B-105070, SEPTEMBER 5, 1951, 31 COMP. GEN. 73

B-105070: Sep 5, 1951

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PRECLUDING THE PAYMENT OF OVERTIME COMPENSATION BY THE IMMIGRATION AND NATURALIZATION SERVICE OTHER THAN AS PROVIDED IN THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946 PLACED A SPECIFIC LIMITATION UPON THE USE OF APPROPRIATED FUNDS FOR THE FISCAL YEAR 1948 WHICH THE GENERAL ACCOUNTING OFFICE IS REQUIRED TO OBSERVE AND IS WITHOUT AUTHORITY TO CERTIFY FOR PAYMENT CLAIMS FOR OVERTIME COMPENSATION CONTRARY THERETO. 1951: REFERENCE IS MADE TO YOUR LETTER OF JULY 16. SAID CLAIM WAS DISALLOWED BY SETTLEMENT DATED DECEMBER 19. IT WAS HELD IN OFFICE DECISION OF AUGUST 19. THAT THE EFFECT OF THE ABOVE-QUOTED PROVISION OF LAW WAS TO SUSPEND DURING THE FISCAL YEAR 1948 THE PROVISIONS OF THE ACT OF MARCH 2.

B-105070, SEPTEMBER 5, 1951, 31 COMP. GEN. 73

COMPENSATION - OVERTIME - IMMIGRATION AND NATURALIZATION SERVICE EMPLOYEES - APPROPRIATION AVAILABILITY THE PROVISO IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1948, PRECLUDING THE PAYMENT OF OVERTIME COMPENSATION BY THE IMMIGRATION AND NATURALIZATION SERVICE OTHER THAN AS PROVIDED IN THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946 PLACED A SPECIFIC LIMITATION UPON THE USE OF APPROPRIATED FUNDS FOR THE FISCAL YEAR 1948 WHICH THE GENERAL ACCOUNTING OFFICE IS REQUIRED TO OBSERVE AND IS WITHOUT AUTHORITY TO CERTIFY FOR PAYMENT CLAIMS FOR OVERTIME COMPENSATION CONTRARY THERETO, NOTWITHSTANDING DECISION BY THE COURT OF CLAIMS THAT THE LIMITATION DID NOT PRECLUDE PAYMENT UNDER THE ACT OF MARCH 2, 1931, FROM OTHER APPROPRIATIONS.

COMPTROLLER GENERAL WARREN TO HAROLD E. HULSING, SEPTEMBER 5, 1951:

REFERENCE IS MADE TO YOUR LETTER OF JULY 16, 1951, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR SERVICES RENDERED DURING THE FISCAL YEAR 1948 AS AN EMPLOYEE OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE. SAID CLAIM WAS DISALLOWED BY SETTLEMENT DATED DECEMBER 19, 1950, FOR THE REASON THAT THE SO-CALLED " BALL PROVISO" IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1948, APPROVED JULY 9, 1947, 61 STAT. 292, PRECLUDED PAYMENT FOR OVERTIME SERVICES DURING THE FISCAL YEAR 1948 AT ANY RATE OTHER THAN THE RATES FIXED BY THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946, 59 STAT. 296 AND 60 STAT. 217, RESPECTIVELY.

THE ABOVE-MENTIONED PROVISO READS AS FOLLOWS:

* * * PROVIDED, THAT NONE OF THE FUNDS APPROPRIATED FOR THE IMMIGRATION AND NATURALIZATION SERVICE SHALL BE USED TO PAY COMPENSATION FOR OVERTIME SERVICES OTHER THAN AS PROVIDED IN THE FEDERAL EMPLOYEES PAY ACT OF 1945 ( PUBLIC LAW 106, SEVENTY-NINTH CONGRESS, FIRST SESSION) AND THE FEDERAL EMPLOYEES PAY ACT, OF 1946 ( PUBLIC LAW 390, SEVENTY-NINTH CONGRESS, SECOND SESSION) * * *.

IT WAS HELD IN OFFICE DECISION OF AUGUST 19, 1947, 27 COMP. GEN. 102, THAT THE EFFECT OF THE ABOVE-QUOTED PROVISION OF LAW WAS TO SUSPEND DURING THE FISCAL YEAR 1948 THE PROVISIONS OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467, FOR THE PAYMENT OF EXTRA COMPENSATION FOR OVERTIME AT THE RATES THEREIN PROVIDED, AND TO SUBSTITUTE THEREFOR THE PERTINENT PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946. SUBSEQUENTLY, HOWEVER, THE COURT OF CLAIMS HELD IN GIBNEY V. UNITED STATES, 114 C.1CLS. 38, (1) THAT, AT MOST, THE PROVISO HAD THE EFFECT ONLY OF LIMITING THE EXPENDITURE OF A PARTICULAR FUND, WHICH DID NOT PRECLUDE THE COURT FROM RENDERING JUDGMENT--- PAYABLE, IF AT ALL, FROM OTHER APPROPRIATIONS--- FOR PAYMENT UNDER THE 1931 ACT; AND (2) THAT, IN ANY EVENT, THE " BALL PROVISO" DID NOT PREVENT PAYMENT UNDER THE 1931 ACT SINCE SECTION 601 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 302, CONTAINED A PROVISION THAT:

THE PROVISIONS OF THIS ACT SHALL NOT OPERATE TO PREVENT PAYMENT FOR OVERTIME SERVICES OR EXTRA PAY FOR SUNDAY OR HOLIDAY WORK IN ACCORDANCE WITH ANY OF THE FOLLOWING STATUTES: * * * ACT OF MARCH 2, 1931 * * *.

WHILE DECISIONS OF THE COURT OF CLAIMS ARE GIVEN CAREFUL CONSIDERATION IN RELATION TO MATTERS COMING BEFORE THIS OFFICE, SUCH DECISIONS ARE NOT BINDING UPON THIS OFFICE. 14 COMP. GEN. 648.

WITH RESPECT TO (1) MENTIONED ABOVE, IT MAY BE STATED THAT, AS DISTINGUISHED FROM THE POSITION TAKEN BY THE COURT OF CLAIMS, THE GENERAL ACCOUNTING OFFICE IS REQUIRED TO OBSERVE SPECIFIC LIMITATIONS, SUCH AS THE " BALL PROVISO" HERE INVOLVED, PLACED BY CONGRESS UPON THE USE OF APPROPRIATED FUNDS AND, THEREFORE, IS WITHOUT AUTHORITY TO CERTIFY CLAIMS FOR PAYMENT CONTRARY TO LIMITATIONS UPON THE FUNDS FROM WHICH PAYABLE.

WITH RESPECT TO (2) ABOVE, IT IS THE POSITION OF THIS OFFICE THAT SOME EFFECT MUST BE GIVEN TO THE " BALL PROVISO" AND THAT THE HOLDING IN 27 COMP. GEN. 102, SUPRA, REPRESENTS THE EFFECT INTENDED BY CONGRESS. ANY OTHER CONSTRUCTION RENDERS THE PROVISO MEANINGLESS, CONTRARY TO FUNDAMENTAL PRINCIPLES OF STATUTORY CONSTRUCTION.

IN VIEW OF THE FOREGOING, IT MUST BE HELD THAT YOUR CLAIM PROPERLY WAS DISALLOWED BY THE SETTLEMENT OF DECEMBER 19, 1950, AND, UPON REVIEW, SAID SETTLEMENT MUST BE, AND IS, SUSTAINED.