Beal v. United States, 11072.

• Decision Date: 29 May 1950
• Docket Number: No. 11072.,11072.
• Citation: 182 F.2d 565
• Parties: BEAL et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

182 F.2d 565 (1950)

BEAL et al. v. UNITED STATES.

No. 11072.

United States Court of Appeals Sixth Circuit.

May 29, 1950.

Monroe Oppenheimer, Washington, D. C., Harry B. Miller, and Harry B. Miller, Jr., Lexington, Ky., Monroe Oppenheimer and Robert E. Sher, Washington, D. C., on brief, for appellants.

Irvin M. Gottlieb, Washington, D. C., Claude P. Stephens, Lexington, Ky., H. G. Morison, Edward H. Hickey, Irvin M. Gottlieb, and Joseph B. McGrath, all of Washington, D. C., on brief, for appellee.

Before HICKS, Chief Judge and SIMONS and ALLEN, Circuit Judges.

SIMONS, Circuit Judge.

The appellants were firefighters employed by the War Department at the Lexington Signal Depot, a United States Army installation. They were required to be on duty under the so-called two-platoon system, 24 hours on and 24 hours off, and to remain alert within the confines of the depot during each 24 hour tour of duty, except for an 8 hour interval for sleep and meals, ready at all times to respond to fire calls. Their tour of duty totaled 168 hours every two weeks, or an average of 84 hours per week. After deducting the allowable time for sleep and meals this amounted to an average of 56 hours of service per week. Their view is that the time spent on duty in excess of 40 hours per week was compensable. They sued to recover compensation based upon time and one-half for the period of employment prior to January 1, 1945. The court dismissed the action on the ground that their complaint failed to state a claim upon which relief could be granted, and they are here on appeal.

We meet first a jurisdictional question. The government asserts that the district court was without jurisdiction because the appellants were "officers" of the United States and so are precluded from suing in the district court by virtue of the exception in the 1898 amendment to the Tucker Act, 28 U.S.C.A. § 1346(d) (2), which deprives district courts of jurisdiction over suits brought by officers to recover "fees, salary or compensation for official services." While the court below disagreed with this view the government still presses the jurisdictional question. The appellants contend that they are not officers because they were not appointed by the Secretary of War; because the Secretary was not required to make the appointments even though he had authority to do so and because their positions were not specifically created by statute.

We accept the rationalization of the appellants that if any one of the three alleged prerequisites that distinguishes officers from mere employees is wanting, the status of persons as officers of the United States is not established. We find it unnecessary, therefore, to consider whether the appellants were appointed by the Secretary of War or his lawfully delegated subordinate, or whether there is any significantly legal difference between statutory requirement and statutory authority, and confine ourselves to the question whether the positions filled by the appellants were posts specifically created by statute. The tests which distinguish officers from employees have been considered in numerous cases. No clearly defined or generally accepted formula appears. This only may with confidence be said: the distinction does not rest upon difference in necessary qualifications or in the character of the service to be performed, but "Whether the incumbent is an officer or an employe is determined by the manner in which Congress has specifically provided for the creation of the several positions, their duties and appointment thereto." Burnap v. United States, 252 U.S. 512, 516, 40 S.Ct. 374, 64 L.Ed. 692. Congressional authority for the creation of the post is, of course, indispensable to the status of an incumbent as an officer. Views diverge, however, upon the manner necessary for conferring authority. One line of cases appears to hold that no office is created unless there is specific authority for its establishment in some Act of Congress which defines its nature, duties, tenure and emoluments. Another group of cases seems to hold that general authority to a department-head to employ and pay assistants or subordinates constitutes incumbents as officers. Typical of the first group is Burnap v. United States, supra, and Martin v. United States, 8 Cir., 168 F. 198, and of the second, Kennedy v. United States, 5 Cir., 146 F.2d 26, and Surowitz v. United States, D.C.S.D.N.Y., 80 F.Supp. 716.

It seems to us, however, that with this apparent confusion we should adhere strictly to the rationalization of Mr. Justice Brandeis in the Burnap case. There was there involved the status of a landscape architect in the Office of Public Buildings and Grounds. No statute was found creating the office nor any which defined the duties of the position. The only authority for the appointment of a landscape architect was an appropriation act. Burnap claimed to be an officer and not an employee. This was vital to his claim that he was unlawfully removed and to recovery of his full salary. The dismissal of his petition by the Court of Claims on the ground that he was but an employee, was affirmed.

Here, as there, no Act of Congress appears which specifically creates the positions occupied and details the duties, tenure and emoluments of incumbents. The posts were filled under a blanket authority (5 U.S.C.A. § 43), which authorizes employment by each executive department and independent establishment of such clerks and other employees of various classes as may be appropriated for by Congress from year to year. This is neither express nor specific authority for the creation of an office of firefighter. Appropriation acts do not create offices. There must be a basic authority for the creation of an office. If the matter were ever obscure it has now been clarified. Cain v. United States, D.C., 73 F.Supp. 1019. We think the sounder rule to be that an office of the United States does not exist unless it is created by some specific Act of the Congress. Moreover, the argument is impressive that if this were not so distinctions between officers and employees would largely disappear. The appellants were not precluded from presenting their complaint for adjudication in the District Court of the United States.

Upon the meritorious issue here involved we give consideration to two applicable statutes, the first being Joint Resolution 170, Dec. 22, 1942, 56 Stat. 1068, covering the period December 1, 1942 to April 30, 1943, and the War Overtime Pay Act of 1943, 57 Stat. 75, covering the period May 1, 1943 to June 30, 1945. Both provide that all civilian employees in the executive branch of the United States Government should be paid overtime compensation at time and one-half for all hours of employment in excess of 40 hours per week. Each statute, however, contains a proviso that officers or employees whose hours of duty are intermittent, irregular or less than full time, shall be paid additional compensation in lieu of overtime compensation amounting to 10% under the first statute and 15% under the second, without regard to the number of hours worked by such employees....