B-176580, AUG 7, 1974

B-176580: Aug 7, 1974

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CLAIMS ARE DENIED SINCE THE PRELIMINARY AND POSTLIMINARY DUTIES CLAIMANTS PERFORMED CONSTITUTED REGULARLY SCHEDULED WORK WHICH COULD NOT BE AUTHORIZED BY LOCAL OFFICIALS. COURT CASES ARE NOT CONSIDERED AS DISPOSITIVE OF THE ISSUES SINCE BATES CASE WAS DECIDED ON REPUDIATED STIPULATION. IN ANDERSON CASE TERM "REGULARLY SCHEDULED" WAS CONSTRUED AS MEANING "PRESCRIBED ACCORDING TO STATUTES AND REGULATIONS" WHICH CONSTRUCTION IS CONTRARY TO LONG-STANDING INTERPRETATION THAT SUCH TERM MEANS "WORK SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS.". CLS. 362 (1971): THIS ACTION IS A CONSIDERATION OF THE CLAIMS OF MESSERS. THE TWO CLAIMS ARE EXEMPLARY OF SEVERAL HUNDRED RECEIVED FROM PRESENT AND FORMER EMPLOYEES OF THE VETERANS ADMINISTRATION (VA) HOSPITAL.

B-176580, AUG 7, 1974

VA EMPLOYEES CLAIM OVERTIME UNDER 5 U.S.C. 5542(A) FOR PRELIMINARY AND POSTLIMINARY DUTY IN ACCORDANCE WITH THE HOLDINGS IN THE BATES AND ANDERSON CASES, 196 C. CLS. 362 (1971), AND C. CLS. NO. 151-68, MAY 11, 1973, RESPECTIVELY. CLAIMS ARE DENIED SINCE THE PRELIMINARY AND POSTLIMINARY DUTIES CLAIMANTS PERFORMED CONSTITUTED REGULARLY SCHEDULED WORK WHICH COULD NOT BE AUTHORIZED BY LOCAL OFFICIALS. COURT CASES ARE NOT CONSIDERED AS DISPOSITIVE OF THE ISSUES SINCE BATES CASE WAS DECIDED ON REPUDIATED STIPULATION, AND IN ANDERSON CASE TERM "REGULARLY SCHEDULED" WAS CONSTRUED AS MEANING "PRESCRIBED ACCORDING TO STATUTES AND REGULATIONS" WHICH CONSTRUCTION IS CONTRARY TO LONG-STANDING INTERPRETATION THAT SUCH TERM MEANS "WORK SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS."

CLAIMS FOR OVERTIME COMPENSATION OF VA EMPLOYEES UNDER BATES, ET AL. V. UNITED STATES, 196 C. CLS. 362 (1971):

THIS ACTION IS A CONSIDERATION OF THE CLAIMS OF MESSERS. HAYWARD AARON, JR. AND RAYMOND L. ADAMS FOR OVERTIME COMPENSATION FOR PERFORMANCE OF PRELIMINARY AND POSTLIMINARY FUNCTIONS. MR. AARON'S CLAIM COVERS THE PERIOD NOVEMBER 1965 TO APRIL 6, 1966. THE TWO CLAIMS ARE EXEMPLARY OF SEVERAL HUNDRED RECEIVED FROM PRESENT AND FORMER EMPLOYEES OF THE VETERANS ADMINISTRATION (VA) HOSPITAL, AUGUSTA, GEORGIA. THE DECISION RENDERED HEREIN IS DISPOSITIVE OF THE CITED CLAIMS AND THOSE OF OTHER EMPLOYEES INSOFAR AS THE CIRCUMSTANCES RELATING TO THEIR PERFORMANCE OF PRELIMINARY AND POSTLIMINARY DUTIES ARE IDENTICAL.

