B-155140, APR. 21, 1965

B-155140, APR. 21, 1965

TO MR. JOHN W. LANDRY:

WE REFER TO YOUR LETTER OF AUGUST 31, 1964, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF JULY 17, 1964, DISALLOWING YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR OVERTIME PERFORMED IN CONNECTION WITH DEPORTATION FLIGHTS DURING THE PERIOD JULY 4, 1955, TO AUGUST 30, 1957, AS AN EMPLOYEE (AIRPLANE PILOT) OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE. YOUR CLAIM WAS DISALLOWED FOR THE REASON, IN SUBSTANCE, THAT YOU RECEIVED 15 PERCENT ANNUAL PREMIUM COMPENSATION UNDER SECTION 401 (2) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 208 (A) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1111, 5 U.S.C. 926 (2), AND YOU HAD NOT PERFORMED ANY REGULARLY SCHEDULED OVERTIME FOR WHICH ADDITIONAL OVERTIME COMPENSATION WAS PAYABLE.

THE PREAMBLE OF SAID SECTION 401 AND PARAGRAPH (2) THEREOF ARE AS FOLLOWS:

"THE HEAD OF ANY DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA MAY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, PROVIDE THAT---

"/2) ANY OFFICER OR 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 OFFICER OR 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 IN LIEU OF PREMIUM COMPENSATION PROVIDED BY ANY OTHER PROVISIONS OF THIS ACT, EXCEPT FOR REGULARLY SCHEDULED OVERTIME DUTY. PREMIUM COMPENSATION UNDER THIS PARAGRAPH SHALL BE DETERMINED AS AN APPROPRIATE PERCENTAGE (NOT IN EXCESS OF 15 PERCENTUM) OF SUCH PART OF THE RATE OF BASIC COMPENSATION FOR ANY SUCH POSITION AS DOES NOT EXCEED THE MINIMUM SCHEDULED RATE OF BASIC COMPENSATION PROVIDED FOR GRADE GS-9 IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, BY TAKING INTO CONSIDERATION THE FREQUENCY AND DURATION OF NIGHT, HOLIDAY, AND UNSCHEDULED OVERTIME DUTY REQUIRED IN SUCH POSITION.'

THE FOREGOING PROVISIONS WERE, AT THE TIME HERE INVOLVED, IMPLEMENTED BY SECTIONS 25.261 TO 25.273 OF THE FEDERAL EMPLOYEES PAY REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION.

THE ADMINISTRATIVE REPORT ON YOUR CLAIM IS TO THE EFFECT THAT, PURSUANT TO REGULATIONS, THE POSITION OF "AIRPLANE PILOT" WAS DESIGNATED AS MEETING THE STANDARDS FOR ENTITLEMENT TO PREMIUM COMPENSATION UNDER SECTION 401 (2); THAT AS AN OCCUPANT OF SUCH A POSITION YOU WERE CERTIFIED AS ELIGIBLE TO RECEIVE AND DID RECEIVE 15 PERCENT PREMIUM COMPENSATION DURING THE PERIOD OF YOUR CLAIM; AND THAT NO ACTION WAS TAKEN TO EXTEND YOUR REGULAR WORKWEEK TO INCLUDE REGULARLY SCHEDULED OVERTIME. YOU BASE YOUR CLAIM FOR OVERTIME COMPENSATION UNDER OTHER PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT (SECTION 201, AS AMENDED, 68 STAT. 1109, 5 U.S.C. 911) UPON THE CONTENTION THAT THE OVERTIME INVOLVED WAS "DIRECTED" AND "SCHEDULED" IN THAT THE NATURE OF THE FLIGHTS PERFORMED BY YOU WAS SUCH THAT THEY HAD TO BE PLANNED IN ADVANCE AND THAT YOU HAD NO ALTERNATIVE BUT TO REMAIN ON DUTY UNTIL THE COMPLETION OF A FLIGHT AND INCIDENTAL DUTIES.

