B-33647, APR 20, 1943

B-33647, APR 20, 1943

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF WAR:

I HAVE YOUR LETTER OF APRIL 5, 1943, AS FOLLOWS:

"SECTION 1, ACT JUNE 3, 1941 (PUBLIC LAW 100, 77TH CONG.), PROVIDES IN PERTINENT PART AS FOLLOWS:

"'COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTH HOURS IN ANY ADMINISTRATIVE WORKWEEK COMPUTED AT A RATE OF ONE AND ONE-HALF TIMES THE REGULAR RATE IS HEREBY AUTHORIZED TO BE PAID, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, TO THOSE PER ANNUM EMPLOYEES IN THE FIELD SERVICE OF THE WAR DEPARTMENT, ***, WHOSE OVERTIME SERVICES ARE ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN SECTION 5(A) OF THE ACT OF JUNE 28, 1940, AND SECTION 1 OF THE ACT OF OCTOBER 21, 1940, ARE ENGAGED:

SECTION 4 PROVIDED THAT THIS ACT SHOULD TERMINATE JUNE 30, 1942; HOWEVER, IT WAS EXTENDED TO NOVEMBER 30, 1942 (PUBLIC LAW 652, 77TH CONG., AND PUBLIC LAW 728, 77TH CONG.).

"E.O. 8837, JULY 30, 1941 (6 F.R. 3824), PROVIDES IN PERTINENT PART AS FOLLOWS:

"'BY VIRTUE OF THE AUTHORITY VESTED IN ME BY SECTION 1 OF THE ACT OF JUNE 3, 1941, PUBLIC LAW 100, 77TH CONGRESS, I HEREBY PRESCRIBE THE FOLLOWING REGULATIONS GOVERNING THE PAYMENT OF COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK TO PER ANNUM FIELD SERVICE EMPLOYEES WHOSE OVERTIME SERVICES ARE ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH EMPLOYEES ENUMERATED IN SECTION 5(A) OF THE ACT OF JUNE 28, 1940, 54 STAT. 676, 678, AND SECTION 1 OF THE ACT OF OCTOBER 21, 1940, 54 STAT. 1205, ARE ENGAGED:

"'SECTION 1. WHENEVER THE SECRETARY OF WAR, ***, SHALL DETERMINE THAT EMPLOYMENT IN EXCESS OF FORTY HOURS A WEEK OF ANY PER ANNUM EMPLOYEE IN THE FIELD SERVICES OF THE WAR DEPARTMENT, *** IS ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF OVERTIME WORK WHICH IS BEING REQUIRED OF EMPLOYEES ENUMERATED IN SECTION 5(A) OF THE SAID ACT OF JUNE 28, 1940, AND SECTION 1 OF THE SAID ACT OF OCTOBER 21, 1940, AND FOR WHICH OVERTIME COMPENSATION IS BEING PAID, HE IS AUTHORIZED TO PROVIDE COMPENSATION FOR SUCH EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK AT ONE AND ONE-HALF TIMES SUCH EMPLOYEE'S REGULAR RATE OF PAY.

"'SECTION 3. THE SECRETARY OF WAR, *** MAY DESIGNATE SUCH SUBORDINATE OFFICERS AS THEY MAY DEEM NECESSARY TO DETERMINE THE PER ANNUM EMPLOYEES IN THEIR RESPECTIVE FIELD SERVICES WHOSE OVERTIME SERVICES ARE ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN SECTION 5(A) OF THE SAID ACT OF JUNE 28, 1940, AND SECTION 1 OF THE SAID ACT OF OCTOBER 21, 1940, ARE ENGAGED.'

"THE ACT OF DECEMBER 22, 1942 (PUBLIC LAW 821, 77TH CONG.), FURTHER EXTENDED PUBLIC LAW 100, SUPRA, TO APRIL 30, 1943; BUT E.O. 9289, DECEMBER 26, 1942 (PAGE 10897, F.R., DECEMBER 29, 1942), REVOKED E.O. 8837, SUPRA, AS OF DECEMBER 1, 1942; AND, THEREAFTER, NO EXECUTIVE ORDER AUTHORIZES THE DETERMINATION REQUIRED BY PUBLIC LAW 100, SUPRA.

