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


11/15/2021

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Date

The claimant requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s decision to deny his request for a relocation incentive of 20 percent of his annual rate of basic pay in relation to the reassignment to his current position with the U.S. Marshals Service (USMS), Department of Justice, in Saint Thomas, U.S. Virgin Islands.  We received his claim on January 19, 2021, the agency administrative report (report) on May 27, 2021, and the claimant’s comments on that report on June 24, 2021.  For reasons discussed herein, the claim is denied.

The claimant occupied a criminal investigator position with USMS in Charleston, South Carolina, prior to his reassignment to his current position within the District of the Virgin Islands (D/VI).  The record includes the vacancy announcement for his lateral reassignment opportunity (i.e., LRO number 20-LRO-012), open from February 4-18, 2020, which we note includes a notice of benefits for the permanent change of station (PCS) move but none concerning entitlement to a relocation incentive.  However, the claimant asserts that prior to his applying for the announcement on or around February 14, 2020, he received “both verbal and written assurances that the 20% relocation incentive was included as it historically always had with previous positions within the D/VI.”  In support of his assertion, the record includes a February 11, 2020, email to the Chief Deputy U.S. Marshal for the D/VI from the Assistant Director of the USMS Human Resources Division (HRD), stating in part, “…I connected with the [Chief Financial Officer] last night about your LROs and we will continue to provide the [relocation] incentive along with PCS, as we’ve already established D/VI is hard-to-fill.”  After receiving and accepting the agency’s position offer, the claimant was reassigned to his current position effective July 5, 2020, and he was required to establish residency in the D/VI as a condition of employment.  The agency subsequently denied his relocation incentive request, explaining in its report to OPM:

The D/VI received approval to offer a relocation incentive for this LRO (which was typical past practice for previous announcements); however, the [HRD] inadvertently did not reference the relocation incentive in the announcement when the position was posted.  When D/VI noticed the incentive was missing from the announcement, they contacted HRD to have the announcement corrected.  HRD verified the incentive was approved and agreed to correct the announcement and extend the closing date; however, due to an oversight in HRD, this correction did not occur, and the announcement closed without including the intended incentive.

Through their contact with HRD, we know that both [claimant] and his district managers thought that [claimant] would receive a relocation incentive.  D/VI received verbal agreement from HRD that the incentive would be allowed, and this information was conveyed to [claimant], who submitted his application based on this information.  The issue could not be corrected after the fact since the selection of [claimant] had already been made.

HRD researched ways to provide the intended relocation incentive, including consulting with the USMS Office of General Counsel, however no solution could be found.  The final decision was that there was no legal recourse that would allow payment of the relocation incentive because the incentive was not referenced in the job announcement and [claimant] had already been selected for the [Judicial Security Inspector] position (on March 3, 2020) and reassigned to the position (effective July 5, 2020).

The claimant disagrees with the agency’s denial, and he seeks, as a remedy, “…to have the 20% relocation incentive immediately incorporated into [his] salary and to have all back pay provided to [him], starting from July 5, 2020, so that the portion of [his] salary not received since being assigned to the D/VI is paid to [him] in full, with interest.”

The agency supports the claimant’s request, explaining in its report to OPM:

The claim should be allowed.  Historically, Deputy U.S. Marshal voluntary reassignment job announcements for the [D/VI] included relocation incentives.  An administrative error prevented a relocation incentive from being paid to the employee, [claimant], in this instance.

However, the relocation incentive that should be approved based on the time commitment in the job announcement should be 15%, instead of the 20% that [claimant] is seeking.  The reason is that the job announcement to which [claimant] applied and was selected specified a two-year service commitment which, according to USMS policy, would pay an incentive of no more than 15% of the employee’s annual basic pay.

Chapter 57, subchapter IV, of title 5, United States Code (U.S.C.) and part 575, subpart B, of title 5, Code of Federal Regulations (CFR), establish the conditions for, and authorize the payment of, relocation incentives to eligible Federal employees.  Pursuant to 5 U.S.C. 5753(b)(1), OPM may authorize the head of an agency to pay a relocation incentive to an individual who relocates to accept a position that is likely to be difficult to fill absent such incentive.  Section 5753 requires that “the employee [enter] into a written service agreement to complete a period of employment with the agency, not longer than 4 years.”  5 U.S.C. 5753(c)(1).

