Office of Merit Systems Oversight and Effectiveness

Date: October 23, 2001
File Number: [01-0028]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant is a Port Director, employed by the [agency]. The claimant has requested compensation for foreign language pay differential for the period that he was employed in [city, state]. The claimant filed an agency grievance on June 15, 1999. The agency denied his grievance on October 12, 1999. We acknowledged receipt of this claim on April 19, 2001. The agency administrative report was received on August 31, 2001. For the reasons discussed herein, the claim is denied.

The claimant is classified as a Port Director, GS-1801, for the [agency]. He is requesting compensation for the period from the inception of Public Law 101-509 in 1992 to August 30, 1999, when he transferred from [city #1, state #1] to [city #2, state #2]. The claimant passed the Spanish test and, therefore, believes he is eligible for the 5 percent additional pay award for possessing and making use of Spanish in performing his duties as Port Director. He also indicates that other Port Directors are receiving a foreign language proficiency award.

The agency asserts that Customs Officers are covered by the Customs Officer Pay Reform Act (COPRA) and are entitled to receive awards under the Foreign Language Awards program (FLAP). COPRA defines Customs Officers as customs inspectors and canine enforcement officers. Some customs inspectors are port directors. They are classified to the GS-1890 series because the paramount knowledge of their work is inspectional in nature. Their official title is customs inspector but they are organizationally known as port director. On the other hand, some port directors are classified to the GS-1801 series, because the paramount knowledge of their work is not classifiable to a more specific occupational series, but is characterized by a mix of inspectional and compliance related knowledge. Likewise, canine enforcement officers are classified to the GS-1801 series because their positions also represent a mix of knowledge and responsibilities. However, these two positions are considered distinct within their set of responsibilities. Of the two, it is the canine enforcement officer positions that have been identified to participate in FLAP by the agency.

We specifically cite 19 U.S.C. 267, which states:

The term "customs officer" means an individual performing those functions specified by regulations by the Secretary of the Treasury for a customs inspector or canine enforcement officer. Such functions shall be consistent with such applicable standards as may be promulgated by the Office of Personnel Management.

The GS-1801 series covers positions that administer, coordinate, supervise or perform inspection, investigative, analytical, or advisory work to assure understanding of and compliance with Federal laws, regulations, or other mandatory guidelines when such work is not more appropriately classifiable in another series, either in the GS-1800 Investigation occupation group or to another occupational group. Those Port Director positions, like the claimant's, that represent a mix of inspectional and compliance related knowledge, are appropriately classified to the GS-1801 series. However, Port Directors are not defined in COPRA as meeting the basic eligibility requirements to receive awards under the Foreign Language Awards Program.

The Office of Personnel Management does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the agency's factual determination is reasonable, we will not substitute our judgement of that of the agency. See e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982. Therefore, we concur with the agency that the claimant is not eligible to be compensated under FLAP. The claim is denied.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.