B-137990, JUL. 2, 1959

B-137990: Jul 2, 1959

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CLAIMS ADDITIONAL COMPENSATION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR SERVICES IN EXCESS OF 40 HOURS PER WEEK SAID TO HAVE BEEN RENDERED AS A BORDER PATROL OFFICER. YOU SAY THAT ALL HOURS OF OVERTIME PERFORMED BY YOU DURING THE PERIOD OF YOUR CLAIM WERE PERFORMED WITH THE KNOWLEDGE AND CONSENT OF YOUR LOCAL BORDER PATROL SECTOR AND DISTRICT SUPERVISORY AND ADMINISTRATIVE OFFICIALS AND WERE APPROVED BY THEM OR THEIR DESIGNATED REPRESENTATIVES THROUGH THE AFFIXING OF THEIR SIGNATURES TO TIME AND ATTENDANCE REPORTS AS EXAMINING AND APPROVING OFFICER. ADMINISTRATION WHICH EXISTED BETWEEN THE BORDER PATROL OF THE IMMIGRATION AND CUSTOMS SERVICES AT THE TIME THE CUSTOMS BORDER PATROL WAS IN EXISTENCE.

B-137990, JUL. 2, 1959

TO MR. ROBERT E. GARDNER:

YOUR LETTER OF OCTOBER 28, 1958, CLAIMS ADDITIONAL COMPENSATION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR SERVICES IN EXCESS OF 40 HOURS PER WEEK SAID TO HAVE BEEN RENDERED AS A BORDER PATROL OFFICER, IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE, DURING THE PERIOD NOVEMBER 20, 1945, TO APRIL 24, 1955.

YOU SAY THAT ALL HOURS OF OVERTIME PERFORMED BY YOU DURING THE PERIOD OF YOUR CLAIM WERE PERFORMED WITH THE KNOWLEDGE AND CONSENT OF YOUR LOCAL BORDER PATROL SECTOR AND DISTRICT SUPERVISORY AND ADMINISTRATIVE OFFICIALS AND WERE APPROVED BY THEM OR THEIR DESIGNATED REPRESENTATIVES THROUGH THE AFFIXING OF THEIR SIGNATURES TO TIME AND ATTENDANCE REPORTS AS EXAMINING AND APPROVING OFFICER. ALSO, YOU SAY THAT BECAUSE OF THE CLOSE ASSOCIATION AND SIMILARITY OF DUTIES, FUNCTIONS, ORGANIZATION, AND ADMINISTRATION WHICH EXISTED BETWEEN THE BORDER PATROL OF THE IMMIGRATION AND CUSTOMS SERVICES AT THE TIME THE CUSTOMS BORDER PATROL WAS IN EXISTENCE, YOUR CLAIM FOR PAYMENT IS BASED UPON DECISIONS OF THE UNITED STATES COURT OF CLAIMS IN NOS. 50303, 50367, AND 50471 (ANDERSON, ET AL. V. UNITED STATES, 136 C.CLS. 365), THROUGH WHICH BORDER PATROL OFFICERS OF THE CUSTOMS SERVICE WERE PAID FOR OVERTIME AS WAS PROVIDED FOR IN THE FEDERAL EMPLOYEES PAY ACT OF 1945.

SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, AS ORIGINALLY ENACTED AND AS AMENDED BY THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1109, PROVIDES FOR PAYMENT OF OVERTIME COMPENSATION TO CERTAIN EMPLOYEES FOR ALL HOURS OF WORK "OFFICIALLY ORDERED OR APPROVED" IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK.

REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION PURSUANT TO THE PROVISIONS OF LAW REFERRED TO ABOVE PROVIDE GENERALLY FOR PAYMENT FOR OVERTIME OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK. THE REGULATIONS ALSO PROVIDE THAT NO OVERTIME IN EXCESS OF ANY THAT MAY BE INCLUDED IN THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK SHALL BE ORDERED OR APPROVED EXCEPT IN WRITING BY AN OFFICER OR EMPLOYEE TO WHOM SUCH AUTHORITY HAS BEEN DELEGATED.

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 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. ALSO, THE SERVICE ADVISES THAT YOU HAVE BEEN PAID, OR GRANTED OR CREDITED WITH COMPENSATORY TIME, FOR ALL OVERTIME PROPERLY AUTHORIZED OR APPROVED IN ACCORDANCE WITH THE FOREGOING REGULATIONS AND PROCEDURES.

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 IN THE ANDERSON CASE CITED ABOVE.

IN VIEW OF THE ADMINISTRATIVE REPORT, AND OF THE APPLICABLE STATUTES AND REGULATIONS, YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR OVERTIME SERVICES MUST BE DISALLOWED.

CONCERNING YOUR REQUEST FOR PAYMENT FOR UNUSED COMPENSATORY TIME STANDING TO YOUR CREDIT, WE MUST ADVISE THAT THERE IS NO AUTHORITY FOR THE PAYMENT OF COMPENSATION FOR COMPENSATORY TIME CREDITED IN ACCORDANCE WITH SECTION 202 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND VARIOUS AMENDMENTS THERETO, 5 U.S.C. 912, IN THE ABSENCE OF A SHOWING THAT, BECAUSE OF AN EXIGENCY OF THE SERVICES BEYOND YOUR CONTROL, YOU HAVE NOT BEEN OR CANNOT BE GRANTED THE COMPENSATORY TIME. 25 COMP. GEN. 62; 26 ID. 750.