B-177468, B-177461, MAR 28, 1973

B-177461,B-177468: Mar 28, 1973

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THE FACT THAT IT WAS NOT PRACTICAL TO SCHEDULE THE TRAVEL SO AS TO OCCUR DURING DUTY HOURS DOES NOT ESTABLISH AN EVENT WHICH WAS NOT SCHEDULED OR CONTROLLED ADMINISTRATIVELY PURSUANT TO 5 U.S.C. 5542. THUS OVERTIME COMPENSATION WAS PROPERLY DISALLOWED. 49 COMP. THE LEGISLATIVE HISTORY OF 5 U.S.C. 5542(B)(2) REVEALS THAT COMPENSATION FOR TRAVEL OCCASIONED BY EVENTS BEYOND THE AGENCY'S CONTROL IS CONSIDERATION FOR THE IMPOSITION THAT SUCH TRAVEL MAKES UPON AN EMPLOYEE'S PRIVATE LIFE. THE TRAVEL INVOLVED DISTANCES THAT ARE WITHIN A REASONABLE COMMUTING DISTANCE. BROWNLEE'S ARE IDENTICAL IN SUBSTANCE AND DIFFER ONLY IN THE NUMBER OF HOURS SPENT IN TRAVELING TO TEMPORARY DUTY STATIONS. WHILE THIS DECISION WILL INVOLVE DISCUSSION ONLY OF YOUR CLAIM.

B-177468, B-177461, MAR 28, 1973

CIVILIAN EMPLOYEE - OVERTIME COMPENSATION FOR TRAVEL - CONGRESSIONAL INTENT DECISION SUSTAINING THE PRIOR DISALLOWANCE OF A CLAIM JOINTLY FILED BY ROBERT N. NICHOLSON, FLOYD F. MUNROE, RAYNALDO A. DUFOUR, SIDNEY W. SKIFFINGTON, FRANK R. SOEDER, AND HOLLIS E. BROWNLEE FOR OVERTIME COMPENSATION WHILE IN A TRAVEL STATUS. THE FACT THAT IT WAS NOT PRACTICAL TO SCHEDULE THE TRAVEL SO AS TO OCCUR DURING DUTY HOURS DOES NOT ESTABLISH AN EVENT WHICH WAS NOT SCHEDULED OR CONTROLLED ADMINISTRATIVELY PURSUANT TO 5 U.S.C. 5542, AND THUS OVERTIME COMPENSATION WAS PROPERLY DISALLOWED. 49 COMP. GEN. 209 (1969). FURTHER, THE LEGISLATIVE HISTORY OF 5 U.S.C. 5542(B)(2) REVEALS THAT COMPENSATION FOR TRAVEL OCCASIONED BY EVENTS BEYOND THE AGENCY'S CONTROL IS CONSIDERATION FOR THE IMPOSITION THAT SUCH TRAVEL MAKES UPON AN EMPLOYEE'S PRIVATE LIFE. HOWEVER, IN THE INSTANT CASE, THE TRAVEL INVOLVED DISTANCES THAT ARE WITHIN A REASONABLE COMMUTING DISTANCE.

TO MR. ROBERT N. NICHOLSON:

WE REFER TO YOUR LETTER OF FEBRUARY 4, 1972, IN WHICH MESSRS. RAYNALDO A. DUFOUR, FLOYD F. MUNROE, SIDNEY W. SKIFFINGTON AND FRANK R. SOEDER JOIN IN APPEALING THE DENIAL BY OUR TRANSPORTATION AND CLAIMS DIVISION'S SETTLEMENT CERTIFICATES DATED MARCH 20, 1969, OF YOUR CLAIM, Z-2361835, AND THAT OF MR. HOLLIS E. BROWNLEE, Z-2361834, FOR OVERTIME COMPENSATION WHILE IN A TRAVEL STATUS. YOUR CLAIM AND MR. BROWNLEE'S ARE IDENTICAL IN SUBSTANCE AND DIFFER ONLY IN THE NUMBER OF HOURS SPENT IN TRAVELING TO TEMPORARY DUTY STATIONS. WE ASSUME THAT MESSRS. DUFOUR, MUNROE, SKIFFINGTON AND SOEDER PERFORMED SIMILAR TRAVEL. WHILE THIS DECISION WILL INVOLVE DISCUSSION ONLY OF YOUR CLAIM, IT WILL BE DISPOSITIVE AS WELL OF THE CLAIMS OF THE OTHER EMPLOYEES.

