B-106783, JUN. 30, 1955

B-106783, JUN. 30, 1955

TO MR. JOHN A. ANDERSON:

YOUR LETTER OF APRIL 8, 1953, REQUESTED REVIEW OF OUR SETTLEMENT OF FEBRUARY 10, 1953, ISSUED UPON YOUR CLAIM FOR EXTRA COMPENSATION UNDER THE ACT OF FEBRUARY 13, 1911, AS AMENDED, 19 U.S.C. 267, FOR SERVICES ON SUNDAYS AND HOLIDAYS, AND OVERTIME SERVICES, AN EMPLOYEE OF THE BUREAU OF CUSTOMS, TREASURY DEPARTMENT, AT ANTLER, NORTH DAKOTA; BUT YOU REQUESTED POSTPONEMENT OF THE REVIEW PENDING SUBMISSION OF A BRIEF AND FURTHER DOCUMENTARY MATERIALS. THE BRIEF AND DOCUMENTARY MATERIALS WERE TRANSMITTED HERE BY LETTER DATED JUNE 23, 1954, FROM YOUR ATTORNEY.

BY THE SETTLEMENT IN QUESTION YOU WERE ALLOWED EXTRA COMPENSATION IN THE AMOUNT OF $2,178.85 UNDER THE 1911 ACT, AS AMENDED, AS CONSTRUED IN UNITED STATES V. MYERS, 320 U.S. 561, FOR SUNDAYS AND HOLIDAYS (EXCEPT UNOBSERVED WARTIME HOLIDAYS) DURING THE PERIOD OF YOUR CLAIM FOR WHICH YOU HAD NOT BEEN CURRENTLY PAID. YOUR CLAIM FOR OVERTIME EXTRA COMPENSATION FOR ALLEGED DUTY ON SUNDAYS AND HOLIDAYS, AS WELL AS ON WEEKDAYS, WAS DISALLOWED FOR THE STATED REASON THAT THE RECORD DID NOT ESTABLISH THAT YOU HAD RENDERED ANY OVERTIME SERVICES IN ADDITION TO EIGHT HOURS OF REGULAR DUTY WHICH IT WAS NECESSARY TO PERFORM BEFORE BECOMING ENTITLED TO SUCH EXTRA COMPENSATION UNDER THE MYERS DECISION. AS YOU KNOW, YOUR CLAIM WAS THE SUBJECT OF A SITE INVESTIGATION BY EMPLOYEES OF THE OFFICE OF INVESTIGATIONS, GENERAL ACCOUNTING OFFICE. THE OVERTIME PORTION OF YOUR CLAIM WAS DISALLOWED AFTER CAREFUL CONSIDERATION OF THE REPORT OF THE INVESTIGATION, TOGETHER WITH OTHER INFORMATION OF RECORD HERE.

THE UNDERLYING REASONS FOR THE CONCLUSION IN REGARD TO OVERTIME WERE THAT THE RELATIVELY SMALL VOLUME AND INTERMITTENT NATURE OF THE TRAFFIC AT ANTLER, TOGETHER WITH THE LOCATION OF THE CUSTOMS OFFICE WITHIN THE VILLAGE AND IN CLOSE PROXIMITY TO YOUR LIVING QUARTERS, PERMITTED YOU TO ENGAGE IN PERSONAL PURSUITS IN AND ABOUT THE VILLAGE AND IN YOUR HOME WITH ONLY OCCASIONAL INTERRUPTIONS FOR THE TRANSACTION OF OFFICIAL BUSINESS.