THE CLAIMANTS STATE THAT THEY WERE WORKING AT THE SAME VA HOSPITAL, UNDER THE SAME CONDITIONS, RULES AND REGULATIONS, AS PLAINTIFFS INVOLVED IN THE CASE OF BOYKIN W. BATES, ET AL. V. UNITED STATES, 196 C. CLS. 362 (1971). THE PRESHIFT AND POST SHIFT ACTIVITIES INVOLVED IN THE BATES CASE AND FOR WHICH COMPENSATION IS HERE SOUGHT INCLUDE CHANGING INTO AND OUT OF GOVERNMENT FURNISHED UNIFORMS AT A LOCKER PROVIDED IN THE BASEMENT OF ONE OF THE HOSPITAL BUILDINGS AND REPORTING IN UNIFORM TO ASSIGNED DUTY LOCATIONS BEFORE THE SCHEDULED SHIFT STARTS TO OBTAIN BRIEFINGS OF WARD CONDITIONS, RECEIVE SPECIAL INSTRUCTIONS, ETC.

RELYING LARGELY UPON THE ERRONEOUS STIPULATION OF GOVERNMENT COUNSEL THAT LOCAL HOSPITAL OFFICIALS HAD AUTHORITY TO ORDER AND APPROVE OVERTIME FOR EMPLOYEES OF THE AUGUSTA HOSPITAL DURING THE PERIOD PRIOR TO APRIL 6, 1966, THE COMMISSIONER IN THE BATES CASE FOUND THAT LOCAL OFFICIALS HAD IN FACT ORDERED OR APPROVED PERFORMANCE OF THE DUTIES INVOLVED AND THUS THAT PERFORMANCE OF THOSE FUNCTIONS AS OVERTIME WORK HAD BEEN ORDERED OR APPROVED BY OFFICIALS HAVING AUTHORITY TO ORDER OR APPROVE OVERTIME REQUIRED BY 5 U.S.C. 911 (1964 ED.). IN HOLDING THE GOVERNMENT BOUND BY ITS INCORRECT STIPULATION, THE COMMISSIONER FOUND NO NECESSITY TO CONSIDER THE DETERMINATIVE ISSUE OF WHETHER, UNDER PERTINENT VA REGULATIONS HEREINAFTER CITED, THE LOCAL HOSPITAL OFFICIAL HAD AUTHORITY TO ORDER THE PARTICULAR OVERTIME DUTIES HERE INVOLVED. AT PAGE 370 THE COMMISSIONER STATED:

"THE DETERMINATIVE ISSUE IN THIS CASE IS WHETHER OR NOT THE OVERTIME WORK PERFORMED BY PLAINTIFFS IN THIS CASE WAS 'WORK OFFICIALLY ORDERED OR APPROVED.' IF DEFENDANT IS TO BE HELD BOUND BY ITS STIPULATION THAT DR. BRANNON AND MR. COWLEY HAD THE AUTHORITY TO ORDER AND APPROVE OVERTIME DURING THE CLAIM PERIOD AT SUBJECT HOSPITAL, THEN ANY DISCUSSION CONCERNING THE INTERPRETATION TO BE GIVEN TO VETERANS ADMINISTRATION REGULATIONS AND REGULATIONS OF THE SUBJECT HOSPITAL WOULD CLEARLY BE OBITER DICTA.

"IT IS WELL SETTLED THAT ABSENT SPECIAL CONSIDERATIONS, A STIPULATION BY A PARTY IN INTEREST IS BINDING UPON SUCH PARTY. IT IS MY CONCLUSION THAT THERE ARE NO SPECIAL CONSIDERATIONS IN THIS CASE WHICH JUSTIFY A DEPARTURE FROM SUCH RULE. *** ON THE BASIS OF THE STIPULATION, ENTERED INTO AS DESCRIBED ABOVE, AND THE REGULATIONS AND INSTRUCTIONS ISSUED BY OR UNDER THE DIRECTION OF DR. BRANNON, IT IS CONCLUDED THAT THE SUBJECT OVERTIME WORK WAS OFFICIALLY ORDERED AND APPROVED." AT PAGE 363, IN ITS OPINION, THE COURT INDICATED THAT THE CONCLUSION THAT PLAINTIFFS WERE ENTITLED TO OVERTIME COMPENSATION WOULD HAVE BEEN REACHED EVEN WITHOUT RELIANCE UPON THE ERRONEOUS STIPULATION, BUT OFFERED NO SUBSTANTIVE EXPLANATION OF THE LINE OF REASONING WHICH WOULD LEAD TO SUCH A RESULT.