THE TRAVEL PERFORMED BY YOU AS AN IMMIGRATION AND NATURALIZATION INSPECTOR WITH THE VAN BUREN, MAINE, OFFICE OF THE IMMIGRATION AND NATURALIZATION SERVICE (I&NS) OCCURRED DURING THE PERIOD FROM JANUARY 28, 1968, TO JUNE 24, 1968. THE TRAVEL INVOLVED WAS FROM VAN BUREN TO OFFICES OF THE I&NS LOCATED AT HAMLIN AND LIMESTONE, MAINE, DISTANCES OF 11 AND 25 MILES, RESPECTIVELY, FOR THE PURPOSE OF PERFORMING RELIEF DUTY DURING LEAVE PERIODS OF OFFICERS PERMANENTLY STATIONED AT THOSE TWO OFFICES. THE TRAVEL WAS NOT PERFORMED WITHIN YOUR REGULAR DUTY HOURS INASMUCH AS SUCH SCHEDULING WAS REGARDED BY I&NS TO BE IMPRACTICAL.

IN DENYING YOUR CLAIM OUR TRANSPORTATION AND CLAIMS DIVISION QUOTED SECTION 550.112 OF THE FEDERAL PERSONNEL MANUAL SUPPLEMENT. THAT SECTION IS DERIVED FROM AND IS SUBSTANTIALLY IDENTICAL TO SECTION 5542 OF TITLE 5 OF THE U.S.C. WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC 5542. OVERTIME RATES; COMPUTATION.

(A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR *** IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR EXCEPT AS OTHERWISE PROVIDED BY THIS SUBCHAPTER, AT THE FOLLOWING RATES:

(B) FOR THE PURPOSE OF THIS SUBCHAPTER -

(2) TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY STATION OF AN EMPLOYEE IS NOT HOURS OF EMPLOYMENT UNLESS -

(A) THE TIME SPENT IS WITHIN THE DAYS AND HOURS OF THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK OF THE EMPLOYEE, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS; OR

(B) THE TRAVEL (I) INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING, (II) IS INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING, (III) IS CARRIED OUT UNDER ARDUOUS CONDITIONS, OR (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.

YOU WERE ADVISED IN THE ABOVE-CITED SETTLEMENT CERTIFICATE THAT THE FACT THAT IT WAS NOT PRACTICAL TO SCHEDULE YOUR TRAVEL DURING DUTY HOURS "DID NOT ESTABLISH AN EVENT WHICH WAS NOT SCHEDULED OR CONTROLLED ADMINISTRATIVELY" AND THUS THAT SUBSECTION 5542(B)(2)(B)(IV) MAY NOT SERVE AS A BASIS FOR PAYMENT OF OVERTIME COMPENSATION. YOU TAKE EXCEPTION TO THIS HOLDING AS FOLLOWS:

*** THE LANGUAGE OF 5 U.S.C. 5542(B)(2)(B) DOES NOT REQUIRE THAT THE TRAVEL "ESTABLISH AN EVENT" BUT READS "RESULTS FROM AN EVENT."

THE BASIS FOR THE CLAIM FOR OVERTIME PAY FOR TRAVEL DIRECTED DURING NON- DUTY HOURS WAS THAT THE TRAVEL WAS NECESSITATED BY AN EVENT THAT COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY BY THE OFFICER DIRECTING THE TRAVEL, THE IMMIGRATION AND NATURALIZATION SERVICE OR THE DEPARTMENT OF JUSTICE.

