B-116352, MAY 1, 1958

B-116352: May 1, 1958

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SAM WERTLEB: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8. UPON RECONSIDERATION OF YOUR CLAIM WE HAVE DETERMINED THAT YOU ARE CORRECT IN YOUR CONTENTION THAT YOUR POSITION WAS CREATED BY SECTION 403. UNITED STATES COMMISSIONERS WHO ARE REQUIRED TO DEVOTE FULL TIME TO THE DUTIES OF THEIR OFFICE ARE ALLOWED THE NECESSARY EXPENSES BY 28 U.S.C. 633 (C) WHICH PROVIDES: " "/C) UNITED STATES COMMISSIONERS WHO ARE REQUIRED TO DEVOTE FULL TIME TO THE PERFORMANCE OF THE DUTIES OF THE OFFICE. IS MADE INAPPLICABLE TO UNITED STATES COMMISSIONERS FOR THE DISTRICT OF COLUMBIA (SEE NOTE TO 28 U.S.C. 633) AND IS NOT TO BE CONSTRUED AS REPEALING SECTION 403 OF THE DISTRICT OF COLUMBIA LAW ENFORCEMENT ACT OF 1953.

B-116352, MAY 1, 1958

TO MR. SAM WERTLEB:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1958, REQUESTING REVIEW OF OFFICE SETTLEMENT OF JANUARY 9, 1957, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF 187 1/2 HOURS OF ACCUMULATED OVERTIME (COMPENSATORY TIME) EARNED WHILE SERVING AS A CLERK TO UNITED STATES COMMISSIONER CYRIL S. LAWRENCE DURING THE PERIOD FROM FEBRUARY 15, 1954, TO JULY 7, 1956.

UPON RECONSIDERATION OF YOUR CLAIM WE HAVE DETERMINED THAT YOU ARE CORRECT IN YOUR CONTENTION THAT YOUR POSITION WAS CREATED BY SECTION 403, DISTRICT OF COLUMBIA LAW ENFORCEMENT ACT OF 1953, PUBLIC LAW 85, 83D CONGRESS, APPROVED JUNE 29, 1953, SEC. 11-332, D.C. CODE. THIS SECTION PROVIDES AS FOLLOWS:

"EACH UNITED STATES COMMISSIONER FOR THE DISTRICT MAY EMPLOY SECRETARIAL AND CLERICAL ASSISTANTS IN SUCH NUMBER AND INCUR SUCH OTHER EXPENSES AS THE DISTRICT COURT CONSIDERS CESSARY.'

UNITED STATES COMMISSIONERS WHO ARE REQUIRED TO DEVOTE FULL TIME TO THE DUTIES OF THEIR OFFICE ARE ALLOWED THE NECESSARY EXPENSES BY 28 U.S.C. 633 (C) WHICH PROVIDES:

" "/C) UNITED STATES COMMISSIONERS WHO ARE REQUIRED TO DEVOTE FULL TIME TO THE PERFORMANCE OF THE DUTIES OF THE OFFICE, AS DETERMINED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS UNDER THE SUPERVISION AND DIRECTION OF THE JUDICIAL CONFERENCE OF THE UNITED STATES AND WHO DO NOT ENGAGE IN THE PRACTICE OF THE LAW, SHALL BE ALLOWED THEIR ACTUAL AND NECESSARY OFFICE EXPENSES, INCLUDING THE COMPENSATION OF A NECESSARY CLERICAL ASSISTANT. SUCH OFFICE EXPENSE SHALL BE DETERMINED AND PAID AND SUCH COMPENSATION SHALL BE FIXED AND PAID BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS UNDER THE PROVISIONS OF SECTION 604 OF THIS TITLE.'"

THIS SECTION, HOWEVER, IS MADE INAPPLICABLE TO UNITED STATES COMMISSIONERS FOR THE DISTRICT OF COLUMBIA (SEE NOTE TO 28 U.S.C. 633) AND IS NOT TO BE CONSTRUED AS REPEALING SECTION 403 OF THE DISTRICT OF COLUMBIA LAW ENFORCEMENT ACT OF 1953.

IN OFFERING THE AMENDMENT TO MAKE THE PROVISIONS OF 28 U.S.C. 633 (C) INAPPLICABLE TO THE UNITED STATES COMMISSIONER FOR THE DISTRICT OF COLUMBIA, SENATOR BARRETT STATED:

"MR. BARRETT. MR. PRESIDENT, THE PURPOSE OF THIS AMENDMENT IS TO PREVENT ANY CONFUSION AS TO THE INTENT OF CONGRESS WITH REGARD TO THE OFFICE EXPENSES OF THE UNITED STATES COMMISSIONER FOR THE DISTRICT OF COLUMBIA.