SUBSEQUENTLY, IN THE CASE OF KENNETH D. ANDERSON, ET AL. V. UNITED STATES, 201 C. CLS. 660 (1973), THE COURT DID ADDRESS THE PRECISE ISSUE PRESENTED IN BATES - WHETHER VA REGULATIONS, PERTINENT TO BOTH CASES AND IN EFFECT DURING THE PERIODS INVOLVED IN BOTH - GAVE LOCAL OFFICIALS THE AUTHORITY TO ORDER OR APPROVE OVERTIME OF THE NATURE INVOLVED IN THE TWO CASES.

THE PERTINENT VA REGULATIONS IN EFFECT PRIOR TO JUNE 14, 1965, DEFINED "IRREGULAR OR OCCASIONAL OVERTIME" AS "THOSE HOURS OF EMPLOYMENT IN EXCESS OF THE 40-HOUR BASIC WORKWEEK, NOT SCHEDULED IN REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK," AND DEFINED "REGULARLY SCHEDULED OVERTIME" AS "THAT OVERTIME WHICH WOULD EXTEND BEYOND TWO SUCCESSIVE PAY ***." SUCH REGULATIONS FURTHER STATED THAT REGULARLY SCHEDULED OVERTIME WOULD BE AUTHORIZED "ONLY IN UNUSUAL SITUATIONS WHERE SPECIAL WORK OUTSIDE OF THE NORMAL AND ROUTINE OPERATIONS IS REQUIRED"; THAT IN SUCH CASES, FOR THE GROUPS OF EMPLOYEES INVOLVED, A REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK CONSISTING OF THE BASIC WORKWEEK, PLUS OVERTIME, WOULD BE ESTABLISHED; AND THAT THE "ESTABLISHMENT OF A REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK WHICH INCLUDES REGULARLY SCHEDULED OVERTIME SHALL REQUIRE APPROVAL BY THE DEPARTMENT HEADS FOR FIELD STATIONS."

THE REVISION OF REGULATION MP-5, ISSUED JUNE 14, 1965, DEFINED REGULAR AND IRREGULAR OR OCCASIONAL OVERTIME WORK AS FOLLOWS:

"(A) REGULAR OVERTIME WORK MEANS OVERTIME WORK WHICH IS REGULARLY SCHEDULED. FOR THIS PURPOSE, ANY OVERTIME WORK SCHEDULED FOR AN EMPLOYEE IN ADVANCE OF THE ADMINISTRATIVE WORKWEEK IN WHICH IT FIRST IS TO OCCUR, AND WHICH WILL RECUR OVER AN EXTENDED PERIOD OF TIME (AT LEAST 2 CONSECUTIVE ADMINISTRATIVE WORKWEEKS) CONSTITUTES REGULAR OVERTIME.

"(B) IRREGULAR OR OCCASIONAL OVERTIME WORK MEANS OVERTIME WHICH IS NOT REGULARLY SCHEDULED."

AS TO WHICH OFFICIALS HAD AUTHORITY TO ORDER OR APPROVE OVERTIME, PARAGRAPH 7(B)(1) OF THE JUNE 14, 1965 REVISION OF REGULATION MP-5 PROVIDED:

"(1) AUTHORIZATION. STAFF OFFICE HEADS, HEADS OF DEPARTMENTS, DIRECTORS AND MANAGERS OF FIELD STATIONS *** OR THEIR DESIGNEES, ARE AUTHORIZED TO ORDER AND APPROVE IRREGULAR OR OCCASIONAL OVERTIME."

THESE AND ADDITIONAL REGULATIONS ARE QUOTED AT PAGES 687 THROUGH 689 OF THE COMMISSIONER'S FINDINGS IN THE ANDERSON DECISION.

