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]
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.