Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Okinawa, Japan
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
06/20/2019
Date
The claimant is a Federal civilian employee of the Defense Logistics Agency (DLA), Disposition Services, in Okinawa, Japan. He requests the U.S. Office of Personnel Management (OPM) reconsider DLA’s denial of his request for living-quarters allowance (LQA). We received the claim request on August 13, 2018, and the agency administrative report on October 18, 2018. For the reasons discussed herein, the claim is denied.
The claimant originally entered into an employment contract on May 30, 2013, with KXS International LLC (KXS) to work under an Excess Property Management service contract between KXS and DLA in Bagram, Afghanistan. The renewal of the Excess Property Management bid was awarded to Delta-9 International (Delta-9) and the claimant became a contracted employee with Delta-9, effective August 6, 2015. In September 2016, the claimant applied and was selected for his current Property Disposal Specialist (Environmental), GS-1104-11, position with DLA in Okinawa, Japan. On January 31, 2017, he received a firm offer of employment and he was officially appointed to the position effective February 21, 2017. In 2018, during a review of eligibility for LQA, the agency determined the claimant did not meet basic requirements under the Department of State Standardized Regulations (DSSR), and was thus ineligible to receive LQA.
The claimant contends that he should receive LQA based on his interpretation of Department of State Standardized Regulations (DSSR), 031.12b. He states:
As per the Department of State Regulations (DSSR), 031.12b, it states; …prior to appointment, the employee was recruited by his/her last employer from 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 THE UNITED STATES GOVERNMENT (INCLUDING ITS ARMED FORCES); a US firm, organization or interest; an international organization in which the United States Government participates; or a foreign government.
With me being previously employed at Bagram Airfield, Afghanistan as a contractor for DLA Disposition Services, I feel as though I firmly fall under the “possession of the United States by the United States Government (including its armed forces)” provision of the regulation. Also, under the employment agreement that I signed with my former employer (Delta-9 International) it clearly states under the “Point of Hire” provision of my contract … in this case the nominated Point of Hire is the United States…
He also asserts he should be eligible to receive LQA under section 031.12c of the DSSR because he alleges he was not paid his full salary while working for KXS and in his view this is an unusual circumstance. He states:
…using this criteria, I hope to qualify under the “unusual circumstances” clause of this regulation, as not only did I suffer from being shorted my legal compensation for “hours worked’ from my initial employer [KXS], but I too had to then accept a 40% reduction in salary from the employer who inherited the contract. Thereby, if not awarded LQA, it would further expand the consequences I suffered at the hands of KXS International LLC by losing the contract for not properly compensating us employees.
He further asserts he should be eligible for LQA under section 031.15 of DSSR due to his deployment as a civilian employee in a combat zone. He states:
While I was working for KXS, International LLC, under the Express Property Management Contract (SP451013D0004) for DLA Disposition Services in Bagram Afghanistan (which qualifies as being employed in a Combat Zone)…
The agency asserts the claimant did not meet the basic eligibility requirements to receive LQA under DSSR 031.12b. It asserts the claimant had been “substantially continuously employed by more than one employer while overseas” prior to his current appointment with DLA. In its administrative report to OPM, the agency states:
Mr. Rembert was originally employed under an employment contract with KXS International LLC. The renewal of the contract was originally granted to KXS International LLC, however, due to lack of payment to their contracted employees the award of the bid was rescinded and the contract bid was awarded to Delta-9 International LLC…[I]f the contract was awarded to another company through the bidding process, then this individual would not be eligible to receive LQA under DSSR 031.12 based on the fact that he was substantially continuously employed by more than one employer while overseas.
As it relates to DSSR 031.15, the agency states that based on the employment contracts provided by the claimant, he was employed by two contractors in Afghanistan, which does not meet the intent of the regulation to grant eligibility for LQA. The agency asserts that the claimant cannot be considered eligible for LQA under this section of the DSSR.
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. Therefore, the LQA applicant must fully meet the relevant provisions of the DSSR to be eligible to receive LQA.
DSSR Section 031.12 states, in relevant part:
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; or
c. as a condition of employment by a Government agency, the employee was required by that agency to move to another area, in cases specifically authorized by the head of agency.
Subsection 031.12b may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action.
Section 031.15 of the DSSR states:
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 (see definition in Section 040t) 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 agency’s response, indicating that the claimant had been “substantially continuously employed by more than one employer while overseas”, is the agency’s basis for determining that the claimant was not eligible to receive LQA. Thus, the agency denied LQA coverage based on the claimant’s failure to meet the requirements of DSSR section 031.12b, which 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) (i.e., a single “employer”), under conditions which provided return transportation to the United States or its territories or possessions.
In contrast, 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.
We find the DLA contracts with KXS and Delta-9 were two separate, successive contracts between the U.S. Government and two separate firms, and constitute two separate employers for purposes of LQA eligibility under DSSR section 031.12b. See OPM File number 10-0037, September 14, 2011. Because the claimant had two separate employers overseas prior to Federal appointment, he does not meet the requirements of DSSR 031.12(b), and is not eligible to receive quarters allowance under this section.
Nor can the claimant find relief based on DSSR 031.15, which provides that an employee must have been deployed or employed in a combat zone supporting a single United States firm, organization or interest not immediately preceded by any prior such employment overseas. The facts and circumstances surrounding the claim clearly demonstrate that the claimant was employed by two separate employers overseas prior to Federal appointment (i.e., KXS and Delta-9). Therefore, he does not meet the requirements of DSSR 031.15, and is not eligible to receive quarters allowance under this section.
In view of the foregoing, the agency properly found the claimant ineligible for a LQA under sections 031.12b and 031.15 of the DSSR because he had multiple employers immediately prior to his appointment to DLA Disposition Services in Okinawa, Japan. For this reason, the claim for LQA is denied.
Concerning the claimant’s request for a waiver under the unusual circumstance clause of DSSR 031.12, OPM has no authority to waive subsection 031.12b as OPM is not “the head of agency” in this matter. Moreover, 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.
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.
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.