IN ORDER TO BE ENTITLED TO THE OVERTIME EXTRA COMPENSATION HERE CLAIMED, TWO CONDITIONS OF SERVICE MUST BE MET, NAMELY, (1) THE CUSTOMS OFFICER OR EMPLOYEE MUST HAVE BEEN REQUIRED TO REMAIN ON DUTY FOR THE REGULAR TOUR, WHICH IS CONSIDERED TO BE EIGHT HOURS DELINEATED BY THE MENTION OF THE HOURS 8 A.M. TO 5 P.M. IN THE 1911 ACT, AS AMENDED, WITH ONE HOUR FOR FOOD AND REST (UNITED STATES V. MYERS, CITED ABOVE); AND (2) HE MUST HAVE PUT IN AT LEAST ONE HOUR OF DUTY AFTER 5 P.M. IN ADDITION TO THE REGULAR EIGHT -HOUR TOUR OF DUTY (THE EXTRA COMPENSATION BEING PAYABLE IN UNITS OF ONE- HALF DAY'S PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR).

PRIOR TO ABOUT OCTOBER 1946, THE HOURS FOR THE PORT OF ANTLER DO NOT APPEAR TO HAVE BEEN OFFICIALLY PRESCRIBED. WHEN YOU WERE ASSIGNED TO DUTY AT ANTLER IN 1939, YOU WERE TOLD TO HANDLE THE BUSINESS OF THE PORT AS BEST YOU COULD AND THE HOURS WERE LEFT TO YOUR DISCRETION. GENERALLY SPEAKING, WITH THE EXCEPTIONS HEREINAFTER NOTED, WE WILL ACCEPT FOR THE PURPOSES OF THIS REVIEW YOUR STATEMENT THAT THE HOURS WERE ESTABLISHED FROM 9 A.M. TO 11 P.M. FROM THE BEGINNING DATE OF YOUR CLAIM TO NOVEMBER 4, 1945, TO OCTOBER 6, 1946; FROM 8:30 A.M. TO 9:30 P.M. FROM OCTOBER 6, 1946, TO MAY 1947; AND FROM 8:30 A.M. TO 10:30 P.M. FROM MAY 1947 TO JULY 13, 1947, THE LAST DAY YOU CLAIM.

IT IS EVIDENT FROM AN EXAMINATION OF THE RECORD (INCLUDING THE TOURIST REGISTER, OR "BLOTTER," IN WHICH THE MOVEMENT OF TRAFFIC IN AND OUT OF ANTLER IS RECORDED) THAT THE ACTUAL TRANSACTION OF CUSTOMS BUSINESS CONSUMED ONLY A MINOR PORTION OF YOUR TIME. CONSEQUENTLY, IN ORDER TO ESTABLISH COMPENSABLE OVERTIME IT WOULD BE NECESSARY TO ALLOCATE A CONSIDERABLE AMOUNT OF IDLE TIME AS WAITING TIME OR AS TIME WHEN "REQUIRED TO REMAIN ON DUTY" (QUOTED FROM THE 1911 ACT, AS AMENDED).

