B-163866, MAY 7, 1968

B-163866: May 7, 1968

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TAYLOR: REFERENCE IS MADE TO YOUR LETTER OF MARCH 14. YOU WERE TOLD THAT THE PROJECT WAS "HOT" AND THE CORPS WAS EXPECTED TO SEE THAT SCHEDULES WERE MET. THAT YOU WERE EXPECTED TO BE ON DUTY ON SUNDAYS AND HOLIDAYS WHEN IN YOUR OPINION YOU FELT IT WAS NECESSARY TO ASSURE THAT THE CONSTRUCTION WORK MET CONTRACT REQUIREMENTS. YOU DID NOT REQUEST OVERTIME FOR THIS WORK AS YOU FEARED A REPRISAL STEMMING FROM THE FACT THAT THE RESIDENT ENGINEER HAD FORMED A STRONG PERSONAL DISLIKE FOR YOU WHEN YOU WERE ASSIGNED TO THE PROJECT OVER HIS OBJECTIONS. THERE IS NO RECORD THAT THE 424 HOURS OF CLAIMED OVERTIME WAS EVER AUTHORIZED NOR DO YOUR PAY RECORDS REFLECT THAT IT WAS PERFORMED. YOU ADMIT THAT IF THE OVERTIME YOU CLAIM HAD BEEN AUTHORIZED AND RECORDED AS REQUIRED THAT YOU WOULD HAVE BEEN COMPENSATED FOR IT.

B-163866, MAY 7, 1968

TO MR. MARVIN L. TAYLOR:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 14, 1968, WHEREIN YOU REQUEST REVIEW OF OUR SETTLEMENT OF MARCH 4, 1968, Z-2353028, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION FOR CERTAIN WORK PERFORMED ON SATURDAYS, SUNDAYS AND HOLIDAYS DURING THE PERIOD OCTOBER 1962 TO MARCH 1964 AS ASSISTANT RESIDENT ENGINEER, GS-13, DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, AT THE MANNED SPACE CRAFT CENTER, RESIDENT OFFICE, HOUSTON, TEXAS.

IN YOUR INITIAL CLAIM OF JUNE 15, 1967, YOU STATE THAT UPON ASSUMING YOUR DUTIES AS ASSISTANT RESIDENT ENGINEER UNDER A MR. DONALD L. MILLS, RESIDENT ENGINEER, YOU WERE TOLD THAT THE PROJECT WAS "HOT" AND THE CORPS WAS EXPECTED TO SEE THAT SCHEDULES WERE MET; THAT SINCE THE CONTRACTORS WOULD BE WORKING 24 HOURS PER DAY, 7 DAYS PER WEEK, THAT MOST CORPS PERSONNEL WOULD BE REQUIRED TO WORK ACCORDINGLY; THAT YOU WERE EXPECTED TO BE ON DUTY ON SUNDAYS AND HOLIDAYS WHEN IN YOUR OPINION YOU FELT IT WAS NECESSARY TO ASSURE THAT THE CONSTRUCTION WORK MET CONTRACT REQUIREMENTS.

AS A RESULT OF THESE INSTRUCTIONS YOU ASSERT THAT YOU WORKED SOME 55 DAYS OVERTIME ON WEEKENDS AND HOLIDAYS DURING THE PERIOD IN QUESTION. YOU DID NOT REQUEST OVERTIME FOR THIS WORK AS YOU FEARED A REPRISAL STEMMING FROM THE FACT THAT THE RESIDENT ENGINEER HAD FORMED A STRONG PERSONAL DISLIKE FOR YOU WHEN YOU WERE ASSIGNED TO THE PROJECT OVER HIS OBJECTIONS.

YOU POINT OUT THAT A NUMBER OF OTHER GS-13 ENGINEERS ASSIGNED TO THE PROJECT IN SUPERVISORY CAPACITIES RECEIVED OVERTIME COMPENSATION DURING THIS PERIOD FOR WORK PERFORMED UNDER YOUR SUPERVISION OR THAT OF MR. MILLS.

