B-207795, FEB 6, 1985

B-207795, FEB 6, 1985

COMPENSATION - OVERTIME - TRAVELTIME - ARDUOUS CONDITIONS DIGEST: 1. A PERIOD OF LONG HOURS OF TRAVEL ON A COMMERCIAL AIRLINER IS NOT CONSIDERED TRAVEL UNDER "ARDUOUS CONDITIONS" FOR OVERTIME COMPENSATION UNDER 5 U.S.C. SEC. 5542(B)(2)(B)(III), AS THAT TERM IS INTERPRETED BY THE OFFICE OF PERSONNEL MANAGEMENT, THE AGENCY CHARGED WITH THE ADMINISTRATION OF THE OVERTIME STATUTE. THOMAS G. HICKEY, B-207795, DECEMBER 2, 1982, AFFIRMED. COMPENSATION - OVERTIME - TRAVELTIME - ADMINISTRATIVELY CONTROLLABLE 2. THE ACT OF SCHEDULING TRAVEL FOR AN EMPLOYEE SO THAT THE SCHEDULE IS CONSISTENT WITH TRAVEL REGULATIONS IS NOT AN "EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY" FOR PURPOSES OF 5 U.S.C. SEC. 5542(B)(2)(B)(IV). THEREFORE, TRAVEL CONNECTED WITH SUCH SCHEDULING IS NOT CONSIDERED "HOURS OF EMPLOYMENT" FOR OVERTIME PAY.

THOMAS G. HICKEY:

MR. R. G. BORDLEY, CHIEF, ACCOUNTING AND FINANCE DIVISION, OFFICE OF THE COMPTROLLER, DEFENSE LOGISTICS AGENCY, HAS SUBMITTED MR. THOMAS G. HICKEY'S REQUEST FOR RECONSIDERATION OF OUR DECISION, B-207795, DECEMBER 2, 1982, WHICH DENIED MR. HICKEY'S CLAIM FOR OVERTIME COMPENSATION. ENCLOSED WITH THE SUBMISSION IS A MEMO FROM MR. HICKEY STATING THE REASONS FOR HIS BELIEF THAT WE SHOULD RECONSIDER OUR DECISION. AS IS EXPLAINED BELOW, UPON RECONSIDERATION WE FIND THAT HIS CLAIM MAY NOT BE ALLOWED.

BACKGROUND

TO REITERATE BRIEFLY THE FACTS OF THE CASE, MR. HICKEY, A FAIR LABOR STANDARDS ACT EXEMPT EMPLOYEE OF THE DEFENSE LOGISTICS AGENCY, WAS ASSIGNED TEMPORARY DUTY IN OSLO, NORWAY, AND COPENHAGEN, DENMARK, IN SEPTEMBER 1981. PURSUANT TO HIS TRAVEL ORDERS, THE AGENCY TRANSPORTATION SERVICES OFFICER SCHEDULED MR. HICKEY'S TRAVEL ON A FLIGHT DEPARTING THE AFTERNOON OF SEPTEMBER 13 (A SUNDAY), FROM WASHINGTON, D.C., TO LONDON, ENGLAND. THERE, MR. HICKEY CHANGED FLIGHTS AND PROCEEDED TO HIS FINAL DESTINATION, OSLO, NORWAY, WHERE HE ARRIVED AT 11:30 A.M. LOCAL TIME, ON SEPTEMBER 14, AFTER APPROXIMATELY 13-1/2 HOURS OF TRAVEL. ON THE RETURN FLIGHT MR. HICKEY DEPARTED FROM COPENHAGEN ON SEPTEMBER 19 (A SATURDAY) AT 5:30 P.M. LOCAL TIME AND, AFTER A STOP IN NEW YORK, ARRIVED HOME IN WASHINGTON AT 11 P.M. THE SAME DAY. TRAVEL TIME WAS APPROXIMATELY 10-1/2 HOURS.

