Washington, DC

U.S. Office of Personnel Management
Compensation 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


07/12/2017

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Date

The claimant is a Federal civilian employee of the U.S. Department of Justice (DOJ) in Riyadh, Saudi Arabia.  He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of voluntary separate maintenance allowance (VSMA).  We received the claim on July 6, 2016, and the agency administrative report (AAR) on October 14, 2016.  For the reasons discussed herein, the claim is denied.

While residing in the United States, the claimant applied and was selected for the position of Supervisory Criminal Investigator, GS-1811-14, with the Drug Enforcement Administration (DEA) located in Riyadh, a post where spouses and children were allowed to accompany employees.  On September 22, 2015, the claimant reported to his position in Riyadh to begin a three-year tour with DEA.  His spouse and dependent children remained in the United States.  The claimant applied for VSMA on October 4, 2015, stating:

I respectfully request Voluntary Separate Maintenance Allowance in FY 2016 for my family members including my spouse [spouse’s name], daughter [daughter’s name] and son [son’s name].  When I was selected as the Supervisory Special Agent in Riyadh, Saudi Arabia was considerably a safer environment compared to present day.  Since my selection in March 2015, the Kingdom of Saudi Arabia has launched both an air and land invasion into the country of Yemen.  I have attached the Request for the continuance for Danger Pay for Riyadh memo which provides a history of threats in country, the memo was authorized in September 2015 and since then there has [sic] been two additional incidents involving the arrests of persons within Riyadh with explosives with the intention of conducting terrorist activities within the city of Riyadh.  Their safety and security are the primary reasons for my dependents to reside in the United States.  

The agency denied the claimant’s VSMA request by memorandum dated February 1, 2016, stating: “The reimbursable agreement covering the [Drug Enforcement Capacity Building Project] (DECBP) does not include language authorizing funding for SMA.”[1]  The claimant appealed the denial of his VSMA request to the Section Chief, Office of Global Enforcement, Foreign Administrative Support Section.  In support of his request, the claimant provided a letter, dated April 6, 2016, from the Program Director, Office of Program Management-Ministry of Interior.  The letter indicated that funds allotted to the Project Specific Agreement (PSA) between the United States and the Kingdom of Saudi Arabia (KSA), covering the DECBP “are provided by the KSA in advance of any work performance and include amounts to cover salaries and allowances for direct-hire employees and their families.”  Additionally, the letter stated: “Saudi society is very conservative, and women face more restrictions (both legal and social) than men.  Together with the high terrorism threat level, a number of staff members have chosen VSMA rather than bringing their families to Post.”

The agency explained its initial decision to deny VSMA by memorandum dated May 2, 2016, stating:

In the case of GS Richter’s petition for Voluntary SMA, there is no justification for funding two households for a foreign-based DEA employee when the separation from family is due to the employee’s personal decision not to have a spouse accompany him to post.  In Department of State Standardized Regulations (DSSR) Section 261.2, it notes that Voluntary SMA is warranted when an employee is “compelled” by DEA to be reassigned to the Riyadh Country office – GS Richter was not “compelled” to maintain separate households.  As previously described, GS Richter was not compelled by DEA to be reassigned to the Riyadh Country Office – GS Richter volunteered for the reassignment.  DEA should not be and is not required to provide Voluntary SMA because of GS Richter’s decision to volunteer for a foreign assignment and to remain separated from his spouse.  Lastly, DEA’s Office of Chief Counsel has reviewed the PSA and [the program director’s] letter in support of GS Richter, and has reasserted that the agreement does not provide funding for Voluntary SMA.

The agency expanded its rationale for denying VSMA in its AAR, stating:

Although GS Richter presented personal concerns related to cultural differences and threat levels, those considerations did not amount to a special need or hardship.  GS Richter was fully informed of the geographical and cultural considerations in place in Saudi Arabia prior to his application for reassignment to Saudi Arabia.  He was also aware that the locale was determined to present a secure environment.

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 DEA acknowledges that GS Richter also put forth a variety of supplemental considerations related to other Government agency practices, discretionary benefits afforded to individuals employed by other Government agencies, and the manner which the PSA funding instrument had been utilized for non-DEA employees.  Again, those considerations neither compelled GS Richter to maintain a separate household, nor did they establish a special need or hardship.

The Overseas Differentials and Allowances Act, as amended and codified in sections 5921 – 5928 of title 5, United States Code (U.S.C.), provides that, under regulations prescribed by the President, SMA may be paid to Federal employees in foreign areas.  Section 5924(3) of title 5, U.S.C., states that SMA may be granted to assist an employee who is compelled or authorized, because of dangerous, notably unhealthy, or excessively adverse living conditions at the employee’s post of assignment in a foreign area, or for the convenience of the Government, or who requests such an allowance because of special needs or hardship involving the employee or the employee’s spouse or dependents, to meet the additional expenses of maintaining, elsewhere than at the post, the employee’s spouse or dependents, or both.  By Executive Order, the President delegated this authority to the Secretary of State, who issues the DSSR governing overseas allowances and differentials.  The DSSR further delegates the authority to grant SMA to the heads of Federal agencies.  Section 262 of the DSSR states:

SMA may be granted to an employee whenever the head of agency determines that the employee is compelled to maintain any or all members of family elsewhere than at the foreign post of assignment ….

The language applying to SMA in 5 U.S.C. 5924 is permissive rather than mandatory, and the language in the DSSR is similarly permissive.  By the use of the permissive term “may” as opposed to the mandatory terms “will,” “shall,” or “must” in relation to SMA, agencies are granted discretionary authority in allowing or disallowing SMA in individual cases.  Under statutes that vest a degree of discretion in administrative agencies, our review is generally confined to deciding whether an agency’s action must be viewed as arbitrary, capricious, or so at variance with the established facts as to render its conclusion unreasonable.

Section 262.2 further describes voluntary separate maintenance allowance (VSMA), in relevant part, as follows:

An agency may authorize VSMA when an employee requests VSMA for special needs or hardship prior to or after arrival at post for reasons including but not limited to career, health, educational or family considerations for family members ….

The intent of the regulations is clearly that SMA be granted only in those cases where the employee would otherwise be compelled to maintain a separate household for a family or family member and thus would be burdened with assuming the additional expenses associated therewith, not to defray the costs of an existing housing.  In his claim request to OPM, the claimant raises issues of equity.  He states the section chief’s arbitrary and capricious decision to treat SMA requests differently post-2015 than DEA has treated all other SMA requests, with no citation to authority other than his own belief that previous interpretations of the PSA were ‘lax.’”  However, pursuant to OPM’s authority to adjudicate compensation and leave claims for certain Federal employees under the authority of section 3702(a)(2) of title 31, United States Code (U.S.C.), we review the statutory and regulatory provisions applicable to individual compensation and leave claims filed with us in order to determine whether there is any liability.  This authority does not allow OPM to consider issues of equity or fairness.  Therefore, the claimant’s assertion that “all other SMA requests” have not been treated equitably post-2015 due to the agency’s “lax” interpretation of the PSA has no applicability to our claim settlement determination.

The claimant has failed to demonstrate that he was “compelled” by DEA to maintain a separate household for his family.  Instead, it appears that he made a voluntary decision to apply for and accept the position in Riyadh.  Further, the claimant does not present a “special need or hardship” to support eligibility for VSMA under Section 262.2 of the DSSR.  Therefore, based on the record, we find no reason to disturb the agency’s decision to deny VSMA.   

The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant SMA to agency employees.  Thus, an agency may deny SMA payments 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 the OPM.  Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.

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