B-148783, SEP. 5, 1962
Highlights
WHILE YOU WERE STATIONED IN NASSAU. YOU WERE PAID ADDITIONAL COMPENSATION FOR THE SERVICES YOU PERFORMED OUTSIDE YOUR REGULAR HOURS OF DUTY DURING THE PERIOD IN QUESTION UNDER THE APPLICABLE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. YOU BELIEVE THAT YOUR COMPENSATION FOR SUCH SERVICES SHOULD HAVE BEEN COMPUTED UNDER THE ACT OF MARCH 2. YOUR CLAIM IS FOR THE DIFFERENCE BETWEEN THE AMOUNT YOU HAVE BEEN PAID FOR SUCH SERVICES AND THE LARGER AMOUNT THAT WOULD HAVE BEEN DUE YOU HAD SUCH COMPENSATION BEEN COMPUTED UNDER THE 1931 ACT. WE ARE NOT WARRANTED IN EXTENDING THAT EXCEPTION TO COVER INSPECTIONS PERFORMED IN ADJACENT ISLANDS OR IN NONCONTIGUOUS FOREIGN TERRITORY. IN SUPPORT OF THE PROPOSITION THAT THE 1931 ACT PROVIDES BENEFITS FOR INSPECTORS OF THE IMMIGRATION AND NATURALIZATION SERVICE ON THE SAME BASIS AS SIMILAR BENEFITS ARE PROVIDED FOR INSPECTORS OF THE BUREAU OF CUSTOMS UNDER THE ACT OF FEBRUARY 13.
B-148783, SEP. 5, 1962
TO MR. A. A. MAKELA:
ON JUNE 20, 1962, YOU REQUESTED REVIEW OF OUR OFFICE SETTLEMENT OF MAY 29, 1962, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION UNDER SECTION 1 OF THE ACT OF MARCH 2, 1931, CH. 368, 46 STAT. 1467, AS AMENDED, 5 U.S.C. 342C, AS AN EMPLOYEE OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE, WHILE YOU WERE STATIONED IN NASSAU, BAHAMAS, BETWEEN AUGUST 1, 1959, AND AUGUST 19, 1961.
YOU WERE PAID ADDITIONAL COMPENSATION FOR THE SERVICES YOU PERFORMED OUTSIDE YOUR REGULAR HOURS OF DUTY DURING THE PERIOD IN QUESTION UNDER THE APPLICABLE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, CH. 212, 59 STAT. 295, AS AMENDED 5 U.S.C. 901, ET SEQ. YOU BELIEVE THAT YOUR COMPENSATION FOR SUCH SERVICES SHOULD HAVE BEEN COMPUTED UNDER THE ACT OF MARCH 2, 1931, ABOVE, AND YOUR CLAIM IS FOR THE DIFFERENCE BETWEEN THE AMOUNT YOU HAVE BEEN PAID FOR SUCH SERVICES AND THE LARGER AMOUNT THAT WOULD HAVE BEEN DUE YOU HAD SUCH COMPENSATION BEEN COMPUTED UNDER THE 1931 ACT.
SECTION 1 OF THE ACT OF MARCH 2, 1931, AUTHORIZES OVERTIME COMPENSATION TO BE PAID ONLY FOR SERVICES PERFORMED " * * * IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT. * * *" IN OUR DECISIONS 36 COMP. GEN. 166 AND B-128372, OCTOBER 31, 1957, WE HELD THAT SECTION 1 DOES NOT APPLY TO SERVICES PERFORMED OUTSIDE THE UNITED STATES EXCEPT AS TO INSPECTIONS PERFORMED IN CONTIGUOUS COUNTRIES IN CONNECTION WITH THE IMMINENT ARRIVAL OF PASSENGERS AND CREWS IN THE UNITED STATES. WE ARE NOT WARRANTED IN EXTENDING THAT EXCEPTION TO COVER INSPECTIONS PERFORMED IN ADJACENT ISLANDS OR IN NONCONTIGUOUS FOREIGN TERRITORY.
