B-148630, APR. 24, 1962

B-148630: Apr 24, 1962

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YOUR CLAIM WAS DISALLOWED BECAUSE THE TRAVEL INVOLVED WAS NOT UNDER ARDUOUS CONDITIONS. BECAUSE NO WORK WAS PERFORMED SUCH AS COULD BE CONSIDERED AS DUTY TIME UNDER THE APPLICABLE STATUTES AND REGULATIONS. WE HAVE BEEN INFORMED BY THE DEPARTMENT OF JUSTICE THAT FURTHER JUDICIAL PROCEEDINGS WILL BE TAKEN IN THE CASE. "IT WOULD HAVE SEEMED WISE TO HAVE DEFINITE REGULATIONS OR OFFICIAL ORDERS CLEARLY SETTING FORTH WHAT SHOULD BE DONE IN CIRCUMSTANCES SUCH AS WE FIND HERE.'. FURTHERMORE IN THE CURTIS AND HANTON CASE THE JUDGMENT CANNOT BE SAID TO HAVE BEEN BASED ON LAW BUT RATHER. THE SITUS IS IN CALIFORNIA AND THE EXPENSE OF A TRIAL WOULD BE ALL OUT OF PROPORTION TO THE SUM INVOLVED. WHILE DECISIONS OF THE COURT OF CLAIMS ARE GIVEN CAREFUL CONSIDERATION CONCERNING MATTERS COMING BEFORE OUR OFFICE.

B-148630, APR. 24, 1962

TO U.S. IMMIGRATION AND NATURALIZATION SERVICE:

WE REFER TO YOUR LETTER OF MARCH 30, 1962, WITH ENCLOSURE, REQUESTING RECONSIDERATION OF OUR OFFICE SETTLEMENT OF MARCH 23, 1962, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION ALLEGED TO BE DUE UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1931, 46STAT. 1467, AS AN EMPLOYEE OF THE DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE.

YOUR CLAIM FOR WHICH YOU SEEK OVERTIME COMPENSATION CONSISTS OF TRAVEL TIME TO AND LAYOVER TIME AT A TEMPORARY DUTY STATION OUTSIDE OF YOUR REGULARLY SCHEDULED TOUR OF DUTY. YOUR CLAIM WAS DISALLOWED BECAUSE THE TRAVEL INVOLVED WAS NOT UNDER ARDUOUS CONDITIONS, AND, ALSO, BECAUSE NO WORK WAS PERFORMED SUCH AS COULD BE CONSIDERED AS DUTY TIME UNDER THE APPLICABLE STATUTES AND REGULATIONS. ALSO, SECTION 7 OF THE IMMIGRATION AND NATURALIZATION MANUAL PROVIDES IN PART THAT TIME SPENT ON DUTY PRIMARILY SHALL BE ACTUAL TIME SPENT ON INSPECTION.

YOU REQUEST RECONSIDERATION OF YOUR CLAIM UPON THE BASIS OF THE OPINION RENDERED BY THE COURT OF CLAIMS IN LON L. CURTIS AND RAYMOND B. HANTON V. UNITED STATES, CT.CL. NO. 369-60, DECIDED FEBRUARY 7, 1962. THE PERIOD FOR REQUESTING FURTHER JUDICIAL PROCEEDINGS IN THE CURTIS AND HANTON CASE HAS NOT EXPIRED. WE HAVE BEEN INFORMED BY THE DEPARTMENT OF JUSTICE THAT FURTHER JUDICIAL PROCEEDINGS WILL BE TAKEN IN THE CASE.

