Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Anna A. Mazzi
Principal Deputy Associate Director
Agency Compliance and Evaluation
Merit System Accountability and Compliance


11/22/2024

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Date

The claimant is a Federal civilian employee of the 31st  Operations Group, U.S. Air Forces, Europe (USAFE), Aviano Air Base (AB), Department of the Air Force (AF) in Aviano, Italy. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of living quarters allowance (LQA). We received the claim on July 19, 2023, and the agency administrative report (AAR) on August 17, 2023. For the reasons discussed herein, the claim is denied.

In 2012 the claimant was discharged from active duty military while stationed in Aviano, Italy. He remained in Europe to continue his education and pursue employment opportunities in connection to his studies. While residing in Spain, he applied for a Federal civilian service Flight Management Specialist, GS-2101-12 position at Ramstein Air Force Base (AFB), Germany. He was ineligible for LQA, nevertheless he accepted the position and began employment effective February 16, 2021. Subsequently in 2022, he applied to and was selected for his current position of Management and Program Analyst, GS-0343-13, in Aviano, Italy. The claimant was initially found eligible for LQA during the hiring in-processing phase, and on March 28, 2023, he received written confirmation of his eligibility for LQA from the Civilian Personnel Representative. However, the claimant states that on May 10, 2023, he was informed that after further review the agency had reversed its decision finding him ineligible for LQA. In a memorandum dated May 18, 2023, the agency explains its determination to deny the claimant LQA in relevant part as follows:

…However, upon review of your resume and the LQA determination from Ramstein AFB the determination process revealed that LQA cannot be granted because you do not meet the personal eligibility requirements as stated in the Department of State Standard Regulations (DSSR) para 031.12 a and b. You retired from the overseas in 2012 and since that time you have worked for “various locations” per your resume. Since you worked for multiple employers since arriving overseas, you do not meet the “singular” condition in the guiding regulation. Further, you would not be considered as having substantially continuous employment IAW DoD 1400.25-V1250, Encl. 2, 2.a.

Contrary to the agency’s determination, the claimant states that he meets the criteria in DSSR section 031.12a because his residences in Germany and Italy were attributable to his employment by the United States Government. He acknowledges that he does not meet section DSSR 031.12b because he was recruited for his initial Federal civilian service position in Spain and not in the United States. However, he cites the provision established in DSSR section 031.12c, which states that subsection 031.12b may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action, and states that his “circumstances are unusual and justify receiving LQA.” [1] Furthermore, he asserts eligibility for LQA under DSSR 031.12c stating that as a condition of employment for his positions in the Federal civilian service he was required to move from Spain to Germany (and subsequently from Germany to Italy), both requiring a permanent change of station, and asserts that his hiring was specifically authorized by the head of the agency.

The 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. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the Department of Defense Instruction (DoDI) 1400.25-V1250, or other agency implementing guidance may be applied.

DSSR section 031.12 states, in relevant part, 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. [Italics added.]

(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.

DoDI 1400.25-V1250, which implements the provisions of the DSSR for DoD civilian employees, provides the following supplemental guidance relative to LQA and DSSR section 031.12c:

E2.2.g. The designated official shall determine whether or not an employee requires LQA under section 031.12c of Reference (c) when the assignment is within or between countries. Section 031.12c of Reference (c) provides that LQA may be given to an employee recruited outside the United States if, 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 the agency. A condition of employment, if not fulfilled, results in failure to gain or retain employment. Section 031.12c of Reference (c) shall be applied when an employee is relocated to another area by a management-generated action. It shall also be applied when management requests that an employee not now eligible for LQA relocate to another area. A management request that an employee relocate is considered a management-generated action. A move through a voluntary reassignment program is not considered a management-generated action. To make a determination under Section 031.12c of Reference (c), the following tests must be applied:

2.g.(1). Will employment be ended if the employee fails to accept relocation?

2.g.(2). Is the relocation caused by a management-generated action?

2.g.(3). Must management request an employee not now in receipt of LQA to relocate to another area?

E2.2.h. To grant an allowance under Section 031.12c of Reference (c) and its implementing guidance, the answer must be affirmative to questions in subparagraphs 2.g.(1) through 2.g.(3) of this enclosure. Selecting a person to be relocated is based on regulatory guidance, leaving management little option to recruit a new employee or select an employee receiving LQA. There are also certain common sense considerations. If an employee’s new duty station is within the local area of work of the previously established residence, no LQA will be authorized. If the employee is joining a spouse or domestic partner at a new duty station who is eligible for LQA, the reassigned employee shall not be given the allowance. If the management-generated action would not cause employment to end if the employee fails to accept relocation, the DoD Component may approve LQA if a determination is made that there is no choice but to move the employee for official reasons (e.g., mobility is inherent in the functional area).