MR. HICKEY FILED A CLAIM WITH THE AGENCY FOR OVERTIME COMPENSATION FOR HOURS SPENT TRAVELING. HE CLAIMED 24 HOURS OVERTIME FOR TRAVEL ON THE BASIS THAT THE AGENCY'S SCHEDULING OF HIS TRAVEL USING U.S. FLAG AIRLINES SIGNIFICANTLY INCONVENIENCED HIM AND WAS HARMFUL TO HIS HEALTH AND WELL- BEING BECAUSE OF THE LENGTH OF THE TRAVEL TIME. THUS, HE CONCLUDED THAT THE TRAVEL WAS UNDER "ARDUOUS" CONDITIONS FOR WHICH HE SHOULD BE COMPENSATED UNDER 5 U.S.C. SEC. 5542(B). THE AGENCY DISALLOWED THE CLAIM, AND FORWARDED IT TO US WITH A REQUEST FOR AN ADVANCE DECISION. WE HELD THAT BASED ON THE RECORD BEFORE US AND THE APPLICABLE PRINCIPLES AND LAW, MR. HICKEY WAS NOT ENTITLED TO OVERTIME COMPENSATION BECAUSE HIS TRAVEL DID NOT COME WITHIN THE MEANING OF TRAVEL UNDER "ARDUOUS CONDITIONS" AS INTERPRETED BY THE OFFICE OF PERSONNEL MANAGEMENT AND IN OUR DECISIONS.

OVERTIME STATUTE

SECTION 5542 OF TITLE 5 PROVIDES IN PERTINENT PART:

"(A) FOR FULL-TIME, PART-TIME AND INTERMITTENT TOURS OF DUTY, HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK *** PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR ***"

IN DEFINING "HOURS OF WORK," THE STATUTE STATES:

"(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."

ARGUMENTS AND DISCUSSION

MR. HICKEY SETS FORTH IN HIS REQUEST FOR RECONSIDERATION SEVERAL REASONS FOR HIS BELIEF THAT HE SHOULD RECEIVE COMPENSATION FOR TRAVEL TIME. CONTENDS, AS IN HIS ORIGINAL CLAIM, THAT HE SHOULD BE COMPENSATED UNDER 5 U.S.C. SEC. 5542(B)(2)(B)(III). HE ALSO NOW CLAIMS, IN THE ALTERNATIVE, THAT HE SHOULD BE COMPENSATED UNDER 5 U.S.C. SEC. 5542(B)(2)(B)(IV).

FIRST, MR. HICKEY STATES THAT HE BELIEVES THAT OUR DECISION IN HIS CASE, B-207795, CONTAINED ERRONEOUS FACTS. HE THEN GOES ON TO SPECIFY ONE SENTENCE WHICH STATES, "HE (MR. HICKEY) POINTS OUT THAT BUT FOR THIS DECISION (B-138942) HIS RETURN TRAVEL COULD HAVE BEEN SCHEDULED DURING DAYLIGHT HOURS ABOARD A FOREIGN AIR CARRIER (AIR FRANCE)." THIS SENTENCE IN OUR DECISION WAS BASED ON THE COMMENTS MADE BY MR. HICKEY IN THE DOCUMENT WHICH WAS ATTACHED TO HIS TRAVEL VOUCHER. IN THAT DOCUMENT HE INSISTED THAT THE AGENCY DISAPPROVED HIS PREFERRED SCHEDULE FOR TRAVEL DURING DAYLIGHT HOURS IN ORDER TO COMPLY WITH THE STATUTES DISCUSSED IN B-138942, MAY 19, 1977; 56 COMP.GEN. 629, CONCERNING THE REQUIREMENTS TO USE UNITED STATES FLAG CARRIERS. THE INFORMATION NOW PRESENTED BY MR. HICKEY IS NOT IN CONFLICT WITH THE FACTS OF THE DECISION IN HIS CASE NOR WITH THE DOCUMENT WHICH HE ATTACHED TO HIS VOUCHER. FURTHER, EVEN IF SUCH FACTS HAD BEEN IN ERROR, THEY DO NOT AFFECT THAT DECISION AND ARE IRRELEVANT TO THE ISSUES THEREIN.

