formerly contained in 28 U.S.C.A. § 41(20) was inapplicable. See, also, Cain v. United States, D.C.N.D.Ill.1947, 73 F.Supp. 1019; Martin v. United States, 8 Cir., 1909, 168 F. 198, 203; cf. Brooks v. United States, D.C.E.D.N.Y.1939, 33 F.Supp. 68.
Although the Fifth Circuit Court of Appeals reached a different conclusion in the case of a 'civilian firechief' appointed in March 1941 by the local commanding officer acting for the Secretary of War
in Bruner v. United States, 5 Cir., 1951, 189 F.2d 255, affirmed on other grounds, 1952, 343 U.S. 112, 72 S. Ct. 581, 96 L. Ed. 786, the hearing judge believes that the Beal case is more applicable to the factual situation presented by this record, since the per curiam decision in the Bruner case relied on Kennedy v. United States, 5 Cir., 1944, 146 F.2d 26, which is clearly distinguishable from the facts involved in this case. The Kennedy case concerned a junior instructor who was appointed with the approval of the Secretary of War, acting pursuant to an Act of Congress which authorized the position to which the instructor was appointed and appropriated funds for the payment of the salary therefor (see footnote 2 at page 28 of 146 F.2d).
B. Intermittent or Irregular Employees.
From a review of the evidence, it appears clear that plaintiffs were not, within the meaning of the War Overtime Pay Act of 1943 (50 U.S.C.A.Appendix § 1401 ff.), employees 'whose hours of duty are intermittent or irregular' or 'whose hours of duty are less than full time.' The thorough analysis of this issue in Beal v. United States, supra, 182 F.2d at pages 568-570, fully disposes of the contentions made by the parties herein. Further, plaintiffs herein worked twelve hours daily and were on full-duty status during all of this time, not being considered on an 'on-call' status by the officers in charge
(see plaintiffs' requested Findings of Fact Nos. 5 and 6, adopted by the court in Finding No. 6). Therefore, the regulations promulgated by the Civil Service Commission (War Overtime Pay Regulations, 4 C.F.R.Cum.Sup. § 8.1, Title 5,Chap. 1, § 20.7) and the Secretary of War (War Department 'Orders' H and U; cf. War Department Administrative Memorandum No. W-29), which designate plaintiffs as 'intermittent or irregular' employees, are invalid as being beyond the authority granted the President under Joint Resolution 170 (and exercised by him by Executive Order 9289, U.S.Code Cong. Service 1942, p. 1847, 7 F.R. 10897, 3 C.F.R.Cum.Sup. § 1244) and the Civil Service Commission by the War Overtime Pay Act of 1943 to promulgate such necessary and proper regulations as might be required for administration.
Plaintiffs' computation of overtime pay (see last four pages attached to plaintiffs' Requests for Findings of Fact) is adopted by the hearing judge for the reasons stated at pages 10 to 13 of their brief and in their supplemental memorandum filed September 30, 1957, which are attached hereto. The trial judge finds that plaintiff Charles Wilson has not sustained the burden of proving, by the fair preponderance of the evidence, the amount he is entitled to recover, if any. At the trial, the trial judge stated that, if the record proved incomplete as to any plaintiff, he would be given a reasonable time, after entry of Findings of Fact and Conclusions of Law, to supplement the record. By letter of November 6, 1957, the trial judge notified counsel for plaintiffs that the record as to Charles Wilson was inadequate. Under these circumstances, counsel for plaintiffs will be given one month from this date to supplement the record with additional proof on the amount, if any, recoverable by Charles Wilson.
III. Conclusions of Law.
Plaintiffs' requested Conclusions of Law Nos. 1 to 6, inclusive, with the modification that the words 'Charles Wilson -- $ 1286.40' are deleted from paragraph 6, are adopted as Conclusions of Law of this court.
All requests for Conclusions of Law which are inconsistent with the foregoing are denied.
Plaintiffs may submit an order for the entry of judgment, in accordance with the foregoing Conclusions of Law, after appropriate notice to defendant.