B-160633 January 19, 1967

B-160633 January 19, 1967

The Honorable Thomas H. Kuchel United States Senate

Dear Senator Kuchel:

This refers to your letter of December 5, 1966, transmitting for our consideration a letter from Mr. James A. Bitonti requesting review of the action of our Claims Division on November 15, 1966, in denying his claim for overtime compensation as an employee of the Department of the Air Force, Western Contract Management Region, Los Angeles, California, between November 1961 and February 1965. Mr. Bitonti had previously been paid the sum of $1,284.23 for such services by the Department of the Air Force but was requested to make a refund of such amount on the basis that it was paid in error.

The casential facts giving rise to Mr. Bitonti's claim are set forth in the Claims Division letter of November 15, 1966, to him, a copy of which was furnished to you by our letter of November 17, 1966. While there are certain minor misstatements contained in the letter of November 15, 1966, as pointed out by Mr. Bitonti, we believe it sufficiently sets forth the basis of his claim and the reasons for disallowance thereof.

Briefly the service for which Mr. Bitonti says he is entitled to overtime compensation represents standby time at home to answer the telephone and give instructions for handling various situations as they arose.

There were two provisions of law in effect during the period of Mr. Bitonti's claim under which overtime compensation could have been authorized to employees such as Mr. Bitonti provided the conditions of the law and regulations were met. The first provision is found in 5 U.S.C. 5545; formerly 5 U.S.C. 926) as follows:

"(c) The head of an agency, with the approval of the Civil Service Commission, may provide that--

"(1) an employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for irregular, unscheduled overtime duty in excess of his regularly scheduled weekly tour. Premium pay under this paragraph is determined as an appropriate percentage, not in excess of 25 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS-9, by taking into consideration the number of hours of actual work required in the position, the number of hours required in a standby status at or within the confines of the station, the extent to which the duties of the position are made more onerous by night or holiday work, or by being extended over periods of more than 40 hours a week, and other relevant factors * * *"

While the above provision does not mention standby duty at an employee's home, the Civil Service Commission has issued regulations to the effect that under certain circumstances an employee's home may be designated as his official station by the department concerned.

The record shows that Mr. Bitonti's home was never designated as his duty station. Moreover, the Department of the Air Force never authorized nor did the Civil Services Commission approve the payment of additional compensation as required by such provision of law. Therefore, Mr. Bitonti is not entitled to any additional compensation under that provision.

The second provision of law for consideration is 5 U.S.C. 5542 (formerly 5 U.S.C. 911), in pertinent part as follows:

"Hours of work officially ordered or approved in excess of 40 hours in an administrative workweek performed by an employee are overtime work and shall be paid for, except as otherwise provided by this subchapter, at the following rates * * *"

In order for Mr. Bitonti to qualify for overtime compensation under this second provision it is necessary that he establish that the standby time at home constituted "hours of work" within the meaning of those words as used in the law.

In Armour and Co. v. Wantock, 323 U.S. 126, 133, the Supreme Court in order to determine what constituted "work", used the criterion of whether the time in question was spent "* * * predominantly for the employer's benefit or for the employee's * * *" and stated that this was "* * * dependent upon all the circumstances of the case."

Ordinarily an employee who is in a standby status at home to answer the telephone is free to read, eat, sleep, entertain friends and otherwise follow his normal pursuits while standing the telephone watch.

In the case of Rapp and Hawkins v. United States, 167 Ct. Cl. 852 (1964), involving claims for overtime compensation under circumstances substantially similar to those here involved, it was hold that although the claimants were required to be within hearing distance at all times to answer the telephone and to take appropriate action in the situations presented to them by telephone, they were not to be regarded as performing work within the meaning of the overtime statute and thus not entitled to compensation for such services. The court in that case noted that "theoretically the duty officer could be disturbed at any hour during the night, but there is no evidence of plantiffs ever having been disturbed after 9:00 P.M." To the same effect is Moss v. United States, Ct. Cl. No. 239-63, decided December 17, 1965, 353 F. 2d 746.

We note that Mr. Bitonti indicates in previous correspondence that if he had not been in contact with the communications center, two telephone calls were made to him each night he acted as duty officer (check calls) at approximately 1000 hours each 1530 hours. While the number of telephone calls and the time they were received may not accord in all respects with the number of calls and time of receipt thereof which were involved in the Rapp case, supra, nevertheless, we do not believe the calls received by Mr. Bitonti or made by him are sufficient to clearly establish that the standby time was spent predominantly for his employer's benefit. In a claim of doubtful validity, such as here, it is our pratice to deny payment and leave the claimant to his remedy in the courts under the principles of Longwill v. United States, 17 Ct. Cl. 288, and Charles v. United States, 19 Ct. Cl. 316. In arriving at this conclusion we have carefully considered Mr. Bitonti's arguments, including the court cases cited in his correspondence as well as others.

Concerning Mr. Bitonti's reference to a forgiveness law," we assume he means the Federal Claims Collection Act of 1966, Pub. L. 89-508, 80 Stat. 308. That act constitutes authority for compromising a claim of the Government, or terminating or suspending collection action thereon whenever it appears that no person liable on such claim has the present or prospective financial ability to pay a significant sum thereon or that the cost of collecting the claim is likely to exceed the amount of recovery. The regulations promulgated jointly by the Attorney General and the Comptroller General (Title IV, Code of Federal Regulations) under the authority of section 3, of the act provide, in part, that--

"Collections by offset will be undertaken administratively on claims which are liquidated or certain in amount in every instance in which this is feasible. Collections by offset from person receiving pay or compensation from the Federal Government shall be effected over a period not greater than the period during which such pay or compensation is to be received. See 5 U.S.C. 5514. * * *

* * * * *

"A claim may be comprised pursuant to this part if the Government cannot collect the full amount because of (a) the debtor's inability to pay the full amount within a reasonable time, or (b) the refusal of the debtor to pay the claim in full and the Government's inability to enforce collection in full within a reasonable time by enforced collection proceedings. * * *

* * * * *

"A claim may be comprised pursuant to this part if the cost of collecting the claim does not justify the enforced collection of the full amount. * * *"

It is our view that there is no authority under the Federal Claims Collection Act of 1966 and the regulations promulgated pursuant thereto to discontinue collection action in Mr. Bitonti's case since be currently is employed and there is no showing of his inability to repay the amount in question.

It is noted that a copy of a claim from Mr. Bitonti addressed to Edwards Air Force Base, California, claiming $1,382.50 for use of his home and telephone in conducting a command post function at that location accompanied your letter. Since it is addressed to Edwards Air Force Base we assume it will be answered by the Department of the Air Force. However, under the circumstances involved we are not aware of any authority whereby payment thereof on the basis suggested by Mr. Bitonti could be effected.

The enclosures forwarded with your letter are returned as requested.

Sincerely yours,

FRANK H. WEITZEL Assistant Comptroller General of the United States