B-178715, MAY 13, 1975

B-178715, MAY 13, 1975

1. RESERVOIR SUPERINTENDENT REQUIRED TO ADJUST WATER DELIVERY GATES WHENEVER REQUESTED WHO WAS INSTRUCTED TO TAKE COMPENSATORY TIME OFF FOR SUCH WORK PERFORMED OUTSIDE HIS REGULARLY SCHEDULED HOURS ON WORKDAYS AND NONWORKDAYS CLAIMS OVERTIME COMPENSATION FOR THIS WORK. IT APPEARS THAT SUCH WORK COULD BE CONSIDERED IRREGULAR OR OCCASIONAL OVERTIME WORK FOR WHICH COMPENSATORY TIME OFF IS AUTHORIZED. THUS, IF IT IS DETERMINED TO BE IRREGULAR OR OCCASIONAL OVERTIME AND EMPLOYEE REQUESTED OR WAS PROPERLY REQUIRED TO TAKE COMPENSATORY TIME OFF, EMPLOYEE WOULD NOT BE ENTITLED TO OVERTIME COMPENSATION FOR SUCH WORK. 2. WHERE EMPLOYEE'S CLAIM FOR OVERTIME COMPENSATION WAS FORWARDED TO GAO FOR RECORDING UNDER 4 GAO 7.1, DATE OF RECORDING IS DATE CLAIM WAS RECEIVED BY GAO FOR PURPOSE OF TOLLING STATUTE OF LIMITATIONS FOR CLAIMS AGAINST GOVERNMENT UNDER 31 U.S.C. SEC. 71A, 237. DATE OF RECORDING WOULD BE CONTROLLING FOR THIS PURPOSE REGARDLESS OF FACT THAT AGENCY SUBSEQUENTLY DISALLOWED OR FAILED TO CONSIDER PART OF THAT CLAIM AND THE SAME CLAIM IS SUBSEQUENTLY SUBMITTED TO GAO FOR ADJUDICATION.

RANDALL W. CLEVELAND - OVERTIME COMPENSATION:

THIS DECISION CONCERNS THE CLAIM OF MR. RANDALL W. CLEVELAND, EMPLOYED AS A RESERVOIR SUPERINTENDENT BY THE BUREAU OF RECLAMATION, UNITED STATES DEPARTMENT OF THE INTERIOR, FOR OVERTIME COMPENSATION FOR WORK PERFORMED BY HIM DURING THE PERIOD JUNE 25, 1964, THROUGH AUGUST 25, 1972.

ALTHOUGH THE BUREAU OF RECLAMATION HAS BEEN ADJUDICATING CLAIMS OF RESERVOIR SUPERINTENDENTS FOR OVERTIME COMPENSATION IN ACCORDANCE WITH 53 COMP. GEN. 264 (1973), THEY QUESTION WHETHER A PORTION OF MR. CLEVELAND'S CLAIM IS PROPERLY PAYABLE UNDER THAT DECISION. THAT DECISION INVOLVED CLAIMS FOR OVERTIME COMPENSATION FOR WORK REQUIRED OF SUPERINTENDENTS ON NONWORKDAYS (SUNDAYS AND HOLIDAYS). HOWEVER, MR. CLEVELAND HAS CLAIMED OVERTIME COMPENSATION FOR WORK PERFORMED BY HIM OUTSIDE OF HIS REGULARLY SCHEDULED HOURS ON BOTH NONWORKDAYS AND WORKDAYS. AFTER FORWARDING MR. CLEVELAND'S CLAIM TO THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE FOR RECORDING ON FEBRUARY 4, 1974, THE BUREAU OF RECLAMATION PAID THE PORTION OF MR. CLEVELAND'S CLAIM RELATING TO OVERTIME WORK PERFORMED BY HIM ON SUNDAYS AND HOLIDAYS IN ACCORDANCE WITH OUR DECISION 53 COMP. GEN. 264, SUPRA. THE BUREAU OF RECLAMATION DID NOT PAY THE PORTION OF HIS CLAIM FOR OVERTIME WORK PERFORMED BY HIM OUTSIDE OF HIS REGULAR HOURS ON WORKDAYS AND HAS SUBMITTED THAT PORTION OF HIS CLAIM TO OUR OFFICE FOR A DECISION AS TO WHETHER IT MAY BE PAID UNDER THE PRINCIPLES SET FORTH IN 53 COMP. GEN. 264, SUPRA.

