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Office of Merit Systems Oversight and Effectiveness

Date: May 16, 2001
File Number: [01-0027]
Matter of: [Claimants Name]

OPM Contact: Melissa Drummond

The claimant is an employee of the [agency], [city, state]. He claims that he served as a Special Investigative Agent (SIA) from November 18, 1990 until September 5, 1995. He believes that he is due compensation for administratively uncontrollable overtime (AUO) for the claim period and that he is also due availability pay from October 30, 1994 to the end of the claim period. For the reasons discussed below, the claim is denied.

In order to verify the claimant's statements, we obtained SF-50s, Notifications of Personnel Action, from the agency. The claimant was promoted on November 11, 1990 from a Supervisory Correctional Officer position, GS-0007-11, to a Criminal Investigator (SIA) position, GS-1811-12, while working at the [agency] in [city, state]. On March 19, 1995, he was reassigned from his Criminal Investigator (SIA) position, GS-1811-12, to a Correctional Program Officer position, GS-0006-12. On September 3, 1995, he was transferred from the [agency] in [city, state] to the [agency] in [city, state].

We will first address the issue of AUO pay. The claimant contends that his agency did not properly compensate its criminal investigators, GS-1811s, with premium pay, as instructed by DOJ Order 1551.04A. He states that "the contents of this DOJ order instructed all subordinate agencies within the DOJ to pay a premium to all 1811 Criminal Investigators." We disagree with the claimant's interpretation of the DOJ Order, which he provided as part of his claim. The order does state that it applies to all organizational elements of the DOJ. However, it goes on to further state that "mere occupancy of an authorized position, however, does not qualify an employee for administratively uncontrollable overtime pay. An employee qualifies by performing an average of at least three hours overtime work a week, which meets fully the requirements of section 550.153 of the civil service regulations."

5 CFR 550.153 states the following:

(b) In order to satisfactorily discharge the duties of a position referred to in Section 550.151, an employee is required to perform substantial amounts of irregular or occasional overtime work. In regard to this requirement: (1) A substantial amount of irregular or occasional overtime work means an average of at least 3 hours a week of that overtime work. (2) The irregular or occasional overtime work is a continual requirement, generally averaging more than once a week. (3) There must be a definite basis for anticipating that the irregular or occasional overtime work will continue over an appropriate period with a duration and frequency sufficient to meet the minimum requirements under paragraphs (b)(1) and (2) of this section.

The use of AUO pay to compensate required overtime work of a position is not mandatory, but discretionary when the agency deems it to be the most appropriate form of premium pay for the irregular overtime work inherent in the work requirements of a position. It is a discretionary determination on the part of an agency to pay AUO, not entitlement or benefit on the part of an employee. Mere knowledge that an employee is working beyond his normal duty hours, without active inducement of the employee to perform the additional work, is not enough to support payment in the absence of an official order or approval for overtime work to be performed. John W. Wright, supra.; 68 Comp. Gen. 385 (1989); Jim L. Hudson, supra.; Donald W. Plaskett, supra.; Garrett F. Masco, supra. The claimant did not provide documentation to show that the required number of AUO hours, per the DOJ order and 5 CFR 550.103, was worked during the claim period. Therefore, we cannot grant compensation for AUO pay.

We will now address the issue of availability pay. The claimant states that the Availability Act specifically "instructed all Federal agencies with criminal investigators, GS-1811s, to pay those classified employees a 25% premium." However, he contends that [agency component] changed the classification of his position to usurp the enactment of the Act.

We disagree with the claimant's interpretation of the Act. In 5 U.S.C 5542 (e), it states:

Notwithstanding subsection (d)(1) of this section, all hours of overtime work scheduled in advance of the administrative workweek shall be compensated under subsection (a) if that work involves duties as authorized by section 3056(a) of title 18 or section 37(a)(3) of the State Department Basic Authorities Act of 1956, and if the investigator performs, on that same day, at least 2 hours of overtime work not scheduled in advance of the administrative workweek. (Emphasis added)

Therefore, availability pay is not automatically payable to all criminal investigators. Rather, a criminal investigator is eligible for availability pay only if he/she has an annual average of 2 or more hours of unscheduled duty per regular workday.

On February 16, 1995, the agency's Chief, Pay and Position Management issued instructions to all human resource offices to reclassify all GS-1811 series positions because the positions did not meet the criteria for the Criminal Investigator series. The claimant's position was accordingly reclassified on March 19, 1995. Although the claimant was classified as a GS-1811 from the time that the Availability Act became effective in October 1994 through March 18, 1995 and, therefore, may have been eligible for availability pay, neither the claimant nor the agency provided documentation to show that the claimant worked an average of two hours of overtime, as required by 5 U.S.C. 5542(e).

Since the claimant's position was reclassified from a GS-1811 position to a GS-0006 position on March 19, 1995, availability pay is not applicable to the remainder of his claim period. Under section 7106 of 5 U.S.C., each Federal agency has the authority to organize work to accomplish its mission. The claimant provides no evidence that the agency reclassified his position in an arbitrary or capricious manner in an effort to usurp the Act. Therefore, we cannot grant availability pay for the claimant's position.

According to 5 CFR 178.105, the burden of proof is on the claimant to establish the liability of the United States and the claimant's right to payment. OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra. The record does not include any documentation that the claimant was required to work overtime during the entire claim period, which would have made him potentially eligible for AUO pay and availability pay. The claim 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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