined to be arbitrary, capricious, or unreasonable. In this particular case, the claimant no longer qualified for LQA under current agency guidance. Therefore, the agency’s action is not arbitrary, capricious, or unreasonable. Therefore, the claim for LQA is denied based on failure to meet current agency requirements for LQA.
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.