s9801659

Office of the General Counsel

Date: June 2, 1999
Matter of: [xxx]
File Number: S9801659

OPM Contact: Murray M. Meeker

The claimant, a former civilian employee with the [agency], seeks gross salary and allowances for the final 24 months of a 36-month tour of duty. For the reasons discussed herein, the claim is denied for lack of jurisdiction.

On July 12, 1992, while serving in [xxx] under an Overseas Limited Appointment for a period not to exceed February 12, 1993, the claimant was selected for a position in [xxx]. The claimant was advised that her travel expenses to [xxx] would be borne by the Government. Although initially documented as a "reassignment" action, on April 8, 1993, the agency corrected the action, changing the description of the action from a "reassignment" to a "conversion to an Overseas Limited Appointment not to exceed July 11, 1993." See 5 U.S.C.  5722(b) (an agency may pay travel expenses only where the individual selected agrees to remain in Government service for 12 months after the appointment or assignment). The claimant was separated when her appointment expired on July 11, 1993.

On August 27, 1993, the claimant appealed to the [xxx] Regional Office of the Merit Systems Protection Board (MSPB or Board), alleging that in June 1992, she accepted an offer for a minimum employment period of 36 months and that the correction action which placed a 12-month expiration date on her appointment was only prepared in reprisal after she had engaged in protected whistleblowing activities. The claimant asserted further that her separation was a constructive removal action.

By decision dated December 7, 1993, the [xxx] Regional Office dismissed the claimant's appeal for lack of jurisdiction, explaining that the claimant's acknowledgment that she had received a noncompetitive appointment on July 12, 1992, confirmed the fact that the claimant had received an Overseas Limited Appointment rather than a permanent, career-conditional appointment. The [xxx] Regional Office decision explained further that the claimant's separation as a result of the expiration of her Overseas Limited Appointment was not an action that was appealable to the Board. See Soehngen v. Department of Justice, 47 M.S.P.R. 169, 172 (1991). By Order dated April 14, 1994, the Board denied the claimant's petition for review.

OPM's authority to settle compensation and leave claims is limited to claims that are not assigned by statute to some other authority. 31 U.S.C. 3702(a). Although presented as a claim for compensation, the claimant essentially is attempting to collect damages for what she alleges to be an unlawful separation, a matter which the MSPB is authorized by statute to review. See 5 U.S.C. 7513(d). See also Irene Sengstack, B-212085, December 6, 1983 (review of an employee's separation from a temporary position was a matter for review by the MSPB's predecessor, the Civil Service Commission's Federal Employee Appeals Authority) and Marjorie E. Olsen, B-209954, June 7, 1983. Accordingly, the claim is denied for lack of jurisdiction.

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.