Washington DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Landstuhl, Germany
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
10/12/2022
Date
The claimant is a Federal civilian employee of the U.S. Army Medical Command in Landstuhl, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of his request for a waiver to be granted living quarters allowance (LQA). We received the claim on March 2, 2022, and the agency administrative report on May 10, 2022. For reasons discussed herein, the claim is denied.
The claimant arrived in the overseas area as a dependent family member on his spouse’s military orders, dated April 26, 2018. He accepted the career-conditional appointment for his current Nurse (Clinical/Case Management), GS-0610-12, position effective September 27, 2021. The claimant explains in his request to OPM that his spouse, due to medical reasons, retired from military service on November 30, 2021. When his spouse retired his family member status was terminated and he became his own sponsor. Thereafter, he requested the grant of LQA under an “unusual circumstance waiver.” In its February 10, 2022, memorandum, the agency denied his request for a waiver to grant LQA in connection with his Federal civilian position.
The claimant does not disagree with the agency’s determination that he does not meet the LQA eligibility provisions in section 031.12b of the Department of State Standardized Regulations (DSSR), 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, he asks OPM to reconsider his agency’s denial of his waiver request to grant LQA, explaining his situation meets the condition specified under paragraph E2.2.c(1)(b) of the Department of Defense Instruction (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 agency explains in its administrative report to OPM that the Department of Defense “limited the unusual circumstances under which a waiver of the basic eligibility requirements for LQA may be waived to five situations, all of which exhibit the characteristics of life-impacting situations…” It further states:
[The claimant’s spouse] medically retired from the U.S. Air Force, effective November 30, 2021, at which point she ceased to be [claimant’s] sponsoring spouse, and remained in Germany. As we have noted in our correspondence of February 10, 2022, [paragraph E2.2.c(1)(b) of the DoDI 1400.25-V1250] is an acceptable reason for consideration of a waiver to authorize LQA to the spouse of the previously sponsoring spouse who had a quarters allowance. However, of equal importance is the circumstance that [claimant’s spouse], while medically retired, remained in Germany. Pursuant to [Volume 37, page 226, decision of the Federal Labor Relations Authority, dated September 14, 1990], we do not authorize a waiver when the sponsoring spouse retires, medically or otherwise, and remains at the post of assignment.
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. 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.