UNDER THE ABOVE-QUOTED REGULATIONS, THE COMMISSIONER FOUND, AS DOES THIS OFFICE, THAT NEITHER THE HOSPITAL DIRECTOR NOR HIS DESIGNEE HAD AUTHORITY TO ORDER OR APPROVE "REGULARLY SCHEDULED OVERTIME," OR "REGULAR OVERTIME WORK." AT PAGE 691, "ULTIMATE FINDINGS AND CONCLUSIONS," THE COMMISSIONER STATED:

"28. (A) UNDER VA REGULATIONS IN FORCE THROUGHOUT THE CLAIM PERIOD, NEITHER THE HOSPITAL DIRECTOR NOR HIS DESIGNEES HAD ANY AUTHORITY TO ORDER OR APPROVE 'REGULARLY SCHEDULED OVERTIME,' OR 'REGULAR OVERTIME WORK'. DURING THE CLAIM PERIOD, THE HOSPITAL DIRECTOR HAD AUTHORITY TO ESTABLISH REGULARLY SCHEDULED WORKWEEKS WHICH INCLUDED 'REGULARLY SCHEDULED OVERTIME' OR 'REGULAR OVERTIME WORK' ONLY WITH THE APPROVAL OF HIS DEPARTMENT HEAD (THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY, VA). EVIDENCE OF ANY DELEGATION OF SUCH AUTHORITY TO THE HOSPITAL DIRECTOR, OR ANY HERE RELEVANT REQUEST FOR SUCH APPROVAL, IS WHOLLY ABSENT. EVIDENCE THAT ANY DEPARTMENTAL LEVEL OFFICIAL WITH AUTHORITY TO ORDER OR APPROVE 'REGULARLY SCHEDULED OVERTIME' OR 'REGULAR OVERTIME WORK' WAS COGNIZANT OF EITHER THE 'UNIFORM CHANGE' OR 'EARLY REPORTING ON WARD' PRACTICES AT THE HOSPITAL IS ALSO WHOLLY ABSENT.

"(B) UNDER VA REGULATIONS IN FORCE THROUGHOUT THE CLAIM PERIOD, THE HOSPITAL DIRECTOR DID HAVE AUTHORITY TO ORDER AND APPROVE 'IRREGULAR OR OCCASIONAL OVERTIME'."

AS IN THE BATES CASE, IT WAS CLEAR ON THE RECORD THAT LOCAL HOSPITAL OFFICIALS WERE AWARE OF AND MIGHT BE SAID TO HAVE INDUCED PERFORMANCE OF THE PRELIMINARY AND POSTLIMINARY FUNCTIONS INVOLVED.

THE ISSUE IN THE ANDERSON CASE WAS THUS WHETHER PERFORMANCE OF THE PRELIMINARY AND POSTLIMINARY DUTIES FOR WHICH OVERTIME WAS SOUGHT WAS THE PERFORMANCE OF REGULAR OVERTIME AS OPPOSED TO IRREGULAR OR OCCASIONAL OVERTIME. THE COURT IN THE ANDERSON CASE ULTIMATELY CONCLUDED THAT THE DUTIES WHICH PLAINTIFFS PERFORMED CONSTITUTED IRREGULAR OR OCCASIONAL OVERTIME SUBJECT, UNDER VA REGULATIONS, TO ORDER OR APPROVAL BY LOCAL OFFICIALS. AT PAGE 644 OF ITS OPINION, THE COURT EXPLAINED:

