Office of Merit Systems Oversight and Effectiveness

Date: June 20, 2002
File Number: [02-0007]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant is employed as a [claimant's position] with the [agency]. The claimant is requesting back pay for 233.50 hours spent traveling away from the employee's official duty station outside of his regular tour of duty to inspect various meat and poultry plants during the period from 1992 to 1996. The Office of Personnel Management (OPM) received the compensation claim on December 31, 2001, and the agency administrative report on May 6, 2002. For the reasons discussed herein, the claim is denied.

The claimant requests OPM to reconsider a 1998 decision, OPM Ref. # 1996-01678, regarding claims for back pay for hours spent traveling to inspect various meat and poultry plants during the period from 1991 to 1996. The claimant believes that "the claims should be reopened and reviewed and paid."

Since the agency used the OPM decision to initially decide this claim, the claimant believes a mistake was made when the agency only approved retroactive payment for 21.75 hours, out of 255.25 hours, of overtime travel that he submitted. The claimant also believes that the travel time would be included in his basic 40-hour workweek, if the agency converted his regularly scheduled administrative workweek to a nonstandard tour of duty when he travels outside his duty station.

The claimant provides a copy of the agency's factsheet, entitled, "Clarifying Information Travel Overtime Performed In Conjunction With Providing Veterinary Expertise." He also provides the agency's advisory letter, dated September 5, 2001, which explained the agency's justification for authorizing retroactive payment for 21.75 hours out of the 255.25 hours of travel overtime submitted by the claimant. The retroactive payment covered payable hours for 1992 and 1993. In the letter, dated September 5, 2001, the agency stated that it did not approve payment for the remaining hours, "travel performed in conjunction with covering various poultry assignments," or for travel to establishments where the agency was unable to "substantiate" an immediate need for veterinary expertise.

In response to the claim, the agency states that the claim was denied because the claimant was traveling to poultry assignments where he was not the only inspection employee or where an immediate need for veterinary expertise had been established. The agency states that compensation for the claimant's normal commuting time between his residence and his official duty station was also not approved.

The agency further states that their decision on this claim was based on their understanding on OPM's decision, OPM Ref. # 1996-01678, that there are only two types of situations in which the criteria for veterinary travel overtime would be satisfied. According to the agency's understanding, the two situations occur when:

1. A veterinarian is the only inspection employee assigned to a slaughter establishment, and the plant would not legally operation without the claimant's presence; or
2. Inspection laws or regulations specifically require the presence of a veterinarian to make final disposition of a condemned carcass or to perform certain tasks.

The agency states that neither of the situations applied when the claimant was in the poultry environment.

OPM Ref. #1996-01678 provides:

1. Given the requirements imposed by the meat and poultry inspection statutes, overtime travel to provide required inspection coverage for vacant slaughter positions (where budgetary and staffing limitations preclude or delay filling the vacancy) meet the 5 U.S.C. § 5542(b)(2)(B) criteria for compensation. The limitations and the requirement for inspection presence provide the "administratively uncontrollable event necessitating travel and precluding scheduling of the travel during the regular working hours" that justifies compensation under Title 5.
    
2. The proper method for calculating overtime pay for travel to a temporary duty (TDY) near an employee's permanent duty station is the difference between the employee's regular commuting time to the employee's permanent duty station and the travel time between the employee's residence and the TDY location. See 5 CFR § 550.112(j)(2). However, that section also states that an agency may define a radius of up to 50 miles for determining whether an employee is entitled for overtime pay for travel away from the employee's official duty station. Section 550.112(j). Therefore, if the TDY site … is within the mileage radius from ….the permanent duty station prescribed by FSIS or Agriculture, he [veterinarian] would not be entitled to overtime. To clarify, the mileage radius is drawn from the city limits of the official duty station, and not from the employee's residence.
    
3. The statutory limitation on claims is six years, and you [the agency] may not adjust this time by administrative regulation. See U.S.C. § 3702(b). However, it is a claimant's responsibility to establish the legal liability of the United States and the right to payment. 4 CFR § 31.7. Therefore, the burden is on your [agency's] employees to document any overtime claims they might present. To the extent your [agency] employees are able to document their claims, though, they are entitled to back pay for claims arising within six years of the date of their claims are presented to the agency.

In the claim, the claimant references an assignment in 1991, and asks that the six-year statute of limitations be waived. However, based on the statute of limitation for claims against the United States that limits the period of reimbursement to six years, actions that occurred in 1991 are time barred. The Office of Personnel Management does not have authority to disregard the provisions of the Barring Act, make exceptions to its provisions, or waive the time limitation that it imposes.

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. According to 5 CFR 178.107, an OPM decision 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. The claim is denied.

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