The claimant meets DSSR section 031.12a because his place of residence in the place to which the quarters allowance applies (Italy) is fairly attributable to his employment by the United States Government. However, the claimant must also meet all the requirements specified in DSSR section 031.12b to be considered eligible for LQA. Section 031.12b allows LQA eligibility in those instances where the employee, prior to appointment, had substantially continuous employment with one of the entities listed under b(1) through b(4), and which entity recruited the employee in and provided return transportation to the United States or its territories or possessions. Immediately prior to his Federal appointment with the AF in Aviano, Italy, the claimant was employed at the Ramstein AFB in Germany, a qualifying employer under section 031.12b(1), but the agency recruited him in Spain, rather than in the United States or one of its territories or possessions. The singular usage of “such employer” in section 031.12b requires that the employee have had only one such qualifying employer prior to appointment and consequently, that the employer immediately preceding appointment be the same employer that recruited the employee in and provided return transportation to the United States or one of its territories or possessions. Therefore, by extension, an employee who has had more than one “employer” overseas prior to appointment would be disqualified because the initial overseas employer rather than the employer immediately preceding appointment would have presumably recruited the employee in the United States.

The claimant lost eligibility for LQA under DSSR section 031.12b because prior to his appointment with the AF in Italy he was not recruited in the United States. Rather, while he resided in Spain he was recruited for his appointment with the AF in Germany. Further, the claimant did not provide documentation to show that his previous employment with the AF in Germany provided return transportation to the United States or one of its territories or possessions as required under section 031.12b. However, this would have no bearing on our determination given prior to his appointment the claimant was not recruited in the United States and on this basis alone is ineligible for LQA. Consequently, his claim for LQA under DSSR section 031.12 is denied.

Furthermore, the claimant’s interpretation of DSSR 031.12c is misplaced. As previously noted, to grant an allowance under section 031.12c and its implementing guidance established in DoDI 1400.25-V1250 E2.2.g., the answer must be affirmative to the questions (tests) in subparagraphs 2.g.(1) through 2.g.(3). Section 031.12c applies to existing Federal employees rather than new hires in both its language that the employees have been required by the agency to move to “another area” as opposed to, for example, the initial duty station, and that the move be “in cases specifically authorized by the head of agency.” The latter would apply, for instance, to base closures or transfers of function that are specifically authorized by agency heads, which authorization is not required for routine Federal appointments. See OPM File Number 14-0016, June 4, 2015. Nothing in the record indicates the claimant’s appointment to his position involved the specified circumstances of DoDI 1400.25-V1250 E2.2.g., (i.e., that as a condition of employment he was relocated to another area by a management-generated action) for granting the allowance under DSSR 031.12c. Rather, the claimant applied to, was selected, and made the decision to accept a new appointment with the AF in Aviano, Italy. Accordingly, his claim for LQA under DSSR 031.12c is inapplicable, and thus also denied.

The claimant also requests a waiver of the requirements of DSSR 031.12b under the provisions established by DSSR section 031.12c, which as previously noted provides that “[s]ubsection 031.12b may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action.” [Emphasis Added]. However, 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 to determining if monies are owed the claimant under the controlling statutes or regulations. Section 3702 does not include the authority to waive any provisions of regulation, such as the DSSR, which determines LQA eligibility, or associated agency policy. Therefore, OPM may not consider the claimant’s waiver request within the context of the claims adjudication function it performs under section 31 U.S.C. 3702(a)(2). The authority to waive the requirements of DSSR section 031.12b is reserved to the head of the employing agency, and OPM will not review such determinations.

Lastly, the claimant requests that the Civilian’s Personnel Officer’s (CPO) initial decision to approve the LQA be honored and on that basis he be granted LQA. In addition, the record contains a signed memorandum (undated) from the CPO, USAF at Aviano AB, Italy, to OPM requesting consideration of a waiver to grant the claimant LQA, stating in part, “[a]s the agency bears responsibility for erroneously advising [claimant] on his overseas allowance prior to his acceptance of the job, we ask that your agency consider a waiver.” However, it is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice or information provided by a Government employee cannot bar the Government from denying benefits which are not otherwise permitted by law. See Office of Personnel Management v. Richmond, 496 U.S. 414, rehearing denied, 497 U.S. 1046, 111 S. Ct. 5 (1990); Falso v. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981). Therefore, that the claimant was given incorrect information about his LQA eligibility, does not confer eligibility not otherwise permitted by statute or its implementing regulations. Furthermore, 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 authorized to be issued by statute. See B-173927, October 27, 1971; B-187104, April 1, 1977; and B-192510, April 6, 1979.

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 United States 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 5 CFR 178.105, 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.

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.

[1] The claimant also presents his claim to OPM as an “LQA Waiver Request.” Here, his statement suggests that he is seeking a waiver of the requirements of DSSR section 031.12b under the provision in DSSR 031.12c.

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