B-186187.OM, APR 28, 1981

B-186187.OM: Apr 28, 1981

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AFMD - CLAIMS GROUP (ROOM 5858): RETURNED IS FILE Z-2552976 FOR ISSUANCE OF A SETTLEMENT ALLOWING PAYMENT TO THOSE FORMER OR PRESENT ANNISTON ARMY DEPOT SECURITY GUARDS WHO FILED CLAIMS FOR OVERTIME COMPENSATION PRIOR TO JANUARY 11. FORTY OF THESE CLAIMANTS WERE AMONG THOSE LISTED IN THE LETTER OF MARCH 26. IN 1976 AND 1977 THREE SUITS WERE FILED IN THE UNITED STATES COURT OF CLAIMS AGAINST THE UNITED STATES FOR OVERTIME COMPENSATION BY 36 FORMER OR PRESENT SECURITY GUARDS AT THE ANNISTON ARMY DEPOT. FN1 OF THE 36 CLAIMANTS WHO BROUGHT SUIT 31 WERE AMONG THOSE LISTED IN THE LETTER OF MARCH 24. 19 OF THESE WERE AMONG THOSE WHO HAD FILED ADMINISTRATIVE CLAIMS DURING THE PERIOD APRIL 30. THE TRIAL DIVISION OF THE UNITED STATES COURT OF CLAIMS RENDERED A DECISION IN FAVOR OF THE SECURITY GUARDS AND HELD THAT THEY WERE ENTITLED TO RECEIVE OVERTIME COMPENSATION FOR 15 MINUTES PER SHIFT COVERING THE PERIOD BEGINNING 6 YEARS PRIOR TO THE FILING OF THE RESPECTIVE PETITION AND ENDING JANUARY 11.

B-186187.OM, APR 28, 1981

SUBJECT: RECONSIDERATION OF CLAIMS FOR OVERTIME COMPENSATION - B-186187- O.M.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

RETURNED IS FILE Z-2552976 FOR ISSUANCE OF A SETTLEMENT ALLOWING PAYMENT TO THOSE FORMER OR PRESENT ANNISTON ARMY DEPOT SECURITY GUARDS WHO FILED CLAIMS FOR OVERTIME COMPENSATION PRIOR TO JANUARY 11, 1981. THOSE CLAIMS MAY BE ALLOWED IN ACCORDANCE WITH THE COURT OF CLAIMS DECISION ALBERT G. TAYLOR, ET AL. V. UNITED STATES, NO. 128-76 (CT.CL. OCTOBER 31, 1978) AFF'D, COURT OF CLAIMS ORDER OF MARCH 14, 1980.

ON MARCH 26, 1974, THE GENERAL ACCOUNTING OFFICE RECEIVED AN UNSIGNED LETTER LISTING THE NAMES OF 77 ANNISTON ARMY DEPOT SECURITY GUARDS. THE LETTER STATED THAT THE 77 GUARDS WISHED TO CLAIM OVERTIME COMPENSATION FOR THE TIME SPENT IN DRAWING WEAPONS AND EQUIPMENT FROM CENTRALIZED GUN AND SUPPLY ROOMS, AND REQUESTED THAT CLAIM FORMS BE SENT TO THE ADDRESS STATED AT THE END OF THE LETTER. DURING THE PERIOD APRIL 30, 1974, THROUGH MAY 21, 1975, 43 SECURITY GUARDS FILED SIGNED CLAIMS FOR OVERTIME COMPENSATION WITH THE CLAIMS DIVISION. FORTY OF THESE CLAIMANTS WERE AMONG THOSE LISTED IN THE LETTER OF MARCH 26, 1974.