THE ONLY COURT CASES DECIDED UPON THE MERITS WHICH HAVE ANY BEARING UPON THE MATTER HERE IN QUESTION ARE THE O-ROURKE-BROWN-OSTROOT GROUP, 109 C.CLS. 33, ET SEQ., WHEREIN IT WAS HELD (AT PAGE 47) THAT CUSTOMS OFFICERS REQUIRED TO BE PRESENT AT THE CUSTOMS OFFICE FOR MORE THAN EIGHT HOURS BUT NOT ACTUALLY PERFORMING CUSTOMS SERVICES, EXCEPT AS THOSE SERVICES WERE IRREGULARLY REQUIRED WHEN PERSONS AND GOODS PASSED THE PORT, WERE SUBJECT TO THE OVERTIME EXTRA COMPENSATION PROVISIONS OF THE 1911 ACT, AS AMENDED. ACCORDING TO THE FINDING OF FACT, THE CUSTOMS OFFICE IN O-ROURKE'S CASE WAS LOCATED ABOUT FIVE MILES NORTH OF THE VILLAGE OF ROSEAU, MINNESOTA, WITH NO NEARBY LIVING QUARTERS FOR GOVERNMENT PERSONNEL. IN BROWN'S CASE THE FINDINGS OF FACT ARE NOT EXPLICIT AS TO THE LOCATION OF THE CUSTOMS OFFICE WITH RESPECT TO LIVING QUARTERS, ETC. HOWEVER, THE FINDING (AT PAGE 52) THAT THE PLAINTIFF HAD HIS MEALS AT THE CUSTOMS OFFICE AT THE CONVENIENCE OF TRAFFIC AND USUALLY IN 10 TO 15 MINUTES SUGGESTS THAT PLAINTIFF'S LIVING QUARTERS WERE NOT IN THE IMMEDIATE VICINITY OF THE CUSTOMS OFFICE. FURTHERMORE, THE MATTER WAS PRESENTED TO THE COURT IN PLAINTIFFS' BRIEF AS INVOLVING DEFINITE HOURS OF DUTY DURING WHICH PLAINTIFFS REMAINED AT THE CUSTOMS OFFICE WITHOUT BEING FREE TO GO ABOUT THEIR OWN AFFAIRS OR TO LEAVE THE PORT UNATTENDED (R. 224). OSTROOT'S CASE, INVOLVING SERVICE AS A BUSY PORT WITH THREE TO FIVE CUSTOMS OFFICERS OPERATING ON ROTATING SHIFTS TO MAN THE PORT 17 HOURS A DAY, IS NOT PERTINENT.

ANTLER, NORTH DAKOTA, WHERE YOU WERE STATIONED DURING THE PERIOD OF YOUR CLAIM--- JULY 6, 1939, TO JULY 26, 1947--- IS APPROXIMATELY THREE MILES SOUTH OF THE CANADIAN BORDER. FROM THE BEGINNING DATE OF YOUR CLAIM TO SEPTEMBER 1, 1945, THE CUSTOMS OFFICE WAS IN A BUILDING LOCATED ONE-HALF BLOCK OFF THE VILLAGE SQUARE. THEREAFTER, THE CUSTOMS OFFICE WAS LOCATED IN THE FRONT ROOM OF THE BUILDING IN WHICH YOU OCCUPIED LIVING QUARTERS AND WHICH YOU OWNED. THIS BUILDING IS ON THE VILLAGE SQUARE SLIGHTLY OVER A BLOCK FROM THE OLD BUILDING. TRAFFIC THROUGH THE PORT CONSISTS PRIMARILY OF TRAVEL BY LOCAL RESIDENTS ON EITHER SIDE OF THE BORDER.

YOU DO NOT ALLEGE THAT YOU REMAINED IN THE CUSTOMS OFFICE DURING THE EVENING HOURS; AND THE PREPONDERANCE OF THE CREDIBLE EVIDENCE OF RECORD LEADS US TO THE CONCLUSION THAT IT WAS NOT NECESSARY FOR YOU TO, NOR DID YOU, REMAIN IN THE CUSTOMS OFFICE--- WHEN IT WAS LOCATED IN A BUILDING SEPARATE FROM YOUR LIVING QUARTERS, AS WELL AS WHEN IT WAS LOCATED IN A ROOM ADJOINING YOUR LIVING QUARTERS--- THROUGHOUT THE DAILY PERIODS YOU CLAIM AS THE HOURS OF BUSINESS OF THE PORT. AMONG THE PAPERS EXAMINED IN CONNECTION WITH THE INVESTIGATION OF YOUR CLAIM THERE WAS FOUND CARDS WHICH COULD BE PLACED IN THE WINDOW OR ON THE DOOR OF THE CUSTOMS OFFICE DURING YOUR ABSENCE. THESE CARDS CONTAINED MESSAGES DESIGNED TO NOTIFY BORDER CROSSERS WHERE YOU COULD BE LOCATED OR WHEN YOU COULD BE EXPECTED TO RETURN. FOR ANOTHER THING, THE FILE CONTAINS EVIDENCE THAT YOU ENGAGED IN COMMUNITY ACTIVITIES, SUCH AS ASSUMING CERTAIN RESPONSIBILITIES IN CONNECTION WITH A SCHOOL CONSTRUCTION PROJECT. MOREOVER, AS INDICATIVE OF YOUR ABSENCE AT TIMES FROM THE CUSTOMS OFFICE, THE "BLOTTER" SHOWS MANY INSTANCES WHERE THE BORDER CROSSING TRANSACTION IS NOT IN YOUR HANDWRITING BUT IN THE HANDWRITING OF THE BORDER CROSSERS THEMSELVES OR PERSONS OTHER THAN YOURSELF; AND THERE PROBABLY WERE OTHER INSTANCES NOT REFLECTED IN THE "BLOTTER" SINCE IT APPEARS TO HAVE PAPER ON WHICH PERTINENT CUSTOMS OR IMMIGRATION INFORMATION HAD BEEN WRITTEN. YOUR EXPLANATION OF THE ENTRIES BY OTHERS IS NOT ACCEPTABLE TO CONTROVERT THE INFERENCE THAT YOU WERE NOT IN A DUTY STATUS AT YOUR PORT AT ALL TIMES CLAIMED BY YOU.

