Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Pyeongtaek, South Korea
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
11/08/2018
Date
The claimant is a Federal civilian employee of the Department of the Army (DA) in Pyeongtaek, South Korea. She requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of her request for living quarters allowance (LQA). We received the claim on July 12, 2018, and the agency administrative report dated August 17, 2018. For the reasons discussed herein, the claim is denied.
The record shows the claimant previously occupied a Management Analyst, GS-343-12, position with the U.S. Army Forces Command, National Training Center, at Fort Irwin, California. On November 21, 2017, while in the United States, the claimant applied for her current DA position, which had been announced by the agency from November 20-30, 2017. She subsequently took leave under the Family Medical Leave Act (FMLA), and entered South Korea on December 6, 2017, to care for her family member residing there. She states she was interviewed for the position on February 28, 2018, received and accepted a tentative job offer on March 23, 2018, and received the firm job offer on April 27, 2018. Effective June 10, 2018, the claimant was assigned to her current Federal service position as Management Analyst, GS-343-12.
The local Civilian Personnel Advisory Center determined the claimant ineligible for LQA prior to her assignment because she did not meet basic eligibility requirements in Department of State Standardized Regulations (DSSR) section 031.11 in connection with the Department of Defense Instruction (DoDI) 1400.25, Volume 1250, which permits the granting of LQA to employees recruited in the United States.
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, 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, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI 1400.25-V1250 or other agency implementing guidance may be applied.
DSSR 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.
Relative to these criteria, DoDI 1400.25-V1250 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.
Thus, an employee’s status as a U.S. hire is based on physical residency at the time of recruitment for the position in question.
The claimant asserts her eligibility for LQA as a U.S. hire pursuant to DSSR section 031.11. The record includes a “CERTIFICATE OF ENTRY & EXIT,” issued by the South Korean immigration office on April 16, 2018. This certificate documents arrivals and departures, and confirms the claimant arrived in South Korea on December 6, 2017, departed on February 28, 2018, and returned days later on March 4, 2018, where she remained upon her June 10, 2018, reassignment to her current DA position. The claimant, however, attempts to establish a connection to the United States despite her physical presence in South Korea at the time of recruitment. Her “Questionnaire for Overseas Benefits Determination,” signed and dated on March 30, 2018, identifies her previous residences in California. She also submitted a copy of her driver’s license from and voter registration information for the State of California, a November 2017 utilities bill for her California residence, and a July 2016 agreement for rental property in California.
Regardless of the claimant’s submissions, the plain language in DSSR section 031.11 of “recruited by the employing government agency in the United States” coupled with the DoDI definition of “U.S. Hire” clearly connotes physical residence in the United States at the time of recruitment. Whether an employee is deemed to be recruited in or outside the United States is dependent solely on the geographic location of the employee when recruited, not on the existence of a residence at some place other than where the employee is actually located at that time. We regard “residence” in terms of its commonly-understood meaning and usage as living in a place as one’s usual, customary dwelling place. Physical residence involves where the employee actually physically resided, regardless of home of record, legal residence, or domicile status. The record shows the claimant, although she applied for the position while in the United States, was in South Korea during most of the recruitment process and thus not permanently or physically residing in the United States from the time she applied for employment until and including the date she accepted the formal job offer. Therefore, she may not be considered a U.S. hire for LQA purposes under DSSR section 031.11 and implementing regulations of the DoDI 1400.25-V1250. See OPM File Numbers 08-0098, 10-0013, 12-0019, 13-0022, 15-0022, and 15-0051.
The claimant does not meet the relevant provisions of the DSSR for LQA eligibility; therefore, the claim for LQA is denied based on failure to meet DSSR requirements. We note that both the agency and the claimant included discussions analyzing supplemental agency instructions in their submissions. However, since the DSSR requirements were not met, the agency instructions may not be applied and are irrelevant to the determination of the claimant’s eligibility to receive LQA.
The claimant also asserts that the taking of leave under the FMLA to care for a family member during the time she was in South Korea during the recruitment period somehow establishes entitlement to LQA. However, the record shows the employing agency has not reviewed and issued a written decision specifically on the FMLA matter, as is required under section 178.102(a) of title 5, Code of Federal Regulations (CFR) before the claimant may submit this matter for review under the compensation claims authority. Because she has not received a final agency decision on the merits of the FMLA claim, it is not properly before OPM and is therefore not subject to review under the compensation claims authority under 31 U.S.C. 3702.
Nevertheless, we note a number of factors likely indicating that the claimant is not entitled to relief under the FMLA. As an initial matter, the claimant cites 29 CFR part 825, the U.S. Department of Labor’s (DOL) regulations pertaining to FMLA, in her claim to OPM. However, most Federal employees, if they are covered by the FMLA, are covered under Title II of the FMLA (codified in title 5, chapter 63, subchapter V of the United States Code) which is administered by OPM. 29 CFR 825.109; 5 U.S.C. 6387. OPM’s separate regulations are found at 5 CFR part 630, Subpart L. The title 5 provisions apply to Federal employees like the claimant.
These FMLA provisions confer upon eligible Federal employees inter alia the right to take unpaid leave for specified family and medical reasons, and upon return from the unpaid leave, entitlement to be restored to the position held when the leave commenced or to an equivalent position in the employing agency. 5 U.S.C. 6382, 6384. Section 6384(b) of title 5, U.S.C. provides that the taking of leave will not result in the loss of any employment benefit accrued prior to the date on which the leave commenced. See also 5 CFR 630.1210(c). The claimant states she was on leave under the FMLA and taking care of a family member during the time she was in South Korea during the recruitment period, and that her benefits and entitlements were required to be maintained during that period of leave. In order to be covered by this FMLA benefit protection provision, the entitlement to the LQA benefit would have to have accrued prior to the commencement of her FMLA leave. That did not (and, in fact, could not) happen, since any LQA benefit she might have received in the DA position is not a benefit she could have accrued prior to taking FMLA leave while encumbering her previous position with the Army Forces Command. Therefore, she did not suffer a loss of any employment benefits accrued prior to her taking FMLA leave.
Under 5 U.S.C. 6384(c), except as otherwise provided by law, an employee restored to the position held when the FMLA leave commenced shall not be entitled to accrual of any employment benefits during any period of leave, or to any employment benefit other than any benefit to which the employee would have been entitled had the employee not taken the leave. See also 5 CFR 630.1210(d). As noted above, the claimant did not accrue LQA benefits prior to taking FMLA leave. She also did not accrue LQA benefits during this period of leave since she was not encumbering the LQA-eligible position during that time. In addition, she would not have qualified for the LQA benefit even if she had not taken FMLA leave while in the previous position. The reason the claimant did not qualify for LQA is because she failed to meet the DSSR requirements (i.e., she was not eligible as a U.S. hire because of her geographic location for the duration of the recruitment process), not because she took FMLA leave. The claimant is not entitled to LQA because she did not meet the requirements of the DSSR because she was outside the United States during the recruitment process. The fact that she was on FMLA leave during this time is irrelevant to the determination of LQA eligibility.
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. Accordingly, the claim for LQA is denied.
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.