ALTHOUGH THE BUREAU HAS STATED THAT THE CIRCUMSTANCES INVOLVED IN MR. CLEVELAND'S CASE ARE IDENTICAL TO THOSE INVOLVED IN 53 COMP. GEN. 264, SUPRA, THEY HAVE FURTHER INDICATED THAT THE WORK FOR WHICH OVERTIME COMPENSATION IS CLAIMED INVOLVED ADJUSTING THE WATER DELIVERY GATE CHANGES WHENEVER ADJUSTMENTS WERE REQUESTED BY THE IRRIGATION DISTRICT CONCERNED. THE BUREAU ALSO STATES THAT MR. CLEVELAND WAS EXPECTED TO ADJUST HIS REGULAR WORKING HOURS ON A COMPENSATORY TIME BASIS FOR THE OVERTIME WORK PERFORMED BY HIM AND THAT, IN THE ABSENCE OF A FORMAL WRITTEN DIRECTIVE, THIS REQUIREMENT WAS AN ORAL UNDERSTANDING BETWEEN MR. CLEVELAND AND HIS SUPERVISOR.

UPON THE PRESENT RECORD OUR OFFICE IS NOT ABLE TO DEFINITELY DETERMINE MR. CLEVELAND'S ENTITLEMENT TO OVERTIME COMPENSATION. HOWEVER, IT DOES NOT APPEAR THAT THIS SITUATION IS IDENTICAL TO THAT INVOLVED IN 53 COMP. GEN. 264, SUPRA, OR THAT MR. CLEVELAND'S CLAIM FOR OVERTIME COMPENSATION WOULD NECESSARILY BE GOVERNED BY OUR HOLDINGS IN THAT DECISION.

THE SUPERINTENDENT INVOLVED IN 53 COMP. GEN. 264, SUPRA, WAS REQUIRED TO TAKE WEATHER AND RESERVOIR OPERATION RECORDS ON A DAILY BASIS, AND HIS CLAIM WAS FOR OVERTIME COMPENSATION FOR THE TIME REQUIRED TO PERFORM THESE DUTIES ON NONWORKDAYS. TO COMPENSATE HIM FOR THIS TIME, HIS SUPERIORS HAD INSTRUCTED HIM TO TAKE COMPENSATORY TIME OFF BY ADJUSTING HIS REGULAR HOURS ON WORKDAYS. SINCE THIS OVERTIME WORK WAS REQUIRED TO BE PERFORMED EVERY SUNDAY ON A REGULAR AND RECURRING BASIS, WE HELD THAT THE WORK COULD NOT BE CONSIDERED "IRREGULAR" OR "OCCASIONAL" OVERTIME WORK. ACCORDINGLY, WE CONCLUDED THAT COMPENSATORY TIME OFF FOR THIS OVERTIME WORK WAS NOT AUTHORIZED UNDER 5 U.S.C. SEC. 5543 AND 5 C.F.R. SEC. 550.114 AND THAT THE SUPERINTENDENT WAS ENTITLED TO OVERTIME COMPENSATION FOR THE WORK PERFORMED BY HIM ON SUNDAYS. MOREOVER, SINCE WE CONSIDERED THIS WORK TO BE REGULARLY SCHEDULED OVERTIME RATHER THAN UNSCHEDULED OVERTIME, WE CONCLUDED THAT HE WAS ENTITLED TO OVERTIME COMPENSATION AT THE RATE PROVIDED UNDER 5 U.S.C. SEC. 5542(A)(1) ONLY FOR THE TIME ACTUALLY WORKED ON SUNDAYS AND NOT FOR PAYMENT OF A MINIMUM OF 2 HOURS UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5542(B)(1). HOWEVER, WE CONCLUDED THAT HE WAS ENTITLED TO COMPENSATION AT THE APPROPRIATE RATE FOR A MINIMUM OF 2 HOURS UNDER 5 U.S.C. SEC. 5546(C) FOR WORK PERFORMED BY HIM ON HOLIDAYS.

