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Office of the General Counsel

Date: June 26, 1998
Matter of: [xxx]
File Number: S001638

OPM Contact: Murray M. Meeker

Two employees of the [agency] (1)

claim entitlement to premium pay under 5 U.S.C.  5546a. The claims are denied for the reasons stated below.

Section 5546a authorizes the payment of operational differential pay to personnel who are directly involved in the operation and maintenance of air traffic control. Section 5546a expressly provides the [agency] Administrator with discretion to determine which employees should receive the payments. It is well established that actions committed to agency discretion will not be overturned unless the action being challenged was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See Donald R. Rutt, B-247265, June 5, 1992.

The record indicates that while [agency] policy does provide for the payment of operational differential pay to certain air traffic control personnel, [agency] policy limits payment of the differential pay to employees who are physically located at an operational facility such as an Air Route Traffic Control Center, an Airport Traffic Control Tower, or a Flight Service Station. While the claimants acknowledge that they do not work at operational facilities, they argue that [agency] personnel who work at military bases in other regions do receive the differential.

OPM does not conduct investigations or preside over adversary hearings in adjudicating claims, but relies on the written record submitted by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the record presents a factual dispute, the burden of proof is on the claimant to establish the liability of the United States, and where the agency's determination is reasonable, OPM will not substitute its judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, March 15, 1982, as cited in Philip M. Brey, B-261517, December 26, 1995.

The agency has advised OPM that any differential payments that may have been made to employees that are not physically located at operational facilities have been made in error. Federal funds may not be granted on the assertion that they may have previously been improperly granted to another. See Valenzuela v. OPM, 231 Ct. Cl. 907, 908-9 (1982); Cubacub v. OPM, 230 Ct. Cl. 908, 909 (1982); and Baker v. United States, 222 Ct. Cl. 263, 269 (1980).

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimants' right to bring an action in an appropriate United States Court.

1 The first claimant is a Officer; the second claimant is a Representative. The claimants pursue their claim on behalf of themselves and on behalf of four other individuals who currently or formerly occupied positions.

Control Panel