Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


12/05/2019

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Date

The claimant is a Federal civilian employee of the U.S. Army Medical Command, Department of the Army (DA), in Landstuhl, Germany.  He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of his request for an exception to Army in Europe’s policy concerning living quarters allowance (LQA) for a residence located outside reasonable proximity to the post of assignment.  We received the claim on March 27, 2019, and the agency administrative report (AAR) on August 1, 2019.  For the reasons discussed herein, the claim is denied.

While in the United States, the claimant applied and was selected for his current Federal civilian position with the DA in Landstuhl, Germany.  His August 3, 2018, official job offer letter, in addition to stating his entitlement to LQA, provided information regarding the grant of LQA.  The record shows that on August 31, 2018, the claimant and his fiancée, a German national, signed a rental agreement for a house in Oberursel, Germany, which the agency states is located 105 miles (170 kilometers) away from Landstuhl, Germany.[1]  Shortly after his October 1, 2018, appointment to his Federal service position, he attended an in-processing briefing provided by his servicing Civilian Personnel Advisory Center (CPAC), which covered topics including DA’s policy of limiting payment of LQA to residences within a 50-mile radius of the post of assignment.  Specifically, the policy in paragraph 11.a of Army in Europe Regulation (AER) 690-500.592, dated September 6, 2018, states in relevant part:

Quarters allowance may be paid to an employee only for a permanent residence that is within reasonable proximity to the post of assignment (glossary). [Italics added.]

The glossary in the AER defines “reasonable proximity to post of assignment” as follows:

For purposes of this regulation, the reasonable proximity to the post of assignment is within a radius of the post of assignment that spans about 50 miles or 80 kilometers.  Requests for exception to this residence requirement in extraordinary cases, such as medical requirements of Family members, may be submitted to the Civilian Personnel Directorate, Office of the Deputy Chief of Staff, G1, HQ USAREUR, for consideration.

On January 11, 2019, the claimant’s supervisor requested an exception to policy on his behalf, explaining his rationale for obtaining a residence outside the 50-mile radius of the post of assignment as follows:

He stated he was not aware of the 50-mile radius rule when he entered into the lease agreement prior to his initial briefing with CPAC.  He stated he was not able to cancel the lease without incurring debt.  I discussed the situation with him at the time regarding his rational [sic] for residing in this location and his plan to mitigate safety risks inherent in an elongated commute.  He stated it is his preference to cohabitate with his significant other for personal reasons and in support of a healthy work life balance.  His plan to mitigate the travel risks includes utilizing hotels and staying with local friends between work shifts.

On January 22, 2019, the Civilian Personnel Directorate, G1, HQ USAREUR, denied the request, stating:

The grant of LQA to eligible employees is designed to cover substantially all of the average expenses for rent and utilities associated with a dwelling at the post of assignment.  It is not designed for employees to reside, chiefly for personal reasons that are unrelated to the assignment, so far away from the post whereby the distance between a residence and workplace cannot be safely overcome.  What is more, Mr. Hernandez’s decision to enter into a rental agreement prior to his official assignment to Germany, and equally important, with a person who is not a family member authorized for the allowance, cannot be visited on the agency.

The agency further explains in its AAR to OPM:

On days that he would be scheduled to work, he would take up a temporary abode in the greater Landstuhl area so that he would not have to maneuver the commute between the rental quarters and his place of work.  Thus, he acknowledges, by extension, that the commute between his regular residence in Oberursel and his place of work is too difficult to overcome on a daily and regular and recurring basis.

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, the Department of Defense Instruction (DoDI) 1400.25, Volume 1250 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, AER, or other agency implementing guidance may be applied.

There is no dispute the claimant is eligible for LQA under DSSR section 031.11, wherein LQA may be granted to employees recruited in the United States by the employing agency.  In its AAR to OPM, the agency further states, “We have advised [claimant] that our reasons for the denial of his request for an exception to policy does not negatively affect his eligibility for LQA and, as result, may rent quarters that are within the prescribed radius.”

Section 013 of the DSSR allows heads of agencies to issue further implementing regulations as follows:

When authorized by law, the head of an agency may defray official residence expenses for, and grant post differential, difficult to staff incentive differential, danger pay allowance, quarters, cost-of-living, representation allowances, compensatory time off at certain posts and advances of pay to an employee of his/her agency and require an accounting thereof, subject to the provisions of these regulations and the availability of funds.  Within the scope of these regulations, the head of an agency may issue such further implementing regulations as he/she may deem necessary for the guidance of his/her agency with regard to the granting of and accounting for these payments. [Italics added.]

Thus, within the scope of DSSR regulations, an agency may, as done here, issue further implementing instructions for the guidance of its agency with regard to the granting of and accounting for LQA payments.  Because LQA is a discretionary allowance, agency implementing regulations and/or policy may be more restrictive, but not more permissive, than the DSSR; i.e., they may impose additional limitations on the granting of LQA.  Thus, OPM applies agency-developed policies to the extent such guidance is in agreement with the DSSR.  In this case, the agency has not violated its authority in implementing further restrictions concerning the grant of LQA.  We find no reason to disturb its decision to deny the claimant’s request based on provisions of AER 690-500.592 for LQA associated with a residence located outside reasonable proximity to the post of assignment.

The claimant acknowledges that his residence is located outside the 50-mile radius of the post of assignment and thus in conflict with provisions of AER 690-500.592 for the grant of LQA.  As noted above, he seeks reconsideration of the agency’s decision to deny his request for exception to agency policy.  As written, exceptions to policy may be requested from the Civilian Personnel Directorate of G1, HQ USAREUR, which has already denied the claimant’s request for exception.  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.  Section 3702 does not include the authority to waive agency policy.  OPM does not consider the claimant’s request for an exception to policy within the context of the claims adjudication function it performs under 31 U.S.C. 3702(a)(2).  Therefore, OPM is without authority to grant the request for an exception to agency policy.

The claimant states in his request to OPM that he “would probably not have accepted” the job offer for his current position without entitlement to LQA.  He also asserts that other employees have been granted the requested benefits under circumstances similar to his.  The claims jurisdiction 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.  OPM has no authority to authorize payment based on consideration of need, financial hardship, or equity.  Therefore, the claimant’s assertions have neither merit nor applicability to our claim determination.

The DoDI 1400.25 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.  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 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.  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.

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