B-179998, MAY 23, 1974

B-179998: May 23, 1974

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OVERTIME CLAIM OF EMPLOYEE AT SHEPPARD AFB FOR 15 MINUTES EARLY REPORTING ORDERED BY INSTRUCTION ISSUED BY BASE FIRE CHIEF IS DISALLOWED SINCE FIRE CHIEF DID NOT HAVE AUTHORITY TO ORDER OR APPROVE OVERTIME EXCEPT IN EMERGENCIES. WHO HAD AUTHORITY BUT WAS UNAWARE OF EARLY REPORTING REQUIREMENT. CANNOT BE HELD TO HAVE "TACITLY EXPECTED" OR INDUCED EARLY REPORTING UNDER STANDARDS APPLICABLE TO AUTHORIZATION AND APPROVAL IN BAYLOR V. PROVIDED IN PART AS FOLLOWS: "ALL ON-COMING PERSONNEL WILL REPORT TO THEIR DUTY STATION NOT LATER THAN 15 MINUTES PRIOR TO ROLL CALL AND BE READY WITH BUNKER CLOTHING PLACED IN FRONT OF EACH MAN FOR SHIFT CHANGE. STATION CHIEFS WILL CALL ROLL AND MAKE ASSIGNMENTS FOR THE DAY. ***" SIMILAR PROVISIONS WERE CONTAINED IN THE INSTRUCTIONS ISSUED APRIL 12.

B-179998, MAY 23, 1974

OVERTIME CLAIM OF EMPLOYEE AT SHEPPARD AFB FOR 15 MINUTES EARLY REPORTING ORDERED BY INSTRUCTION ISSUED BY BASE FIRE CHIEF IS DISALLOWED SINCE FIRE CHIEF DID NOT HAVE AUTHORITY TO ORDER OR APPROVE OVERTIME EXCEPT IN EMERGENCIES, AND CHIEF EXECUTIVE OFFICER, WHO HAD AUTHORITY BUT WAS UNAWARE OF EARLY REPORTING REQUIREMENT, CANNOT BE HELD TO HAVE "TACITLY EXPECTED" OR INDUCED EARLY REPORTING UNDER STANDARDS APPLICABLE TO AUTHORIZATION AND APPROVAL IN BAYLOR V. UNITED STATES, 198 C. CLS. 133 (1972).

TO AIR FORCE ACCOUNTING & FINANCE CENTER:

THE AIR FORCE ACCOUNTING AND FINANCE CENTER FORWARDED TO OUR TRANSPORTATION AND CLAIMS DIVISION THE CLAIM OF MR. STANLEY E. SMITH FOR OVERTIME COMPENSATION FOR EARLY REPORTING FOR THE PERIOD FROM MARCH 1, 1969, TO MARCH 4, 1972, AS AN EMPLOYEE OF THE FIRE PROTECTION BRANCH, 3750TH CIVIL ENGINEERING SQUADRON, STATIONED AT SHEPPARD AIR FORCE BASE.

MR. SMITH'S CLAIM ARISES FROM THE REQUIREMENT THAT HE AND OTHER PERSONNEL ASSIGNED TO THE FIRE PROTECTION BRANCH REPORT TO THEIR DUTY STATION 15 MINUTES PRIOR TO THE BEGINNING OF THEIR REGULAR 8-HOUR WORKDAY. FIRE PROTECTION BRANCH OPERATING INSTRUCTION (BOI 92-3), ISSUED MARCH 1, 1969, PROVIDED IN PART AS FOLLOWS:

"ALL ON-COMING PERSONNEL WILL REPORT TO THEIR DUTY STATION NOT LATER THAN 15 MINUTES PRIOR TO ROLL CALL AND BE READY WITH BUNKER CLOTHING PLACED IN FRONT OF EACH MAN FOR SHIFT CHANGE. STATION CHIEFS WILL CALL ROLL AND MAKE ASSIGNMENTS FOR THE DAY. ***"