OPM has further promulgated regulations governing the payment of relocation incentives for Federal employees in part 575, subpart B, of title 5 CFR.  Specifically, 5 CFR 575.201 provides that:

This subpart contains regulations implementing 5 U.S.C. 5753, which authorizes payment of relocation incentives.  An agency may pay a relocation incentive to a current employee who must relocate to accept a position in a different geographic area under the conditions specified in this subpart provided the agency determines that the position is likely to be difficult to fill in the absence of an incentive.

Specific conditions must be in place prior to granting relocation incentive payments to eligible employees, as required by governing regulations.  For example, 5 CFR 575.205(b) states in relevant part:

In all cases, the employee must establish a residence in the new geographic area before the agency may pay a relocation incentive to the employee.  A relocation incentive may be paid only if the employee maintains residency in the new geographic area for the duration of the service agreement.

In addition, 5 CFR 575.207(b)(1) states in relevant part:

The authorized agency official [(AAO)] must review and approve the relocation incentive determination before the agency pays the incentive to the employee.

Regarding approval criteria and written determinations, 5 CFR 575.208 states in relevant part:

(a)(1)  For each determination to pay a relocation incentive under this subpart, an agency must document in writing-

(i)  The basis for determining that a position is likely to be difficult to fill as determined under §575.206;

(ii)  The basis for authorizing a relocation incentive for an employee;

(iii)  The basis for the amount and timing of the approved relocation incentive payments and the length of the required service period; and

(iv)  That the worksite of the employee’s new position is not in the same geographic area as the worksite of the position held immediately before the move…and that the employee established a residence in the new geographic area, as required by §575.205(b).

The service agreement requirements in 5 CFR 575.210 state in relevant part:

• Before paying a relocation incentive, an agency must require the employee to sign a written service agreement to complete a specified period of employment with the agency…at the new duty station.
• (1) The service agreement must include the commencement and termination dates of the required service period.
• The service agreement must specify the total amount of the incentive, the method of paying the incentive, and the timing and amount of each incentive payment, as established under §575.209.
• The service agreement must include the conditions under which the agency must terminate the service agreement…and the conditions under which the employee must repay a relocation incentive under §575.211.
• The service agreement must include the conditions under which the agency may terminate the service agreement before the employee completes the agreed-upon service period.

The agency cites its failure to include notice of the relocation incentive in the vacancy announcement as the sole reason for denying the claimant’s request.  In adjudicating this claim, our responsibility is to make our own independent decision on whether or not the claimant is entitled to the compensation claimed.  We must make that decision by comparing the facts of the case to criteria in controlling Federal laws, rules, and regulations.  In this case, we must compare the facts of the claim to the laws and regulations, cited above, governing relocation incentives.

In its report to OPM, the agency does not cite any law or regulation in support of its decision.  Instead, the agency explains in a June 25, 2021, email in response to our request for clarifying information, that “[i]t is an established agency practice that any incentive, to include relocation incentives, must be referenced in the vacancy announcement.”  Federal agencies are ultimately responsible for complying with the laws and regulations, and following OPM’s policies and guidance when administering their relocation incentive program policies.  However, in this case, the agency’s rationale for denying the relocation incentive is inconsistent with controlling laws, regulations, and agency written policies.  We reviewed USMS Policy Directives, 3.45 Relocation Incentive, which establishes the agency’s policies and procedures for administering its relocation incentive plan, and found no stipulation requiring notice of the incentive in the vacancy announcement as a condition prior to its grant.

As cited above, 5 CFR 575.205(b) requires an employee to establish residency in the geographic area of the new position before an agency may pay a relocation incentive and the employee must maintain residency in the area for the duration of the service agreement.  The USMS requires the claimant, as a criminal investigator assigned to the D/VI, to reside in the area.  The record shows the claimant resided in South Carolina immediately prior to accepting the job offer for the criminal investigator position assigned to the D/VI.  He subsequently moved and established residency in the new geographic area of the D/VI upon reassignment on or around July 5, 2020, to his current criminal investigator position.  Because there is no dispute he established and maintains residency in the geographic area of his new position, we will not question that the claimant meets the residency requirements in 5 CFR 575.205(b).