THERE IS NO RECORD THAT THE 424 HOURS OF CLAIMED OVERTIME WAS EVER AUTHORIZED NOR DO YOUR PAY RECORDS REFLECT THAT IT WAS PERFORMED.

YOU ADMIT THAT IF THE OVERTIME YOU CLAIM HAD BEEN AUTHORIZED AND RECORDED AS REQUIRED THAT YOU WOULD HAVE BEEN COMPENSATED FOR IT. HOWEVER, YOU FEEL THAT FOR THE REASONS SET FORTH ABOVE SUCH ADMINISTRATIVE STEPS COULD NOT BE ACCOMPLISHED AND THAT IS WHY YOU ARE NOW MAKING CLAIM THEREFOR. YOUR VIEW THE RESIDENT ENGINEER'S STATEMENT THAT HE EXPECTED YOU TO BE ON DUTY CONSTITUTED AUTHORIZATION FOR THE OVERTIME WORKED.

SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911 (1964 ED.), PROVIDES THAT:

"ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK PERFORMED BY OFFICERS AND EMPLOYEES * * * SHALL BE CONSIDERED TO BE OVERTIME WORK * * *"

WITH RESPECT TO THE PAYMENT OF OVERTIME THE U.S. ARMY CORPS OF ENGINEERS, FORT WORTH, TEXAS, DISTRICT REGULATION NO. 690-1-30, DATED FEBRUARY 5, 1963, IN EFFECT DURING THE GREATER PART OF THE PERIOD UNDER CONSIDERATION PROVIDES IN PART AS FOLLOWS:

"3. USE OF OVERTIME HOURS.

"A. OVERTIME SERVICES OF CIVILIAN EMPLOYEES MAY BE UTILIZED ONLY IN THE EVENT OF UNUSUAL EMERGENCY. FOR THIS PURPOSE -UNUSUAL EMERGENCY REFERS TO UNFORESEEABLE SITUATIONS INVOLVING PRESERVATION OF HEALTH, WELFARE, AND SAFETY OF PERSONNEL, OR PROTECTION OF GOVERNMENT PROPERTY; TEMPORARY PEAK WORKLOADS OR SEASONAL REQUIREMENTS WHEN OVERTIME IS MORE ECONOMICAL THAN HIRING ADDITIONAL STAFF; OR UNIQUE OPERATING REQUIREMENTS WHEN OVERTIME IS MORE ECONOMICAL THAN DEMURRAGE OR OTHER CHARGES. WHEN OVERTIME IS SO UTILIZED, ON EITHER AN IRREGULAR OR REGULAR BASIS, IT WILL BE RESTRICTED TO THE ABSOLUTE MINIMUM REQUIRED BY THE -UNUSUAL EMERGENCY-. * * *

"4. APPROVAL OF OVERTIME WORK.

"A. THE DISTRICT ENGINEER WILL APPROVE IRREGULAR OVERTIME FOR DISTRICT OFFICE EMPLOYEES. IN HIS ABSENCE, AUTHORITY TO APPROVE SUCH OVERTIME IS DELEGATED TO THE DEPUTY DISTRICT ENGINEER AND THE EXECUTIVE OFFICER. HEADS OF FIELD OFFICES, AND THE PERSONS DESIGNATED TO ACT IN THEIR ABSENCE, ARE AUTHORIZED TO APPROVE IRREGULAR OVERTIME FOR EMPLOYEES UNDER THEIR JURISDICTION. NO EMPLOYEE MAY APPROVE OVERTIME FOR HIMSELF. ALL REQUESTS FOR OVERTIME WILL BE SUBMITTED FOR APPROVAL IN ADVANCE OF THE DATE TO BE WORKED.

"5. PROCEDURES.