MR. HICKEY QUESTIONS THE DEFINITION OF TRAVEL UNDER "ARDUOUS CONDITIONS" APPLIED IN HIS CASE, STATING:

"AS TO THE REFERENCE TO LAW, IN DEFINING 'ARDUOUS', B-207795 REFERS TO THE FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S1-3. THERE IS NO REFERENCE CONTAINED THEREIN THAT CITES THIS MANUAL AS STATED IN ANY STATUTE, BUT ONLY A GOVERNMENTAL AGENCY INTERPRETATION OF 5 U.S.C. 5542(B)(2)(B). ***"

WHILE THE STATUTE DOES NOT SPECIFICALLY DEFINE THE TERM "UNDER ARDUOUS CONDITIONS," THE OFFICE OF PERSONNEL MANAGEMENT HAS GENERAL AUTHORITY TO EXECUTE, ADMINISTER AND ENFORCE THE CIVIL SERVICE LAWS, RULES AND REGULATIONS, AND IT HAS SPECIFIC AUTHORITY TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THE OVERTIME STATUTE IN QUESTION, 5 U.S.C. SEC. 5542. SEE 5 U.S.C. SECS. 1103 AND 5548. THAT OFFICE HAS PROVIDED GUIDANCE IN THE FEDERAL PERSONNEL MANUAL CONCERNING ITS INTERPRETATION OF THE STATUTORY LANGUAGE. AS THE AGENCY CHARGED WITH ITS ENFORCEMENT, THE OFFICE OF PERSONNEL MANAGEMENT'S INTERPRETATION OF THE STATUTE IS TO BE AFFORDED GREAT WEIGHT. SEE 49 COMP.GEN. 510, 516 (1970), AND CASES CITED THEREIN.

WE ALSO POINT OUT THAT THE DECISIONS OF THE COMPTROLLER GENERAL, SOME CITED IN B-207795, HAVE DEFINED "ARDUOUS CONDITIONS" AS USED IN 5 U.S.C. SEC. 5542, IN A MANNER CONSISTENT WITH THE OFFICE OF PERSONNEL MANAGEMENT GUIDELINES. AS WAS MADE CLEAR IN THE DECEMBER 2, 1982 DECISION IN HIS CASE, THE CONDITIONS OF MR. HICKEY'S TRAVEL DID NOT FALL WITHIN THE MEANING OF "ARDUOUS" AS INTERPRETED BY THE OFFICE OF PERSONNEL MANAGEMENT OR IN OUR DECISIONS. FURTHER, ALTHOUGH AGENCIES ARE EXHORTED TO SCHEDULE TRAVEL TIME TO THE MAXIMUM EXTENT POSSIBLE WITHIN THE REGULAR WORKWEEK OF THE EMPLOYEE (5 U.S.C. SEC. 6101(B)(2)), CONGRESS HAS AUTHORIZED OVERTIME PAY FOR TRAVEL TIME ONLY UNDER SPECIFIC LIMITED CIRCUMSTANCES. SEE BARTH AND LEVINE V. UNITED STATES, 215 CT.CL. 383 (1978). AN EMPLOYEE IS NOT ENTITLED TO OVERTIME COMPENSATION MERELY ON THE BASIS THAT HIS TRAVEL TOOK PLACE OUTSIDE HIS REGULAR WORKWEEK.

MR. HICKEY ALSO CLAIMS HE SHOULD BE REIMBURSED UNDER 5 U.S.C. SEC. 5542(B)(2)(B)(IV) FOR OVERTIME ON THE BASIS THAT THE DIRECTED TRAVEL SCHEDULE WAS AN EVENT THAT COULD NOT BE "SCHEDULED OR CONTROLLED ADMINISTRATIVELY." IRONICALLY, MR. HICKEY CITES THE SAME SUBCHAPTER IN THE FEDERAL PERSONNEL MANUAL WITH WHICH HE PREVIOUSLY TOOK ISSUE AS SUPPORTIVE OF HIS CLAIM.

MR. HICKEY CONTENDS THAT:

"IF THE SCHEDULE ESTABLISHED BY THE DLA TRAVEL OFFICE IS PROPER *** AND *** ITS SCHEDULE MUST BE FOLLOWED IN ORDER TO CONFORM TO 49 U.S.C. SEC. 1517 (REQUIREMENT TO USE U.S. CARRIERS), THEN THE DIRECTED TRAVEL SCHEDULE WAS AN EVENT THAT COULD NOT BE CONTROLLED ADMINISTRATIVELY AND THEREFORE TRAVEL TIME MUST BE PAID FOR.'"

