Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Department of Justice
San Juan, Puerto Rico
Damon B.Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/14/2019
Date
The claimant was a Federal civilian employee of the U.S. Department of Justice (DOJ), Drug Enforcement Administration (DEA), in San Juan, Puerto Rico, during the claim period. He seeks compensation for unpaid extended assignment incentive (EAI) program payments, plus any applicable interest. The U.S. Office of Personnel Management (OPM) received his claim on January 24, 2018, additional documentation from the claimant in January and March 2018, and the agency administrative report (AAR) on April 5, 2018. For the reasons discussed herein, the claim is denied.
The claimant was reassigned to a Criminal Investigator position in the DOJ DEA’s Caribbean Division, in San Juan, Puerto Rico, effective May 25, 2008. In March 2011, the DEA determined that the claimant was eligible to receive an EAI and began initiating payments. As required by Federal regulation, the claimant signed a written service agreement agreeing to remain a DEA employee in San Juan, Puerto Rico, for a specified period of time. Thereafter, he accepted subsequent tour extensions, signed additional service agreements, and received additional EAI’s. However, the claimant asserts that he did not receive incentive payments for a six month period during 2013. He claims that the suspended payments caused him not to receive approximately $13,000.00. He also asserts DEA did not notify him of the termination of the EAI program or his service agreement, which he infers is required by OPM regulation.
The agency acknowledges that payments were suspended for a period of time during 2013. However, it asserts that when the claimant’s tour extension commenced in 2013, the Federal government was in the middle of a budget sequestration. As a consequence, funds were unavailable to make incentive payments. The agency further asserts that when the funds did become available in early 2014, the incentive payments were resumed. The agency takes the position that “[it] is not obligated to make up any missing incentive payments due to the lack of sufficient funds caused by budget sequestration.”
Section 5757 of title 5, United States Code (U.S.C.) provides agencies the authority to pay EAI’s to retain experienced, well-trained employees in a territory or possession of the United States, the Commonwealth of Puerto Rico, or the Commonwealth of the Northern Mariana Islands for a longer period than the employee’s initial tour of duty in these locations. It states, in relevant part:
(a) The head of an Executive agency may pay an extended assignment incentive to an employee if-
(1) the employee has completed at least 2 years of continuous service in 1 or more civil service positions located in a territory or possession of the United States, the Commonwealth of Puerto Rico, or the Commonwealth of the Northern Mariana Islands;
(2) the agency determines that replacing the employee with another employee possessing the required qualifications and experience would be difficult; and
(3) the agency determines it is in the best interest of the Government to encourage the employee to complete a specified additional period of employment with the agency in the territory or possession, the Commonwealth of Puerto Rico or Commonwealth of the Northern Mariana Islands, except that the total amount of service performed in a particular territory, commonwealth, or possession under 1 or more agreements established under this section may not exceed 5 years.
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(f) The Office of Personnel Management may prescribe regulations for the administration of this section, including regulations on an employee's entitlement to retain or receive incentive payments when an agreement is canceled. Neither this section nor implementing regulations may impair any agency's independent authority to administratively determine compensation for a class of its employees.
OPM regulations implementing 5 U.S.C. 5757 are contained in title 5 of the Code of Federal Regulations (CFR), part 575, subpart E. The circumstances under which an agency may terminate an EAI service agreement are stated in 5 CFR 575.512 as follows:
OPM regulations implementing 5 U.S.C. 5757 are contained in title 5 of the Code of Federal Regulations (CFR), part 575, subpart E. The circumstances under which an agency may terminate an EAI service agreement are stated in 5 CFR 575.512 as follows:
a. An agency may unilaterally terminate a service agreement based solely on the business needs of the agency. For example, an authorized agency official may terminate a service agreement when the employee’s position is affected by a reduction in force or when there are insufficient funds to continue the planned incentive payments.
b. If an agency terminates a service agreement under paragraph (a) of this section, the employee is entitled to keep all incentive payments received and, if applicable, is entitled to receive any additional amount representing the difference between the amount received and the prorated share of the total incentive attributable to completed service. The employee may receive a portion or all of the incentive payment attributable to uncompleted service only to the extent provided in the service agreement.
The plain language of 5 U.S.C. 5757 makes it clear granting EAI is at an agency’s discretion (the head of an Executive agency may pay an extended assignment incentive to an employee). Although the claimant met eligibility requirements of 5 U.S.C. 5757, we find the agency’s decision to suspend payments for approximately six months was made in accordance with the intent of 5 CFR 575.512(a) because, as the agency stated, there were insufficient funds to continue the payments due to sequestration. OPM will accept the facts asserted by the agency, absent clear and convincing evidence to the contrary. Nothing in statute, regulation, or the signed service agreements require the agency to pay an EAI if there are insufficient funds. Under statutes that vest a degree of discretion to 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. When the agency’s factual determination is reasonable, we will not substitute our judgment for that of the agency. See e.g., Jimmie D. Brewer, B-205452, March 15, 1982.
Concerning the claimant’s assertion that the DEA never notified him that the EAI program or his service agreement was terminated, nothing in the record reveals that either was terminated. Instead, it appears that the agency suspended payments for a period of time due to insufficient funds. The claimant acknowledges that the payments eventually resumed. Since the claimant provided a copy of OPM’s recruitment incentives fact sheet along with his claim, it appears that he confuses the termination of a recruitment incentive service agreement with the termination of an EAI service agreement. Under 5 CFR 575.111(d), an employee must be notified in writing by the agency when his or her recruitment incentive service agreement has been terminated. However, this criteria is not included in 5 CFR 575.512. The regulatory requirements for recruitment incentives are found under 5 CFR part 575, subpart A and those for EAI’s are found under 5 CFR part 575, subpart E. These are different incentive programs that agencies can use and their implementing requirements are not interchangeable.
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.