"B. REQUESTS FOR APPROVAL OF IRREGULAR OVERTIME WILL BE SUBMITTED ON ENG FORM 1663 BY IMMEDIATE SUPERVISORS THROUGH SUPERVISORY CHANNELS TO THE INDIVIDUALS EXERCISING APPROVAL AUTHORITY IN ACCORDANCE WITH PARAGRAPH 4 ABOVE. * * * SPECIFIC REASONS NECESSITATING THE OVERTIME WORK AND THE APPLICABLE DIRECTIVE UNDER WHICH THE OVERTIME MAY BE AUTHORIZED, IF ANY, WILL BE GIVEN. APPROVED ENG FORMS 1663 WILL BE HELD IN THE OPERATING OFFICE UNTIL THE OVERTIME HAS BEEN RECORDED ON THE TIME AND ATTENDANCE REPORT. * * *

"11. OVERTIME WORK NOT AUTHORIZED. ALL SERVICES PERFORMED BEYOND THE NORMAL 40 HOUR WEEKLY TOUR OF DUTY NOT PROPERLY AUTHORIZED AND APPROVED AS OVERTIME OR COMPENSATORY LEAVE IN ACCORDANCE WITH THE PROVISIONS OF THIS REGULATION WILL BE CONSIDERED AS GRATUITOUS AND WILL NOT SERVE AS A BASIS FOR FUTURE COMPENSATION CLAIMS.'

THE VERY DETAILED PROCEDURES FOR AUTHORIZING, APPROVING, AND RECORDING OVERTIME SET FORTH IN THE ABOVE REGULATIONS WERE NOT FOLLOWED WITH RESPECT TO THE OVERTIME ALLEGEDLY WORKED BY YOU. YOU ADMIT THAT YOU MADE NO EFFORT TO REQUEST OVERTIME FOR THESE HOURS ALTHOUGH AS ASSISTANT RESIDENT ENGINEER YOU MUST HAVE HAD FAMILIARITY WITH THESE REQUIREMENTS SINCE YOU WOULD HAVE HAD AUTHORITY UNDER THEM TO APPROVE OVERTIME FOR OTHERS IN THE ABSENCE OF THE RESIDENT ENGINEER AND THE RECORD SHOWS THAT OVERTIME WAS AUTHORIZED AND APPROVED FOR FOUR SUPERVISORY ENGINEERS WORKING UNDER YOUR DIRECTION. BY FAILING TO BRING THE MATTER TO THE ATTENTION OF THE PROPER OFFICIALS YOU IN EFFECT DENIED SUCH OFFICIALS THE RIGHT TO DETERMINE WHETHER THE EXTRA SERVICES WERE NECESSARY AND IF NECESSARY TO GRANT YOU COMPENSATORY TIME OFF AT SOME LATER DATE IN LIEU OF PAYING OVERTIME COMPENSATION.

TO RECOGNIZE YOUR CLAIM FOR OVERTIME AT THIS TIME WOULD RUN COUNTER TO THE VERY PURPOSE OF THE SAFEGUARDS IMPOSED IN PARAGRAPH 4 OF THE REGULATIONS, NAMELY, THAT NO EMPLOYEE WILL APPROVE HIS OWN OVERTIME WHICH BELATED RECOGNITION OF YOUR OVERTIME WOULD ACCOMPLISH AND IN PARAGRAPH 11 OF THE REGULATIONS THAT SERVICE PERFORMED BEYOND THE NORMAL 40-HOUR TOUR OF DUTY NOT AUTHORIZED OR APPROVED IN ACCORDANCE WITH THE PROVISIONS OF THE REGULATIONS WILL NOT SERVE AS A BASIS FOR FURTHER CLAIMS.