"IT HAS COME TO MY ATTENTION THAT IN THE CASE OF OVERTIME WORKED PRIOR TO NOVEMBER 30, 1942, BY PER ANNUM EMPLOYEES IN THE FIELD SERVICE, CERTIFICATIONS ARE NOW BEING MADE TO THE EFFECT THAT SUCH OVERTIME SERVICES WERE ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN SECTION 5(A) OF THE ACT OF JUNE 28, 1940, AND SECTION 1 OF THE ACT OF OCTOBER 21, 1940, WERE ENGAGED; AND PAYMENTS ARE NOW BEING MADE THEREFOR.

"YOUR DECISION IS REQUESTED AS TO WHETHER SUCH CERTIFICATIONS ARE SUFFICIENT TO SUPPORT SUCH PAYMENTS."

ALL OF THE STATUTES CITED IN YOUR LETTER WHICH AUTHORIZED THE GRANTING OF OVERTIME COMPENSATION OF CERTAIN CLASSES OF EMPLOYEES OF THE WAR DEPARTMENT, INCLUDING SECTION 1 OF THE ACT OF JUNE 3, 1941, PUBLIC LAW 100, PURSUANT TO WHICH THE PRESIDENT WAS AUTHORIZED TO ISSUE REGULATIONS, EXPIRED, BY OPERATION OF LAW, NOVEMBER 30, 1942. THE JOINT RESOLUTION OF DECEMBER 22, 1942, PUBLIC LAW 821, MERELY EXTENDED THE FORMULA FOR INCREASING COMPENSATION ON AN OVERTIME BASIS APPEARING IN THE EARLIER LAWS TO FEDERAL EMPLOYEES GENERALLY, AND DID NOT EXTEND ANY OTHER OF THE PROVISIONS OF THE EARLIER LAWS OR THE PRESIDENT'S REGULATIONS THEREUNDER. IT FOLLOWS THAT ANY REGULATION ISSUED BY THE PRESIDENT, AND ANY ADMINISTRATIVE AUTHORITY TO MAKE CERTIFICATES THEREUNDER PURSUANT TO SAID ACT OF JUNE 3, 1941, ALSO EXPIRED NOVEMBER 30, 1942. THE PRESIDENT RECOGNIZED THIS BY HIS ACTION IN EXECUTIVE ORDER 9289, DATED DECEMBER 26, 1942, REVOKING EXECUTIVE ORDER 8837, WHICH CONTAINED HIS REGULATIONS UNDER THE EARLIER LAW.

CLEARLY, THEREFORE, NO AUTHORITY EXISTED ON AND AFTER DECEMBER 1, 1942, TO TAKE ANY ADMINISTRATIVE ACTION TO GRANT OVERTIME COMPENSATION UNDER THE EARLIER LAWS. IN FACT, IT IS DOUBTFUL THAT THERE WAS ANY AUTHORITY IN THE ACT OF JUNE 3, 1941, OR IN THE PRESIDENT'S REGULATIONS THEREUNDER, FOR A RETROACTIVELY EFFECTIVE ADMINISTRATIVE DETERMINATION THAT CERTAIN CLASSES OF FIELD EMPLOYEES OF THE WAR DEPARTMENT WERE ENTITLED TO OVERTIME COMPENSATION FOR A PERIOD PRIOR TO THE DATE OF THE ADMINISTRATIVE DETERMINATION. HOWEVER, SUCH PAYMENTS AS MAY HAVE BEEN MADE UNDER SUCH AN ADMINISTRATIVE DETERMINATION PRIOR TO DECEMBER 1, 1942, WILL NOT, ON THE PRESENT RECORD, BE DISTURBED.

THE SPECIFIC QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.