A-97644, SEPTEMBER 9, 1938, 18 COMP. GEN. 225

A-97644: Sep 9, 1938

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HENCE BAILIFFS ARE NOT "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT. PROVIDING THE CONDITIONS FOR HOLIDAY COMPENSATION FOR "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY. IS AS FOLLOWS: IN ORDER THAT THIS DEPARTMENT MAY BE ABLE TO PROPERLY INSTRUCT UNITED STATES MARSHALS AS TO THE PAYMENTS TO BE MADE BY THEM FOR THE PER DIEM COMPENSATION OF BAILIFFS. YOU ARE REQUESTED TO STATE WHETHER THE PROVISIONS OF THE ACT APPROVED JUNE 29. ARE TO BE CONSIDERED AS APPLICABLE TO PAYMENTS FOR THE SERVICES OF SAID BAILIFFS. THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY. OR ON A PIECE-WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY.

A-97644, SEPTEMBER 9, 1938, 18 COMP. GEN. 225

HOLIDAY COMPENSATION OF BAILIFFS THE PROVISIONS OF ANNUAL APPROPRIATION ACTS FOR SALARIES AND EXPENSES OF BAILIFFS (FOR THE CURRENT FISCAL YEAR, SEE ACT OF APRIL 27, 1938, 52 STAT. 268), SPECIFICALLY NEGATIVE PAYMENT OF PER DIEM COMPENSATION FOR HOLIDAYS EXCEPT UNDER THE CONDITIONS STATED IN THE SAID ACTS, AND HENCE BAILIFFS ARE NOT "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT," WITHIN THE MEANING OF THE ACT OF JUNE 29, 1938, 52 STAT. 1246, PROVIDING THE CONDITIONS FOR HOLIDAY COMPENSATION FOR "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY," ETC., AND THE SAID ACT HAS NO APPLICATION TO THEM.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ATTORNEY GENERAL, SEPTEMBER 9, 1938:

YOUR LETTER OF AUGUST 31, 1938, IS AS FOLLOWS:

IN ORDER THAT THIS DEPARTMENT MAY BE ABLE TO PROPERLY INSTRUCT UNITED STATES MARSHALS AS TO THE PAYMENTS TO BE MADE BY THEM FOR THE PER DIEM COMPENSATION OF BAILIFFS, YOU ARE REQUESTED TO STATE WHETHER THE PROVISIONS OF THE ACT APPROVED JUNE 29, 1938, RELATIVE TO PAYMENTS TO BE MADE FOR HOLIDAYS TO REGULAR EMPLOYEES OF THE GOVERNMENT, ARE TO BE CONSIDERED AS APPLICABLE TO PAYMENTS FOR THE SERVICES OF SAID BAILIFFS.

THE ABOVE MENTIONED ACT READS AS FOLLOWS:

"RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT HEREAFTER WHENEVER REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS ARE RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF THE OCCURRENCE OF A HOLIDAY SUCH AS NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, FOURTH OF JULY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS DAY, OR ANY OTHER DAY DECLARED A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, OR ANY DAY ON WHICH THE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT ARE CLOSED BY EXECUTIVE ORDER, THEY SHALL RECEIVE THE SAME PAY FOR SUCH DAYS AS FOR OTHER DAYS ON WHICH AN ORDINARY DAY'S WORK IS PERFORMED.

"SEC. 2. THE JOINT RESOLUTION OF JANUARY 6, 1885 (U.S.C., TITLE 5, SEC. 86), AND ALL OTHER LAWS INCONSISTENT OR IN CONFLICT WITH THE PROVISIONS OF THIS ACT ARE HEREBY REPEALED TO THE EXTENT OF SUCH INCONSISTENCY OR CONFLICT.'

YOUR PROMPT RESPONSE WILL BE APPRECIATED.

WHILE THE COMPENSATION OF BAILIFFS IS FIXED ON A PER DIEM BASIS (SEC. 715, REVISED STATUTES; ACT OF MARCH 3, 1905, 33 STAT. 1259; AND ACT OF DECEMBER 6, 1924, 43 STAT. 704), THEY ARE NOT REGULARLY EMPLOYED AND PAYMENT OF THE PER DIEM COMPENSATION IS LIMITED BY THE TERMS OF THE ANNUAL APPROPRIATION ACTS FOR SALARIES AND EXPENSES OF BAILIFFS (FOR THE CURRENT FISCAL YEAR, SEE ACT OF APRIL 27, 1938, PUBLIC NO. 495, P. 24, 52 STAT. 268), AS FOLLOWS:

* * * PROVIDED, THAT, EXCEPTING IN THE CASE OF BAILIFFS IN CHARGE OF JURIES OVER SUNDAYS AND HOLIDAYS, NO PER DIEM SHALL BE PAID TO ANY BAILIFF UNLESS THE COURT IS ACTUALLY IN SESSION AND THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS: * * *

IN VIEW OF THIS PROVISION OF LAW SPECIFICALLY NEGATIVING PAYMENT OF PER DIEM COMPENSATION TO BAILIFFS FOR HOLIDAYS EXCEPT UNDER THE CONDITIONS STATED IN THE STATUTE, IT MUST BE CONCLUDED THAT THEY ARE NOT "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT," WITHIN THE MEANING OF THE ACT OF JUNE 29, 1938, 52 STAT. 1246, QUOTED IN YOUR LETTER, AND THAT SAID STATUTE HAS NO APPLICATION TO THEM. SEE GENERALLY 7 COMP. GEN. 633; 12 ID. 267. SEE ALSO MCLEAN V. UNITED STATES, 23 CT.CLS. 401. ..END :