THE PURPOSE OF THE TEMPORARY DUTY TRAVEL FOR WHICH OVERTIME COMPENSATION IS CLAIMED IS TO PERFORM A FULL 8 HOUR RELIEF SHIFT AT A ONE MAN BORDER INSPECTION STATION. THE ONLY MANNER IN WHICH THE TRAVEL COULD BE SCHEDULED DURING THE REGULAR 8 HOUR DUTY PERIOD WOULD BE 1) HAVE THE INSPECTOR BEING RELIEVED REMAIN ON DUTY IN OVERTIME PAY STATUS (AT GREATER COST OF 4 HOURS OVERTIME UNDER THE ACT OF MARCH 2, 1931) UNTIL THE RELIEVING INSPECTOR ARRIVES AT THE TEMPORARY DUTY STATION, OR 2) CLOSE THE U.S. BORDER INSPECTION STATION FOR 1 TO 1-1/2 HOURS UNTIL THE RELIEVING INSPECTOR TRAVELLING DURING HIS REGULAR DUTY HOURS ARRIVES AT THE TEMPORARY DUTY STATION. NEITHER OF THESE POSSIBILITIES ARE WITHIN THE ADMINISTRATIVE AUTHORITY OF THE OFFICER DIRECTING THE TEMPORARY DUTY TRAVEL, OR THE AGENCY BECAUSE 1) THE PAYMENT OF 4 HOURS OVERTIME UNDER THE 1931 ACT TO AVOID PAYMENT OF 1 TO 1-1/2 HOURS OVERTIME TO THE RELIEF OFFICER TRAVELLING TO THE TEMPORARY DUTY STATION WOULD BE WASTEFUL AND COULD NOT BE CONDONED, AND 2) THE HOURS OF THE HIGHWAY INSPECTION STATIONS AT U.S. BORDER PORTS OF ENTRY ARE ESTABLISHED BY INTERNATION AGREEMENT WITH CANADA. IT IS NOT WITHIN THE ADMINISTRATIVE AUTHORITY OF THE SERVICE OR THE DEPARTMENT TO CLOSE THE HIGHWAY. THEREFORE, THE TRAVEL UPON WHICH OUR ORIGINAL CLAIM WAS BASED RESULTS FROM AN EVENT WHICH CANNOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY AS DESCRIBED IN 5 U.S.C. 5542(B)(2)(B) BECAUSE THE DEPARTMENT, THE SERVICE AND THE INSPECTORS DIRECTED TO TRAVEL DURING NON-DUTY HOURS ARE REQUIRED TO PROVIDE THE MANDATORY INSPECTION OF PERSONS APPLYING FOR ADMISSION TO THE UNITED STATES.

IN 50 COMP. GEN. 519 (1971), B-163654, TO WHICH YOU REFER, THE FIFTH EXAMPLE WHICH WE CONSIDERED INVOLVED TRAVEL BY MR. SEBASTIAN, A FOOD INSPECTOR IN THE CONSUMER PROTECTION PROGRAM OF THE CONSUMER AND MARKETING SERVICE, DEPARTMENT OF AGRICULTURE, OUTSIDE HIS REGULAR DUTY HOURS FROM 9:30 P.M. SUNDAY UNTIL 4:30 A.M. MONDAY TO RELIEVE AN INSPECTOR WHO HAD BEEN GRANTED NON-EMERGENCY ANNUAL LEAVE AND TO PERFORM STATUTORILY REQUIRED INSPECTIONAL DUTIES. THERE WE RECOGNIZED THAT ALTHOUGH THE INSPECTION REQUIREMENT MAY NOT HAVE BEEN ENTIRELY WITHIN AGENCY CONTROL, THE SCHEDULING OF ANNUAL LEAVE OF THE INSPECTOR TO BE RELIEVED - WHICH EVENT NECESSITATED MR. SEBASTIAN'S TRAVEL - WAS WITHIN AGENCY CONTROL AND THAT THEREFORE HIS TRAVEL TIME WAS NOT COMPENSABLE AS OVERTIME HOURS OF WORK.