IN VIEW OF THE FOREGOING, WE CANNOT CONCLUDE THAT YOU ARE TO BE CONSIDERED AS HAVING REMAINED EIGHT HOURS IN A DUTY STATUS AT 6 P.M. WHEN THE ALLEGED OPENING HOUR WAS 9 A.M., OR AT 5:30 P.M. WHEN THE OPENING HOUR WAS 8:30 A.M.

RELATIVE TO THE EVENING HOURS, WHICH CONSTITUTE THE OVERTIME HOURS FOR WHICH YOU CLAIM EXTRA COMPENSATION, THE RECORD ESTABLISHES THAT WHEN THE CUSTOMS OFFICE WAS LOCATED IN THE OLD BUILDING IT WAS YOUR PRACTICE TO TRANSACT CUSTOMS BUSINESS AFTER 5:30 P.M. IN THE FRONT ROOM OF YOUR BUILDING, WITH THE EXCEPTION, ACCORDING TO YOUR STATEMENT, THAT IF"ENTRIES" WERE REQUIRED YOU PROCEEDED TO THE CUSTOMS OFFICE WHERE THE NECESSARY PAPERS AND DOCUMENTS WERE KEPT TO HANDLE THE TRANSACTIONS. FORMAL CUSTOMS ENTRIES WERE COMPARATIVELY FEW AT ANTLER. THE YEARLY AVERAGE FOR THE APPROXIMATELY EIGHT FISCAL YEARS COMPRISING THE PERIOD OF YOUR CLAIM WAS 132. THE LOWEST NUMBER FOR ONE FISCAL YEAR (1944) WAS 75; THE HIGHEST (1947), 219. FROM SEPTEMBER 1, 1945, WHEN THE CUSTOMS OFFICE WAS LOCATED IN THE FRONT ROOM OF YOUR BUILDING, ALL TRANSACTIONS WERE HANDLED THERE.

THE INFORMATION OF RECORD IS THAT THERE WAS A CONNECTING DOOR BETWEEN THE FRONT ROOM (CUSTOMS OFFICE) AND YOUR LIVING ROOM. IT IS APPARENT THAT THIS ARRANGEMENT PERMITTED YOU TO FOLLOW TO A LARGE DEGREE THE DOMESTIC ROUTINES THAT WOULD HAVE ENGAGED YOUR TIME IN ANY EVENT. THE FACT THAT YOU MIGHT BE CALLED UPON TO TRANSACT CUSTOMS OR IMMIGRATION BUSINESS FOR BRIEF INTERVALS DOES NOT, UNDER ALL OF THE CIRCUMSTANCES REFLECTED BY THE RECORD, WARRANT US TO CONCLUDE THAT THE TIME BETWEEN TRANSACTIONS AND THE TIME BETWEEN THE LAST DAILY TRANSACTION AND THE SUPPOSED CLOSING HOUR IS TO BE CONSIDERED AS COMPENSABLE OVERTIME UNDER THE 1911 ACT, AS AMENDED.

