Washington, DC

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

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


06/13/2016

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Date

The claimant, employed as a Criminal Investigator, GS-1811-13, in Puerto Rico, seeks the reversal of DEA’s refusal to process his extended assignment incentive (EAI) request associated with his employment.  He requests compensation of $135,633.75, for the period of February 22, 2015, to October 24, 2020, based on his February 22, 2012, request for a 5-year EAI.[1]  We received the claim request on April 21, 2015, and the agency administrative report (AAR) on February 18, 2016.  For the reasons discussed herein, the claim is denied.

The claimant asserts that DEA’s “EAI policy invalidly requires a reassignment to be eligible for EAI” and that “[t]here is no law, rule or regulation that would require the agency to reassign employees so they would be eligible for an EAI.”  Due to this policy, the claimant states DEA:  “does not process EAI requests from ‘local hires’ [sic] employees in Puerto Rico since they are erroneously considered ineligible.  Consequently, DEA fails to take a personal [sic] action, to wit, decision concerning benefits and awards on EAI request [sic] from ‘local hires.’”  He asserts this “invalid implementation” of OPM’s EAI regulation “has a disparate impact effect on ‘local hires’ [sic] employees who are members of a protected class….”  The claimant contends that “local hires” in other DOJ components “in Puerto Rico, such as the ATF [Alcohol, Tobacco, Firearms and Explosives] and the FBI [Federal Bureau of Investigation] are eligible to receive an EAI.”  As a result, he asserts “the disparate impact effect is worsened by the inconsistency of DEA EAI policy with the EAI Policy” of the FBI and ATF.

In its AAR, DEA states the intent of EAI as provided for under 5 U.S.C. § 5757 is to strengthen law enforcement in United States territories, commonwealths and possessions by providing, to employees who might otherwise not remain in those locations “at the conclusion of their relocation agreements, extended assignment incentives for up to an additional five years.”[2]  The agency further states the regulations implementing 5 U.S.C. § 5757 provide that the agency must base the payment of an EAI on a determination that it is in the Government’s best interest to “encourage the employee to complete a specified additional time in service in that location,” and “[t]hat determination “must be made on a case-by-case basis” for each employee.” The agency contends, “under the clear provisions of the regulations, the agency may not pay incentives to individuals who do not require incentives to stay in that location.”  Based on the foregoing, DEA states:

DEA has executed extended assignment incentive agreements with Special Agents [the organizational title for employees who occupy Criminal Investigator, GS-1811, positions] who have been voluntarily relocated from another DEA Division to Puerto Rico, completed their three-year tour of duty under a relocation agreement and agreed to remain in the assignment in Puerto Rico for an additional one to five years.  Encouraging these SAs [Special Agents], who have been relocated to Puerto Rico at the government’s expense, to remain in Puerto Rico for a longer term saves the government money because the need to relocate the SA back to his or her original location and to relocate another SA into Puerto Rico is substantially reduced.

The agency states the claimant was hired in Puerto Rico and has been assigned to Puerto Rico since he completed DEA’s Basic Agent Training in 1992, and that the agency has neither executed nor promised to execute an EAI agreement with him.  With regard to its policy in using EAIs, the agency states that providing EAIs to SAs who are locally hired in Puerto Rico and who chose to remain in Puerto Rico for their entire careers would “totally, or severely, undercut” the cost savings secured by EAIs.  The agency also states:

...Other Special Agents who are of Puerto Rican origin have received extended assignment incentive payments for service in Puerto Rico.  The difference between those Puerto Rican employees who have received extended assignment incentives for work in Puerto Rico and SA Santiago is that those employees accepted DEA assignments outside of Puerto Rico, completed those assignments, and later relocated to Puerto Rico for three year assignments under relocation agreements.

It was rational for the Agency to determine that those Puerto Rican employees who previously showed an inclination to transfer out of Puerto Rico to other offices (by doing exactly that) needed the encouragement of an extended assignment incentive to obtain their agreement to stay, beyond the three-year term of the relocation agreement, in the positions in Puerto Rico to which they had been relocated.

DEA states the claimant has been assigned to Puerto Rico his entire career with the agency and had remained there for 16 years before EAIs were authorized by DEA in 2008 and  “…has continued to work…in Puerto Rico for an additional eight years since then.  It seems clear that it was, and continues to be, unnecessary for the Agency to offer [him] an extended assignment incentive to encourage him to remain in the position in Puerto Rico.”  The agency contends “[o]ver the 24 years he has been employed by DEA, SA Santiago has never left DEA’s Puerto Rico Office, indicating that he needs no incentive to stay in Puerto Rico and is therefore ineligible for an extended assignment incentive.”