THE GENERAL ACCOUNTING OFFICE SUBSEQUENTLY RETURNED THESE CLAIMS TO THE DEPARTMENT OF THE ARMY FOR SETTLEMENT IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN B-174069, SEPTEMBER 11, 1974. THAT DECISION STATES THAT CLAIMS MADE BY CIVILIAN GUARDS FOR OVERTIME COMPENSATION SHOULD BE SETTLED BY THE EMPLOYING AGENCY INVOLVED UNDER THE RULES SET OUT IN BAYLOR V. UNITED STATES, 198 CT.CL. 331 (1972). THE ARMY THEN ADVISED EACH OF THE CLAIMANTS THAT HIS CLAIM HAD BEEN DENIED.

IN 1976 AND 1977 THREE SUITS WERE FILED IN THE UNITED STATES COURT OF CLAIMS AGAINST THE UNITED STATES FOR OVERTIME COMPENSATION BY 36 FORMER OR PRESENT SECURITY GUARDS AT THE ANNISTON ARMY DEPOT. FN1 OF THE 36 CLAIMANTS WHO BROUGHT SUIT 31 WERE AMONG THOSE LISTED IN THE LETTER OF MARCH 24, 1974, AND 19 OF THESE WERE AMONG THOSE WHO HAD FILED ADMINISTRATIVE CLAIMS DURING THE PERIOD APRIL 30, 1974-MAY 21, 1975.

ON OCTOBER 31, 1978, THE TRIAL DIVISION OF THE UNITED STATES COURT OF CLAIMS RENDERED A DECISION IN FAVOR OF THE SECURITY GUARDS AND HELD THAT THEY WERE ENTITLED TO RECEIVE OVERTIME COMPENSATION FOR 15 MINUTES PER SHIFT COVERING THE PERIOD BEGINNING 6 YEARS PRIOR TO THE FILING OF THE RESPECTIVE PETITION AND ENDING JANUARY 11, 1975, THE EFFECTIVE DATE ON WHICH 15 MINUTES OF ADDITIONAL OVERTIME PER SHIFT WAS AUTHORIZED TO BE PAID. THE EARLIEST DATE TO WHICH ANY CLAIM WAS ALLOWED WAS MARCH 22, 1970. THE GOVERNMENT APPEALED THIS DECISION TO THE FULL COURT OF CLAIMS. ON MARCH 14, 1980, THE COURT OF CLAIMS ISSUED AN ORDER UPHOLDING THE TRIAL JUDGE'S DECISION. TAYLOR V. UNITED STATES, SUPRA.

BY LETTER OF SEPTEMBER 18, 1980, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1945 ADVISED THE GENERAL ACCOUNTING OFFICE THAT THE ARMY IS UNWILLING TO PAY THE OVERTIME CLAIMS OF GUARDS WHO WERE NOT PARTY TO THE COURT OF CLAIMS SUIT AND HAS REQUESTED THAT WE "REVIEW THE 31 GUARD CLAIMS AND/OR ADVISE THEM OF PROCEDURES TO FOLLOW THAT WOULD GRANT THEM RECONSIDERATION."

THE ARMY'S POSITION IS THAT THESE CLAIMS SHOULD BE DENIED AND SHOULD NOT BE RECONSIDERED IN LIGHT OF TAYLOR. THE ARMY DOES NOT BELIEVE THAT TAYLOR SHOULD BE CONTROLLING PRECEDENT FOR THE FOLLOWING REASONS: (1) THE TRIAL JUDGE'S FINDINGS WERE INCORRECT; (2) THE TRIAL JUDGE DID NOT APPLY THE CORRECT LAW; AND (3) THE DECISION IS LIMITED IN SCOPE TO THE EXTENT THAT IT ONLY APPLIES TO THE CLAIMS BROUGHT BY THE INDIVIDUAL PLAINTIFFS AND NOT TO ALL SECURITY GUARDS WHO WORKED FOR THE DEPOT.