IN MR. SEBASTIAN'S CASE WHERE THE AGENCY HAD CONTROL OVER THE SCHEDULING OF ANNUAL LEAVE IT ALSO HAD CONTROL OVER THE SCHEDULING OF THE RELIEF INSPECTOR'S TRAVEL. SIMILARLY, IN YOUR CASE, THE I&NS HAD CONTROL OVER THE SCHEDULING OF ANNUAL LEAVE AND, AS YOU POINT OUT, OVER THE SCHEDULING OF YOUR TRAVEL. YOUR WORK HOURS AND THE WORK HOURS OF THE INSPECTOR ASSIGNED TO THE PREVIOUS SHIFT COULD HAVE BEEN ESTABLISHED TO PERMIT YOUR TRAVEL TO BE PERFORMED WITHIN YOUR REGULAR DUTY HOURS. THAT ADMINISTRATIVE CONSIDERATIONS MAY HAVE MADE IT IMPRACTICAL TO DO SO DOES NOT ENTITLE YOU TO OVERTIME COMPENSATION. 49 COMP. GEN. 209 (1969) AND B- 172671, MAY 11, 1972.

WE UNDERSTAND THAT MR. SEBASTIAN'S SITUATION DIFFERED FROM YOURS IN THAT HIS TEMPORARY DUTY ASSIGNMENT REQUIRED HIM TO TRAVEL A SUBSTANTIAL DISTANCE AND TO REMAIN OVERNIGHT AT HIS TEMPORARY DUTY STATION, WHILE, IN VIEW OF THE SHORT DISTANCES INVOLVED, YOU TRAVELED DAILY FROM YOUR HOME TO YOUR TEMPORARY DUTY STATION. WE HELD IN B-175608, JANUARY 22, 1973, THAT WHEN AN EMPLOYEE COMMUTES ON A DAILY BASIS FROM HIS HOME TO PERFORM REGULARLY SCHEDULED DUTIES AT A TEMPORARY DUTY STATION WE DO NOT REGARD SUCH TRAVEL AS OVERTIME HOURS OF WORK WITHIN THE MEANING OF 5 U.S.C. 5542(B)(2). WE THEREIN EXPLAINED THAT THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967, WHICH EXPANDED THE AUTHORITY FOR PAYMENT OF OVERTIME BY ADDING SUBSECTION (B)(2)(B)(IV), INDICATES THAT THE CONGRESS INTENDED TO PROVIDE COMPENSATION FOR TRAVEL OCCASIONED BY EMERGENCIES OR EVENTS BEYOND AGENCY CONTROL IN CONSIDERATION FOR THE IMPOSITION THAT SUCH TRAVEL MAKES UPON AN EMPLOYEE'S PRIVATE LIFE. FURTHER, WE SAID THAT WE DO NOT REGARD SCHEDULED DAILY TRAVEL OF THE TYPE THERE INVOLVED AS AN IMPOSITION UPON THE EMPLOYEE'S PRIVATE LIFE SIGNIFICANTLY DIFFERENT THAN THE NONCOMPENSABLE TRAVEL REQUIRED OF ANY EMPLOYEE IN REPORTING TO HIS PERMANENT DUTY STATION. ALTHOUGH YOUR ASSIGNMENTS TO HAMLIN AND LIMESTONE, MAINE, WERE NOT MADE WITH THE REGULARITY OF THE ASSIGNMENTS INVOLVED IN THAT CASE, WE REGARD THE PRINCIPLE EXPRESSED THEREIN AS EQUALLY APPLICABLE TO YOUR SITUATION. POINT OUT THAT IN THAT CASE AS WELL AS IN YOURS THE TRAVEL INVOLVED DISTANCES WITHIN WHAT WOULD BE CONSIDERED A REASONABLE COMMUTING DISTANCE.

FOR THE FOREGOING REASONS THE DISALLOWANCE OF YOUR CLAIM BY OUR TRANSPORTATION AND CLAIMS DIVISION IS AFFIRMED.