"'REGULAR' MAY CHARACTERIZE THE REGULAR REPETITION OF SIMILAR ACTS IN A TIME FRAME, OR IT MAY ONLY INDICATE THEY ARE CORRECT AND PROPER. IT WILL BE SEEN THAT DEFENDANT HAS ARBITRARILY SELECTED ONE MEANING AGAINST ANOTHER, THAT IS, IT CONSIDERS 'REGULAR OVERTIME' IS OVERTIME THAT REGULARLY RECURS AT SYMMETRICAL SPACED INTERVALS. YET, AVILES V. UNITED STATES, 151 CT. CL. 1 (1960), A CASE DEFENDANT CITES, INDICATES THAT OVERTIME MAY BE 'REGULAR' AND 'REGULARLY SCHEDULED', THOUGH IT IS IRREGULAR AND UNFORSEEABLE IN ITS ACTUAL OCCURRENCE. DEFENDANT ASSIGNS NO REASON WHY 'REGULAR OVERTIME' SHOULD NOT BE CONSIDERED TO BE LAWFULLY AUTHORIZED OVERTIME, I.E., REGULARLY PRESCRIBED ACCORDING TO THE STATUTES AND REGULATIONS APPLICABLE, EVEN IF IT BE IRREGULAR SO FAR AS CONCERNS CONSTANCY AND FREQUENCY OF ITS RECURRENCE. ON THE OTHER HAND, AN OVERTIME THAT WAS ADDED ON TO EVERY WORK DAY OF THE YEAR COULD SEMANTICALLY BE 'IRREGULAR' IF NOT ORDERED AND DIRECTED ACCORDING TO LAW. MOREOVER, 'REGULAR OVERTIME' HERE MUST BE 'REGULARLY SCHEDULED'. THE REGULATION TELLS US THAT THIS MEANS SETTING UP A SCHEDULE OF WORKING HOURS THAT STATES SEPARATELY THE BASIC AND THE OVERTIME HOURS THE EMPLOYEE IS REQUIRED TO PUT IN. NOTHING OF THAT SORT OCCURRED HERE, NOR COULD OCCUR WITH RESPECT TO PRELIMINARY AND POSTLIMINARY ACTIVITIES THE ORDERING AUTHORITY FAILED TO RECOGNIZE AS BEING OVERTIME.

"STATING THE CASE AT ITS BEST FOR DEFENDANT IT IS DOUBTFUL IF PLAINTIFFS' OVERTIME WAS 'REGULAR' BUT CERTAIN THAT IT WAS NOT 'SCHEDULED'. SINCE THE WORK HERE INVOLVED WAS THUS NOT 'REGULARLY SCHEDULED' IT WAS 'IRREGULAR OR OCCASIONAL OVERTIME', WHICH BY THE AGENCY'S OWN DEFINITION INCLUDES ALL OVERTIME NOT 'REGULARLY SCHEDULED'. SINCE FIELD OFFICERS HAD AUTHORITY TO ORDER 'IRREGULAR OR OCCASIONAL OVERTIME' THEY HAD AUTHORITY TO ORDER THE PRELIMINARY AND POSTLIMINARY ACTIVITIES HERE INVOLVED, EVEN IF HELD TO BE COMPENSABLE OVERTIME."

THE CRUX OF THE COURT'S REASONING IS ITS VIEW THAT THE GOVERNMENT'S CONSTRUCTION OF THE TERM "REGULAR OVERTIME" USED IN THE CONTEXT OF THE CITED VA REGULATIONS AS ENCOMPASSING "REGULAR REPETITION OF SIMILAR ACTS IN A TIME FRAME" WAS ARBITRARILY SELECTED. THIS OFFICE, HOWEVER, IS OF THE OPINION THAT THE GOVERNMENT'S CONSTRUCTION OF THE TERM IS PROPER SINCE THE PHRASE "REGULAR OVERTIME" APPEARS IN JUXTAPOSITION TO THE PHRASE "IRREGULAR OR OCCASIONAL OVERTIME" THROUGHOUT THE BODY OF LAW CONTAINED IN TITLE 5 OF THE U.S.C. GOVERNING COMPENSATION OF FEDERAL EMPLOYEES.