YOU CITE THE CASE OF WILEY V. UNITED STATES, 136 CT.CL. 778 (1956), IN SUPPORT OF THE PROPOSITION THAT THE 1931 ACT PROVIDES BENEFITS FOR INSPECTORS OF THE IMMIGRATION AND NATURALIZATION SERVICE ON THE SAME BASIS AS SIMILAR BENEFITS ARE PROVIDED FOR INSPECTORS OF THE BUREAU OF CUSTOMS UNDER THE ACT OF FEBRUARY 13, 1911, CH. 46, 36 STAT. 901, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, CH. 61, 41 STAT. 59, 19 U.S.C. 267. ALTHOUGH THE WILEY CASE DOES DISCUSS THE SIMILARITY BETWEEN THE ACTS IN QUESTION, THE DECISION IN THAT CASE IS ONLY THAT THE PROVISIONS OF 1931 ACT ARE BROAD ENOUGH TO AUTHORIZE THE ADDITIONAL COMPENSATION PROVIDED THEREBY FOR THE SUPERVISORY EMPLOYEES PERFORMING INSPECTIONS AT PORTS OF ENTRY. THE FACT THAT THE 1911 ACT DOES NOT CONTAIN THE RESTRICTIVE LANGUAGE "* * * ARRIVING IN THE UNITED STATES * * *" OR OTHER SIMILAR LANGUAGE MAY BE THE BASIS FOR SOME DISSIMILARITY BETWEEN THE COMPENSATION RECEIVED BY INSPECTORS OF THE TWO SERVICES.
WE ARE AWARE THAT CERTAIN PROVISIONS OF THE IMMIGRATION AND NATIONALITY ACT, APPROVED JUNE 27, 1952, CH. 477, 66 STAT. 166, 8 U.S.C. 1101, ET SEQ., APPLY EQUALLY TO FUNCTIONS PERFORMED IN CONTIGUOUS TERRITORY AND IN ADJACENT ISLANDS AND THAT NASSAU, BAHAMAS, IS INCLUDED IN THE DEFINITION OF ADJACENT ISLANDS FOR THE PURPOSE OF THAT ACT. THE IMMIGRATION AND NATIONALITY ACT, HOWEVER, DID NOT CHANGE THE PERTINENT PROVISION OF THE ACT OF MARCH 2, 1931.
SINCE THE 1952 ACT DID NOT ALTER THE PERTINENT PROVISION OF THE 1931 ACT, CONCERNING THE PAYMENT OF ADDITIONAL COMPENSATION TO INSPECTORS, THE REGULATIONS ISSUED UNDER THE LATER ACT AND CONTRACTS ENTERED INTO UNDER THE AUTHORITY THEREOF CANNOT AUTHORIZE PAYMENT OF THE EXTRA COMPENSATION AUTHORIZED BY THE EARLIER ACT FOR INSPECTIONS PERFORMED OUTSIDE OF THE UNITED STATES.
OUR DECISIONS ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH. HOWEVER, YOUR ATTENTION IS DIRECTED TO 28 U.S.C. 1346 CONCERNING THE JURISDICTION OF THE COURT OF CLAIMS OVER ACTIONS OF OFFICERS AND EMPLOYEES OF THE UNITED STATES TO RECOVER FEES, SALARY OR COMPENSATION.
REGARDING YOUR LETTER OF MAY 28, 1962, CONCERNING THE SAVINGS WHICH WOULD ACCRUE TO THE GOVERNMENT IF COMPENSATION UNDER THE ACT OF MARCH 2, 1931, WERE PAID TO INSPECTORS AT NASSAU AND THE AMOUNTS SO PAID WERE COLLECTED FROM THE APPROPRIATE CARRIERS UNDER SECTION 2 OF THE ACT, WE DO NOT BELIEVE AS WE HAVE INDICATED ABOVE THAT THE GOVERNMENT IS AUTHORIZED TO APPLY THE PROVISIONS OF THE 1931 ACT OF INSPECTIONS PERFORMED IN NASSAU.