B-80675, SEP. 8, 1959

B-80675, SEP. 8, 1959

TO MR. T. H. FOSTER:

YOUR LETTER OF JULY 28, 1959, REQUESTS RECONSIDERATION OF OUR OFFICE SETTLEMENT OF AUGUST 1, 1944, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE FOR SERVICES RENDERED AS AN EMPLOYEE OF THE WAR DEPARTMENT, WACO ARMY AIR FIELD, WACO, TEXAS, DURING THE PERIOD JULY 1 TO NOVEMBER 30, 1942.

YOUR CLAIM WAS DISALLOWED BECAUSE THE RECORD SHOWS THAT AT THE TIME OF YOUR CLAIM YOU WERE A FIELD EMPLOYEE AND THAT FIELD EMPLOYEES OF THE WAR DEPARTMENT WERE NOT AUTOMATICALLY SUBJECT TO THE OVERTIME BENEFITS PROVIDED BY THE ACT OF OCTOBER 21, 1940, 54 STAT. 1205, PUBLIC LAW 873. THE ACT, IN PERTINENT PART, AUTHORIZED PAYMENT OF OVERTIME COMPENSATION FOR EMPLOYMENT IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK TO CERTAIN CLASSES OF EMPLOYEES, AND SUCH OTHER EMPLOYEES ENUMERATED THEREIN, AS SHALL BE DESIGNATED BY THE SECRETARY OF WAR. THE POSITION YOU HELD DURING THE PERIOD INVOLVED WAS NOT ENUMERATED THEREIN.

EXECUTIVE ORDER NO. 8837, DATED JULY 30, 1941, ISSUED PURSUANT TO THE ACT OF JUNE 3, 1941, 55 STAT. 241, PUBLIC LAW 100, AUTHORIZED PAYMENT OF OVERTIME COMPENSATION FOR EMPLOYMENT IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK TO CERTAIN PER ANNUM EMPLOYEES OF THE WAR DEPARTMENT, AND VESTED DISCRETION IN THE SECRETARY OF WAR TO DETERMINE WHAT EMPLOYEES OR CLASSES OF EMPLOYEES WERE SUBJECT TO THE PROVISIONS THEREOF.

SINCE NO ACTION WAS TAKEN BY THE PROPER ADMINISTRATIVE OFFICIAL TO BRING THE POSITION HELD BY YOU WITHIN THE PURVIEW OF THE ACT OF JUNE 3, 1941, A PREREQUISITE TO ELIGIBILITY FOR OVERTIME COMPENSATION UNDER THE STATUTE, YOU WERE NOT ENTITLED TO OVERTIME COMPENSATION UNDER THAT ACT.

YOU NOW BASE YOUR CLAIM ON EXECUTIVE ORDER NO. 10826 AND THE FACT THAT EMPLOYEES WORKING ON BASES OTHER THAN THE ONE AT WHICH YOU WERE EMPLOYED RECEIVED OVERTIME COMPENSATION. AS TO THE OVERTIME OF LIKE CHARACTER, WHICH YOU SAY WAS PAID TO EMPLOYEES AT OTHER BASES, THAT FACT, EVEN IF PROPERLY ESTABLISHED, WOULD HAVE NO EFFECT CONCERNING YOUR CLAIM. IT WELL COULD BE THAT EMPLOYEES IN YOUR CATEGORY IN OTHER AREAS WERE BROUGHT ADMINISTRATIVELY UNDER THE APPLICABLE ACT BUT THAT COULD NOT EFFECT YOUR CASE.

