                Administratively Uncontrollable Overtime of
                 Agent/Examiners in the FBI Laboratory

U n d e r 5 U .S .C . § 5545(c)(2), p rem ium pay on an annual basis is a u th o riz e d for “ A d m in is­
  tra tiv e ly U n c o n tro lla b le O v e rtim e ” w h e re d u tie s o f position a re o f such a n a tu re that
  th e y can n o t be p e rfo rm e d d u rin g norm al business hours.

W h e th e r w o rk p erfo rm ed by ag en t-ex am in ers in th e F e d eral B ureau o f Inv estig atio n
  L a b o ra to ry is by its n a tu re su c h as to qualify th em for p rem iu m pay u n d er § 5545(c)(2)
  is a q u estio n o f fact.

                                                                                      February 22, 1980

M E M O R A N D U M O P IN IO N FO R T H E A S S IS T A N T A T T O R N E Y
        G E N E R A L , JU S T IC E M A N A G E M E N T D IV IS IO N

   This responds to your request for our com m ents on a letter from the
G eneral A ccounting Office (G A O ) to the A ttorney General concerning
the applicability o f adm inistratively uncontrollable overtim e (A U O ) to
agent-examiners in the Federal Bureau o f Investigation (FBI)
Laboratory.
   As you know, it is not the function o f this Office to decide questions
o f fact; hence we cannot, and indeed lack the information to, com m ent
on the factual statem ents contained in the G A O letter. O ur role, there­
fore, must be limited to providing you w ith considerations governing
and the tests for determ ining the applicability o f AUO.
   A U O is provided for in 5 U.S.C. § 5545(c)(2), pursuant to which:
         [t]he head o f an agency, w ith the approval o f the Office
         o f Personnel M anagement, may provide that—
                       *            *             *            *            *

         (2) an em ployee in a position in which the hours o f duty
         cannot be controlled adm inistratively, and which requires
         substantial am ounts o f irregular, unscheduled, overtim e
         duty w ith the em ployee generally being responsible for
         recognizing, w ithout supervision, circum stances w hich re­
         quire him to remain on duty, shall receive premium pay
         for this duty on an annual basis instead o f premium pay
         provided by other provisions o f this subchapter, except
         for regularly scheduled overtim e, night, and Sunday duty,
         and for holiday duty. Premium pay under this paragraph
         is determ ined as an appropriate percentage, not less than

                                                      430
          10 per centum nor more than 25 per centum, o f such part
          o f the rate o f basic pay for the position as does not exceed
          the minimum rate of basic pay for G S-10, by taking into
          consideration the frequency and duration o f irregular un­
          scheduled overtim e duty required in the position.1

   This com plicated section is derived from § 204 o f the Federal Em ­
ployees Pay Am endm ents o f 1954, 68 Stat. 1109. A ccording to the
legislative history, this provision was “specifically directed at those
investigators o f criminal activities whose positions meet all conditions
specified" in the section. S. Rep. No. 1992, 83d Cong., 2d Sess. 8-9
(1954); see also H.R. No. 2665, 83d Cong., 2d Sess. 23 (1954).
   T he implementing regulations issued by the Office o f Personnel M an­
agement (OPM ), 5 C.F.R . § 550.153, are illustrative of the typical
situations that § 5545(c)(2) is designed to cover:
          § 550.153 Bases for determ ining positions for which pre­
            mium pay under § 550.151 is authorized.

            (a) The requirement in § 550.151 that a position be one
         in which the hours o f duty cannot be controlled adminis­
         tratively is inherent in the nature o f such a position. A
         typical example o f a position which meets this require­
         ment is that of an investigator o f criminal activities whose
         hours o f duty are governed by what criminals do and
         when they do it. He is often required to perform such
         duties as shadowing suspects, working incognito among
         those under suspicion, searching for evidence, meeting
         informers, making arrests, and interview ing persons
         having knowledge of criminal or alleged criminal activi­
         ties. His hours on duty and place o f w ork depend on the
         behavior o f the criminals o r suspected criminals and
         cannot be controlled administratively. In such a situation,
         the hours o f duty cannot be controlled by such adminis­
         trative devices as hiring additional personnel; rescheduling
         the hours of duty (which can be done when, for example,
         a type o f w ork occurs primarily at certain times o f the
         day); or granting com pensatory time off duty to offset
         overtim e hours required.

