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Office of the General Counsel

Date: December 18, 2000
Matter of: [Claimant]
File Number: 001665

OPM Contact: Jo-Ann Chabot

The claimant, a retired civilian employee of the [agency], requests that we reverse a decision the General Accounting Office (GAO) issued on [date], denying his claim for premium pay, i.e. a night differential. That decision is affirmed for the reasons stated below.

The claimant states that the [agency] placed him permanently on the swing shift in 1972 and that on April 6, 1975, he was loaned temporarily, but not assigned permanently, to the day shift. He claims that he is entitled to night differential pay from April 6, 1975 until August 15, 1977, the effective date of his separation from employment for reasons of physical disability. The claimant filed his request in light of a [date] decision in which the [city] Region of the Merit Systems Protection Board (MSPB) reversed the OPM computation of his disability retirement annuity for the high-three years of his employment. XXXX v. Office of Personnel Management, XXXX. He states that the MSPB decision proves by a preponderance of the evidence his entitlement to the 7.5 percent night differential and that the United States Court of Appeals mandated the MSPB decision.

The GAO advised that it issued two formal reconsideration decisions concerning the claim for swing shift differential. The [date] decision affirmed a decision of the GAO Claims Group denying the claimant's claim for swing shift differential. Matter of XXXX.. The second decision of [date], affirmed the [date] decision. Matter of XXXX.. Thus, the GAO thoroughly reviewed this claim on at least two occasions. In view of this, consideration of the claimant's request is limited to a review of the MSPB decision and the Standard Form (SF) 2806 (Individual Retirement Record).

In its March 15, 1982 decision, the GAO found that: (1) when the claimant was reassigned to the day shift, he was undergoing a recurrence of medical problems arising from a previous work-related injury; (2) after his reassignment, the claimant continued as a day shift employee for more than two years, although he spent at least three substantial periods in a leave without pay status while he received workers' compensation benefits; and, (3) according to the record, the unit for which the claimant worked when he was reassigned to the day shift did not have any wage-grade employees permanently assigned to the swing shift. The GAO concluded that the last fact, by itself, supported the [agency] position that the reassignment to day shift was permanent. The GAO further found that the claimant's job description made it clear that he was at all times subject to a change of duty hours at the discretion of his supervisors. The GAO concluded, moreover, that the claimant's continuation in a day shift position until his retirement in 1977 confirmed the accuracy of the [agency] assertion that it had assigned the claimant to day shift permanently, the [agency] characterization of the claimant's reassignment as permanent appeared reasonable, and that it would not substitute its judgment for that of the [agency]. In the second reconsideration decision of [date], the GAO considered an accident report in which the claimant's supervisor stated that the claimant was loaned to the Indirect Material Unit. The GAO concluded that this statement was not sufficient to overcome the determination of the [agency] Civilian Personnel Officer that the claimant was permanently reassigned to the day shift.

On [date], the [city] Regional Office of the United States Merit Systems Protection Board (MSPB) reversed OPM's denial of the claimant's request for an increase in his retirement annuity. The administrative judge concluded that the 7.5 swing shift differential was part of the claimant's basic pay and that the claimant was entitled to retirement credit for a 7.5 percent shift differential for the entire three-year period of service used in computing the claimant's high three average pay. The administrative judge based his conclusion on the claimant's version of the material facts, finding that it was plausible, internally consistent, and based on the claimant's personal knowledge of the events and circumstances. Thus, the administrative judge found that it was more likely to be true than untrue that the [agency] permanently had assigned the claimant to a swing shift and that it subsequently did not assign him to the day shift on a permanent basis.

The MSPB's retirement decision of [date] does not provide a basis for reversing the GAO decision of [date]. The MSPB appeal concerned retirement credit, and retirement statutes were the point of reference for the ensuing decision in the claimant's favor. Indeed, the matter of the claimant's entitlement to pay for a 7.5 percent night differential never was before the MSPB during that appeal, and the administrative judge refused to consider it during the claimant's subsequent petitions for enforcement of the [date] decision. See the administrative judge's Memorandum of Telephone Calls dated [date]. Moreover, the administrative judge did not have the opportunity to consider any argument or evidence from the [agency] on the nature of the claimant's assignment to the day shift because the [agency] never was a party to the retirement case. Thus, the administrative judge did not make any findings in favor of, or against, the [agency] and he did not order the [agency] to take any action regarding the claimant's pay. Finally, in reaching his decision, the administrative judge also did not have the opportunity to consider the GAO decisions and findings on the nature of the claimant's assignment to day shift. The GAO review, in contrast, directly concerned a claim for pay and included both the [agency] and the claimant as parties. In concluding that the claimant was not entitled to a night differential, the GAO had the opportunity to consider argument and evidence from the [agency] on the nature of the claimant's assignment to the day shift and his entitlement to a night differential.

Contrary to the claimant's assertion, the United States Court of Appeals for the Federal Circuit did not affirm or issue any mandate on the MSPB decision of [date]. XXXX v. XXXX. That MSPB decision was not appealed and became final on [date]. The Federal Circuit's unpublished order of [date] summarily affirms an MSPB decision of [date] dismissing the claimant's third petition for enforcement of the [date] decision. See XXXX v. XXXX.

The claimant also submitted his SF 2806 (Individual Retirement Record) stating that the GAO did not have the opportunity to consider it. The SF 2806 includes the notation that AIn accordance with MSPB decision [####] [the claimant's] permanent assignment during his High-3 period was to a shift with a 7.5 percent pay differential. That notation was made by OPM, however, in accordance with the MSPB order that issued on [date]. The notation, by itself, does not prove that the claimant was assigned to the day shift only temporarily. Moreover, the SF 2806 shows the rates of the claimant's pay when he was employed with the [agency]; it does not show that he was assigned permanently to the swing shift.

In view of the above considerations, the GAO decisions of [date] and [date] are affirmed, and the claim for a 7.5 night differential is denied.

The claimant has made an additional claim that, on February 28, 1977, the [agency] attempted to place him in a position that was on the graveyard shift and included duties that he was physically unable to perform. He alleges that, if the [agency] asserts that he was assigned to such duties, he is entitled to 10 percent premium pay for the graveyard shift. This appears to be a new claim. As provided in the Barring Act, 31 U.S.C. ' 3702(b)(1), a claim against the United States is barred unless such claim is received within 6 years after the date such claim first accrued. The Barring Act specifically prescribes the time within which a claim must be received in order for it to be considered on its merits. We have no authority to disregard the provisions of that Act or waive the time limitation it imposes. Therefore, we cannot consider the claim for 10 percent premium pay for the graveyard shift.

The claimant also has made allegations concerning his retirement and insurance benefits. Section 3702(a)(2) of Title 31, United States Code, limits the claims settlement authority of this office to claims involving Federal civilian employees' compensation and leave. The authority granted in section 3702(a)(2) does not extend to claims concerning retirement or insurance benefits. Accordingly, the claimant's allegations regarding his retirement and insurance benefits have been forwarded to the Office of Personnel Management (OPM) Retirement and Insurance Service for further consideration.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

Control Panel