Additionally, 5 CFR 575.207(b)(1) requires an AAO to have reviewed and approved the relocation incentive determination before the agency pays the incentive to the employee.  The February 11, 2020, email from the Assistant Director, HRD, to the Chief Deputy U.S. Marshal for the D/VI, states that, in connection with the claimant’s position, the agency “will continue to provide the [relocation] incentive along with PCS, as we’ve already established D/VI is hard-to-fill.”  Our review of USMS Policy Directives, 3.45 Relocation Incentive, shows the authority to approve relocation incentives for eligible employees, except Executive Schedule employees, attorneys, and law clerks, has been delegated to the Assistant Director, HRD.  In its June 25, 2021, email in response to our request for clarifying information, the agency explains:

[The Assistant Director, HRD] is the authorized agency official with delegated authority to review and approve relocation incentive requests.  The agency considers her emails acceptable documentation to show an official determination has been made concerning payment of a relocation incentive prior to the employee entering on duty (reassigning) to the position in the [D/VI].

We note that USMS Policy Directives, 3.45 Relocation Incentive, F.d. Relocation Incentive Requirements and Approval Criteria, state in relevant part:

2.)        For each determination to pay a relocation incentive, a written justification and supporting documentation must be submitted with Form USM-633 and Form USM-633A.  The justification must contain the following:

• The basis for determining the position is likely to be difficult to fill in the absence of a relocation incentive;
• The qualifications or competencies of the employee in sufficient detail to determine that they are specialized and/or unique, or there is a special need that is critical to the USMS mission;
• The basis for the amount and timing of payments and the length of the service agreement;
• That the worksite of the new position is in a different geographic area than the previous position; and
• That funding for the incentive is available.

Therefore, the agency’s written policies require completion of Forms USM-633 and USM-633A for every relocation incentive determination.  The documents must address each element identified above, which would ensure compliance with the corresponding approval criteria required by 5 CFR 575.208(a)(1)(i)-(iv), as cited above.  There is no evidence Forms USM-633 and USM-633A were submitted on the claimant’s behalf for payment of a relocation incentive payment.  In addition to his situation not satisfying the documentation requirements in the agency’s written policies, there is no evidence the claimant’s situation satisfies the approval criteria and written determination requirements found in controlling regulations at 5 CFR 575.208(a)(1)(i)-(iv).

Equally important is the rule formulated under 5 CFR 575.210(a), which provides that before paying a relocation incentive, an agency must require the employee to sign a written service agreement to complete a specified period of employment with the agency.  At our request, the agency provided the claimant’s service agreement (“Voluntary Reassignment Service Agreement”), signed on May 3, 2020, showing he agreed to serve a minimum of two years in the position commencing on July 5, 2020.  Because the record shows he signed a service agreement specifying that he agreed to remain in the agency’s employ for a minimum period of two years to begin on July 5, 2020, we find the service agreement requirements of 5 CFR 575.210(a) and 5 CFR 575.210(b)(1), which requires the agreement include commencement and termination dates, are met.

However, the claimant’s service agreement does not satisfy the requirements under 5 CFR 575.210(c)-(e).  That is, his service agreement does not specify the total amount of the incentive, the method of paying the incentive, and the timing and amount of the incentive payment as required by 5 CFR 575.210(c); the conditions under which the agency must terminate the service agreement and the conditions under which the employee must repay a relocation incentive as required by 5 CFR 575.210(d); and the conditions under which the agency may terminate the service agreement before the employee completes the agreed-upon service period as required by 5 CFR 575.210(e).  As such, the service agreement requirements under 5 CFR 575.210 are not fully met, and the claimant is therefore ineligible to receive a relocation incentive.  Given our denial of his relocation incentive request, we will not address the agency’s assertion that because he signed a two-year service agreement, USMS policy stipulates a relocation incentive of 15 percent of annual rate of basic pay rather than the 20 percent requested by the claimant.

The claimant also notes that his coworkers assigned to the D/VI office are receiving relocation incentive payments under circumstances similar to his.  The claims jurisdiction of OPM is limited to consideration of legal and regulatory liability.  We adjudicate compensation claims by determining whether controlling regulations, policy, and other written guidance were correctly applied to the facts of the case.  OPM has no authority to authorize payment based solely on consideration of equity.  The fact that others might have obtained benefits does not give the claimant an enforceable right.  The claimant’s assertion he has not been treated equitably has neither merit nor applicability to our claim settlement determination.  Accordingly, his 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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