SIMILAR PROVISIONS WERE CONTAINED IN THE INSTRUCTIONS ISSUED APRIL 12, 1971, AND FEBRUARY 1, 1972. BY REVISION TO THAT INSTRUCTION DATED FEBRUARY 23, 1972, THAT PROVISION WAS DELETED AND SINCE THAT DATE FIRE PROTECTION BRANCH EMPLOYEES HAVE NOT BEEN REQUIRED TO REPORT 15 MINUTES PRIOR TO THE SCHEDULED START OF THEIR REGULAR 8-HOUR TOUR OF DUTY. THE 1969 AND 1971 ORDERS WERE ISSUED BY THEN BASE FIRE CHIEF, WILLIAM M. BECK, AND THE 1972 ORDER BY BASE FIRE CHIEF MATTHEW F. NORTON, SR. BY REASON OF HIS COMPLIANCE WITH THE EARLY REPORTING REQUIREMENT MR. SMITH CLAIMS ENTITLEMENT TO OVERTIME COMPENSATION OF 15 MINUTES PER DAY FOR THE PERIOD INVOLVED.

SECTION 5542(A) OF TITLE 5, U.S.C. AUTHORIZES OVERTIME COMPENSATION FOR "HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK ***." UNDER THAT STATUTE IT HAS CONSISTENTLY BEEN HELD THAT AN EMPLOYEE MAY RECEIVE OVERTIME COMPENSATION FOR DUTIES OUTSIDE OF HIS REGULAR 8-HOUR WORKDAY ONLY IF PERFORMANCE OF THOSE DUTIES WAS ORDERED OR APPROVED BY AN OFFICIAL HAVING PROPERLY DELEGATED AUTHORITY TO ORDER OR APPROVE OVERTIME WORK. ALBRIGHT V. UNITED STATES, 161 C. CLS. 365 (1963); ADAMS V. UNITED STATES, 162 C. CLS. 766 (1963); RAPP V. UNITED STATES, 167 C. CLS. 852 (1964); BATES V. UNITED STATES, 196 C. CLS. 362 (1971); BAYLOR V. UNITED STATES, 198 C. CLS. 331 (1972).

AS TO THE REQUIREMENT THAT OVERTIME BE PROPERLY ORDERED OR APPROVED, PARAGRAPH 3A OF AIR FORCE REGULATIONS (AFR) 40-552, ISSUED SEPTEMBER 15, 1971, PROVIDED:

"A. AUTHORIZATION REQUIREMENT. OVERTIME WORK MUST BE ORDERED BY THE APPROPRIATE SUPERVISOR AND APPROVED IN WRITING BY THE OFFICIAL DESIGNATED TO AUTHORIZE OVERTIME PAYMENT. SINCE OVERTIME APPROVAL CONSTITUTES AUTHORITY FOR THE EXPENDITURE OF FUNDS AND CERTIFICATION THAT OVERTIME FUNDS ARE AVAILABLE, APPROVAL MUST BE OBTAINED BEFORE THE WORK IS PERFORMED EXCEPT IN AN EMERGENCY WHEN IT MUST BE MADE A MATTER OF RECORD NO LATER THAN THE FOLLOWING WORKDAY. WORK PERFORMED BY AN EMPLOYEE OUTSIDE HIS REGULARLY SCHEDULED TOUR OF DUTY WITHOUT OFFICIAL AUTHORIZATION OR APPROVAL CANNOT BE MADE THE BASIS FOR OVERTIME PAY."

THAT REQUIREMENT WAS PREVIOUSLY CONTAINED IN THE SUPPLEMENTAL MATERIALS TO AFR 40-523, OCTOBER 31, 1968, AND IN PARAGRAPH 2 OF SECTION 5232, AFM 40-1, JANUARY 28, 1969.

WE WERE ADVISED THAT IN ACCORDANCE WITH THE ABOVE AIR FORCE REGULATIONS, ONLY THE CENTER EXECUTIVE OFFICER (SHEPPARD TECHNICAL TRAINING CENTER) HAD BEEN DELEGATED AUTHORITY TO APPROVE OVERTIME ACTIVITIES OF THE NATURE HERE INVOLVED DURING THE PERIOD OF THE CLAIM. INDIVIDUALS HOLDING THE POSITION OF BASE FIRE CHIEF HAD AUTHORITY TO ORDER OVERTIME ONLY IN EMERGENCY SITUATIONS. THUS, ON THE BASIS OF THE FIRE PROTECTION BRANCH OPERATING INSTRUCTION ALONE WE CANNOT FIND PERFORMANCE OF THE PRELIMINARY DUTY TO HAVE BEEN ORDERED OR APPROVED BY AN OFFICIAL HAVING AUTHORITY TO ORDER OR APPROVE OVERTIME.

