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Office of the General Counsel

Date: January 8, 1999
Matter of: [xxx]
File Number: S9600942.1

OPM Contact: Murray M. Meeker

On September 25, 1997, the [agency] in [xxx], requested that the Office of Personnel Management (OPM) reconsider its decision dated August 1, 1997, in which OPM determined that two supervisory [xxx] employees who performed their administrative duties within the "explosive arc" of an ordnance loading pier were entitled to hazardous duty pay (HDP). Our decision of August 1, 1997, was based on the finding that [the agency] was not in compliance with applicable agency requirements which prohibit the performance of "tasks not necessary to a particular hazardous operation" within the "immediate vicinity" of a hazard. See NAVSEA OP-5,  7-6.1.

Subsequent to OPM's receipt of [the agency's] reconsideration request, OPM requested additional information from the [agency] concerning this requirement. In response, the agency has submitted for the record a September 24, 1998 memorandum from the Director, Civilian Personnel Programs Division, [agency], confirming that the employees in this case do not meet the applicable [agency] requirements for the payment of HDP. As explained in our prior decision, OPM's standard for reviewing HDP claims is highly deferential to the employing agency. The entitlement to HDP is a decision vested primarily in the employing agency, and we will not substitute our judgment for that of the agency unless that judgment was clearly wrong, arbitrary, or capricious. See Reginald E. McDaniel, B-248536, October 22, 1992; Nicholas P. Davis, B-246364, April 14, 1992; and National Association of Government Employees, B-181498, January 30, 1975.

Accordingly, our August 1, 1997 decision granting the claims for HDP is reversed and the claims are denied. This decision is final. No further administrative review is available within OPM. Nothing in this settlement limits the right of either employee to bring an action in an appropriate United States Court.

Control Panel