B-134761, MAR. 19, 1958

B-134761: Mar 19, 1958

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ALL HOURS OF DUTY PERFORMED BY ME WERE REPORTED ON DAILY REPORT FORM I-50 WHICH WERE EXAMINED AND APPROVED BY MY SUPERVISORY OFFICER. TIME AND ATTENDANCE REPORTS WERE PREPARED BY MY SUPERVISORY OFFICER. WHO WAS MY TIMEKEEPER. WERE SUBMITTED TO THE PROPER FINANCE OFFICER IN ACCORDANCE WITH OUTSTANDING INSTRUCTIONS. "ALL OF THE OVERTIME FOR WHICH I CLAIM PAYMENT WAS REPORTED ON BOTH FORMS UNDER A COLUMN LABELED "VOLUNTARY OVERTIME OF VT.'. THIS WAS DONE BECAUSE OF INSTRUCTIONS WHICH REQUIRED THAT IT BE REPORTED IN THAT MANNER. THE OVERTIME DUTIES PERFORMED BY ME WERE NOT VOLUNTARILY PERFORMED IN ANY SENSE OF THE WORD BUT WERE REQUIRED BY MY SUPERVISORY OFFICERS AND WAS APPROVED BY ALL CONCERNED.'.

B-134761, MAR. 19, 1958

TO MR. JOHN F. RHOADS:

YOUR LETTER OF OCTOBER 15, 1957, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF AUGUST 7, 1952, WHICH DISALLOWED YOUR CLAIM (RECEIVED HERE FEBRUARY 13, 1950) FOR OVERTIME COMPENSATION FOR SERVICES RENDERED AS A PATROL INSPECTOR, IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE.

YOU SAY IN YOUR LETTER THAT:

"DURING THIS PERIOD OF TIME I PERFORMED MY ACCUSTOMED DUTIES AS A PATROL INSPECTOR IN EXCESS OF EIGHT HOURS A DAY AND IN EXCESS OF 40 HOURS A WEEK. ALL HOURS OF DUTY PERFORMED BY ME WERE REPORTED ON DAILY REPORT FORM I-50 WHICH WERE EXAMINED AND APPROVED BY MY SUPERVISORY OFFICER. STANDARD FORMS 1130, TIME AND ATTENDANCE REPORTS WERE PREPARED BY MY SUPERVISORY OFFICER, WHO WAS MY TIMEKEEPER, AND WERE SUBMITTED TO THE PROPER FINANCE OFFICER IN ACCORDANCE WITH OUTSTANDING INSTRUCTIONS.

"ALL OF THE OVERTIME FOR WHICH I CLAIM PAYMENT WAS REPORTED ON BOTH FORMS UNDER A COLUMN LABELED "VOLUNTARY OVERTIME OF VT.' THIS WAS DONE BECAUSE OF INSTRUCTIONS WHICH REQUIRED THAT IT BE REPORTED IN THAT MANNER. THE OVERTIME DUTIES PERFORMED BY ME WERE NOT VOLUNTARILY PERFORMED IN ANY SENSE OF THE WORD BUT WERE REQUIRED BY MY SUPERVISORY OFFICERS AND WAS APPROVED BY ALL CONCERNED.'

YOU SAY YOU CLAIM PAYMENT FOR THE OVERTIME ON THE BASIS OF THE DECISIONS RENDERED IN FARLEY V. UNITED STATES, 131 C.CLS. 776, SCHAIBLE, SANDERSON, AND HANDLEY ET AL. V. UNITED STATES, 135 C.CLS. 890, AND ANDERSON ET AL. V. UNITED STATES, C.CLS. NO. 50303, DECIDED JULY 12, 1956.

ALTHOUGH YOU MAKE CLAIM FOR PERIOD PRIOR TO JULY 1, 1945, YOUR REQUEST CONTAINS THIS HEADING:

"RE: CLAIM FOR ADDITIONAL PAY UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.'

SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (WHICH BECAME EFFECTIVE JULY 1, 1945), 59 STAT. 296, AS AMENDED, 68 STAT. 1109, REQUIRES PAYMENT OF OVERTIME COMPENSATION TO CERTAIN EMPLOYEES FOR ALL HOURS OF WORK "OFFICIALLY ORDERED OR APPROVED" IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORK WEEK AT THE RATES SET FORTH THEREIN.

