Office of the General Counsel

In Reply Refer To: Your Reference:

Date: May 8, 1998
Matter of: [xxx]
File Number: s9700834

OPM Contact: Joann Charleston

An employee of the [agency] requests that we review his claim for Administratively Uncontrollable Overtime (AUO). We have completed our review of this claim and have determined that it may not be allowed.

Briefly stated, the employee is appealing a determination made by his agency that he is not entitled to AUO. The agency has determined that the employee is not entitled to be paid any form of premium pay following his reassignment to the [xxx] position.

Title 5, U.S.C. 5545(c)(2) provides the authority to make AUO payments. The use of AUO pay to compensate unscheduled irregular overtime work is a form of premium pay compensated on an annual rather than hourly basis. 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 an entitlement or benefit on the part of an employee.

In this case, the agency notes that the employee currently is assigned to a GS-15 position and paid at step 10 of that grade. Employees receiving AUO, however, are subject to the maximum bi-weekly earnings limitation in 5 U.S.C. 5547, which happens to be set for most employees at the maximum rate (step 10) for GS-15. The employee asserts, however, that he is subject to a higher maximum earnings limitation established for law enforcement officers at 5 U.S.C. 5547(c). The employee acknowledges that he does not qualify for law enforcement officer retirement credit, but asserts that the definition of law enforcement officer for purposes of premium pay is broader than the retirement definition. The definitions section of premium pay chapter in the United States Code, however, expressly states that law enforcement officer means an employee who qualifies as a law enforcement officer under the employee's applicable retirement statute. 5 U.S.C. 5541(3).

We are required to settle claims only in accordance with the applicable laws and regulations, and we cannot waive or modify their provisions in individual cases. Accordingly, 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.