B-140955, OCT. 29, 1959

B-140955: Oct 29, 1959

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YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE FAIR LABOR STANDARDS ACT OF 1938 SPECIFICALLY EXEMPTS EMPLOYEES OF THE UNITED STATES GOVERNMENT FROM ITS PROVISIONS. THERE IS VESTED IN THE PRESIDENT OF THE UNITED STATES AUTHORITY TO PRESCRIBE REGULATIONS GOVERNING THE ADMINISTRATION OF THE ANNUAL AND SICK LEAVE THEREIN PROVIDED. IN SETTLING SIMILAR CLAIMS IT WAS REPORTED BY FIRST INDORSEMENT OF JUNE 20. THE CLAIMS MENTIONED IN THIS CORRESPONDENCE ARE NOT CONSIDERED PAYABLE. "3. INFORMATION IS FURNISHED THAT THIS HEADQUARTERS AND GENERAL HEADQUARTERS. FAR EAST COMMAND ARE CURRENTLY COMPLETING ACTION ON A PROPOSED REGULATION WHICH WILL AUTHORIZE LEAVE PRIVILEGES TO FILIPINO EMPLOYEES.'. AT THE TIME OF YOUR EMPLOYMENT WHAT IS SAID IN THE ABOVE QUOTATION APPLIED WITH EQUAL FORCE TO CIVILIAN LOCAL EMPLOYEES OF THE DEPARTMENT OF THE ARMY.

B-140955, OCT. 29, 1959

MR. AMADO D. OLIVEROS:

YOUR LETTER OF SEPTEMBER 3, 1959, REGISTER NO. 3097, REQUESTS RECONSIDERATION OF SETTLEMENTS OF NOVEMBER 2 AND 8, 1950, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF ACCRUED ANNUAL AND SICK LEAVE AND DIFFERENTIAL ALLEGED TO BE DUE AT THE TIME OF YOUR SEPARATION AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, HEADQUARTERS, TRANSPORTATION SERVICE, PHILIPPINES, RYUKYUS COMMAND, APO 707, DURING THE PERIOD SEPTEMBER 21, 1945, TO DECEMBER 27, 1947. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE FAIR LABOR STANDARDS ACT OF 1938 SPECIFICALLY EXEMPTS EMPLOYEES OF THE UNITED STATES GOVERNMENT FROM ITS PROVISIONS. ALSO, EXECUTIVE ORDER NO. 9414 OF JANUARY 13, 1944, EXCEPTED FROM THE PROVISIONS OF THE ANNUAL AND SICK LEAVE REGULATIONS ALL ALIEN AND NATIVE LABOR EMPLOYED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, THAT SAID EXECUTIVE ORDER AUTHORIZED THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT TO PROMULGATE REGULATIONS GOVERNING THE GRANTING OF LEAVE TO SUCH EMPLOYEES BUT NO SUCH REGULATIONS HAD BEEN PROMULGATED DURING THE PERIOD OF YOUR CLAIM.

UNDER SECTION 7 OF THE ANNUAL AND SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, THERE IS VESTED IN THE PRESIDENT OF THE UNITED STATES AUTHORITY TO PRESCRIBE REGULATIONS GOVERNING THE ADMINISTRATION OF THE ANNUAL AND SICK LEAVE THEREIN PROVIDED. PURSUANT TO THAT AUTHORITY THE PRESIDENT PROMULGATED EXECUTIVE ORDER NO. 9414 OF JANUARY 13, 1944, PRESCRIBING REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SECTION 6.1 THESE REGULATIONS SHALL NOT APPLY TO:

"/F) ALIEN AND NATIVE LABOR EMPLOYED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES; PROVIDED, THAT THE HEAD OR GOVERNING BODY OF ANY GOVERNMENTAL AGENCY WHICH EMPLOYS ALIEN AND NATIVE LABOR OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY PROMULGATE REGULATIONS GOVERNING THE GRANTING OF LEAVE TO SUCH EMPLOYEES.'

IN SETTLING SIMILAR CLAIMS IT WAS REPORTED BY FIRST INDORSEMENT OF JUNE 20, 1950, FROM HEADQUARTERS, FAR EAST AIR FORCE, AS FOLLOWS:

"1. THE GRANTING OF LEAVE PRIVILEGES TO FILIPINO EMPLOYEES HAD BEEN UNDER STUDY BY THIS HEADQUARTERS AND GENERAL HEADQUARTERS, FAR EAST COMMAND SINCE OCTOBER 1948. FINAL ADOPTION OF A PLAN HAS NOT BEEN POSSIBLE TO DATE DUE TO TURNOVER OF PERSONNEL IN PHILIPPINES AS MENTIONED IN PARAGRAPH 4 OF BASIC COMMUNICATION; ALSO STATUS OF EMPLOYMENT OF FILIPINOS IN OKINAWA AND GUAM HAS BEEN UNCERTAIN WITH HIGH RATE OF TURNOVER AND EXTREME DIFFICULTY IN PAYROLL ADMINISTRATION AS A RESULT.

"2. SINCE NO REGULATIONS EXIST WHICH AUTHORIZE SPECIFIC PERIOD OF LEAVE, THE CLAIMS MENTIONED IN THIS CORRESPONDENCE ARE NOT CONSIDERED PAYABLE.

"3. INFORMATION IS FURNISHED THAT THIS HEADQUARTERS AND GENERAL HEADQUARTERS, FAR EAST COMMAND ARE CURRENTLY COMPLETING ACTION ON A PROPOSED REGULATION WHICH WILL AUTHORIZE LEAVE PRIVILEGES TO FILIPINO EMPLOYEES.'

AT THE TIME OF YOUR EMPLOYMENT WHAT IS SAID IN THE ABOVE QUOTATION APPLIED WITH EQUAL FORCE TO CIVILIAN LOCAL EMPLOYEES OF THE DEPARTMENT OF THE ARMY.

IN VIEW OF THE LACK OF ANY ADMINISTRATIVE REGULATION DURING THE PERIOD OF YOUR CLAIM AUTHORIZING THE GRANTING OF LEAVE TO ALIEN OR NATIVE EMPLOYEES OUTSIDE THE CONTINENTAL UNITED STATES, THERE IS NO BASIS UPON WHICH YOUR CLAIM CAN BE ALLOWED.

CONCERNING THAT PART OF YOUR CLAIM, FOREIGN DIFFERENTIAL PAY WAS NOT AUTHORIZED BY ANY STATUTE BUT WAS PERMITTED UNDER AN ADMINISTRATIVELY ESTABLISHED PRACTICE WHICH, HOWEVER, WAS APPLIED ONLY TO CITIZENS OF THE UNITED STATES WHO WERE EMPLOYED OUTSIDE THE CONTINENTAL UNITED STATES. DIFFERENTIAL WAS PAYABLE TO PERSONS EMPLOYED LOCALLY OUTSIDE THE UNITED STATES.

THEREFORE, YOUR CLAIM WAS PROPERLY DISALLOWED AND UPON REVIEW THE DISALLOWANCE MUST BE AND IS SUSTAINED.