THE ONLY DAY OF THE WEEK WITH RESPECT TO WHICH THE REGULAR PATTERN OF THE NUMBER OF TRANSACTIONS RECORDED IN THE "BLOTTER" FOR CERTAIN PERIODS RAISES THE POSSIBILITY THAT A SUBSTANTIAL PORTION OF YOUR TIME WAS REQUIRED TO BE DEVOTED TO ACTUAL TRANSACTIONS WAS SATURDAY. APPARENTLY, MOVIES SHOWN IN ANTLER ON SATURDAY NIGHTS ATTRACTED CANADIANS FROM ACROSS THE BORDER. THE MOVIES APPEAR TO HAVE RUN FROM 8 P.M. TO 10 P.M. HOWEVER, IT APPEARS THAT YOU DEALT WITH THIS SITUATION BY MOVING THE OPENING HOUR OF THE PORT TO 1 P.M. OR LATER. THIS IS SHOWN BY THE FACT THAT FOR SATURDAY AFTER SATURDAY, BEGINNING IN DECEMBER 1939, THE "BLOTTER" REFLECTS FIRST ENTRIES AT 1 P.M. OR AFTER. THERE ARE SOME SATURDAYS ON WHICH ENTRIES PRIOR TO 1 P.M. ARE RECORDED BUT THE MAJORITY OF THESE ENTRIES ARE IN THE HANDWRITING OF THE CROSSERS. THE FEW INSTANCES IN WHICH CROSSINGS IN THE MORNING HOURS ARE RECORDED IN THE "BLOTTER" IN YOUR OWN HANDWRITING APPEAR TO HAVE RESULTED MORE FROM THE FORTUITOUS CIRCUMSTANCES OF YOUR PRESENCE THERE AT THE TIME THAN FROM THE FACT THAT YOU HAD SPENT YOUR TIME WAITING IN AN OFFICIAL DUTY STATUS. ACCORDINGLY, UNDER THE CIRCUMSTANCES, EVEN THE SATURDAYS MAY NOT BE REGARDED AS COMPENSABLE OVERTIME DAYS.

THE SEVERAL DOCUMENTS, INCLUDING THE AFFIDAVITS OF RESIDENTS OF THE ANTLER AREA AND OTHERS, SUBMITTED BY YOU IN SUPPORT OF YOUR CLAIM HAVE BEEN GIVEN CAREFUL CONSIDERATION BUT ARE NOT DEEMED TO HAVE SUFFICIENT WEIGHT TO CHANGE THE CONCLUSIONS EXPRESSED HEREIN. THE AFFIDAVITS OF THE BORDER CROSSERS FROM THE ANTLER AREA PURPORT TO ESTABLISH THAT THE HOURS OF THE PORT WERE THOSE YOU ALLEGE IN YOUR CLAIM AND THAT YOU WERE IN UNIFORM AND AVAILABLE TO PERFORM CUSTOMS SERVICES DURING THE STATE HOURS. WE ARE INFORMED THAT NONE OF THE AFFIDAVITS WERE ORIGINALLY MADE UP FROM INFORMATION PREVIOUSLY SUPPLIED BY THE AFFIANT. APPARENTLY, THE AFFIANTS WERE GIVEN THE OPPORTUNITY BEFORE SIGNING TO MAKE CHANGES IN THE DRAFTS SUBMITTED TO THEM. HOWEVER, THEY EVIDENTLY TOOK FOR GRANTED THE VERITY OF THE ASSERTIONS CONTAINED IN THE DRAFTS FOR THE MAJORITY OF THEM HAVE GIVEN SWORN STATEMENTS TO OUR REPRESENTATIVE THAT THEY CANNOT NOW SAY OF THEIR OWN RECOLLECTION WHAT THE HOURS OF THE PORT WERE DURING THE PERIOD OF YOUR CLAIM. IN ANOTHER INSTANCE, AN AFFIANT, WHOSE AFFIDAVIT CONTAINED A DECLARATION PURPORTING TO EXPLAIN CERTAIN STATEMENTS MADE TO OUR REPRESENTATIVE DURING A SUPPOSED INTERVIEW IN THE SPRING OF 1952, NOW HAS GIVEN US A SWORN STATEMENT THAT THE INTERVIEW DID NOT TAKE PLACE WITH HIM BUT WITH HIS WIFE, AND THAT HE CANNOT TRUTHFULLY GIVE THE EXACT HOURS FOR THE PORT OF ANTLER FROM 1939 TO 1947. IN VIEW OF THE PROVEN DISCREPANCIES IN THE AFFIDAVITS, THEY HAVE LITTLE, IF ANY, PROBATIVE VALUE IN ESTABLISHING THE MERITS OF YOUR CLAIM.

