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WALSH v. UNITED STATES

November 13, 1957

Robert N. WALSH, Peter Moretti, Fred W. Dickman, Harold O. Battersby, Edwin E. Harbaugh, Alexander Chestnut, Sewell A. Bennett, Charles Wilson, Albert Locke, Daniel Koch, John A. Brady, Margaret M. Flynn, Administratrix of the Estate of Hugh Flynn, Deceased, Clifford Rule, Harry McGalla, Samuel N. Rule, William L. Hess, William Prem, Charles Brady, Henry Christensen, Herbert Burnett, Nicholas J. Masino, John Lamprow, Charles A. McKeever and Frank J. Morrison,
v.
UNITED STATES of America



The opinion of the court was delivered by: DUSEN

The trial judge makes the following Findings of Fact and Conclusions of Law:

I. Findings of Fact.

 1. The plaintiffs were hired as firefighters for the Philadelphia Cargo Port of Embarkation at various times during the years 1943 and 1944, by 1st Lieutenant (later Captain) J. F. Rosprin, Transportation Corps, Civilian Personnel Branch, under procedures set up by the War Service Regulations of the Civil Service Commission (see plaintiffs' Requests for Finding of Fact No. 1 and Exhibits D-1 -- D-25).

 2. Such hiring was done pursuant to Orders 'M' (attached to Exhibit D-25) issued by the Secretary of War, effective September 1, 1942. Under the authority of 5 U.S.C.A. § 43, Orders 'M' delegates the authority of the Secretary of War to the Commanding Generals, Services of Supply, Army Air Forces, and Army Ground Forces, to take final action on personnel transactions in the field service. *fn1" Also, representatives of the Civilian Personnel Division of the Office of the Secretary of War had to assure compliance by these Generals 'with Departmental policies, standards, and procedures; Civil Services rules and regulations; Comptroller General's decisions, and established legal requirements; by the appropriate audit and inspection of such actions * * *.'

 3. There is no specific Act of Congress or Executive Order which authorizes the establishment of a fire department at a War Department installation or which provides for the creation, duties, or method of appointment to the position of firefighter. Such authority stems from the responsibilities of the port commander (see Army Regulations No. 210-10) to provide for the safety and defense of the post (see plaintiffs' and defendant's requested Findings No. 3).

 4. The final composition and operation of the fire department for this post was determined by the port commander with command concurrence by the Chief of Transportation. The port engineer (under 10 U.S.C.A. § 181b* and Army Regulations No. 100-80 2b(4)(h) -- Exhibit D-27) and the port commander were the administrative officials in charge of the fire department and were responsible for its activities and operation (see plaintiffs' requested Finding No. 2 and Exhibit D-25).

 5. Each of the plaintiffs executed an oath of office, affidavit and declaration of appointee (Exhibits D-1 -- D-24).

 6. Plaintiffs' requested Findings of Fact Nos. 4 to 33, inclusive, are adopted as Findings of Fact of this court.

 All requests for Findings of Fact which are inconsistent with the foregoing are denied.

 II. Discussion.

 Plaintiffs brought this action in 1946 to recover overtime compensation allegedly due them under the War Overtime Pay Act of 1943, 50 U.S.C.A.Appendix § 1401 ff., for their services as firefighters. Jurisdiction was based on the Tucker Act, which granted to the District Court original jurisdiction, concurrent with the Court of Claims, over certain civil actions against the United States.

 When this suit was begun, 28 U.S.C.A. § 41(20) (incorporated into 28 U.S.C.A. § 1346(d) by the 1948 revision of the United States Code, Title 28) *fn2" read that nothing in the Tucker Act shall be construed as giving the District Court:

 '* * * jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States or brought for such purpose by persons claiming as such officers or as assignees or legal representatives thereof; but no suit pending on the ...


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