"LAST YEAR THE CONGRESS PASSED THE DISTRICT OF COLUMBIA LAW ENFORCEMENT ACT OF 1953, SECTION 403 OF WHICH PROVIDES AS FOLLOWS:

"EACH UNITED STATES COMMISSIONER FOR THE DISTRICT MAY EMPLOY SECRETARIAL AND CLERICAL ASSISTANTS IN SUCH NUMBER AND INCUR SUCH OTHER EXPENSES AS THE DISTRICT COURT CONSIDERS NECESSARY.

"THE BILL BEFORE US, S. 2204, SEEKS TO MAKE SIMILAR PROVISION FOR ALL UNITED STATES COMMISSIONERS, BUT DOES IT IN A SOMEWHAT DIFFERENT MANNER. IT PROVIDES THAT NECESSARY OFFICE EXPENSES SHALL BE ALLOWED UNITED STATES COMMISSIONERS WHO ARE REQUIRED TO DEVOTE FULL TIME TO THE DUTIES OF THE OFFICE. THE EXPENSES WOULD BE ALLOWED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.

"PURSUANT TO THE LAW PASSED LAST YEAR FOR THE DISTRICT, THE DISTRICT COURT HERE HAS ALLOWED THE UNITED STATES COMMISSIONER FOR THE DISTRICT OF COLUMBIA TWO ASSISTANTS--- A GS-9 AND GS-6. IF THE PROVISIONS OF S. 2204 WERE APPLIED TO THE LOCAL SITUATION, THE COMMISSIONER WOULD BE LIMITED TO ONE ASSISTANT.

"FINALLY, IF THE PROVISIONS OF S. 2204 WERE APPLIED LOCALLY, THE ALLOWANCE OF THESE OFFICE EXPENSES WOULD BE TRANSFERRED FROM THE LOCAL DISTRICT COURT--- WHICH KNOWS THESE PROBLEMS FIRSTHAND--- TO A FEDERAL OFFICIAL WHO PROBABLY WOULD BE INCLINED TO APPLY A NATIONAL, UNIFORM POLICY TO THE DISTRICT SITUATION THAT MIGHT NOT MEET THE PECULIAR NEEDS OF THIS JURISDICTION.

"FOR THESE REASONS, MR. PRESIDENT, I ASK THAT S. 2204 BE AMENDED BY ADDING A NEW SECTION TO MAKE CLEAR THAT THE PROVISIONS OF THIS ACT SHALL NOT APPLY TO A UNITED STATES COMMISSIONER FOR THE DISTRICT OF COLUMBIA AND SHALL NOT BE DEEMED TO MODIFY, SUPERSEDE, OR REPEAL THE PROVISIONS OF SECTION 403 OF THE DISTRICT OF COLUMBIA LAW ENFORCEMENT ACT OF 1953.' 100 CONG.REC. 7822-7823 (1954).

IT IS EVIDENT THAT THE PURPOSE OF THE AMENDMENT BY SENATOR BARRETT WAS TO MAINTAIN IN THE DISTRICT COURT THE POWER GRANTED BY SECTION 403 OF THE DISTRICT OF COLUMBIA LAW ENFORCEMENT ACT OF 1953 TO REGULATE THE NECESSARY OFFICE EXPENSES OF THE UNITED STATES COMMISSIONER FOR THE DISTRICT OF COLUMBIA DUE TO THE UNIQUE AND MORE EXTENSIVE DUTIES ATTACHED TO THIS OFFICE. YOUR POSITION, THEREFORE, IS NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, BUT RATHER WAS FIXED BY THE DISTRICT COURT. THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, WHICH AUTHORIZE OVERTIME COMPENSATION ARE NOT APPLICABLE TO EMPLOYEES OF THE COURTS WHO OCCUPIED POSITIONS NOT SUBJECT TO THE CLASSIFICATION ACT. CF. 25 COMP. GEN. 310. ACCORDINGLY, AND AS WE ARE NOT AWARE OF ANY OTHER STATUTORY AUTHORITY AUTHORIZING PAYMENT OF OVERTIME TO YOU, WE FIND NO LEGAL BASIS FOR PAYMENT OF YOUR CLAIM FOR OVERTIME COMPENSATION FOR 187 1/2 HOURS OF UNUSED COMPENSATORY TIME.