Washington D.C

U.S. Office of Personnel Management
Compensation and Leave 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


03/11/2024

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Date

The claimant is a Federal civilian employee of Unit 3112, 86 FSS/FSCA, 86 Airlift Wing, U.S. Air Force in Europe CM, United States Air Force (USAF), U.S. Department of Defense (DoD), Ramstein, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of living quarters allowance (LQA). We received his claim on February 28, 2023, and the agency administrative report (AAR) on March 9, 2023. For the reasons discussed herein, the claim is denied.

On or about September 2018, the claimant lived and attended graduate courses and worked at Queen’s University in Ontario, Canada. During this time, the claimant applied for a GS-0170-12, Historian position with the U.S. Air Forces, in Ramstein, Germany. While living in Canada, he was offered and accepted the position. He was appointed to the Historian position effective, June 5, 2023.  Sometime thereafter, he requested LQA from the agency.       

The agency states the claimant does not meet the basic eligibility requirements for LQA. In its AAR to OPM it states:

[the claimant] does not meet the personal eligibility requirements as stated in the Department of State Standardized Regulations (DSSR) para 0.31…[the claimant] did not reside in the U.S. during the application process, but instead resided in Canada since September 2018. [the claimant] is not eligible to receive LQA in accordance with DSSR para 031.11.

[the claimant] does not meet the personal eligibility requirements as stated in the DSSR 031.12 as a non-stateside hire because he does not have a return transportation entitlement to the U.S. with his current employment at Queen’s University in Ontario, Canada.

The claimant does not deny that he was physically in Canada during the entire recruitment process for his current Federal position with USAF, nor does he deny that his employment with Queen’s University did not include return transportation to the United States. In his claim to OPM he states:

[agency representative] states that my employment with Queen’s University did not include a return transportation entitlement. I do not deny this. However, Queen’s University did not pay any of my transportation fees as I moved myself and my family to Kingston, Ontario, Canada. Additionally, it is important to emphasize, that I did not move to Kingston to work for Queen’s University. I moved to Kingston to attend Queen’s University as a doctoral student. Like most doctoral students, I have also worked for Queen’s University part-time in differing roles (e.g., teaching assistant and teaching fellow) as part of participating in the doctoral program and in financially supporting my family.

Nevertheless, the claimant believes his presence in Canada meets the intent of “unusual circumstances” described in DSSR 031.12c, and that his circumstances justify waving the normal requirements for recruitment outside the continental United States (OCONUS). In his claim to OPM he states:

I believe my situation fits into DSSR para 031.12’s definition and intent of “unusual circumstances” that would justify waving the requirement in para 031.12b. I began residing in Kingston, Ontario in September 2017 to attend Queen’s University to pursue my doctoral degree in History. I pursued my doctoral degree while making use of my Department of Veteran’s Affairs (VA) post-9/11 GI Bill education entitlement that [I] earned having served honorably in the US Army from May 1999 to August 2012. This entitlement paid for my tuition and provided a housing stipend. I needed to attend Queen’s University because the faculty in the Department of history [specific professor] could properly support and supervise me as I wrote a dissertation that examined the creation of the North American Aerospace Defense Command (NORAD) in 1957. I believe that the need for proper faculty supervision in my desired area of study fits in the definition of “unusual circumstances.”

The DSSR contains the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas.

Section 031.11 of the DSSR states in relevant part:

“Quarters allowances prescribed in Chapter 100 may be granted to employees who were recruited by the employing government agency in the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and the possessions of the United States.”

Relative to DSSR 031.11 criteria, DoDI 1400.25, Volume 1250 defines “U.S. Hire” as:

…A person who physically resided permanently in the United States or the Commonwealth of the Northern Mariana Islands from the time the employee applied for employment until and including the date the employee accepted a formal offer of employment…

LQA may also be granted to employees recruited OCONUS or one of its enumerated territories or possessions, under conditions described in DSSR section 031.12:

Quarters allowances prescribed in Chapter 100 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. 

Department of Defense (DoD) implementing guidance for the DSSR contained in DoDI 1400.25-V1250, indicates an employee’s status as a “U.S. hire” is based on physical residency in the United States or one of its enumerated territories or possessions during the recruitment for the position in question. Thus, an employee must be “physically” residing in the United States for the entire recruitment process (i.e., submission of a job application up to and including acceptance of a formal job offer) for the job in question. Therefore, an employee is deemed to be recruited inside or outside the United States based upon the physical location of the employee throughout the entire recruitment process. See OPM file Number 18-0027, dated March 5, 2019, and 21-0016, dated January 27, 2022. The record shows the claimant attended graduate courses, lived, and worked in Canada during the entire recruitment process. Consequently, within the context of section 031.11, the claimant was not permanently and physically residing in the United States during the recruitment for his current position. Therefore, the claimant cannot be considered a U.S. hire under DoDI 1400.25, Volume 1250, and is not eligible to receive LQA under DSSR 031.11.

DSSR 031.12a, is met because the claimant’s current presence in Germany is attributable to his employment with USAF.

The claimant does not meet section 031.12b. Section 031.12b specifies the conditions under which employees recruited OCONUS may be granted LQA. In the claimant’s case, prior to recruitment, he had not been substantially continuous employed by one of the qualifying entities described in b(1) through b(4) under conditions which provided for his return transportation to the United States. Queen’s University is not one of the entities described in section b(1) through b(4) that provided return transportation rights to the United States to the claimant.  Consequently, the claimant is not eligible to receive LQA under DSSR 031.12b as an OCONUS hire.

The claimant believes his presence in Canada as a graduate student during the recruitment process qualifies as “unusual circumstances” under DSSR 031.12c and asks that OPM waive the OCONUS recruitment requirements described in this section. However, OPM’s authority under section 3702(a)(2) of title 31, United States Code (U.S.C.) to adjudicate compensation claims for certain Federal employees is narrow and limited to determining if monies are owed the claimant under the controlling statutes or regulations. Section 3702 does not include the authority to waive provisions of the DSSR, which determine LQA eligibility.  Further, DSSR section 031.12c, authorizes the head of the agency to waive LQA eligibility requirements described under subsection 031.12b.  Therefore, the authority to waive LQA eligibility requirements described under subsection 031.12b, rests with the agency and OPM has no jurisdiction, within the context of the claims adjudication function it performs under 31 U.S.C. section 3702(a)(2), to consider the claimant’s request for a waiver allowing him to receive LQA in his current position.

DoDI 1400.25, Volume 1250, specifies that overseas allowances are not automatic salary supplements, nor are they entitlements. 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 has the authority to deny LQA payments to an employee when the circumstances justify such actions. OPM does not question an agency’s decision to deny LQA unless the agency’s actions are determined to be arbitrary, capricious, or unreasonable. In this case, the agency’s decision to deny LQA to the claimant was made in accordance with the DSSR and DoDI implementing regulations. 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 agency’s decision. Therefore, 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.

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