THE FIRST POINT RAISED BY THE ARMY CONCERNING THE TRIAL JUDGE'S FINDINGS IS NOT FOR OUR CONSIDERATION SINCE WE ARE NOT IN A POSITION TO MAKE THIS SUBJECTIVE DETERMINATION. MOREOVER, WE WILL NOT QUESTION WHETHER THE CORRECT LAW WAS APPLIED SINCE THIS ISSUE ALONG WITH THE FINDINGS OF FACT ISSUE WAS RAISED BEFORE AND CONSIDERED BY THE COURT OF CLAIMS WHICH ADOPTED AND CONFIRMED THE TRIAL JUDGE'S RECOMMENDED DECISION. THUS, IN THIS INSTANCE WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE COURT OF CLAIMS AND WE ACCEPT THE DECISION OF THE COURT.

THE ISSUE, THEREFORE, IS WHETHER THE COURT OF CLAIMS DECISION IS APPLICABLE TO THE PRESENT CLAIMANTS. IN BAYLOR A SIMILAR ISSUE AROSE. THAT CASE, 47 GUARDS BROUGHT SUIT FOR OVERTIME COMPENSATION BUT ONLY 33 TESTIFIED. THERE, THE COURT HELD THAT ITS DECISION WAS ONLY APPLICABLE TO THOSE WHO TESTIFIED. THE COURT'S DECISION, HOWEVER, WAS PREDICATED ON A PRE-TRIAL AGREEMENT BETWEEN THE PARTIES THAT THE OVERTIME CLAIMED BY EACH PLAINTIFF WAS LARGELY ATTRUBUTABLE TO THE VARIATIONS IN THE INDIVIDUAL'S SITUATION. THEREFORE, IT WAS ESSENTIAL THAT EACH OF THE PLAINTIFFS SHOULD TESTIFY CONCERNING HIS OWN INDIVIDUAL SITUATION IN SUPPORT OF THE CLAIM ADVANCED BY HIM. FURTHERMORE, UNDER THE GROUND RULES ESTABLISHED FOR THE CONDUCT OF THE TRIAL, IT WAS CONTEMPLATED THAT EACH PLAINTIFF WOULD HAVE TO STAND ON, AND BE BOUND BY, HIS OWN PROOF AND THAT SEPARATE FINDINGS WOULD BE PROPOSED AND MADE AS TO EACH PLAINTIFF WITH RESPECT TO THE AMOUNT OF TIME IT TOOK HIM TO PERFORM PRESHIFT AND POST SHIFT ACTIVITIES. SEE BAYLOR, AT 341-343 AND 366-369.

IN ORDER TO AVOID THE ABOVE PROBLEM, THE PARTIES IN TAYLOR STIPULATED THAT THOSE PLAINTIFFS AND DEFENDANTS NOT CALLED AS WITNESSES WOULD TESTIFY TO THE SAME EFFECT AS THOSE CALLED. MOREOVER, UNLIKE IN BAYLOR, THE UNCOMPENSATED OVERTIME WAS SPREAD EVENLY AMONG THE GUARDS RATHER THAN INDIVIDUALLY SINCE THEY HAD EACH WORKED EVERY SHIFT, POST AND PATROL. ADDITION, IT IS APPARENT FROM THE CLAIMS SUBMITTED TO OUR OFFICE DURING THE PERIOD APRIL 30, 1974-MAY 21, 1975, THAT THE CLAIMS PRESENTED BY THOSE WHO SUCCESSFULLY BROUGHT SUIT IN THE COURT OF CLAIMS AND THOSE WHO ARE NOW BEFORE US ARE THE SAME IN ALL MATERIAL ASPECTS. THUS, IN LIGHT OF THE STIPULATION AGREED TO BY THE PARTIES IN TAYLOR AND THE FACT THAT THE PRESENT CLAIMANTS ARE SIMILARLY SITUATED TO THOSE WHO SUCCESSFULLY BROUGHT SUIT IN THE COURT OF CLAIMS IT IS OUR OPINION THAT THE FINDINGS AND RULINGS OF THE TAYLOR DECISION ARE APPLICABLE TO THE PRESENT CLAIMANTS.