IN THE CURTIS AND HANTON CASE THE COURT SAID,"IT WOULD HAVE SEEMED WISE TO HAVE DEFINITE REGULATIONS OR OFFICIAL ORDERS CLEARLY SETTING FORTH WHAT SHOULD BE DONE IN CIRCUMSTANCES SUCH AS WE FIND HERE.' IT WOULD APPEAR THAT THE DEPARTMENT OF JUSTICE UNDER SECTION 7 OF THE IMMIGRATION AND NATURALIZATION MANUAL HAS PROHIBITED PAYMENT OF OVERTIME COMPENSATION TO INSPECTORS FOR TIME SPENT OUTSIDE THEIR REGULARLY SCHEDULED TOUR OF DUTY IN TRAVELING TO AND LAYOVER TIME AT A TEMPORARY DUTY STATION. FURTHERMORE IN THE CURTIS AND HANTON CASE THE JUDGMENT CANNOT BE SAID TO HAVE BEEN BASED ON LAW BUT RATHER, UPON EXPEDIENCY OR CONVENIENCE. THE COURT NOTED THAT BOTH PARTIES HAD INDICATED THAT THEY WOULD LIKE THE MATTER SETTLED. THE SITUS IS IN CALIFORNIA AND THE EXPENSE OF A TRIAL WOULD BE ALL OUT OF PROPORTION TO THE SUM INVOLVED. WHILE DECISIONS OF THE COURT OF CLAIMS ARE GIVEN CAREFUL CONSIDERATION CONCERNING MATTERS COMING BEFORE OUR OFFICE, SUCH DECISIONS ARE NOT BINDING UPON OUR OFFICE. SEE 14 COMP. GEN. 648; 31 ID. 73. ALSO, THERE IS AN IMPORTANT DISTINCTION BETWEEN SETTLEMENTS OF THE GENERAL ACCOUNTING OFFICE AND JUDGMENTS OF THE COURT OF CLAIMS, IN THAT THE FORMER MUST BE BASED UPON THE EXISTENCE OF AN APPROPRIATION WHICH MAY BE CONSIDERED AS HAVING BEEN OBLIGATED BY THE CIRCUMSTANCES GIVING RISE TO THE CLAIM, WHEREAS THE LATTER, BEING PAYABLE UNDER 31 U.S.C. 724 (A), ARE RENDERED WITHOUT REGARD TO WHETHER THERE IS AN AVAILABLE APPROPRIATION FROM WHICH THE CLAIM MIGHT HAVE BEEN PAID ADMINISTRATIVELY OR BY SETTLEMENT OF THE ACCOUNTING OFFICERS. CF. GIBNEY V. UNITED STATES, 114 CT.CL. 38, 31 COMP. GEN. 73. HENCE, IT CAN BE SEEN THAT THE GENERAL ACCOUNTING OFFICE, IN THE SETTLEMENT OF CLAIMS, MUST NOT ONLY LOOK TO THE LEGAL MERITS OF THE CLAIM BUT MUST DETERMINE WHETHER AN APPROPRIATION IS AVAILABLE FOR ITS PAYMENT.

THE AUTHORITY OF OUR OFFICE TO PAY FROM APPROPRIATED FUNDS CLAIMS FOR OVERTIME COMPENSATION OF EMPLOYEES WHILE IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION STEMS FROM SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, (5 U.S.C. 912B). SECTION 204 PROVIDES THAT TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN EMPLOYEE SHALL BE CONSIDERED AS HOURS OF EMPLOYMENT FOR THE PAYMENT OF OVERTIME COMPENSATION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, ONLY WHEN (1) THE TIME SPENT IN TRAVEL IS WITHIN THE DAYS AND HOURS OF THE EMPLOYEE'S REGULARLY SCHEDULE ADMINISTRATIVE WORKWEEK INCLUDING REGULARLY SCHEDULED OVERTIME HOURS, OR (2) WHEN THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS. IN THE CURTIS AND HANTON CASE THE COURT DID NOT DISCUSS EITHER OF THOSE CONDITIONS.

EVEN IF THE COURT DOES NOT SEE FIT TO REVERSE ITS OPINION IN THE CURTIS AND HANTON CASE THERE IS NO STATUTORY AUTHORITY UNDER WHICH WE MAY OBLIGATE APPROPRIATIONS OTHERWISE AVAILABLE FOR THE PAYMENT OF OVERTIME IN CASES SIMILAR TO THE CURTIS AND HANTON CASE.