OUR VIEW IS THAT ONCE IT WAS ADMINISTRATIVELY DETERMINED UNDER AUTHORITY OF SECTION 25.271 (NOW SECTION 550.161) OF THE COMMISSION'S REGULATIONS, THAT THE DUTIES OF YOUR POSITION WARRANTED PAYMENT OF PREMIUM COMPENSATION UNDER SECTION 401 (2) OF THE STATUTE AND PAYMENTS WERE MADE IN ACCORDANCE WITH SUCH DETERMINATION, THERE IS NO AUTHORITY OF LAW TO PAY ANY OTHER ADDITIONAL COMPENSATION FOR OVERTIME, EXCEPT, AS SPECIFICALLY PROVIDED, FOR "REGULARLY SCHEDULED OVERTIME," SO LONG AS THAT DETERMINATION REMAINED IN EFFECT. COMPARE 42 COMP. GEN. 735, INVOLVING A PERIOD OF TEMPORARY DETAIL UNDER SUPERVISION DURING WHICH OVERTIME SERVICES WERE ORDERED AS THE OCCASION AROSE. WE ARE OF THE FURTHER VIEW THAT THE DETERMINATION MAY NOT BE RETROACTIVELY RESCINDED IN THE ABSENCE OF A FINDING THAT THE AGENCY ACTION WAS SO GROSSLY ERRONEOUS, OR ARBITRARY AND CAPRICIOUS, AS TO RENDER IT VOID FROM THE BEGINNING OR THAT THE PREMIUM COMPENSATION WAS INADVERTENTLY CONTINUED AFTER A PERMANENT CHANGE IN THE CIRCUMSTANCES UNDER WHICH DUTY IS PERFORMED. THERE IS NOTHING IN OUR RECORDS TO INDICATE THAT SUCH A FINDING HAS BEEN MADE IN YOUR CASE BY THE AGENCY CONCERNED OR BY THE CIVIL SERVICE COMMISSION. IN THE ABSENCE OF SUCH FINDING BY EITHER OR BOTH SUCH AGENCIES OR A CLEAR CASE OF AN ARBITRARY OR CAPRICIOUS DETERMINATION BY YOUR AGENCY IN AUTHORIZING THE 15 PERCENT PREMIUM PAY OUR OFFICE WOULD NOT BE WARRANTED IN HOLDING ADMINISTRATIVE ACTION AS BEING INVALID.

SO FAR AS YOUR CLAIM MAY BE BASED UPON THE VIEW THAT THE CIRCUMSTANCES SURROUNDING THE ADMINISTRATIVE ORDERING OF THE AIRPLANE FLIGHTS PERFORMED BY YOU WERE SUCH AS TO CONSTITUTE THE TIME INVOLVED "REGULARLY SCHEDULED OVERTIME," WE CANNOT AGREE WITH SUCH VIEW. IN OUR OPINION, THE QUOTED PHRASE HAS REFERENCE TO SITUATIONS IN WHICH A DEFINITE NUMBER OF HOURS PER WEEK IN EXCESS OF 40 ARE ADMINISTRATIVELY PRESCRIBED IN ADVANCE, AND ON A RECURRING BASIS, AS PART OF THE REGULAR WORKWEEK. THIS OPINION IS IN LINE WITH THE STATEMENT OF THE CIVIL SERVICE COMMISSION AT PAGE 16 OF SENATE REPORT NO. 1190 ON S. 2665, 83D CONGRESS, WHICH BECAME PUBLIC LAW 763, CONTAINING THE PROVISION HERE IN QUESTION, THAT: "THESE EMPLOYEES, IN ADDITION, WOULD RECEIVE OVERTIME PAY ON THE SAME BASIS AS OTHER EMPLOYEES WHEN THE WORKWEEK IS EXTENDED, FOR EXAMPLE, TO 48 HOURS.' SEE ALSO, GENERALLY, 36 COMP.GEN. 657, AS TO THE MEANING OF "REGULARLY SCHEDULED WORK.'

YOU SAY, AND FURNISH EVIDENCE, THAT YOUR SIMILAR CLAIM FOR THE PERIOD SEPTEMBER 2, 1957, TO FEBRUARY 25, 1958, HAS BEEN ADMINISTRATIVELY ALLOWED AND PAID, AND YOU CONTEND THAT LIKE TREATMENT SHOULD BE ACCORDED THE SUBJECT CLAIM. HOWEVER, THE ADMINISTRATIVE ACTION ON THE OTHER CLAIM IS NOT BINDING ON US IN THE AUDIT AND SETTLEMENT OF ACCOUNTS AND CLAIMS. THE CORRECTNESS OF SUCH ACTION WILL BE FOR CONSIDERATION IN OUR AUDIT OF THE ACCOUNTS OF THE CERTIFYING OFFICER CONCERNED.

IN LIGHT OF THE ABOVE DISCUSSION, PAYMENT OF YOUR CLAIM IS NOT AUTHORIZED, AND THE SETTLEMENT OF JULY 17, 1964, DISALLOWING THE CLAIM IS SUSTAINED.