B-156278, APR. 21, 1965

B-156278, APR. 21, 1965

TO MR. KENNETH C. RUSSELL:

THIS REFERS TO YOUR LETTERS OF FEBRUARY 22 AND MARCH 12, 1965, CONCERNING YOUR CLAIM FOR OVERTIME COMPENSATION FOR STANDBY DUTY ALLEGEDLY PERFORMED BETWEEN MARCH 1, 1961, AND SEPTEMBER 20, 1961, INCIDENT TO YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY, U.S. ARMY SUPPORT CENTER, ST. LOUIS, MISSOURI.

YOUR CLAIM AND THOSE OF TWO OTHER EMPLOYEES IDENTIFIED IN YOUR LETTER OF MARCH 12, 1965, BY CLAIM NUMBERS, WERE DISALLOWED BY SEPARATE SETTLEMENTS DATED MARCH 5, 1964, FOR THE PRINCIPAL REASON THAT THE POSITIONS HELD WERE NOT CERTIFIED FOR PREMIUM COMPENSATION AND STANDBY TOURS OF DUTY WERE NOT ESTABLISHED UNDER THE APPLICABLE LAW AND IMPLEMENTING REGULATIONS. THE SETTLEMENTS CONTAINED QUOTATIONS AND CITATIONS FROM SUCH LAW AND REGULATIONS WHICH NEED NOT BE REPEATED HERE.

IT APPEARS THAT EFFORTS WERE MADE BY THE INSTALLATION AT WHICH YOU WERE EMPLOYED TO OBTAIN APPROVAL FOR ESTABLISHING STANDBY TOURS OF DUTY BUT SUCH EFFORTS WERE UNSUCCESSFUL. IN YOUR MEMORANDUM OF OCTOBER 15, 1963, YOU STATE THAT ONE SUCH ATTEMPT HAD ALREADY BEEN MADE BY LETTER (PRIOR TO MARCH 1961) BUT "IT ADVANCED NO FURTHER THAN 5TH ARMY AND WAS REFUSED.' YOU ALSO STATE THAT IN MARCH 1961 (FOLLOWING SUCH REFUSAL) THE SIGNAL OFFICER "ASKED THE CLAIMANTS IF THE WOULD PROVIDE THE ON-CALL SERVICE, HE WOULD WRITE AGAIN TO 5TH ARMY, AND BY USE OF A REVERSE PROCEDURE FORCE THEM TO FORWARD THE REQUEST TO DCS, PERSONNEL IN WASHINGTON.' THIS, YOU STATE, FOR ALL INTENTS AND PURPOSES WAS THE BEGINNING OF THE PERIOD CLAIMED.

BY 4TH INDORSEMENT DATED MARCH 9, 1961, TO THE COMMANDING GENERAL, 5TH U.S. ARMY, THE INSTALLATION MADE FURTHER REPRESENTATIONS CONCERNING THE NEED FOR STANDBY TOURS OF DUTY, SHOWING THEREIN THE NAMES AND HOME ADDRESSES (INCLUDING YOURS) OF THE EMPLOYEES WHO WERE TO BE ASSIGNED THERETO, BUT IT IS APPARENT THAT THE REQUIRED APPROVAL WAS NEVER GIVEN.

IN REPORTING THAT NO STANDBY TOURS WERE PROPERLY ESTABLISHED THE AGENCY HAS ADVISED THAT THE EMPLOYEES RECEIVED OVERTIME PAY FOR ALL ACTUAL WORK PERFORMED OUTSIDE THEIR REGULAR TOURS OF DUTY AND NIGHT DIFFERENTIAL WHEN REGULAR NIGHT TOURS WERE PERFORMED. THE FACT THAT YOU RECEIVED SUCH OVERTIME PAY TO THAT EXTENT DURING THE PERIOD INVOLVED IS SHOWN BY COPIES OF PAY RECORDS FURNISHED US. AS INDICATED IN OUR DISALLOWANCE OF MARCH 5, 1964, EMPLOYEES CANNOT RECEIVE PREMIUM PAY FOR A TOUR OF DUTY WHICH INCLUDES STANDBY TIME AND ALSO BE PAID FOR IRREGULAR OVERTIME, NIGHT DIFFERENTIAL, OR HOLIDAY PREMIUM PAY UNDER THE USUAL METHOD APPLICABLE TO SERVICES OF THAT NATURE. THUS, IF PREMIUM COMPENSATION HAD BEEN PROPERLY AUTHORIZED BECAUSE YOUR TOUR OF DUTY INCLUDED A SUBSTANTIAL NUMBER OF STANDBY HOURS, YOU WOULD NOT HAVE BEEN ENTITLED TO THE OVERTIME COMPENSATION WHICH YOU WERE OTHERWISE PAID.

FROM YOUR STATEMENT REFERRED TO EARLIER HEREIN IT IS CLEAR THAT THE PERIOD OF YOUR CLAIM BEGAN AFTER THE REQUEST OF THE INSTALLATION FOR APPROVAL OF STANDBY TOURS HAD BEEN DENIED BY A HIGHER LEVEL ALTHOUGH YOU UNDERSTOOD THAT IF YOU PROVIDED THE ON-CALL SERVICE THE INSTALLATION WOULD UNDERTAKE TO FORCE FURTHER CONSIDERATION OF THE MATTER. IN YOUR LETTER OF FEBRUARY 22, 1965, YOU INDICATE THAT YOU ANTICIPATED FINAL FAVORABLE APPROVAL ON THE INSTALLATION'S REQUEST WITH RETROACTIVE PAY FOR THE PERIOD INVOLVED SINCE THAT "SEEMED THE ONLY RESOLVEMENT TO THE PROBLEM.' THEREFORE, IT IS APPARENT THAT YOU WERE AT THE TIME AND NOW ARE AWARE OF THE FACT THAT THE STANDBY TOURS OF DUTY WERE NOT ESTABLISHED IN ACCORDANCE WITH LAW AND THE REGULATIONS BUT YOU FEEL THAT YOU ARE EQUITABLY ENTITLED TO THE PAYMENT CLAIMED.

THE EXPENDITURE OF PUBLIC FUNDS IS GOVERNED BY LAWS AND REGULATIONS HAVING THE FORCE AND EFFECT OF LAWS AND WE HAVE NO AUTHORITY TO ALLOW A CLAIM WHICH DOES NOT MEET THE REQUIREMENTS PRESCRIBED THEREIN. THEREFORE, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE SETTLEMENT OF MARCH 5, 1964.

OUR DECISION OF JANUARY 6, 1965, B-155326, REFERRED TO IN YOUR LETTER OF MARCH 12, 1965, PERTAINED TO AN EMPLOYEE OF ANOTHER AGENCY, WAS BASED UPON DIFFERENT FACTS, AND PAYMENT OF THE CLAIM WAS APPROVED BY THE AGENCY. HENCE, THE CONCLUSION REACHED THEREIN IS NOT APPLICABLE TO YOUR CLAIM.

AS TO YOUR FINAL QUESTION YOU MAY BE ADVISED THAT OUR DECISIONS ARE BINDING UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT BUT NOT UPON THE COURTS. SEE 28 U.S.C. 1491 (AS AMENDED BY PUB.L. 88-159, APPROVED AUGUST 30, 1964), AND 28 U.S.C. 1346.