AS PRECEDENTS FOR THE ALLOWANCE OF YOUR CLAIM YOU CITE OUR ACTION IN ALLOWING SIMILAR CLAIMS OF L. A. HANSEN AND HARVEY R. BURKHOLDER. THE HANSEN CLAIM WAS ALLOWED BEFORE THE PARTICULAR CIRCUMSTANCES PREVAILING AT SOME OF THE SMALL BORDER PORTS WERE BROUGHT TO OUR ATTENTION. THE ALLOWANCE OF THE PORTION OF THE BURKHOLDER CLAIM (FOR SERVICES AT MAIDA, NORTH DAKOTA) MOST NEARLY LIKE YOURS, RESULTED FROM AN OVERSIGHT OF INSTRUCTIONS APPLICABLE TO CLAIMS OF THIS TYPE. NEITHER OF THOSE CASES MAY BE REGARDED AS FURNISHING A BASIS FOR THE DISPOSITION OF YOUR CLAIM. MOREOVER, THE STIPULATED JUDGMENTS OF THE COURT OF CLAIMS, WHICH ARE CITED AS JUSTIFYING THE ALLOWANCE OF YOUR CLAIM, ARE NOT REGARDED AS CONTROLLING OR OF PERSUASIVE EFFECT HERE, SINCE THEY WERE NOT ENTERED BY THE COURT AFTER A DECISION UPON THE MERITS. YOUR CLAIM HAS BEEN CAREFULLY REVIEWED IN THE LIGHT OF ALL YOUR REPRESENTATIONS; HOWEVER, WE CONCLUDE THAT THE SETTLEMENT ACTION OF FEBRUARY 10, 1953, DISALLOWING OVERTIME EXTRA COMPENSATION WAS CORRECT, AND THE SETTLEMENT IS THEREFORE SUSTAINED.

WITH REFERENCE TO THE REQUEST IN LETTER OF JUNE 23, 1954, THAT YOU BE GRANTED A HEARING SHOULD IT BE FOUND THAT THE RECORD CONTAINS ANY MATTER WHICH MAY ADVERSELY AFFECT YOUR CLAIM ON A MATERIAL POINT, YOU ARE ADVISED THAT CLAIMS ARE SETTLED HERE ON THE BASIS OF THE WRITTEN RECORD AND THERE ARE NO PROCEDURES FOR REFUTING ADVERSE MATTERS BY FORMAL HEARINGS. HOWEVER, SHOULD YOU OR YOUR ATTORNEY DESIRE TO CONFER INFORMALLY WITH REPRESENTATIVES OF OUR OFFICE, ARRANGEMENTS FOR SUCH A CONFERENCE MAY BE MADE UPON REQUEST.