IN THE PRESENT CASE THE BUREAU OF RECLAMATION INDICATES THAT THE WORK FOR WHICH OVERTIME COMPENSATION IS CLAIMED WAS PERFORMED WHENEVER IT WAS REQUESTED BY APPROPRIATE OFFICIALS. OUR OFFICE HAS NOT BEEN PROVIDED SUFFICIENT INFORMATION TO DEFINITELY DETERMINE WHETHER THE OVERTIME WORK WAS IRREGULAR OR OCCASIONAL. HOWEVER, IT DOES NOT APPEAR THAT THE OVERTIME WORK OCCURRED ON SUCCESSIVE DAYS OR AFTER SPECIFIED INTERVALS. MOREOVER, IT MAY HAVE OCCURRED INFREQUENTLY OR AT IRREGULAR INTERVALS. ACCORDINGLY, AS DISTINGUISHED FROM THE REGULARLY SCHEDULED OVERTIME WORK INVOLVED IN 53 COMP. GEN. 264, SUPRA, IT APPEARS THAT THE OVERTIME WORK INVOLVED IN THIS CASE COULD BE CONSIDERED TO BE "IRREGULAR" OR "OCCASIONAL" OVERTIME WORK. CF. 53 COMP. GEN. 264, 268, SUPRA. IF IT IS DETERMINED THAT THE OVERTIME WORK INVOLVED IN THIS CASE IS IRREGULAR OR OCCASIONAL, THEN THE COMPENSATORY TIME OFF PROVISIONS OF 5 U.S.C. SEC. 5543 WOULD BE APPLICABLE.

SECTION 5543 OF TITLE 5, OF THE U.S.C. PROVIDES FOR GRANTING AN EMPLOYEE COMPENSATORY TIME OFF FROM HIS SCHEDULED TOUR OF DUTY IN LIEU OF PAYMENT OF OVERTIME UNDER CERTAIN CIRCUMSTANCES. THE IMPLEMENTING REGULATIONS TO THAT STATUTE ARE FOUND IN 5 C.F.R. SEC. 550.114. THAT SECTION PROVIDES AS FOLLOWS:

"SEC. 550.114 COMPENSATORY TIME OFF FOR IRREGULAR OR OCCASIONAL OVERTIME WORK.

"(A) AT THE REQUEST OF AN EMPLOYEE, THE HEAD OF A DEPARTMENT MAY GRANT HIM COMPENSATORY TIME OFF FROM HIS TOUR OF DUTY INSTEAD OF PAYMENT UNDER SEC. 550.113 FOR AN EQUAL AMOUNT OF IRREGULAR OR OCCASIONAL OVERTIME WORK.

"(B) THE HEAD OF A DEPARTMENT MAY PROVIDE THAT AN EMPLOYEE WHOSE RATE OF BASIC PAY EXCEEDS THE MAXIMUM RATE FOR GS-10 SHALL BE PAID FOR IRREGULAR OR OCCASIONAL OVERTIME WORK WITH AN EQUIVALENT AMOUNT OF COMPENSATORY TIME OFF FROM HIS TOUR OF DUTY INSTEAD OF PAYMENT UNDER SEC. 550.113.

"(C) THE HEAD OF A DEPARTMENT MAY FIX A TIME LIMIT FOR AN EMPLOYEE TO REQUEST OR TAKE COMPENSATORY TIME OFF AND MAY PROVIDE THAT AN EMPLOYEE WHO FAILS TO TAKE COMPENSATORY TIME OFF TO WHICH HE IS ENTITLED UNDER PARAGRAPH (A) OR (B) OF THIS SECTION BEFORE THE TIME LIMIT FIXED, SHALL LOSE HIS RIGHT BOTH TO COMPENSATORY TIME OFF AND TO OVERTIME PAY UNLESS HIS FAILURE IS DUE TO AN EXIGENCY OF THE SERVICE BEYOND HIS CONTROL."