THOSE GUARDS WHO WERE NOT JOINED AS PLAINTIFFS IN TAYLOR AND WHO HAVE FILED TIMELY CLAIMS MAY BE PAID OVERTIME COMPENSATION ON THE BASIS OF THAT DECISION FOR THE PERIOD FROM MARCH 22, 1970, THROUGH JANUARY 11, 1975, ALLOWED BY THE COURT. WHILE SOME MAY HAVE CLAIMS FOR PERIODS PRIOR TO MARCH 22, 1970, THE COURT'S DECISION DOES NOT CLEARLY ESTABLISH THAT ADDITIONAL WORK THEY MAY HAVE PERFORMED WAS INDUCED BY AN AUTHORIZED OFFICIAL PRIOR TO THAT DATE.

THE ADOPTION OF THE TAYLOR DECISION DOES NOT, HOWEVER, END OUR INQUIRY, SINCE THE EXTENT TO WHICH THE CLAIMANTS ARE ENTITLED TO RECOVER DEPENDS ON THE DATE EACH FILED A CLAIM WITH THE GENERAL ACCOUNTING OFFICE.

NINETEEN OF THE GUARDS WHO WERE JOINED AS PLAINTIFFS IN TAYLOR WERE AMONG THE 43 CLAIMANTS WHO FILED SIGNED CLAIMS WITH THIS OFFICE DURING THE PERIOD APRIL 30, 1974-MAY 21, 1975. THUS, IT APPEARS THAT THERE ARE 24 GUARDS WHO HAVE FILED TIMELY CLAIMS WHO MAY BE PAID OVERTIME COMPENSATION IN ACCORDANCE WITH THE TERMS OF TAYLOR FOR THE TIME PERIOD COVERED BY THAT DECISION. THERE IS NO STATUE OF LIMITATIONS APPLICABLE TO THE FILING OF A REQUEST FOR RECONSIDERATION. SEE B-194481, FEBRUARY 15, 1980.

THOSE CLAIMANTS WHOSE NAMES APPEARED ON THE UNSIGNED LETTER AND WHO DID NOT SUBSEQUENTLY FILE SIGNED CLAIMS WITH THE GENERAL ACCOUNTING OFFICE MAY NOT BE CONSIDERED TO HAVE FILED TIMELY CLAIMS. THE PROCEDURES FOR THE FILING OF CLAIMS TO BE ADJUDICATED BY THE GENERAL ACCOUNTING OFFICE ARE CONTAINED IN 4 C.F.R. PART 31. IN GENERAL, NO PARTICULAR FORM IS REQUIRED. B-190771, APRIL 17, 1978. HOWEVER, A CLAIM MUST BE PRESENTED IN WRITING OVER THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR THE CLAIMANT'S AUTHORIZED ATTORNEY OR AGENT. SEE 31 U.S.C. SEC. 71A AND 4 C.F.R. SEC. 31.2.

IN THE PAST, WE HAVE STRICTLY CONSTRUED THE SIGNATURE REQUIREMENT AND HAVE DENIED CLAIMS ON THE BASIS THAT VOUCHERS SUBMITTED FOR PAYMENT WERE NOT SIGNED. SEE 18 COMP.GEN. 84, 89 (1938). COMPARE B-194444 O.M., SEPTEMBER 26, 1976, IN WHICH WE ACCEPTED A COPY OF A CLAIM WHICH BORE THE FACSIMILE OF THE CLAIMANT'S SIGNATURE AS EVIDENCE OF TIMELY FILING WHERE THE ORIGINAL SIGNED CLAIM WAS RECEIVED AT A LATER DATE AND THE COPY WAS CLEARLY INTENDED TO BE A CLAIM AGAINST THE UNITED STATES.