WE FIND THAT THE SCHEDULING OF TRAVEL FOR AN EMPLOYEE DOES NOT QUALIFY AS AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.

AS INTERPRETED BY OUR DECISIONS, 5 U.S.C. SEC. 5542(B)(2)(B)(IV) REQUIRES THAT, FOR THE PURPOSE OF ALLOWING OVERTIME COMPENSATION OR COMPENSATORY TIME, THE FOLLOWING CONDITIONS BE PRESENT: (1) TRAVEL RESULTING FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY, AND (2) AN IMMEDIATE OFFICIAL NECESSITY IN CONNECTION WITH THE EVENT REQUIRING THE TRAVEL TO BE PERFORMED OUTSIDE THE EMPLOYEE'S REGULAR DUTY HOURS. JOHN B. SCHEPMAN, ET AL. 60 COMP.GEN. 681 (1981). CLEARLY, THE SCHEDULING OF TRAVEL DOES NOT MEET THE STATUTORY REQUIREMENT.

NEITHER IS THERE ANY EVIDENCE IN THE RECORD THAT TRAVEL WAS CONNECTED WITH ANY ADMINISTRATIVELY UNCONTROLLABLE EVENT. THE RECORD SHOWS THAT THE PURPOSE OF THE TEMPORARY DUTY WAS TO NEGOTIATE WITH THE NORWEGIAN OFFICE OF THE MINISTER OF DEFENSE. WE HAVE HELD THAT, THOUGH SCHEDULING MAY HAVE BEEN A MATTER OF ACCOMMODATION BETWEEN UNITED STATES AND FOREIGN PARTICIPANTS, SUCH MEETING GENERALLY DO NOT PRESENT THE LACK OF GOVERNMENTAL CONTROL CONTEMPLATED BY 5 U.S.C. SEC. 5542(B)(2)(B). SEE JAMES M. RAY, B-202694 JANUARY 4, 1982.

AS WAS POINTED OUT BY THE COURT OF CLAIMS, IN BARTH AND LEVINE V. UNITED STATES, 215 CT.CL. 383 (1978):

"THOUGH WE ARE AWARE THAT CONGRESS HAS EXHORTED THE AGENCIES TO SCHEDULE TRAVEL TIME SO THAT IT OCCURS WITHIN THE WORK SHIFT, 5 U.S.C. SEC. 6101(B)(3) (1970), SOMETIMES THIS IS IMPOSSIBLE. YET CONGRESS, FAR FROM PROVIDING A REMEDY, HAS AFFIRMATIVELY PROHIBITED AN AWARD OF OVERTIME PAY FOR TRAVEL TIME UNLESS THE PECULIAR CONDITIONS OF THE STATUTORY EXCEPTION ARE MET. NO DOUBT IT WOULD BE A DIFFICULT TASK TO DRAFT A PROVISION WHICH IS MORE REALISTIC AND YET AVOIDS THE LEWIS CARROLLIAN RESULT OF PAYING ALL FEDERAL EMPLOYEES TO DRIVE TO WORK. *** IN SUMMARY, WE HAVE HELD THAT THE TIME THE PLAINTIFFS SPENT IN TRAVEL STATUS AWAY FROM THEIR OFFICIAL DUTY STATION DOES NOT FIT WITHIN THE LANGUAGE OF THE STATUTORY EXCEPTION. AS A RESULT, WE MUST APPLY THE GENERAL RULE THAT TRAVEL TIME IS NOT CONSIDERED HOURS OF EMPLOYMENT AND IS NOT COMPENSABLE."

BECAUSE MR. HICKEY'S TRAVEL TIME DOES NOT QUALIFY AS HOURS OF WORK UNDER THE STATUTE, HIS CLAIM IS DENIED, AND OUR DECISION OF DECEMBER 2, 1982, IN HIS CASE IS AFFIRMED.