PRIOR TO THE FIRST DAY OF THE FIRST PAY PERIOD AFTER THE ENACTMENT OF SECTION 404(B), PUB. L. NO. 89-504, APPROVED JULY 18, 1966, 80 STAT. 297, THE CONTROLLING RATE OF BASIC PAY WITH RESPECT TO AN AGENCY'S AUTHORITY TO REQUIRE COMPENSATORY TIME OFF FOR IRREGULAR OR OCCASIONAL OVERTIME WAS THE MAXIMUM RATE FOR THE GRADE GS-9 RATHER THAN GRADE GS 10.

IF IT IS DETERMINED THAT THE OVERTIME WORK INVOLVED IN MR. CLEVELAND'S CLAIM WAS IRREGULAR OR OCCASIONAL OVERTIME WORK UNDER 5 U.S.C. SEC. 5543, THEN IT MUST BE DETERMINED ON THE BASIS OF ALL THE FACTS WHETHER HE REQUESTED COMPENSATORY TIME OFF FOR THIS WORK OR HE WAS PROPERLY REQUIRED BY THE BUREAU OF RECLAMATION TO TAKE COMPENSATORY TIME OFF FOR THIS WORK. IF IT IS DETERMINED THAT HE REQUESTED OR WAS PROPERLY REQUIRED TO TAKE COMPENSATORY TIME OFF FOR THIS WORK, COMPENSATORY TIME OFF WOULD BE THE PAYMENT FOR THE OVERTIME WORK AND HE APPARENTLY WOULD NOT BE ENTITLED TO OVERTIME COMPENSATION FOR SUCH WORK. MOREOVER, IT WOULD BE NECESSARY TO DETERMINE WHETHER A TIME LIMIT HAD BEEN ESTABLISHED FOR TAKING COMPENSATORY TIME OFF. SEE 5 C.F.R. SEC. 550.114(C). IF A TIME LIMIT WAS ESTABLISHED, MR. CLEVELAND WOULD HAVE LOST HIS RIGHT TO COMPENSATORY TIME OFF AND OVERTIME PAY FOR ANY COMPENSATORY TIME OFF NOT TAKEN WITHIN SUCH TIME LIMIT UNLESS IT CAN BE SHOWN THAT HIS FAILURE TO TAKE THE COMPENSATORY TIME OFF WAS DUE TO AN EXIGENCY OF THE SERVICE BEYOND HIS CONTROL. TO THE EXTENT THAT THIS DISCUSSION OF COMPENSATORY-TIME-OFF PROVISIONS IS APPLICABLE TO ANY IRREGULAR OR OCCASIONAL OVERTIME WORK INVOLVED IN THIS CASE, THESE PROVISIONS WOULD BE APPLICABLE REGARDLESS OF WHETHER THE OVERTIME WORK WAS PERFORMED ON A WORKDAY OR NONWORKDAY.

FURTHERMORE, IF IT IS DETERMINED THAT THE OVERTIME WORK IN THIS CASE IS UNSCHEDULED OVERTIME WORK, THE PROVISIONS OF 5 U.S.C. SEC. 5542(B)(1) WOULD BE APPLICABLE TO THE OVERTIME WORK. ACCORDINGLY, WHERE THE OVERTIME WORK WAS PERFORMED ON A NONWORKDAY OR THE EMPLOYEE WAS REQUIRED TO RETURN TO HIS PLACE OF EMPLOYMENT AFTER HIS REGULAR WORK HOURS, THE WORK WOULD BE DEEMED AT LEAST 2 HOURS IN DURATION.