HOWEVER, IN THE BAYLOR CASE, SUPRA, THE COURT OF CLAIMS FOUND PRELIMINARY AND POSTLIMINARY ACTIVITIES PERFORMED BY GSA GUARDS TO BE COMPENSABLE AS OVERTIME BASED LARGELY UPON A SHOWING OF KNOWLEDGE OF THOSE ACTIVITIES BY OFFICIALS WHO IN FACT HAD AUTHORITY TO ORDER AND APPROVE OVERTIME. PAGES 355 AND 357 OF THE DECISION THE COURT FOUND AS FOLLOWS:

"*** IT IS APPARENT *** THAT MR. CASTELLA WAS AUTHORIZED TO ORDER AND APPROVE OVERTIME DURING MOST OF THE CLAIM PERIOD DURING WHICH BOTH THE 1952 AND 1963 VERSIONS OF THE HANDBOOK FOR GUARDS WERE IN EFFECT. ***

"ALTHOUGH MR. CASTELLA DENIED THAT HE KNEW HOW MUCH TIME ANY OF PLAINTIFF GUARDS SPENT IN PERFORMING THE AFORE STATED ACTIONS, CONSIDERING THE EXTENT OF HIS KNOWLEDGE OF THE PRESHIFT AND POST SHIFT ACTIVITIES GENERALLY REQUIRED OF THE GUARDS BY THE REGULATIONS, IT IS CONCLUDED AND FOUND THAT HE MUST HAVE BEEN AWARE OF THE FACT THAT THEY WERE ACTUALLY REQUIRED EACH DAY TO PERFORM, AND ACTUALLY DID PERFORM, SUBSTANTIAL AMOUNTS OF OVERTIME BOTH PRIOR TO, AND AT THE END OF, THEIR SCHEDULED SHIFTS. CERTAINLY, A MAN OCCUPYING THE HIGH POSITION HELD BY MR. CASTELLA OVER SUCH AN EXTENDED PERIOD OF TIME, WITH HIS OBVIOUS INTELLIGENCE AND ADMITTED GENERAL KNOWLEDGE OF THE ENTIRE OPERATION OF THE GUARD FORCE, COULD NOT REASONABLY ASSUME THAT THE TIME SPENT BY THE GUARDS IN PERFORMING THESE REQUIRED ACTIVITIES WAS INSIGNIFICANT, OR 'DE MINIMIS' AS CONTENDED BY DEFENDANT."

IN DISCUSSING WHETHER THE ABOVE CIRCUMSTANCES EVIDENCED AUTHORIZATION AND APPROVAL, THE COURT STATED AT PAGES 359 AND 360:

"*** THIS CASE IS IMPORTANT IN THAT IT ILLUSTRATES THE TWO EXTREMES; THAT IS, IF THERE IS A REGULATION SPECIFICALLY REQUIRING OVERTIME PROMULGATED BY A RESPONSIBLE OFFICIAL, THEN THIS CONSTITUTES 'OFFICIALLY ORDERED OR APPROVED' BUT, AT THE OTHER EXTREME, IF THERE IS ONLY A 'TACIT EXPECTATION' THAT OVERTIME IS TO BE PERFORMED, THIS DOES NOT CONSTITUTE OFFICIAL ORDER OR APPROVAL.

