BNUMBER:  B-271346
DATE:  July 12, 1996
TITLE:  [Letter]

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B-271346

July 12, 1996

DIGEST

Secret Service special agent's claim for overtime premium pay withheld 
due to the limitation in 5 U.S.C.  sec.  5547(c) on the amount of premium 
pay that is payable to a law enforcement officer in any pay period was 
properly denied.  While the agent argues that he should have been paid 
the withheld premium pay in a lump sum in the calendar year following 
the year in which it was withheld, as authorized under 5 U.S.C.  sec.  
5307(b), this section applies only to payments withheld due to the 
limitation in section 5307(a) on  aggregate annual compensation 
payable.  Section 5307(b) does not authorize lump sum payments of 
amounts withheld due to the pay period limitation on premium pay 
provided in section 5547(c).B-271346

July 12, 1996

Mr. Harold L. Bibb
8563 Huntleigh Way
Germantown, Tennessee  38138

Dear Mr. Bibb:

This is in further response to your February 6, 1996, letter 
requesting review of our Claims Group's denial[1] of your claim for 
additional compensation for overtime you worked as a special agent, 
United States Secret Service.  Your claim arose as a result of the 
Secret Service's application to your pay of the biweekly limitation 
provided by 5 U.S.C.  sec.  5547(c) on premium pay that may be paid to a 
law enforcement officer.  It is your position that the premium pay 
denied you as a result of that limitation should be paid to you 
pursuant to another provision of law, 5 U.S.C.  sec.  5307, in a lump sum 
in the year following the year in which it was earned.  The Secret 
Service denied your claim on the basis that section 5307 does not 
apply to the additional premium pay you seek, and our Claims Group 
subsequently denied your claim on the same basis.  For the reasons 
explained below, the Secret Service and the Claims Group were correct 
in denying your claim.

The record shows that pursuant to the biweekly limitation provided by 
5 U.S.C.  sec.  5547(c), the Secret Service denied payment to you of 
premium pay for the pay period ending May 14, 1994, for 13.25 hours of 
overtime in the amount of $401.06, and for the pay period ending 
November 27, 1993, for 1 hour of overtime in the amount of $32.42.  

Title 5, U.S. Code, Chapter 55, Subchapter V, provides the authority 
for payment of various types of premium pay and specifies the types of 
work for which it is payable (including overtime[2]) and the methods 
of computation.  Section 5547, entitled "Limitation on premium pay," 
is a part of Subchapter V, and provides limitations on the amounts of 
premium pay that may be paid.  Subsection 5547(c) applies specifically 
to law enforcement officers and provides that premium pay for overtime 
[under section 5542] may be paid "only to the extent that the payment 
does not cause the officer's aggregate rate of pay for any pay period 
to exceed the lesser of --

       (A)  150 percent of the minimum rate payable for GS-15 
(including any applicable locality-based comparability payment under 
section 5304 or similar provision of law and any applicable special 
rate of pay under section 5305 or similar provision of law); or 

       (B)  the rate payable for level V of the Executive Schedule." 

As noted above, it was these provisions of section 5547, specifically 
applicable to the amount of premium pay for overtime that may be paid 
to a law enforcement officer for "any pay period," that precluded the 
Secret Service from paying you the amounts for overtime worked in the 
two pay periods referred to above.  It is your position, however, that 
these amounts should have been paid to you in a lump sum in the year 
following the year in which they were earned as authorized by  5 
U.S.C.   sec.  5307.  

Section 5307 is a provision of title 5, U.S. Code, Chapter 53, 
Subchapter I, which makes provisions for the pay comparability system.  
Section 5307(a), which provides limitations on certain payments which 
would cause an employee's aggregate annual compensation to exceed 
specified annual limitations, states in pertinent part as follows:

  "(a)(1)  Except as otherwise permitted by or under law, no 
allowance, differential, bonus, award, or other similar cash payment 
under this title may be paid to an employee in a calendar year if, or 
to the extent that, when added to the total basic pay paid or payable 
to such employee for service performed in such calendar year as an 
employee in the executive branch . . . such payment would cause the 
total to exceed the annual rate of basic pay payable for level I of 
the Executive Schedule, as of the end of such calendar year."

Section 5307(b)(1) provides that "Any amount which is not paid to an 
employee in a calendar year because of the limitation under subsection 
(a) shall be paid to such employee in a lump sum at the beginning of 
the following calendar year."  (Emphasis added.) 