IN CONSIDERING THE ENTITLEMENT OF EMPLOYEES TO NIGHT DIFFERENTIAL FOR "REGULARLY SCHEDULED WORK" UNDER 5 U.S.C. 926 (NOW 5545(A)), THIS OFFICE, IN 36 COMP. GEN. 657 (1957), REJECTED THE DEFINITION OF "REGULAR" ADOPTED BY THE COURT IN THE ANDERSON CASE FOR PURPOSES OF INTERPRETING THE STATUTE THERE INVOLVED AND STATUTES SIMILARLY WORDED. THE EMPLOYEES INVOLVED IN 36 COMP. GEN. 657 WORKED IN A SHOP IN WHICH NO REGULAR TOUR OF DUTY HAD BEEN ESTABLISHED AND WHERE PAYMENTS OF NIGHT WORK PREMIUM PAY HAD ERRONEOUSLY BEEN MADE BASED UPON AN ADMINISTRATIVE CONSTRUCTION OF THE PHRASE "REGULARLY SCHEDULED" AS MEANING "SCHEDULED BY PROPER ADMINISTRATIVE AUTHORITY" - ESSENTIALLY THE SAME CONSTRUCTION THAT THE COURT OF CLAIMS HAS PLACED UPON THE PHRASE "REGULARLY SCHEDULED OVERTIME" IN THE CONTEXT OF THE VA REGULATIONS HERE INVOLVED. THERE WE STATED:

"OF COURSE THE WORD 'REGULAR' HAS SEVERAL DIFFERENT MEANINGS. ACCORDING TO FUNK AND WAGNALLS NEW STANDARD DICTIONARY, IT MAY MEAN ACTING ACCORDING TO RULE; FOLLOWING A UNIFORM COURSE; UNVARYING IN PRACTICE; RECURRING WITHOUT FAIL; ETC. OR IT MAY MEAN CONSTITUTED, APPOINTED, OR CONDUCTED IN A PROPER MANNER; CONFORMABLE TO LAW OR CUSTOM; DULY AUTHORIZED. A CAREFUL CONSIDERATION OF THE MATTER LEADS US TO THE CONCLUSION THAT THE CONNOTATION OF THE FIRST SERIES OF DEFINITIONS JUST GIVEN MORE NEARLY EXPRESSES THE LEGISLATIVE INTENT. THAT IS TO SAY, WE ARE OF THE OPINION THAT 'REGULARLY SCHEDULED WORK' IS WORK WHICH IS SCHEDULED ON A RECURRING BASIS.

"FOR ONE THING, THE MEANING APPLIED BY THE OFFICE OF INDUSTRIAL RELATIONS IN ITS LETTER OF OCTOBER 27, 1954, IS SUBSTANTIALLY SYNONYMOUS WITH THE WORDS 'OFFICIALLY ORDERED' AS USED WITH RESPECT TO OVERTIME WORK IN SECTION 201 OF THE 1945 PAY ACT, AS AMENDED BY PUBLIC LAW 763, 5 U.S.C. 911 (NOW 5 U.S.C. 5542). IN VIEW OF THE JUXTAPOSITION OF SECTIONS 201 AND 301 (NOW 5 U.S.C. 5545(A)), IT DOES NOT SEEM REASONABLE THAT THE DRAFTERS WOULD CHOOSE ENTIRELY DIFFERENT WORDS ('REGULARLY SCHEDULED') TO EXPRESS IN SECTION 301 SUBSTANTIALLY THE SAME THOUGHT AS HAD JUST BEEN EXPRESSED IN SECTION 201 WITH THE WORDS 'OFFICIALLY ORDERED.' ***"

