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Office of the General Counsel

Date: April 7, 1998
Matter of: [xxx]
File Number: s9600939.5

OPM Contact: James Green

An employee requests reconsideration, for the third time, of his claim for availability pay for the period from October 1, 1994 to July 1, 1995. Employees who were receiving administratively uncontrollable overtime (AUO) in the fiscal quarter preceding October 1, 1994 automatically received availability pay. The agency determined in the instant case, though, that the employee had not received AUO during that time period, and therefore, did not authorize availability pay for the employee.

The source of confusion, in part, is due to the fact that the employee's supervisor approved certain hours worked during the fourth quarter of fiscal year (FY) 94 as "AUO" hours. The agency chose to pay the employee for those hours, however, as irregularly scheduled overtime rather than AUO. Nonetheless, the payment has been characterized by agency personnel as AUO. In our earlier decisions, we reviewed these facts, among others, and concluded that the payment for the overtime hours worked by the employee in the fourth quarter of FY 94 did not qualify him for availability pay beginning on October 1, 1995.

The employee has submitted additional documents that allegedly establish that he received AUO during the fourth quarter of FY 94. One of the documents, a January 23, 1995 OPM letter, only describes in general terms how availability pay is to be implemented and has been considered in previous decisions. The other two documents, an April 8, 1994 memorandum and a June 24, 1994 memorandum, do not address the precise question whether the agency authorized AUO for the claimant during the fourth quarter of FY 94. Accordingly, the settlement denying the employee's claim for availability pay is affirmed.

This decision is final. No further administrative review is available within OPM. Nothing in this settlement bars the claimant from pursuing any remedies that may be available in court.

Control Panel