B-134289, MAR. 3, 1958

B-134289, MAR. 3, 1958

TO MR. A. PHILIP WALKER:

ON OCTOBER 22, 1957, YOU REQUESTED REVIEW OF OUR SETTLEMENT OF JULY 17, 1956, WHICH DISALLOWED YOUR CLAIM AS AN EMPLOYEE OF THE UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, NOGALES, ARIZONA, FOR 15 PERCENT PREMIUM COMPENSATION FOR THE PERIODS JUNE 26 TO JULY 16, 1955, AND OCTOBER 9, 1955, TO FEBRUARY 11, 1956. ON SEPTEMBER 19, 1957, YOU MADE CLAIM FOR COMPENSATION FOR OVERTIME SERVICES AS AN EMPLOYEE OF THE SERVICE FOR THE PERIOD JULY 1, 1945, TO APRIL 23, 1955.

THE IMMIGRATION AND NATURALIZATION SERVICE HAS REPORTED THAT UNDER THEIR REGULATIONS YOU WERE CERTIFIED INELIGIBLE TO RECEIVE THE 15 PERCENT PREMIUM COMPENSATION FOR THE PERIODS CLAIMED. YOU CONTEND THAT THE REGULATIONS OF THE CIVIL SERVICE COMMISSION AND THE IMMIGRATION AND NATURALIZATION SERVICE WHICH ADMINISTRATIVELY PRESCRIBE MINIMUM STANDARDS TO BE MET BY THE EMPLOYEE FOR ELIGIBILITY TO DERIVE THE BENEFIT OF THE STATUTE PROVIDING FOR THE PREMIUM COMPENSATION DENY THE SUBSTANCE OF THE STATUTE SINCE THE STATUTE IS CONCERNED WITH HOURS OF DUTY THAT CANNOT BE ADMINISTRATIVELY CONTROLLED, AND THE EFFECT OF THE REGULATIONS IS TO PLACE ADMINISTRATIVE CONTROL OVER AN EMPLOYEE'S OTHERWISE UNSCHEDULED HOURS.

SECTION 208 (A) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1111, PROVIDES THAT THE HEAD OF ANY DEPARTMENT OR AGENCY MAY WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION PROVIDE THAT ANY EMPLOYEE IN A POSITION IN WHICH THE HOURS OF DUTY CANNOT BE CONTROLLED ADMINISTRATIVELY AND WHICH REQUIRES SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED OVERTIME DUTY AND DUTY AT NIGHT AND ON HOLIDAYS WITH THE EMPLOYEE GENERALLY BEING RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY, SHALL RECEIVE PREMIUM COMPENSATION FOR SUCH DUTY ON AN ANNUAL BASIS. THE USE OF THE OVERTIME PROVIDED BY SECTION 208 (A) IS DISCRETIONARY WITH EACH DEPARTMENT OR AGENCY AND MAY BE ADOPTED ONLY WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION. IF SECTION 208 (A) BE ADOPTED, IT BECOMES NECESSARY TO DETERMINE WHAT ARE SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED, OVERTIME DUTY AND DUTY AT NIGHT AND HOLIDAYS WITHIN THE PURVIEW OF THE STATUTE AND IT IS AN APPROPRIATE FIELD FOR REGULATION BY THE CIVIL SERVICE COMMISSION TO ESTABLISH MINIMUM STANDARDS OF PRACTICE FOR THE DEPARTMENTS AND AGENCIES OPERATING UNDER THE STATUTORY SECTION CONCERNED, TO THE EXTENT THAT OVERTIME REQUIREMENTS IN THE DEPARTMENTS AND AGENCIES WHICH ARE FOLLOWING SECTION 208 (A) MAY VARY. EACH DEPARTMENT OR AGENCY MAY PRESCRIBE ADMINISTRATIVE REGULATIONS WITHIN THE PURVIEW OF THE COMMISSION'S REGULATIONS TO MEET ITS PECULIAR NEEDS. THUS, EACH EMPLOYING DEPARTMENT OR AGENCY MUST MAKE ITS OWN DETERMINATION OF ELIGIBILITY ON THE BASIS OF ITS EXPERIENCE IN REGARD TO OVERTIME SERVICES OF ITS EMPLOYEES. CONSEQUENTLY, SINCE YOU WERE CERTIFIED INELIGIBLE FOR 15 PERCENT PREMIUM COMPENSATION FOR THE PERIODS JUNE 26 TO JULY 16, 1955, AND OCTOBER 9, 1955, TO FEBRUARY 11, 1956, IN ACCORDANCE WITH LAW AND REGULATION, THE SETTLEMENT DISALLOWING YOUR CLAIM THEREFOR MUST BE SUSTAINED.

REGARDING YOUR CLAIM FOR OVERTIME FOR THE PERIOD JULY 1, 1945, TO APRIL 23, 1955, SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 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 WORKWEEK AT THE RATES SET FORTH THEREIN.

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 WORKWEEK 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, 131 C.CLS. 776, 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 SCHAIBLE, SANDERSON, AND HANDLEY ET AL. V. UNITED STATES, 135 C.CLS. 890, THE COURT HELD THAT ACCEPTABLE 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. AS INDICATED ABOVE, 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, C.CLS. NO. 50303, DECIDED JULY 12, 1956.

IN VIEW OF THE ADMINISTRATIVE REPORT THAT THERE IS NO OVERTIME IN YOUR CASE OFFICIALLY ORDERED OR APPROVED BY COMPETENT AUTHORITY FOR WHICH YOU HAVE NOT BEEN PAID, YOUR CLAIM FOR OVERTIME COMPENSATION FOR THE PERIOD JULY 1, 1945, TO APRIL 23, 1955, MUST BE DISALLOWED.

WITH RESPECT TO YOUR REQUEST FOR INFORMATION AS TO THE PROPER ACTION NECESSARY TO SECURE A REVIEW OF YOUR CLAIMS BY HIGHER AUTHORITY, YOU MAY BE ADVISED THAT DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES ARE FINAL AND CONCLUSIVE ON ALL OFFICERS OR EMPLOYEES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT AND ARE NOT APPEALABLE TO ANY OFFICER OF THE GOVERNMENT. OF COURSE, THIS DOES NOT PRECLUDE RESORT TO A COURT OF COMPETENT JURISDICTION, IF YOU WISH TO PURSUE THAT COURSE.