Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Command
Department of the Army
Stuttgart, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/18/2022
Date
The claimant is a Federal civilian employee of the U.S. Army Installation Management Command (IMCOM), Department of the Army (DA), in Stuttgart, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s suspension of his living quarters allowance (LQA) grant for privately owned quarters (POQ) due to his transfer to a GS-06 position. We received the claim on December 20, 2021, and the agency administrative report (AAR) on March 16, 2022. For the reasons discussed herein, the claim is denied.
In November 2005, while the claimant was on active-duty military service in Germany, he and his spouse purchased POQ in Hessingheim, Germany. In November 2010, one month prior to the claimant’s active-duty military retirement, he was appointed to his initial Federal civilian position in Stuttgart, Germany. On October 4, 2015, the claimant was reassigned to a position in Miami, Florida. On September 2, 2018, he transferred to a Human Resources Specialist (Military), GS-0201-11 position in Garmisch, Germany. The agency determined the claimant LQA eligible as an employee recruited in the United States and on October 18, 2018, he began receiving LQA for rental quarters. In 2021, the claimant states he applied for his current position, which is near his POQ after being geographically separated from his spouse for nearly six years. On May 6, 2021, he received a tentative job offer and completed a LQA Questionnaire. On or around that date, two agency staff members determined the claimant eligible to continue receiving LQA. The claimant received a salary offer on June 29, 2021, and a firm job offer with LQA on July 7, 2021, which he accepted. On August 1, 2021, the claimant transferred to his current Human Resources Assistant (Military), GS-0203-06 position in Stuttgart, Germany, and the agency suspended his LQA grant. Subsequently, he requested LQA (rental and utilities portion) for his POQ. In a memorandum dated October 15, 2021, the agency stated the claimant is no longer LQA eligible.
The claimant disagrees with his agency’s decision to deny him LQA, asserting he properly completed all the required paperwork and was determined eligible to continue receiving LQA by the agency for his GS-06 position. He goes on to state that after occupying his position for over two months, he “received the LQA denial response which makes no sense and is unacceptable after pre-hire review determination with FIRM offer.”
In its AAR to OPM, the agency explained its decision and states, in part:
When [the claimant] applied and was selected for his current position in Stuttgart with the U.S. Army Garrison there, the Civilian Human Resources Agency, Europe, the organization responsible for reviewing hiring actions and making determinations of LQA eligibility or ineligibility, found [the claimant] eligible to continue to receive the allowance under the provision of AER [Army in Europe Regulation] 690-500.592, para 9, Continuing Eligibility…
Regrettably, this determination was a misinterpretation of the provision…[the claimant] meets the basic eligibility requirements for the allowance under the DSSR [Department of State Standard Regulations] § 031.11 and the DODI [Department of Defense Instruction] 1400.25-V1250…Since [the claimant] actively sought and voluntarily accepted a lower-graded position that is not designated as a “hard-to-fill” position and that does not convey LQA eligibility for any applicants, we suspended the grant of the allowance when he requested to be reimbursed for his POQ…
The Department of State Standardized Regulations (DSSR) contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. Section 013 of the DSSR, addressing the authority delegated to the heads of agencies, states, in part:
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. [Emphasis added]
Thus, the Department of Defense Instruction (DoDI) 1400.25, Volume 1250, may impose additional requirements to further restrict LQA eligibility, but may not exceed the scope of the DSSR, i.e., allow for the granting of LQA in cases not otherwise permitted under the DSSR.
Therefore, within the scope of DSSR regulations, an agency may, as done here, issue further implementing instructions for the guidance of its agency with regards to the granting of 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.
When the claimant transferred to his current position, it appears the agency determined he continued to meet the eligibility requirements for LQA as an employee recruited in the United States under the provisions of DSSR section 031.11 and DoDI 1400.25-V1250, which implements the provisions of the DSSR for Department of Defense civilian employees. However, supplementing the pertinent provisions of the DSSR and the DODI 1400.25-V1250, the Army in Europe Regulation (AER) 690-500.592, paragraph 7.a.(1) imposes a minimum grade level of GS-09 on employees recruited in the United States. Paragraph 7.a.(1) reads:
LQA may be granted to employees recruited in the United States, as defined in the DSSR; DODI 1400.25, volume 1250; and this regulation, for positions at grades GS-09 and above (or GG, WG, WS, or other pay-plan equivalents) including positions that have an equivalent target grade. Grade restrictions do not apply to applicants selected for hard-to-fill positions or positions in the 1144 occupational series that are supervisory or managerial.
Thus, we conclude the agency has not violated its authority in implementing further restrictions concerning the grant of LQA. The record clearly shows the claimant did not meet the additional LQA requirements imposed by AER 690-500.592, paragraph 7.a.(1) because his position was classified at the GS-06 level. Additionally, neither the agency nor the claimant submitted documentation showing the position was designated as hard-to-fill. Therefore, the position was not eligible for LQA and the claimant was erroneously determined LQA eligible for that position. In its AAR to OPM, the agency states the claimant’s LQA grant was suspended but if he is “assigned to a position that meets or crosses the threshold of GS-09, his LQA eligibility under” the AER “would be re-instated.” Accordingly, we find no reason to disturb the agency’s decision to suspend the claimant’s LQA request based on provisions of AER 690-500.592 for LQA associated with a minimum grade level of GS-09 for employees recruited in the United States.
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.
Lastly, the claimant states that he would not have accepted “the downgrade if it was previously determined I was LQA ineligible after the Tentative Offer.” However, even if they have no actual knowledge, Federal employees are charged with constructive knowledge of statutory requirements pertaining to them and of the implementing regulations and policies authorized to be issued by statute. See B-173927, October 27, 1971; B-187104, April 1, 1977; and B-192510, April 6, 1979.
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.