B-139286, OCT. 4, 1963

B-139286: Oct 4, 1963

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YOU HAVE BEEN PAID FOR OVERTIME SERVICE ACTUALLY PERFORMED. YOUR PRESENT CLAIM IS FOR TIME SPENT IN A TRAVEL STATUS (DRIVING A GOVERNMENT CAR) WHICH IS GOVERNED BY SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. OR (2) WHEN THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS.'. YOU CONTEND THAT DRIVING THE GOVERNMENT CAR CONSTITUTED "WORK" AND THAT DRIVING FOR LONG PERIODS OF TIME WAS ARDUOUS. THE ABOVE-QUOTED SECTION WAS A RULE OF DECISION BEFORE IT WAS ENTERED INTO STATUTORY LAW ON SEPTEMBER 1. ARE TRANSPORTED DOES NOT. NEITHER DO WE FEEL THAT OTHERWISE NONARDUOUS TRAVEL BECOMES ARDUOUS WITHIN THE CONTEMPLATION OF THE OVERTIME COMPENSATION LAW BECAUSE THE AGGREGATE AMOUNT OF TIME OUTSIDE OF REGULAR WORKING HOURS SPENT IN TRAVELING IS SUBSTANTIAL OVER A PERIOD OF TIME * * *" IN THAT DECISION WE ALSO SAID THAT THE ISSUANCE OF TRAVEL AUTHORIZATIONS AND THE APPROVAL OF TRAVEL VOUCHERS DO NOT CONSTITUTE AUTHORIZATION OR APPROVAL OF TRAVEL TIME FOR OVERTIME COMPENSATION PURPOSES.

B-139286, OCT. 4, 1963

TO MR. VIRGIL R. CLARK:

ON JULY 24, 1963, YOU REQUESTED A REVIEW OF OUR SETTLEMENT OF JANUARY 2, 1963, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME (TRAVEL TIME) COMPENSATION INCIDENT TO YOUR SERVICE IN THE DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, DURING THE PERIOD MAY 21-26, 1961.

YOU HAVE BEEN PAID FOR OVERTIME SERVICE ACTUALLY PERFORMED. YOUR PRESENT CLAIM IS FOR TIME SPENT IN A TRAVEL STATUS (DRIVING A GOVERNMENT CAR) WHICH IS GOVERNED BY SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 205 (B) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1110, 5 U.S.C. 912B. THAT SECTION READS AS FOLLOWS:

"SEC. 204. FOR THE PURPOSES OF THIS ACT, TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY STATION OF ANY OFFICER OR EMPLOYEE SHALL BE CONSIDERED AS HOURS OF EMPLOYMENT ONLY WHEN (1) WITHIN THE DAYS AND HOURS OF SUCH OFFICER'S OR EMPLOYEE'S REGULARLY SCHEDULED ADMINISTRATIVE WORK WEEK, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS, OR (2) WHEN THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS.'

YOU CONTEND THAT DRIVING THE GOVERNMENT CAR CONSTITUTED "WORK" AND THAT DRIVING FOR LONG PERIODS OF TIME WAS ARDUOUS.

THE ABOVE-QUOTED SECTION WAS A RULE OF DECISION BEFORE IT WAS ENTERED INTO STATUTORY LAW ON SEPTEMBER 1, 1954. BOTH PRIOR AND SUBSEQUENT TO THE ENACTMENT OF THE PROVISION WE CONSISTENTLY HELD THAT TRAVEL TIME ALONE DID NOT ENTITLE AN EMPLOYEE TO REGULAR COMPENSATION OR OVERTIME COMPENSATION. SEE 24 COMP. GEN. 456 (DECEMBER 16, 1944), AND 37 ID. 723 (MAY 2, 1958). SEE ALSO 40 COMP. GEN. 439 (FEBRUARY 1, 1961) IN WHICH WE SAID:

"OUR DECISIONS HOLD THAT THE TRAVEL OF AN EMPLOYEE BY PASSENGER CARRYING VEHICLE UNDER NONEMERGENT CONDITIONS, WHETHER THE EMPLOYEE TRAVELS AS PASSENGER OR DRIVER, IN CONNECTION WITH TEMPORARY DUTY AWAY FROM HEADQUARTERS, DOES NOT CONSTITUTE PERFORMANCE OF WORK OR TRAVEL UNDER ARDUOUS CONDITIONS FOR OVERTIME COMPENSATION PURPOSES. 24 COMP. GEN. 456; 30 ID. 72; 31 ID. 362. MOREOVER, THE FACT THAT, INCIDENTAL TO THE PURPOSES OF THE TRAVEL, FILES, SUPPLIES, TYPEWRITER, ETC., ARE TRANSPORTED DOES NOT, IN OUR OPINION, CHANGE THE CHARACTER OF THE TRAVEL. NEITHER DO WE FEEL THAT OTHERWISE NONARDUOUS TRAVEL BECOMES ARDUOUS WITHIN THE CONTEMPLATION OF THE OVERTIME COMPENSATION LAW BECAUSE THE AGGREGATE AMOUNT OF TIME OUTSIDE OF REGULAR WORKING HOURS SPENT IN TRAVELING IS SUBSTANTIAL OVER A PERIOD OF TIME * * *"

IN THAT DECISION WE ALSO SAID THAT THE ISSUANCE OF TRAVEL AUTHORIZATIONS AND THE APPROVAL OF TRAVEL VOUCHERS DO NOT CONSTITUTE AUTHORIZATION OR APPROVAL OF TRAVEL TIME FOR OVERTIME COMPENSATION PURPOSES.

THE DRIVING OF THE GOVERNMENT CAR WAS NOT YOUR PRIMARY DUTY BUT WAS MERELY INCIDENTAL TO YOUR PERSONAL TRANSPORTATION BETWEEN THE POINTS WHERE YOUR DUTIES WERE PERFORMED AND IS NOT CONSIDERED TO BE WORK WITHIN THE MEANING OF THE QUOTED STATUTE AND THE IMPLEMENTING REGULATIONS.

OUR VIEWS CONCERNING THE DECISION IN CURTIS AND HANTON V. UNITED STATES, CT.CL. NO. 369-60, UPON WHICH YOU RELY, ARE SET FORTH IN THE SETTLEMENT AND NEED NOT BE REPEATED IN DETAIL HERE. IN THAT SETTLEMENT IT WAS POINTED OUT THAT JUDGMENTS OF THE COURTS ARE RENDERED WITHOUT REGARD TO THE EXISTENCE OF APPROPRIATIONS FROM WHICH THEY MAY BE PAID WHEREAS THE DECISIONS AND SETTLEMENTS OF THE GENERAL ACCOUNTING OFFICE MUST BE BASED UPON THE EXISTENCE OF SUCH APPROPRIATIONS. MOREOVER, THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, WAS NOT INVOLVED IN THAT CASE.

THE APPROPRIATION "SALARIES AND EXPENSES" ETC., CITED BY YOU, IS AVAILABLE ONLY FOR THE PAYMENT FOR THOSE SERVICES AND EXPENSES WHICH ARE AUTHORIZED BY THE STATUTES AND THE REGULATIONS AND DECISIONS BASED THEREON. IT IS NOT CHARGEABLE WITH ITEMS SUCH AS HERE CLAIMED WHICH HAVE NOT BEEN AND ARE NOT NOW CONSIDERED AS PROPERLY COMPENSABLE UNDER THE APPLICABLE LAWS AND REGULATIONS.