THE CONCLUSION THAT "REGULARLY SCHEDULED WORK" AS USED IN 5 U.S.C. 5545 (A) IS "WORK WHICH IS SCHEDULED ON A RECURRING BASIS" IS BASED UPON A LENGTHY CONSIDERATION OF THE LEGISLATIVE INTENT AS DEDUCED FROM AN ANALYSIS OF SECTION 301 AND OTHER PROVISIONS OF THE 1945 PAY ACT WHICH INCORPORATE THE CONCEPT OF REGULARLY SCHEDULED WORK OR OVERTIME, AND UPON THE EXPRESSIONS OF LEGISLATIVE INTENT INCLUDED IN LEGISLATIVE REPORTS ON THE SUBJEFT OF NIGHT DIFFERENTIAL. ALTHOUGH THAT DECISION WAS MODIFIED SLIGHTLY BY 40 COMP. GEN. 397 (1961) THE INTERPRETATION OF THE CONCEPT OF REGULARLY SCHEDULED WORK OR OVERTIME AS EXPLAINED THEREIN HAS BEEN CONSISTENTLY APPLIED TO THE BODY OF PAY STATUTES WHICH EMBRACE THE CONCEPT OF REGULARLY SCHEDULED WORK OR OVERTIME. IN THE CONTEXT OF 5 U.S.C. 5545(C)(2) DEALING WITH PREMIUM COMPENSATION FOR "IRREGULAR, UNSCHEDULED OVERTIME DUTY" - DUTY WHICH IS REGARDED AS NOT REGULARLY SCHEDULED - "REGULARLY SCHEDULED OVERTIME" HAS BEEN CONSISTENTLY INTERPRETED AS OVERTIME AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. 48 COMP. GEN. 334 (1968); 52 ID. 319 (1972); B-160165, JANUARY 6, 1967; B 160472, JANUARY 5, 1967; B-168048, AUGUST 19, 1970. THE CONCEPT OF "REGULARLY SCHEDULED WORK" AS CONTAINED IN 5 U.S.C. 5545(A) DEALING WITH NIGHWORK HAS BEEN CONSTRUED AS "WORK DULY AUTHORIZED IN ADVANCE AND SCHEDULED TO RECUR ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERFALS." 40 COMP. GEN. 397 (1961); 41 ID. 8 (1961); 42 ID. 326 (1962). AND IN THE CONTEXT OF THE OVERTIME TRAVEL PROVISIONS OF 5 U.S.C. 5542(B)(2)(A), THE REQUIREMENT THAT TRAVEL BE WITHIN THE ADMINISTRATIVE WORKWEEK OF THE EMPLOYEE INCLUDING "REGULARLY SCHEDULED OVERTIME" HAS BEEN SIMILARLY CONSTRUED.

BY USE OF THE TERMS "REGULAR OVERTIME" AND "IRREGULAR OR OCCASIONAL OVERTIME" IN THE PARTICULAR VA REGULATIONS HERE INVOLVED, WE FIND NOTHING TO SUGGEST THAT THE VA INTENDED THOSE PHRASES TO CONVEY A MEANING ENTIRELY DIFFERENT THAN THAT WHICH THEY AND SIMILAR ALLUSIONS TO REGULARITY OF ASSIGNMENT ASSUME IN THE CONTEXT OF THE CONSIDERABLE BODY OF PAY LAWS INCLUDING THOSE CITED ABOVE. IN OUR OPINION THE COURT'S INTERPRETATION OF THE PHRASES "REGULAR OVERTIME" AND "IRREGULAR OR OCCASIONAL OVERTIME" REPRESENTS A BROAD DEPARTURE FROM THE LONGSTANDING ADMINISTRATIVE INTERPRETATION OF SIMILAR LANGUAGE THROUGHOUT VARIOUS OF THE STATUTES RELATING GENERALLY TO COMPENSATION AND TO OVERTIME COMPENSATION IN PARTICULAR - AN INTERPRETATION SUPPORTED BY THE LEGISLATIVE HISTORY OF THOSE STATUTES. WE THUS FIND THAT THE ADDITIONAL DUTIES FOR WHICH CLAIMANTS REQUEST COMPENSATION WERE "REGULARLY SCHEDULED" FALLING OUTSIDE THE AUTHORITY OF LOCAL HOSPITAL OFFICIALS TO ORDER OR APOROVE. CONSTITUTE COMPENSABLE OVERTIME, PERFORMANCE OF THOSE ADDITIONAL DUTIES MUST HAVE BEEN ORDERED OR APPROVED BY THE CHIEF IN THE BUREAU OF MEDICINE AND SURGERY. CLAIMANTS, THROUGH ATTORNEYS REPRESENTING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, IN THEIR LETTER OF JULY 12, 1974, POINT TO ADMINISTRATIVE SERVICES LETTER 65-133, ISSUED NOVEMBER 26, 1965, BY THE DEPARTMENT OF MEDICINE AND SURGERY, VETERANS ADMINISTRATION, AS EVIDENCE THAT THE PRACTICE OF EARLY REPORTING FOR UNIFORM CHANGES WAS KNOWN TO HEADQUARTERS OFFICIALS AND APPROVED BY THEM. THE LETTER OF NOVEMBER 26 REMINDS ALL HOSPITAL, CLINIC AND CENTER OFFICIALS THAT "WHILE A PERSON MAY BE REQUIRED TO WEAR A UNIFORM HE MAY NOT BE REQUIRED TO REPORT EARLY FOR THE PURPOSE OF DONNING A UNIFORM UNLESS HE IS PLACED IN A PAY STATUS." IT DOES NOT PURPORT TO MAKE ANY OVERTIME AUTHORIZATION OR APPROVAL DETERMINATION AS TO THE VARIOUS VA SITUATIONS. OUR VIEW IS THAT NEITHER THE NOVEMBER 26 LETTER NOR ANY OTHER EVIDENCE PRESENTED IN THE JULY 12, 1974, LETTER, OR EARLIER REPORTS, DEMONSTRATE THAT THE CHIEF OF THE BUREAU OF MEDICINE AND SURGERY AUTHORIZED OR APPROVED THE ADDITIONAL DUTIES IN QUESTION.