"IN BETWEEN 'TACIT EXPECTATION' AND A SPECIFIC REGULATION REQUIRING A CERTAIN NUMBER OF MINUTES OF OVERTIME THERE EXISTS A BROAD RANGE OF FACTUAL POSSIBILITIES, WHICH IS BEST CHARACTERIZED AS 'MORE THAN A TACIT EXPECTATION.' WHERE THE FACTS SHOW THAT THERE IS MORE THAN ONLY A 'TACIT EXPECTATION' THAT OVERTIME BE PERFORMED, SUCH OVERTIME HAS BEEN FOUND TO BE COMPENSABLE AS HAVING BEEN 'OFFICIALLY ORDERED OR APPROVED,' EVEN IN THE ABSENCE OF A REGULATION SPECIFICALLY REQUIRING A CERTAIN NUMBER OF MINUTES OF OVERTIME. WHERE EMPLOYEES HAVE BEEN 'INDUCED' BY THEIR SUPERIORS TO PERFORM OVERTIME IN ORDER TO EFFECTIVELY COMPLETE THEIR ASSIGNMENTS AND DUE TO THE NATURE OF THEIR EMPLOYMENT, THIS OVERTIME HAS BEEN HELD TO HAVE BEEN 'OFFICIALLY ORDERED OR APPROVED' AND THEREFORE COMPENSABLE. ***

"IN LIGHT OF THE FOREGOING, IT SEEMS READILY APPARENT THAT PLAINTIFFS HAVE MET THEIR BURDEN OF PROOF BY ESTABLISHING THAT THERE WAS MORE THAN ONLY A 'TACIT EXPECTATION' THAT THEY PERFORM OVERTIME. IN THE LANGUAGE OF THE CASES, PLAINTIFFS WERE *** 'INDUCED' TO PERFORM OVERTIME. ***"

BECAUSE THE AIR FORCE FILE FORWARDED WITH MR. SMITH'S CLAIM TO OUR TRANSPORTATION AND CLAIMS DIVISION DID NOT CONTAIN INFORMATION AS TO WHETHER THE CENTER EXECUTIVE OFFICER MIGHT BE HELD TO HAVE ORDERED OR APPROVED THE EARLY REPORTING REQUIREMENT UNDER THE STANDARDS SET FORTH IN THE BAYLOR CASE, A SUPPLEMENTAL REPORT WAS REQUESTED. IN RESPONSE TO THAT REQUEST WE WERE ADVISED THAT THE CENTER EXECUTIVE OFFICER WAS UNAWARE OF THE EARLY REPORTING REQUIREMENT. HIS LACK OF KNOWLEDGE IN THIS REGARD IS ATTRIBUTED TO THE FACT THAT NO OVERTIME CLAIMS WHICH WOULD HAVE DIRECTED HIS ATTENTION TO THE REQUIREMENT WERE SUBMITTED AND TO THE FACT THAT PROCEDURES GOVERNING ISSUANCE OF BRANCH OPERATION INSTRUCTIONS BY THE FIRE BRANCH DID NOT REQUIRE COORDINATION WITH THE CENTER EXECUTIVE OFFICER. THUS, WE ARE UNABLE TO FIND THAT THE CENTER EXECUTIVE OFFICER TACITLY EXPECTED OR OTHERWISE INDUCED THE EARLY REPORTING, EVEN UNDER THE BROAD STANDARDS SET FORTH IN THE BAYLOR CASE.

THUS, WE MUST CONCLUDE THAT IN ORDERING THE EMPLOYEES OF THE FIRE PROTECTION BRANCH TO REPORT 15 MINUTES PRIOR TO THE SCHEDULED START OF THEIR REGULAR 8-HOUR TOUR OF DUTY, BASE FIRE CHIEFS BECK AND NORTON WERE ACTING BEYOND THE SCOPE OF THEIR AUTHORITY. THE WELL ESTABLISHED RULE OF LAW IN THIS REGARD IS THAT THE GOVERNMENT CAN BE NEITHER BOUND NOR ESTOPPED BY THE UNAUTHORIZED ACTS OF ITS AGENTS. HART V. UNITED STATES, 95 U.S. 316 (1877); PINE RIVER LOGGING CO. V. UNITED STATES, 186 U.S. 279 (1902); UTAH POWER & LIGHT CO. V. UNITED STATES, 243 U.S. 389 (1917); SUTTON V. UNITED STATES, 256 U.S. 575 (1921); WILBER NATIONAL BANK V. UNITED STATES, 294 U.S. 120 (1935); FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380 (1947).

FOR THE FOREGOING REASONS, MR. SMITH'S CLAIM AS WELL AS THOSE OF OTHER EMPLOYEES OF THE FIRE PROTECTION BRANCH FOR OVERTIME COMPENSATION FOR EARLY REPORTING ARE DENIED.