THE LETTER OF MARCH 24, 1974, DOES NOT ITSELF MEET THE REQUIREMENT FOR A CLAIM. IT IS UNSIGNED AND MERELY INDICATES THAT THE 77 INDIVIDUALS LISTED HAVE CLAIMS AND REQUESTS COPIES OF CLAIM FORMS. THE FACT THAT 40 OF THE INDIVIDUALS LISTED IN THE LETTER SUBSEQUENTLY SENT SIGNED CLAIMS TO THE GENERAL ACCOUNTING OFFICE REQUESTING OVERTIME COMPENSATION FOR THE SAME TIME PERIOD AND ON THE SAME GROUNDS AS THAT STATED IN THE LETTER IS EVIDENCE OF THE FACT THAT THEY DID NOT UNDERSTAND THE MARCH 24, 1974 LETTER TO BE THE NECESSARY FILING. FOR THE SAME REASON, THE UNION'S LETTER OF SEPTEMBER 18, 1980, DOES NOT CONSTITUTE THE FILING OF CLAIMS ON BEHALF OF THOSE INDIVIDUALS WHO DID NOT SUBMIT SIGNED CLAIMS BETWEEN APRIL 30, 1974, AND MAY 21, 1975. CLAIMS NOW FILED WOULD BE BARRED UNDER THE PROVISIONS OF 31 U.S.C. SEC. 71A.

IN ACCORDANCE WITH THE ABOVE DISCUSSION, THOSE GUARDS WHO HAVE FILED TIMELY CLAIMS MAY BE ALLOWED OVERTIME COMPENSATION OF 15 MINUTES PER DAY FOR THE PERIOD BETWEEN MARCH 22, 1970, AND JANUARY 11, 1975.

ATTACHMENT

DIGEST 1

77 ARMY EMPLOYEES SENT AN UNSIGNED LETTER TO GAO STATING THAT THEY WISHED TO CLAIM OVERTIME COMPENSATION FOR PRESHIFT AND POST SHIFT ACTIVITIES. SOME OF THOSE WHO WERE LISTED IN THE LETTER FILED SUIT IN THE UNITED STATES COURT OF CLAIMS AGAINST THE UNITED STATES FOR OVERTIME COMPENSATION. THE COURT OF CLAIMS RENDERED A DECISION IN THEIR FAVOR AND GRANTED THEM OVERTIME COMPENSATION. SINCE THE CLAIMS OF THOSE WHO SUCCESSFULLY BROUGHT SUIT IN THE COURT OF CLAIMS AND THOSE WHO ARE NOW BEFORE GAO ARE THE SAME IN ALL MATERIAL ASPECTS, THE FINDINGS AND THE RULINGS OF THE COURT OF CLAIMS ARE CONSIDERED TO BE APPLICABLE TO THOSE CLAIMANTS WHO HAVE FILED TIMELY CLAIMS.

DIGEST 2

77 ARMY EMPLOYEES SENT AN UNSIGNED LETTER IN 1974 TO GAO STATING THAT THEY WISHED TO CLAIM OVERTIME COMPENSATION FOR PRESHIFT AND POST SHIFT ACTIVITIES AND REQUESTED THAT CLAIM FORMS BE SENT TO A SPECIFIC ADDRESS. 40 OF THE INDIVIDUALS LISTED SUBSEQUENTLY SENT SIGNED CLAIMS TO GAO REQUESTING OVERTIME FOR THE SAME TIME PERIOD AND ON THE SAME GROUNDS AS STATED IN THE 1974 LETTER. THE LETTER OF 1974 DOES NOT CONSTITUTE A VALID CLAIM SINCE IT DOES NOT SATISFY THE REQUIREMENTS FOR THE FILING OF CLAIMS TO BE ADJUDICATED BY THE GAO. THUS, ONLY THOSE INDIVIDUALS WHO SUBSEQUENTLY SENT SIGNED CLAIMS TO THE GAO ARE CONSIDERED TO HAVE FILED CLAIMS FOR ADJUDICATION.

FN1 TAYLOR, ET AL. V. UNITED STATES, NO. 128-76 FILED MARCH 22, 1976; APPLEBAUM ET AL. V. UNITED STATES, NO. 467-76 FILED NOVEMBER 15, 1976; AND CHAPMAN ET UN. V. UNITED STATES, NO. 459-77 FILED SEPTEMBER 14, 1977.