B-121160, OCT. 10, 1956

B-121160: Oct 10, 1956

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REQUESTS OUR RECONSIDERATION OF NOTICES OF EXCEPTION NOS. 509946 AND 509947 WHICH WERE STATED AGAINST LT. WHO APPEARS TO HAVE SERVED ON A WHEN-ACTUALLY-EMPLOYED BASIS AT THE FORT BELVOIR (VIRGINIA) HOSPITAL UNDER THE FACTS AND CIRCUMSTANCES INDICATED BELOW. - TO PER ANNUM FULL-TIME CIVILIAN EMPLOYEES IS PROVIDED IN THE FEDERAL EMPLOYEES PAY ACT OF 1945. THE TERM "FULL-TIME SERVICE" CONSISTENTLY HAS BEEN CONSIDERED TO MEAN THE DUTY WHICH IS OFFICIALLY PRESCRIBED BY THE SUPERIOR OF THE OFFICER OR EMPLOYEE INVOLVED AND IS REQUIRED TO BE PERFORMED DURING THE BASIC 40-HOUR WORKWEEKS ADMINISTRATIVELY SCHEDULED IN ADVANCE IN THE MANNER PRESCRIBED IN SUBSECTIONS 604 (A) (1) AND (2) OF THE 1945 PAY ACT.

B-121160, OCT. 10, 1956

TO CHIEF OF FINANCE, DEPARTMENT OF THE ARMY:

THE CHIEF OF SPECIAL CLAIMS DIVISION, SETTLEMENT OPERATIONS, ARMY FINANCE CENTER, IN LETTER DATED JULY 13, 1956, FILE FINCT-E-1-201 ST. JOHN, WILLIAM T. (CIV.), REQUESTS OUR RECONSIDERATION OF NOTICES OF EXCEPTION NOS. 509946 AND 509947 WHICH WERE STATED AGAINST LT. COL. R. J. CLYNES AND MAJOR J. M. HEREDIA, RESPECTIVELY, ON ACCOUNT OF THEIR PAYMENTS OF NIGHT DIFFERENTIAL TO CERTAIN PHYSICIANS (CIVILIAN EMPLOYEES), INCLUDING DR. ST. JOHN, WHO APPEARS TO HAVE SERVED ON A WHEN-ACTUALLY-EMPLOYED BASIS AT THE FORT BELVOIR (VIRGINIA) HOSPITAL UNDER THE FACTS AND CIRCUMSTANCES INDICATED BELOW. THIS MATTER ALSO RELATES TO OUR LETTER OF SEPTEMBER 21, 1954, TO THE DIRECTOR OF CIVILIAN PERSONNEL, AND HIS REPLY DATED NOVEMBER 30, 1954, CONCERNING THE CASE OF DR. JAMES M. FRAWLEY.

THE ABOVE REQUEST FOR REVIEW OF OUR AUDIT EXCEPTIONS HAVING BEEN RECEIVED FROM AN OFFICER OTHER THAN THE DISBURSING OFFICERS INVOLVED AND IN THE OTHER CIRCUMSTANCES OF THE MATTER WE DEEM IT PROPER TO ADDRESS OUR REPLY TO YOU.

AUTHORITY FOR THE PAYMENT OF PREMIUM PAY--- SUCH AS NIGHT DIFFERENTIAL--- TO PER ANNUM FULL-TIME CIVILIAN EMPLOYEES IS PROVIDED IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. IN ACCORDANCE WITH THAT ACT AS AMENDED SEPTEMBER 1, 1954, 68 STAT. 1109 TO 1112, AN ENTITLEMENT TO SUCH PREMIUM COMPENSATION DEPENDS UPON WHETHER THE CIVILIAN OFFICER OR EMPLOYEE GENERALLY RENDERS ,FULL-TIME" SERVICE. THE TERM "FULL-TIME SERVICE" CONSISTENTLY HAS BEEN CONSIDERED TO MEAN THE DUTY WHICH IS OFFICIALLY PRESCRIBED BY THE SUPERIOR OF THE OFFICER OR EMPLOYEE INVOLVED AND IS REQUIRED TO BE PERFORMED DURING THE BASIC 40-HOUR WORKWEEKS ADMINISTRATIVELY SCHEDULED IN ADVANCE IN THE MANNER PRESCRIBED IN SUBSECTIONS 604 (A) (1) AND (2) OF THE 1945 PAY ACT, AS AMENDED SEPTEMBER 1, 1954, 68 STAT. 1112, 5 U.S.C. 944. PERMISSIBLE VARIATIONS OF THE BASIC WORKWEEKS OF FULL-TIME EMPLOYEES ARE DESCRIBED IN THE CIVIL SERVICE REGULATIONS, 5 C.F.R. 25.211.