THE COURT OF CLAIMS HAS HAD OCCASION TO CONSIDER CLAIMS SUCH AS YOURS. IN A RECENT CASE, BILELLO V. UNITED STATES, 174 CT. CL. 1253 (1966) THAT COURT WAS CONFRONTED BY THE CLAIMS OF SEVERAL SECURITY GUARDS FOR OVERTIME PERFORMED PURSUANT TO VERBAL ORDERS OVER A PERIOD OF 11 YEARS. IN THEIR CASE ALSO, DESIGNATED OFFICIALS WERE REQUIRED TO APPROVE, IN ADVANCE AND IN WRITING, ALL OVERTIME WORKED AND ON A DESIGNATED FORM. IN DENYING THE PLAINTIFFS' CLAIMS THE COURT ANALYZED SEVERAL ANALOGOUS CASES AND STATED:

"THE COMMON DENOMINATOR DERIVED FROM THESE RESULTS IS THAT A REGULATION REQUIRING APPROVAL OF OVERTIME BY A DESIGNATED OFFICIAL BEFORE IT CAN BE PAID IS BINDING ON CLAIMANTS UNLESS THE REGULATION IS UNREASONABLE OR THE OFFICIAL WHO HAS WITHHELD FORMAL WRITTEN APPROVAL HAS NEVERTHELESS ACTIVELY INDUCED AND ENCOURAGED THE OVERTIME. MERE KNOWLEDGE ON HIS PART, WITHOUT AFFIRMATIVE INDUCEMENT OR WRITTEN SANCTION, WOULD NOT SEEM TO BE SUFFICIENT. * * *"

IN RESPONSE TO THE PLAINTIFFS' CLAIMS THAT IT WAS A BREACH OF DUTY ON THE PART OF THEIR SUPERVISORS NOT TO SUBMIT THEIR OVERTIME CLAIMS TO THE PROPER OFFICIAL THE COURT SAID:

"* * * ADMINISTRATIVE EFFICIENCY REQUIRES OBSERVANCE OF ORDERLY FORMS, AND BY VOICING THEIR DEMANDS THROUGH PROPER CHANNELS THE PLAINTIFFS CONCEIVABLY COULD HAVE SECURED A RULING WHICH WOULD HAVE RESULTED EITHER IN AN ORDER FOR OVERTIME COMPENSATION OR IN A JUSTIFIED REFUSAL ON THE PART OF THE PLAINTIFFS TO CONTINUE PERFORMING OVERTIME WORK WITHOUT COMPENSATION.'

IN TABBUTT ET AL. V. UNITED STATES, 121 CT. CL. 495 (1952), A CASE INVOLVING CLAIMS FOR OVERTIME COMPENSATION BY INVESTIGATORS OF THE TREASURY DEPARTMENT, THE COURT WAS PRESENTED WITH A FACTUAL SITUATION SIMILAR TO YOURS. THE PROPER OFFICIALS HAD NOT ORDERED OR APPROVED THE OVERTIME, NOR HAD REQUEST BEEN MADE FOR OVERTIME. THE OPINION STATES THAT:

"* * * THE ONLY SEMBLANCE OF AN APPROVAL BY ANY OFFICIAL WAS THE APPROVAL BY THE INVESTIGATOR-IN-CHARGE OF * * * THE DAILY REPORTS MADE BY THE PLAINTIFFS. HIS APPROVAL OF THESE DAILY REPORTS COULD HARDLY BE SAID TO TAKE THE PLACE OF AN ORDER FOR THESE MEN TO WORK OVERTIME, OR OF AN APPROVAL OF THEIR CLAIM TO COMPENSATION FOR HAVING DONE SO. * * *"

CONSISTENT WITH THE FOREGOING AND THE FACT THAT YOU HAVE NOT FURNISHED ANY EVIDENCE THAT YOU WERE SPECIFICALLY REQUIRED TO PERFORM OVERTIME SERVICES BY PROPER AUTHORITY OUR ACTION OF MARCH 4, 1968, DISALLOWING YOUR CLAIM MUST BE AND IS SUSTAINED.