   1    A ccording to the opening clause o f 5 U.S.C. § 5545(c)(2), the allow ance o f A U O requires (he
approval o f the O ffice o f Personnel M anagement (O PM ). M oreover, as authorized by 5 U.S.C. § 5548,
O PM has issued regulations interpreting § 5545(c)(2). In these circum stances, the application o f the
pertinent Jaw to the specific facts w ould appear to be prim arily w ithin the jurisdiction and responsibil­
ity o f O PM . M oreover, since O PM , o r rather its predecessor the Civil Service Commission (CSC),
presumably approved the allow ance o f A U O in the FBI L aboratory, that approval w ould be entitled
to the greatest respect if the w orking conditions in the FBI L aboratory are still the same as those on
w hich the C SC approval o f A U O was based.


                                                 431
   These regulations, together with a num ber o f judicial decisions inter­
preting § 5545(c)(2), e.g., Burich v. U nited States, 366 F.2d 984 (Ct. Cl.
 1966), and Fox v. U nited States, 416 F. Supp. 593 (1976) (both involving
United States M arshals Service),2 establish the general considerations
for applying that section. T he basic consideration is that the principal
test is the nature rather than the am ount o f the work. Overtim e caused
by the am ount o f w ork is adm inistratively “controllable” within the
meaning o f the section according to 5 C .F.R . § 550.153, supra, because
it can be avoided at least theoretically by the hiring o f additional
personnel. 5 C.F.R . §550.153 and Fox v. United States, supra at 595-96,
598.
   On the other hand, overtim e is generally uncontrollable w here the
work is o f such a nature that it cannot be interrupted at the normal
quitting time and resumed the next morning. A typical example o f such
assignments, o f course, is the investigatory w ork referred to in the
legislative history o f the 1954 A ct, in the OPM regulations,^and Fox v.
United States, supra, at 597. O ther examples are w ork schedules m an­
dated by o th er agencies, e.g., the dem ands o f the courts on the M ar­
shals’ services. Id., at 595-96. L aboratory w ork may be uncontrollable
w here the result is needed urgently for a trial or an investigation, or
w here a test has to be brought to its conclusion and cannot be inter­
rupted. These considerations w ere expressed in the Burich case as
follows:
          [A]s a consequence o f his regular assignments, he experi­
          enced erratic and irregular periods o f overtim e work. His
          assignments w ere received on a daily basis, but neither the
         nature o f the work nor the length o f tim e required in its
         performance could be ascertained beforehand. T o the extent
          that this w ork involved overtim e, it is clear that such
          overtim e could perhaps be anticipated, but it could not be
          regulated. And thus the point o f distinction is that p la in tiff
          was not assigned overtime; he was assigned a task which
          m ight require overtime. U nder such circum stances, his ad­
       ditional duty hours represented adm inistratively uncon­
       trollable overtim e rather than regularly scheduled over­
       time.
366 F.2d at 988 (emphasis supplied).
  T he critical notion inherent in all those discussions and tests is the
assignment o f a task that according to its nature—and not because o f a
shortage o f m anpow er—has to be com pleted w ithout regard to normal
business hours.

   2   O th e r cases co nstruing § 5545(c)(2) are Byrnes v. United States, 330 F.2d 986 (C t. Cl. 1964), and
Fix v. United States. 368 F.2d 609 (Ct. Cl. 1966).


                                                  432
   As indicated above, this Office is not familiar with the duties o f
            V
agent-examiners in the FBI Laboratory. We do not consider it appro­
priate for us either to criticize or to accept the analysis o f those
positions in the G A O letter. We believe, how ever, that our discussion,
together with the factual data you have requested from the FBI, will
assist you in preparing a reply to the GAO .

                                         L a r r y L . S im m s
                                 Deputy Assistant Attorney General
                                     Office o f Legal Counsel




                                  433