IN THE ABSENCE OF ANY EVIDENCE WHATSOEVER THAT THESE ADDITIONAL DUTIES WERE ORDERED OR APPROVED BY OFFICIALS AUTHORIZED TO DO SO, WE ARE, THEREFORE, CONSTRAINED TO FIND THAT THE DUTIES FOR WHICH MESSRS. AARON AND ANDERSON CLAIM OVERTIME COMPENSATION WERE NOT ORDERED OR APPROVED BY AN OFFICIAL HAVING AUTHORITY TO ORDER OR APPROVE OVERTIME IN THE NATURE OF THAT HERE INVOLVED AS REQUIRED BY 5 U.S.C. 5542(A).

WHILE IT APPEARS THAT LOCAL HOSPITAL OFFICIALS ORDERED PERFORMANCE OF THE PRELIMINARY AND POSTLIMINARY FUNCTIONS PERFORMED BY CLAIMANTS, THOSE OFFICIALS ACTED BEYOND THE SCOPE OF THEIR AUTHORITY TO ORDER OVERTIME AS SET FORTH IN VA REGULATIONS DISCUSSED ABOVE. BY THEIR UNAUTHORIZED ACTS, THOSE OFFICIALS MAY NOT BIND THE GOVERNMENT. THE WELL ESTABLISHED RULE OF LAW IN THIS REGARD IS THAT ANYONE ENTERING INTO AN ARRANGEMENT WITH THE GOVERNMENT TAKES THE RISK OF HAVING ASCERTAINED THAT THE AGENT WITH WHOM HE DEALS AND WHO PURPORTS TO ACT FOR THE GOVERNMENT STAYS WITHIN THE LIMITS OF HIS AUTHORITY,INASMUCH AS THE GOVERNMENT CAN BE NEITHER BOUND NOR ESTOPPED BY THE UNAUTHORIZED ACTS OF ITS AGENTS. HART V. UNITED STATES, 95 U.S. 316 (1877); PINE RIVER LOGGING CO. V. UNITED STATES, 186 U.S. 279 (1902); UTAH POWER AND LIGHT CO. V. UNITED STATES, 243 U.S. 389 (1917); SUTTON V. UNITED STATES, 256 U.S. 575 (1921); WILBER NATIONAL BANK V. UNITED STATES, 294 U.S. 120 (1935); FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380 (1947); IMMIGRATION AND NATURALIZATION SERVICE V. HIBI, SUP. CT. NO. 72-1652, 42 USLW 3241.

IN VIEW OF THE ABOVE THE CLAIMS OF MESSRS. AARON AND ADAMS ARE DENIED.

Nov 21, 2017

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    We deny the protest in part and dismiss the protest in part.
    B-414825,B-414825.2

Nov 20, 2017

Nov 16, 2017

  • HBI-GF, JV
    We deny the protest.
    B-415036
  • Epsilon Systems Solutions, Inc.
    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
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Nov 15, 2017

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