B-149209, JUN. 29, 1962

B-149209, JUN. 29, 1962

TO MR. MAX BASHKOFF:

YOUR LETTER OF MAY 23, 1962, REQUESTS REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF OCTOBER 31, 1959, WHICH FOR THE REASON STATED THEREIN, DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION AND PER DIEM INCIDENT TO THE DUTY YOU PERFORMED OCCASIONALLY AWAY FROM YOUR OFFICIAL STATION AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, SUPERVISOR OF SHIPBUILDING AND NAVAL INSPECTOR OF ORDNANCE, NEW YORK, NEW YORK.

YOUR CLAIM WAS BASED LARGELY UPON THE TIME IT TOOK YOU TO RETURN TO YOUR RESIDENCE AFTER COMPLETING YOUR DUTY AT VARIOUS POINTS TO WHICH YOU HAD PROCEEDED UNDER OFFICIAL INSTRUCTIONS. THE SETTLEMENT OF OCTOBER 30, 1959, IN DISALLOWING YOUR CLAIM, ADVISED YOU OF THE CONTENT AND EFFECT OF THE GOVERNING LAW AND REGULATIONS, NAMELY, SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 68 STAT. 1109, 5 U.S.C. 912B, THE PROVISIONS OF WHICH ARE EMBODIED IN THE DEPARTMENT OF THE NAVY INSTRUCTIONS NCPI 85, SET OUT IN THE SETTLEMENT. THE SETTLEMENT ALSO ADVISED THAT YOUR CLAIM FOR PER DIEM COVERING THE SAME TRAVEL TIME WAS DISALLOWED BASED UPON THE PROVISIONS OF PARAGRAPH 6.8 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

YOUR PRESENT REQUEST FOR REVIEW CONCERNS THE OVERTIME PORTION OF YOUR CLAIM AND APPARENTLY IS BASED UPON THE COURT OF CLAIMS' DECISION OF FEBRUARY 7, 1962, IN CURTIS AND HANTON V. UNITED STATES, CT.CL.NO. 369-60, CONCERNING CUSTOMS OFFICERS WHO WERE REQUIRED TO TRAVEL OCCASIONALLY TO PORTS AWAY FROM THEIR POST OF DUTY. AS YOU SAY, THE COURT HELD THOSE OFFICERS WERE ENTITLED TO OVERTIME PAY WHEN THEIR RETURN TRIP WAS MADE AFTER REGULAR DUTY HOURS; HENCE, YOU BELIEVE THE COURT'S DECISION IS DIRECTLY APPLICABLE TO YOUR CASE.

DECISIONS OF THE COURT OF CLAIMS ARE CAREFULLY CONSIDERED BY US WHEN SIMILAR MATTERS COME BEFORE OUR OFFICE FOR DECISION OR SETTLEMENT. THERE IS AN IMPORTANT DISTINCTION, HOWEVER, BETWEEN THE JUDGMENTS OF THE COURT OF CLAIMS AND THE DECISIONS AND SETTLEMENTS OF THE GENERAL ACCOUNTING OFFICE, IN THAT THE LATTER 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 COURT'S JUDGMENTS PAYABLE UNDER 31 U.S.C. 724 (A) ARE RENDERED WITHOUT REGARD TO WHETHER AN AVAILABLE APPROPRIATION EXISTS, FROM WHICH THE CLAIM OTHERWISE MIGHT HAVE BEEN PAID ADMINISTRATIVELY OR BY SETTLEMENT OF THE ACCOUNTING OFFICERS. COMPARE GIBNEY V. UNITED STATES, 114 CT.CL. 38; 31 COMP. GEN. 73.

A CAREFUL READING OF THE COURT'S DECISION IN THE CURTIS AND HANTON CASE REVEALS THAT, BECAUSE OF THE LACK OF REGULATIONS CLEARLY COVERING THE SITUATION, THE COURT'S JUDGMENT WAS BASED UPON AN EXPEDIENCY OR MONETARY CONVENIENCE, AND WAS NOT BASED UPON A SPECIFIC PROVISION OF LAW.

ON THE OTHER HAND, THE COURT OF CLAIMS HAS EXPRESSED A DIFFERENT VIEW IN SOMEWHAT SIMILAR CASES OF TRAVEL TIME OUTSIDE OF PRESCRIBED REGULAR DUTY HOURS. SEE, FOR EXAMPLE, POST V. UNITED STATES, 121 CT.CL. 94, GAINES V. UNITED STATES, 132 ID. 408, AND RIGGS ET AL. V. UNITED STATES, CT.CL.NO. 184-59, DECIDED MARCH 1, 1961, 287 F.2D 908. COMPARE 24 COMP GEN. 456; 37 ID. 276, AND 40 ID. 439. EACH OF THOSE CASES HELD GENERALLY THAT MORE TRAVEL OF AN EMPLOYEE, WITHOUT MORE, DOES NOT ENTITLE THE EMPLOYEE TO OVERTIME COMPENSATION, AND THAT INSTRUCTIONS OR ORDERS TO PERFORM TRAVEL OR DUTY AWAY FROM AN OFFICIAL STATION, OR THE APPROVAL OF TRAVEL VOUCHERS FOR PURPOSES OF PAYMENT OF TRANSPORTATION COSTS, DO NOT CONSTITUTE AUTHORIZATION OF APPROVAL OF TRAVEL TIME FOR OVERTIME COMPENSATION PURPOSES.

IRRESPECTIVE OF THE DECISION OF THE COURT OF CLAIMS IN THE CURTIS AND HANTON CASE WE MUST CONCLUDE THAT THERE IS NO STATUTORY AUTHORITY UNDER WHICH YOUR CLAIM MAY BE ALLOWED BY OUR OFFICE. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.