Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Ramstein, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
01/25/2022
Date
The claimant is a Federal civilian employee of the U.S. Air Forces, Europe, in Ramstein, Germany. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of her request for a waiver to be granted living quarters allowance (LQA). We received the claim on June 1, 2021, the agency administrative report on August 9, 2021, and the claimant’s comments on the report on August 10, 2021. For reasons discussed herein, the claim is denied.
The claimant arrived in the overseas area as a dependent on her spouse’s travel orders, dated April 13, 2018. She accepted her current career-conditional appointment as a Closed Microphone Reporter (Office Automation), GS-0319-08, position on January 7, 2019. The claimant explains in her request to OPM that due to the agency’s decision to not extend his position, her spouse decided to retire from Federal service. In response to the claimant’s subsequent request for LQA in connection with her position, the agency denied the request in its May 6, 2021, memorandum, stating:
The determination process revealed LQA cannot be granted because the circumstances do not meet the intent of the pertinent regulations: [Department of State Standardized Regulations (DSSR)] 031, [Department of Defense Instruction (DoDI)] 1400.25 – V1250, Encl.2, para 2., and [U.S. Air Forces in Europe Instruction] 36-0705, para. 3.2.3. Unfortunately, there is no provision in these governing regulations to approve LQA for a “hard-to-fill” position, if the personal eligibility criteria is not met. Because you came overseas as a dependent on your spouse’s orders and were hired locally, you do not have personal eligibility. The non-extension of your spouse’s position is not a valid reason to waive the eligibility requirement of the DSSR 031.12b., as it does not meet the conditions of a “humanitarian waiver” as outlined in DoDI 1400.25 – V1250, para 2.c. through f.
The claimant does not disagree with her agency’s determination that she does not meet the LQA eligibility provisions in DSSR section 031.12b, which require that an employee recruited outside the United States must, prior to appointment, have been recruited in the United States by his or her previous employer and have been substantially continuously employed by such employer under conditions providing for return transportation to the United States. Instead, she presents her request for a waiver to grant LQA to OPM. She explains her situation meets the condition specified under paragraph 2c(1)(b) of DoDI 1400.25-V1250, which permits the requirements of DSSR section 031.12b to be waived when “[t]he sponsoring spouse or domestic partner becomes physically or mentally incapable of continued employment with the Government.” The claimant presents other reasons to support approval for a waiver, e.g., the inability to find comparable employment elsewhere because of the agency-imposed hiring freeze on court reporters, the financial hardship due to the cost of living in the overseas area, and the need for court reporter positions within her current organization.
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 provisions of the DSSR, which determine LQA eligibility. An agency’s decision to not waive LQA eligibility requirements under the conditions specified by DoDI 1400.25-V1250, paragraph 2c(1), is by its very nature, at the discretion of the agency and is not subject to review by OPM under 31 U.S.C. 3702. OPM may not consider the claimant’s request for a waiver within the context of the claims adjudication function it performs under 31 U.S.C. 3702(a)(2).
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 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). 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. Accordingly, the claim 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.