Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Royal Air Force
Fairford, United Kingdom
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/20/2020
Date
The claimant is a Federal civilian employee of the U.S. Air Forces, Europe, at the Royal Air Force Fairford, United Kingdom. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of his request for living quarters allowance (LQA). We received the request from the claimant on December 3, 2019, the agency administrative report on March 6, 2020, and the claimant’s comments on the report on March 6 and 9, 2020. For the reasons discussed herein, the claim is denied.
While residing in the United States, the claimant was recruited for and accepted employment with Geospatial Consulting Group International (GeoCGI) at Marine Corps Air Station (MCAS) Iwakuni, Japan, in October 2017. While employed overseas with the U.S. firm, he applied for his current Federal service position. The record shows he was offered and accepted the position on March 20, 2019, and a tentative entrance on duty date of July 24, 2019, was set. The claimant subsequently terminated his employment with GeoCGI and returned to the United States on or around May 26, 2019. On June 4, 2019, the agency notified the claimant of his ineligibility for LQA. He nonetheless accepted the offer, and he was appointed to the position effective September 30, 2019.
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, and other guidance 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 1400.25-V1250 or other agency implementing guidance may be applied.
The agency determined the claimant did not meet basic requirements under the DSSR and was thus ineligible to receive LQA. However, the claimant contends he should be eligible for LQA under section 031.12 of the DSSR, which states that LQA may be granted to employees recruited outside the United States provided that:
a. the employee’s actual place of residence in the place to which the quarters allowance applies at the time of receipt thereof shall be fairly attributable to his/her employment by the United States Government; and
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.
The agency initially determined the claimant ineligible for LQA based on his not meeting basic eligibility requirements under DSSR section 031.12b, stating, in part, in its May 23, 2019, response to the claimant’s request for LQA:
Your request identifies initial recruitment from the United States by [GeoCGI] for a position in Iwakuni, Japan. However, the current compensation update from said employer dated 1 Oct 2018 states in part, "We are no longer able to offer reimbursements on travel related expenses." As a result, Section 031.12 b…is not met. Specifically at time of appointment, you will not have return transportation entitlement to the United States from your current employer.
After the claimant terminated his employment with the U.S. firm and returned to the United States, the agency further determined he was ineligible under DSSR section 031.12b based on his not maintaining substantially continuous employment under conditions providing for return transportation to the United States prior to his Federal service appointment.
DSSR section 031.12b specifies the conditions under which employees recruited outside the United States may be granted LQA. The record shows the claimant, while employed overseas, applied for his current Federal service position in January 2019 and received a tentative job offer in March 2019. After returning to the United States on or around May 26, 2019, he received the agency’s firm job offer on June 3, 2019. Although he does not dispute or contradict the statements made by the agency regarding his return to the United States, the claimant asserts that technical difficulties relating to the agency’s automated recruitment and hiring system delayed his receipt of the firm job offer. Regardless, in his case, the recruitment process began while he was in Japan where he applied and received a tentative offer for the position, but it continued and concluded after he returned to the United States where he received the firm job offer. Thus, upon his return to the United States, the claimant could no longer be considered to have been recruited outside the United States for purposes of DSSR section 031.12b and the employment conditions it describes, which are based on the premise that, prior to appointment, the employee is physically located overseas by one of the qualifying entities with return transportation benefits to the United States. Therefore, the claimant is ineligible for LQA under DSSR section 031.12 and the claim is denied. See OPM File Numbers 14-0026, 15-0028, and 17-0032.
Alternatively, the claimant appears to request a waiver under the provisions of DSSR section 031.12c, which authorizes the head of the employee’s agency to waive the eligibility requirements of DSSR section 031.12b. However, OPM may not consider the claimant’s request for a waiver within the context of the claims adjudication function it performs under section 3702(a)(2) of title 31, United States Code. 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 claimant must submit his waiver request to the head of his employing agency or that individual’s designee as stipulated under DSSR section 031.12c.
DoDI 1400.25-V1250 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. If a person is already living in a foreign area, that inducement is normally unnecessary. 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 the agency’s action was arbitrary, capricious, or unreasonable. 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. 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.