It is section 5307(b)(1) that you believe authorizes the payment to 
you of the overtime pay you were denied for the pay periods in 
question.  However, as the statute states and the Claims Group 
settlement advised you, the lump sum payments authorized by subsection 
(b)(1) apply only to amounts that were not paid because of the annual 
limitation provided by subsection (a).  Subsection (b)(1) does not 
apply to amounts not payable because of the section 5547 limitation on 
the amount of premium pay that may be paid for any pay period, which 
was the limitation which prevented the Secret Service from 
compensating you for overtime worked in the two pay periods in 
question.

Put another way, these are two separate limitations on the amounts of 
compensation payable.  First is section 5547 which places specific 
limitations on the amount of premium pay that may be paid in a pay 
period, and it is applied on a pay period by pay period basis.  It 
makes no provision for payment in a lump sum in a future calendar year 
of any amount withheld because of its provisions.[3]  Second is 
section 5307 which places specific limitations on the aggregate annual 
compensation an employee may be paid, with the proviso that an amount 
not paid because of that annual compensation limitation may be paid in 
a lump sum at the beginning of the next calendar year.[4]  While both 
of these provisions may apply to limit an employee's pay under certain 
circumstances, the provision applicable to your claim is section 5547.  
As noted, section 5547 does not authorize the payments you seek, and 
the provision in section 5307(b) authorizing a lump sum payment in a 
subsequent year does not apply to the amounts withheld from you by 
virtue of section 5547.

We trust this helps you understand why your claim could not be 
allowed.

Sincerely yours,

/s/Seymour Efros
for Robert P. Murphy
Associate General Counsel

B-271346

July 12, 1996

The Honorable Fred Thompson
United States Senator
The Federal Office Building, Suite 403
167 North Main Street
Memphis, Tennessee  38103

Dear Senator Thompson:

This is in further response to your letter of April 16, 1996, 
concerning Mr. Harold L. Bibb's claim for premium pay for overtime he 
worked in his position as a special agent, United States Secret 
Service.  His claim was denied by the Secret Service and by our Claims 
Group.

We have reviewed the matter and agree with the Secret Service and the 
Claims Group that under the applicable provisions of law, the claim 
may not be allowed.  Enclosed is a copy of our letter dated today to 
Mr. Bibb explaining our conclusion in more detail.

We trust this serves the purpose of your inquiry.

Sincerely yours,

/s/Seymour Efros
for Robert P. Murphy
General Counsel

Enclosure

B-271346

July 12, 1996

The Honorable Bill Frist
United States Senator
28 White Bridge Road, Suite 211
Nashville, Tennessee  37205

Dear Senator Frist:

This is in further response to the letter dated April 9, 1996, from 
your office concerning matters raised by Mr. Harold L. Bibb related to 
his claim for premium pay for overtime he worked in his position as a 
special agent, United States Secret Service.  His claim was denied by 
the Secret Service and by our Claims Group.

We have reviewed the matter and agree with the Secret Service and the 
Claims Group that under the applicable provisions of law, the claim 
may not be allowed.  Enclosed is a copy of our letter dated today to 
Mr. Bibb explaining our conclusion in more detail.

We trust this serves the purpose of your inquiry.

Sincerely yours,

/s/Seymour Efros
for Robert P. Murphy
General Counsel

Enclosure

B-271346

July 12, 1996

The Honorable Ed Bryant
Member, United States
  House of Representatives
5909 Shelby Oaks Drive, Suite 219
Memphis, Tennessee 90134

Dear Mr. Bryant

This is in further response to your letter dated April 2, 1996, 
concerning Mr. Harold L. Bibb's claim for premium pay for overtime he 
worked in his position as a special agent, United States Secret 
Service.  His claim was denied by the Secret Service and by our Claims 
Group.

We have reviewed the matter and agree with the Secret Service and the 
Claims Group that under applicable provisions of law, the claim may 
not be allowed.  Enclosed is a copy of our letter dated today to Mr. 
Bibb explaining our conclusion in detail.

We trust this serves the purpose of your inquiry.

Sincerely yours,

/s/Seymour Efros
for Robert P. Murphy
General Counsel

Enclosure

1. Settlement Certificate Z-2869662, Dec. 22, 1995.

2. Section 5542 authorizes premium pay for overtime.

3. See also implementing regulations found in 5 C.F.R.  sec.  550.107.

4. See also implementing regulations found in 5 C.F.R. Part 530.