THE AUDIT EXCEPTIONS HERE INVOLVED ARE PREDICATED UPON THE RULES OF OUR DECISIONS AT 28 COMP. GEN. 328 (B-79779), AND 34 COMP. GEN. 471 (B 121978), AND ALSO, UPON THE FACT THAT NO OFFICIAL EVIDENCE HAS BEEN FURNISHED ADMINISTRATIVELY TO SHOW UNEQUIVOCALLY THAT REGULAR 40-HOUR WORKWEEKS OR FULL-TIME TOURS OF DUTY HAD BEEN OFFICIALLY PRESCRIBED (FOR THE PHYSICIANS HERE IN QUESTION) AS CONTEMPLATED BY THE ABOVE CITED ACT AND REGULATIONS. THE RECORD HERE INDICATES THAT FOR PRACTICAL REASONS THESE PHYSICIANS WERE NOT ASSIGNED REGULAR 40-HOUR TOURS OF DUTY, AND THAT THEY WERE PERMITTED ADMINISTRATIVELY TO ARRANGE THEIR OWN SERVICE PERIODS AND HOURS OF DUTY--- LARGELY AS AN EXPEDIENCY TO OBTAIN THEIR PROFESSIONAL SERVICES. THEREFORE, IN THE ABSENCE OF A CONTRACT SO PROVIDING, WE DO NOT REGARD SUCH CIRCUMSTANCES AS VALID EXCEPTIONS FROM THE RESTRICTION THAT THE PREMIUM COMPENSATION PROVISIONS OF THE 1945 PAY ACT MAY BE GRANTED TO ONLY THOSE EMPLOYEES WHO PERFORM THE DUTIES OF FULL-TIME POSITIONS WHICH OTHERWISE COME WITHIN THE PURVIEW OF THE OTHER CONTROLLING PROVISIONS OF THE 1945 PAY ACT OR THE REGULATIONS THEREUNDER, AS AMENDED. THE PRINCIPLES STATED AT 34 COMP. GEN. 471 REGARDING OVERTIME PAY UNDER THE 1945 ACT ALSO ARE APPLICABLE TO THE NIGHT DIFFERENTIAL PROVISIONS OF THE SAID ACT. COMPARE 25 COMP. GEN. 102 (SECOND HEADNOTE), AND 33 COMP. GEN. 4, BOTH OF WHICH DEAL WITH INSTANCES WHERE AN EMPLOYEE TEMPORARILY IS ASSIGNED TO PERFORM THE SCHEDULED NIGHT WORK OF A REGULARLY SCHEDULED 40- HOUR OR FULL-TIME POSITION OTHER THAN HIS OWN REGULARLY SCHEDULED TOUR OF DUTY.

ACCORDINGLY, OUR VIEW IN THIS CASE IS THAT THESE PHYSICIANS WHOSE SERVICES WERE OR ARE ENGAGED ON A "WHEN ACTUALLY EMPLOYED" BASIS ARE ENTITLED ONLY TO STRAIGHT TIME COMPENSATION FOR THE HOURS THEY WORKED IN A PARTICULAR BIWEEKLY PAY PERIOD, IRRESPECTIVE OF THE DAY OR NIGHT HOURS INVOLVED AND REGARDLESS OF WHETHER THEY PERFORMED SERVICES IN EXCESS OF 40 HOURS IN ANY WEEK. SIMILARLY, SINCE THE BASIC COMPENSATION RATES OF THESE PHYSICIANS ARE NOT PAYABLE "BY REASON OF THE NACTMENT" OF THE 1945 PAY ACT, AS AMENDED, THEIR AGGREGATE COMPENSATION FOR ANY BIWEEKLY PAY PERIOD IS NOT SUBJECT TO THE AGGREGATE COMPENSATION LIMITATIONS CONTAINED IN SECTION 603 OF THE 1945 ACT, 68 STAT. 1112, 5 U.S.C. 943.

ON THE OTHER HAND, IF--- AS IS NOW URGED BY THE CHIEF, PROCEDURES AND REGULATIONS DIVISION, IN HIS MEMORANDUM OF JUNE 28, 1956, TO YOUR OFFICE-- - THESE PHYSICIANS SHOULD BE REGARDED AS PERFORMING ADMINISTRATIVELY PRESCRIBED FULL-TIME TOURS OF DUTY WITHIN THE PURVIEW OF ANY PROVISION OF THE 1945 PAY ACT, THEIR COMPENSATION RATES AND AGGREGATE PAY THEREBY WOULD BECOME SUBJECT TO THE OTHER LIMITATIONS AND REQUIREMENTS OF THAT ACT--- SUCH AS THE PRORATA OVERTIME LIMITATION PRESCRIBED IN SECTION 201 (B), AND THE AGGREGATE COMPENSATION LIMITATION CONTAINED IN SECTION 603 (B) THEREOF. HOWEVER, IN THE ABSENCE OF APPROPRIATE OFFICIAL EVIDENCE CLEARLY SHOWING THAT SUCH IS THE CASE, WE HAVE NO ALTERNATIVE BUT TO HOLD THAT THE PHYSICIANS IN QUESTION ARE NOT ENTITLED TO NIGHT DIFFERENTIAL PAY UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.

ACCORDINGLY, BASED UPON THE PRESENT RECORD, THE AUDIT EXCEPTIONS NOS. 509946 AND 509947 APPEAR ..END :