AS INDICATED IN 53 COMP. GEN. 264, SUPRA, ANY CLAIM AGAINST THE GOVERNMENT WHICH IS NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS OF THE DATE SUCH CLAIM FIRST ACCRUED IS BARRED UNDER THE PROVISIONS OF 31 U.S.C. SECS. 71A, 237 (1970). IN THE PRESENT CASE, MR. CLEVELAND'S CLAIM FOR OVERTIME COMPENSATION FOR WORK PERFORMED OUTSIDE HIS REGULAR HOURS OF DUTY ON WORKDAYS AND NONWORKDAYS WAS APPARENTLY FORWARDED TO THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE AND RECORDED ON FEBRUARY 4, 1974. THIS IS THE DATE THAT THIS CLAIM WOULD BE REGARDED AS HAVING BEEN RECEIVED IN OUR OFFICE AND ONLY THAT PORTION OF HIS CLAIM ACCRUING PRIOR TO FEBRUARY 4, 1964, WOULD BE BARRED UNDER 31 U.S.C. SECS. 71A, 237 (1970). THE FACT THAT THE BUREAU OF RECLAMATION SUBSEQUENTLY DISALLOWED A PORTION OF THAT CLAIM AND MR. CLEVELAND SUBMITTED THE DISALLOWED PORTION OF HIS CLAIM AGAIN WOULD NOT AFFECT THE FACT THAT THIS CLAIM WAS ORIGINALLY RECEIVED IN OUR OFFICE ON FEBRUARY 4, 1974. CONCERNING OTHER EMPLOYEES WHO MAY HAVE CLAIMS SIMILAR TO MR. CLEVELAND'S AND MAY HAVE SUBMITTED EARLIER CLAIMS FOR OVERTIME COMPENSATION WHICH WERE FORWARDED TO OUR OFFICE FOR RECORDING OR CONSIDERATION, THE CLAIM RECORDED IN OUR OFFICE WOULD NOT PROVIDE A BASIS FOR TOLLING THE TIME LIMITATION FOR THE LATER CLAIM UNLESS THE LATER CLAIM CAN BE CONSIDERED A PART OF THE FIRST CLAIM WHICH WAS NOT CONSIDERED OR DISALLOWED.

WE WOULD ALSO POINT OUT THAT SECTION 801 OF PUB. L. NO. 93-604, APPROVED JANUARY 2, 1975, 88 STAT. 1965, AMENDS 31 U.S.C. SECS. 71A, 237, TO PROVIDE THAT CLAIMS AGAINST THE GOVERNMENT SHALL BE BARRED UNLESS THEY ARE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 6 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. SECTION 802 PROVIDES THAT SECTION 801 WILL BE EFFECTIVE 6 MONTHS AFTER THE DATE OF ENACTMENT AND WILL HAVE NO EFFECT ON CLAIMS RECEIVED IN THE GENERAL ACCOUNTING OFFICE BEFORE THAT TIME. ACCORDINGLY, UNLESS CLAIMS ARE RECEIVED PRIOR TO THE EFFECTIVE DATE OF THAT PROVISION, ANY PORTION OF THE CLAIM ACCRUING MORE THAN 6 YEARS FROM THE DATE THE CLAIM IS RECEIVED IN OUR OFFICE WOULD BE BARRED.

MR. CLEVELAND'S CLAIM AND ANY SIMILAR CLAIMS BY SUPERINTENDENTS WOULD BE FOR CONSIDERATION BY THE BUREAU OF RECLAMATION IN ACCORDANCE WITH THE STATUTES AND REGULATIONS DISCUSSED ABOVE. ANY SIMILAR CLAIMS BY OTHER SUPERINTENDENTS WHICH HAVE NOT BEEN SUBMITTED TO OUR OFFICE AND WHICH WILL BE AFFECTED BY THE TIME LIMITATION SHOULD BE FORWARDED TO OUR TRANSPORTATION AND CLAIMS DIVISION (GENERAL CLAIMS) FOR RECORDING UNDER 4 GAO 7.1 AFTER WHICH THEY WILL BE RETURNED TO THE BUREAU OF RECLAMATION FOR PAYMENT, DENIAL, OR REFERRAL BACK TO GAO FOR ADJUDICATION.