PARAGRAPH 1 OF EXECUTIVE ORDER NO. 10826 PROVIDES AS FOLLOWS:

"SECTION 1. WHENEVER A FEDERAL EMPLOYEE OR FORMER FEDERAL EMPLOYEE HAS MET THE REQUIREMENTS OF AN EXECUTIVE ORDER (HERETOFORE OR HEREAFTER ISSUED) WHICH PROVIDES A BENEFIT FOR FEDERAL EMPLOYEES BUT HAS BECOME INELIGIBLE TO RECEIVE SUCH BENEFIT SOLELY BECAUSE OF ERROR OR OVERSIGHT, TO MAKE A TIMELY DETERMINATION OR RECOMMENDATION REQUIRED BY THE EXECUTIVE ORDER, THE CIVIL SERVICE COMMISSION MAY, TO AVOID INEQUITY IN INDIVIDUAL CASES, CONFER SUCH BENEFIT UPON THE EMPLOYEE OR FORMER EMPLOYEE: PROVIDED, THAT THE CIVIL SERVICE COMMISSION MAY CONFER SUCH BENEFIT ONLY UPON THE MAKING OF THE REQUIRED DETERMINATION OR RECOMMENDATION BY THE AGENCY IN WHICH THE EMPLOYEE OR FORMER EMPLOYEE IS EMPLOYED OR IS TO BE EMPLOYED; AND NO ACTION TAKEN BY THE COMMISSION UNDER THIS ORDER SHALL BE EFFECTIVE PRIOR TO THE DATE ON WHICH THE ACTION IS TAKEN.'

THERE IS NOTHING IN THE RECORD TO SHOW THAT THERE WAS AN ERROR OR OVERSIGHT BY THE ADMINISTRATIVE AGENCY TO MAKE A TIMELY DETERMINATION OR RECOMMENDATION REQUIRED BY EXECUTIVE ORDER NO. 8837.

UNDER THE PROVISIONS OF SECTIONS 1 AND 3 OF EXECUTIVE ORDER NO. 8837, THE DETERMINATION OF WHETHER OVERTIME COMPENSATION WAS TO BE PAID WAS LEFT TO THE DISCRETION OF THE SECRETARY OF WAR, OR SUCH SUBORDINATE OFFICERS AS HE MIGHT DESIGNATE. HOWEVER, SUCH DETERMINATION MUST HAVE BEEN MADE WHILE THE ACTS WERE STILL IN EFFECT, OR PRIOR TO NOVEMBER 30, 1942. SEE IN THAT CONNECTION WAR DEPARTMENT, HEADQUARTERS, ARMY SERVICE FORCES, WASHINGTON, ASF CIVILIAN PERSONNEL MEMORANDUM NO. 44, DATED MARCH 21, 1943, CLAIMS TO RETROACTIVE OVERTIME COMPENSATION UNDER PUBLIC LAW 100, WHEREIN PARAGRAPH 1 THEREOF PROVIDES AS FOLLOWS:

"1. UNDER THE PROVISIONS OF PUBLIC LAW 100, 77TH CONGRESS, AND EXECUTIVE ORDER NO. 8837, CERTAIN CLASSES OF EMPLOYEES BECAME ELIGIBLE TO RECEIVE OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 40 A WEEK, IF THEIR ELIGIBILITY WAS ADMINISTRATIVELY DESIGNATED. SINCE DECEMBER 1, 1942, OTHER EMPLOYEES HAVE CLAIMED THAT THEY SHOULD HAVE BEEN SO DESIGNATED PRIOR TO THAT DATE AND SHOULD NOW RECEIVE RETROACTIVE OVERTIME COMPENSATION. NO SUCH DESIGNATION, HOWEVER, CAN BE MADE RETROACTIVELY, AND HENCE NO COMPENSATION SO DETERMINED CAN BE AUTHORIZED.'

THEREFORE, SINCE YOUR POSITION WAS NOT BROUGHT WITHIN THE PURVIEW OF THE ACTS WHILE THEY WERE IN OPERATION, NO LEGAL BASIS EXISTS FOR THE PAYMENT OF OVERTIME COMPENSATION TO YOU.

UNDER THE CIRCUMSTANCES WE MUST SUSTAIN THE ACTION IN OUR SETTLEMENT OF AUGUST 1, 1944, WHICH DENIED ADDITIONAL COMPENSATION TO YOU DURING THE PERIOD IN QUESTION.