CIVIL SERVICE REGULATIONS ISSUED PURSUANT TO SECTION 201 PROVIDE GENERALLY FOR PAYMENT FOR OVERTIME OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORK WEEK. THE REGULATIONS ALSO PROVIDE THAT NO OVERTIME IN EXCESS OF ANY THAT MAY BE INCLUDED IN THE REGULARLY SCHEDULED ADMINISTRATIVE WORK WEEK SHALL BE ORDERED OR APPROVED EXCEPT IN WRITING BY AN OFFICER OR EMPLOYEE TO WHOM SUCH AUTHORITY HAS BEEN DELEGATED. ALSO, REGULATIONS ISSUED INCIDENT TO THE PAY ACTS IN EFFECT BETWEEN DECEMBER 1, 1942, AND JUNE 30, 1945, PROVIDED SUBSTANTIALLY THE SAME AS THE REGULATIONS ISSUED PURSUANT TO THE 1945 PAY ACT. (PRIOR TO DECEMBER 1, 1942, YOU DID NOT FALL UNDER THE PROVISIONS OF ANY LAW AUTHORIZING THE PAYMENT OF OVERTIME COMPENSATION.)

WE HAVE BEEN ADVISED BY THE IMMIGRATION AND NATURALIZATION SERVICE THAT ATTORNEY GENERAL'S ORDER NO. 1 REQUIRES THAT ALL PAID OVERTIME IN THE DEPARTMENT OF JUSTICE MUST BE ORDERED BY THE HEAD OF THE DIVISION OR OFFICE AND APPROVED IN ADVANCE BY THE DEPUTY ATTORNEY GENERAL OR THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE. THE SERVICE ALSO ADVISES THAT ITS RECORDS INDICATE THERE WERE NO HOURS OF WORK IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORK WEEK WHICH WERE OFFICIALLY ORDERED OR APPROVED BY COMPETENT AUTHORITY FOR WHICH YOU HAVE NOT BEEN PAID.

THE COURT CASES CITED BY YOU ARE NOT APPLICABLE TO YOUR CLAIM. IN FARLEY V. UNITED STATES, IT APPEARS THE CLAIMANT WAS REQUIRED TO REMAIN ON DUTY OR TO PERFORM EXTRA DUTY AS A CONDITION OF HER EMPLOYMENT. THE IMMIGRATION AND NATURALIZATION SERVICE ADVISES THAT THERE IS NO RECORD OF ANY ORDER DIRECTING YOU TO REMAIN ON DUTY OR TO PERFORM EXTRA DUTY AS A CONDITION OF YOUR EMPLOYMENT.

IN HANDLEY ET AL. V. UNITED STATES, THE COURT HELD THAT ACCEPTANCE BY A GOVERNMENT EMPLOYEE OF LESS THAN THE LAWFUL COMPENSATION UNDER A MISTAKE OF LAW DOES NOT BAR THE CLAIM FOR THE DIFFERENCE AT A LATER DATE. INDICATED ABOVE, IT APPEARS YOU WERE PAID ALL THE COMPENSATION LAWFULLY DUE YOU FOR OVERTIME.

MOREOVER, WE ARE UNABLE TO CONCLUDE FROM THE PRESENT RECORD THAT YOU WERE INDUCED TO PERFORM OVERTIME BY A SUBORDINATE OFFICER WITH THE FULL KNOWLEDGE AND APPROVAL AND UNDER THE LEADERSHIP AND SPECIFIC SUGGESTION OF THE CHIEF OF THE SERVICE AS WAS FOUND TO BE THE CASE IN ANDERSON ET AL. V. UNITED STATES.

IN VIEW OF THE ADMINISTRATIVE REPORT SHOWING THAT NO OVERTIME SERVICE IN YOUR CASE HAD BEEN AUTHORIZED OR APPROVED BY COMPETENT AUTHORITY, EXCEPT SUCH AS ALREADY HAS BEEN ADMINISTRATIVELY PAID FOR, AND IN LIGHT OF THE APPLICABLE STATUTES AND REGULATIONS, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER. HENCE, THE SETTLEMENT IS SUSTAINED.