In his February 25, 2016, email response to the AAR, the claimant reasserts his initial arguments and further contends:

8.  Regardless of the desires, needs or intentions of the local hires Puerto Ricans to stay or leave the island, the DEA EAI policy has a disparate impact effect on locally hired employees, like me, who are members of a protected class, i.e. Puerto Ricans, by excluding local hires from the eligibility to receive an EAI by imposing a reassignment requirement which is not required by neither law, nor OPM EAI regulation or by the USDOJ EAI policy.

9.  Each and every local hire should be eligible to apply for and be considered for an EAI like the rest of the employees.  DEA can decide if the local hire employee is deserving of an EAI.  If DEA denies it the employee can decide to stay or leave.  Excluding the local hires from their eligibility to be considered for EAI is discriminatory.  The refusal by DEA of processing and, if that is the case, deny in writing and articulate the reasons for the denial a request for an EAI submitted by a local hired employees, like me, is an act of discrimination.

10.  Assuming that a local hired Puerto Rican employee does not need an incentive to stay in Puerto Rico because he/she has been in Puerto Rico since he/she was born and has been employed by DEA for 24 years is biased and only shows prejudice by the individual that makes such assumption.

Section 5757 of title 5, U.S.C., 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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(d) An agency may not put an extended assignment incentive into effect during a period in which the employee is fulfilling a recruitment or relocation bonus service agreement under section 5753 or for which an employee is receiving a retention allowance under section 5754.

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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.

The plain language of the statute makes clear granting EAI is at agency discretion (the head of an Executive agency may pay an extended assignment incentive to an employee).  Although the claimant meets the eligibility requirements of 5 U.S.C. §5757(a)(1),[3] we find the agency’s decision not to grant EAI in this instance complies with the overall requirements for granting of EAI under 5 U.S.C. §5757.  Specifically, the language of sec. 5757(a)(1) - (3) (requiring an agency determination that it’s in the best interest of the Government to encourage an employee who has completed at least 2 years of continuous service in a position(s) in a territory or possession of the United States, the Commonwealth of Puerto Rico, or the Commonwealth of the Northern Mariana Islands to complete an additional period of employment in that area when finding a qualified replacement would be difficult) indicates that the employee’s employment in the U.S. territory, possession, or commonwealth is of a non-permanent and/or induced nature for the employee.[4]  Where an agency has not made the required determinations under sec. 5757(a), payment of EAI is not authorized under the law.  In this instance, the agency has not made the required determinations under sec. 5757(a)(2) and (3) that would permit payment of EAI (i.e., the agency has not determined that finding a qualified replacement for the claimant would be difficult or that it is in the best interest of the Government to encourage the claimant to complete an additional period of employment with the DEA in Puerto Rico).[5]  Since the required determinations under sec. 5757 have not been made, the agency is not authorized to pay EAI in this instance. 

The claims jurisdiction of OPM is limited to consideration of legal and regulatory liability.  OPM has no authority to authorize payment based solely on consideration of equity.  The claimant’s bare assertion that an attorney “who did not relocate to Puerto Rico,” who was hired from another DOJ component, “received a relocation incentive/and or an extended assignment incentive,” does not affect the agency’s authority to determine when the granting of an EAI is appropriate, including making an exception to its own policy as circumstances may warrant.  The agency has the authority to offer EAIs in those instances where it finds it necessary to retain qualified employees and the fiduciary responsibility to limit it to those instances.  Therefore, the claimant’s assertion he has not been treated equitably has neither merit nor applicability to our claim settlement determination.

The claimant’s perceptions and assertions regarding the “disparate impact effect” of DEA’s EAI policy as a justification for reversing DEA’s decision not to provide him an EAI are unavailing.  The authority to adjudicate and settle Federal civilian employee claims for compensation and leave under the authority of 31 U.S.C. § 3702(a)(2) is narrow and does not extend to considering allegations of discrimination potentially reviewable by the U.S. Equal Employment Opportunity Commission.  The statutory and regulatory language concerning EAI is permissive and gives agency heads considerable discretion in determining whether to grant EAIs to agency employees.  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.  In this case, the agency has determined that the claimant is not entitled to EAI in a manner consistent with law.  Thus, the agency’s action is not arbitrary, capricious, or unreasonable.  Accordingly, the claim for an EAI 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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