B-144559, APR. 13, 1964

B-144559, APR. 13, 1964

TO MR. JOSEPH L. NANUS:

THIS REFERS TO YOUR LETTER OF FEBRUARY 17, 1964, MAKING CLAIM FOR PREMIUM COMPENSATION COVERING THE PERIOD SEPTEMBER 5, 1960, THROUGH JANUARY 27, 1961, UNDER SECTION 401 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 208 (A) OF THE ACT OF SEPTEMBER 1, 1954 (PUB.L. 763, 83D CONG.), 68 STAT. 1111, 5 U.S.C. 926. YOUR CLAIM FOR REGULAR OVERTIME COMPENSATION COVERING THE SAME PERIOD WAS PREVIOUSLY DISALLOWED BY OUR OFFICE, WHICH DISALLOWANCE WAS SUSTAINED BY OUR DECISIONS OF FEBRUARY 1, 1961, AND APRIL 19, 1962.

THE ABOVE PROVISION OF LAW AUTHORIZES THE HEADS OF EXECUTIVE AGENCIES TO ESTABLISH PREMIUM COMPENSATION RATES BASED ON A PERCENTAGE OF THE BASIC COMPENSATION FOR THOSE EMPLOYEES WHO OCCUPY POSITIONS IN WHICH THE HOURS OF DUTY CANNOT BE CONTROLLED ADMINISTRATIVELY, AND WHICH REQUIRES SUBSTANTIAL AMOUNTS OF IRREGULAR OR UNSCHEDULED OVER TIME DUTY OR DUTY AT NIGHT OR ON HOLIDAYS. THAT PROVISION IS NOT SELF-EXECUTING. SECTION 25.271 OF TITLE 5, CODE OF FEDERAL REGULATIONS, FIXES THE RESPONSIBILITY ON THE HEAD OF EACH DEPARTMENT OR AGENCY TO DETERMINE WHICH EMPLOYEES SHALL RECEIVE ADDITIONAL ANNUAL COMPENSATION UNDER SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.

IN ACCORDANCE WITH YOUR REQUEST WE FORWARDED YOUR LETTER OF FEBRUARY 17 TO THE IMMIGRATION AND NATURALIZATION SERVICE, UNITED STATES DEPARTMENT OF JUSTICE, FOR CONSIDERATION AND REPORT. WE RECEIVED A REPORT FROM THAT DEPARTMENT ON MARCH 23, 1964, STATING IN PART THAT:

"DURING THE PERIOD SEPTEMBER 5, 1960, THROUGH JANUARY 27, 1961, MR. NANUS DID NOT OCCUPY A POSITION DESIGNATED AS MEETING THE STANDARDS FOR ENTITLEMENT TO PREMIUM PAY ON AN ANNUAL BASIS.'

THEREFORE, SINCE YOU DID NOT OCCUPY A POSITION DURING THE PERIOD OF YOUR CLAIM THAT WAS DETERMINED BY THE HEAD OF THE DEPARTMENT AS MEETING THE STANDARDS FOR ENTITLEMENT TO PREMIUM PAY ON AN ANNUAL BASIS WE HAVE NO ALTERNATIVE BUT TO DISALLOW YOUR CLAIM FOR PREMIUM COMPENSATION.