B-141629, JAN. 26, 1960

B-141629, JAN. 26, 1960

TO MR. RAYMOND W. MILLER:

YOUR LETTER OF DECEMBER 12, 1959, REQUESTS REVIEW OF OUR SETTLEMENT OF NOVEMBER 30, 1959, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION WHICH YOU CLAIM IS DUE YOU IN CONNECTION WITH YOUR EMPLOYMENT IN THE DEPARTMENT OF THE INTERIOR, BUREAU OF MINES, HELIUM ACTIVITY, AMARILLO, TEXAS, BETWEEN JUNE 20, 1958, AND FEBRUARY 15, 1959.

IT CONSISTENTLY HAS BEEN HELD, BOTH BY OUR OFFICE AND THE COURT OF CLAIMS, THAT OVERTIME COMPENSATION MAY NOT BE PAID UNLESS OVERTIME WORK IS ORDERED OR APPROVED IN ACCORDANCE WITH THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, 5 U.S.C. 911, AND THE REGULATIONS PROMULGATED THERETO, POST V. UNITED STATES, 121 C.CLS. 94; CAINES V. UNITED STATES, 131 F.SUPP. 925, 132 C.CLS. 408; B 105186, SEPTEMBER 5, 1951; B-127074, APRIL 16, 1956, AND THIS IS TRUE EVEN THOUGH THERE MAY BE A SHOWING THAT THE EMPLOYEE DID WORK BEYOND HIS PRESCRIBED HOURS OF DUTY. TABBUTT V. UNITED STATES, 121 C.CLS. 495; GRAY V. UNITED STATES, 136 C.CLS. 312; B-138381, JANUARY 15, 1959.

REPORTS WE HAVE RECEIVED FROM THE DEPARTMENT OF THE INTERIOR, BUREAU OF MINES AND THE HELIUM ACTIVITY OF THAT BUREAU STATE THAT YOU WERE NOT ORDERED TO WORK THE OVERTIME FOR WHICH YOU NOW CLAIM COMPENSATION NOR WAS THAT OVERTIME APPROVED, AND THAT, ANY OVERTIME YOU MAY HAVE WORKED WAS ON A VOLUNTARY BASIS. SERVICE VOLUNTARILY PERFORMED DOES NOT ENTITLE AN EMPLOYEE TO COMPENSATION. ALTHOUGH THERE IS A CONFLICT BETWEEN YOU AND THE AGENCY AS TO THE VOLUNTARY NATURE OF THE OVERTIME, A CONFLICT AS TO FACT WHICH ARISES BETWEEN THE ALLEGATIONS OF A CLAIMANT AND THE REPORT OF THE ADMINISTRATIVE OFFICE CONCERNED MUST BE RESOLVED IN FAVOR OF THE ADMINISTRATIVE OFFICE UNLESS THE CLAIMANT SUBMITS EVIDENCE OF SUFFICIENT WEIGHT TO OVERCOME THE PRESUMPTION THAT THE ADMINISTRATIVE REPORT IS CORRECT.

IN THAT REGARD, THE INVESTIGATORY POWER OF THE COMPTROLLER GENERAL IS SPELLED OUT IN SECTION 53, TITLE 31, UNITED STATES CODE. IT DOES NOT INCLUDE AUTHORITY TO CONDUCT INVESTIGATION FOR THE PURPOSE OF ESTABLISHING FACTS IN CLAIMS AGAINST THE UNITED STATES. THE BURDEN IN SUCH CASES FALLS ON THE CLAIMANT. THUS, IT HAS BEEN THE PRACTICE OF THE GENERAL ACCOUNTING OFFICE AND OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT BEFORE ITS CREATION, TO SETTLE CLAIMS ON THE WRITTEN RECORD BEFORE IT. WE MAY NOT, THEREFORE, COMPLY WITH YOUR REQUEST TO CONDUCT AN "ON THE TOP" INVESTIGATION.

SINCE YOU HAVE SUBMITTED NO EVIDENCE TO SHOW THAT THE OVERTIME FOR WHICH YOU CLAIM COMPENSATION WAS ADMINISTRATIVELY ORDERED OR APPROVED UNDER THE APPLICABLE STATUTE AND REGULATIONS OUR PREVIOUS SETTLEMENT MUST BE, AND IS, SUSTAINED.