B-163016, MAR 20, 1974

B-163016, MAR 20, 1974

A SUGGESTION IN RECORD THAT WARDEN AT FEDERAL REFORMATORY, PETERSBURG, MAY HAVE INDUCED EARLY REPORTING AND LATE DEPARTURE OF GUARDS IS NOT FOR CONSIDERATION SINCE DELEGATION OF AUTHORITY TO FIELD LEVEL TO ORDER OVERTIME DID NOT COVER SUCH WORK. AUTHORITY TO ORDER OR APPROVE SUCH OVERTIME WORK REMAINED IN DIRECTOR, BUREAU OF PRISONS, AND NO SHOWING IS MADE THAT DIRECTOR KNEW OF REPORTING OR DEPARTURE PROCEDURES OR "INDUCED" SUCH OVERTIME UNDER STANDARDS IN BAYLOR V U.S., 198 C. CLS. 331 (1972). PREVIOUS HOLDING THAT WORK HAD NOT BEEN ORDERED OR APPROVED BY OFFICIAL HAVING AUTHORITY TO DO SO IS SUSTAINED.

TO MR. WATSON M. MAYS:

WE REFER TO YOUR LETTER RECEIVED JULY 18, 1973, CLAIMING OVERTIME COMPENSATION FOR THE PERIOD FROM JANUARY 1, 1955, TO NOVEMBER 1, 1965, FOR PRELIMINARY AND POSTLIMINARY DUTIES PERFORMED IN CONNECTION WITH YOUR RESPONSIBILITIES AS A CORRECTIONAL OFFICER WITH THE FEDERAL REFORMATORY AT PETERSBURG, VIRGINIA. YOUR CLAIM WAS PREVIOUSLY DISALLOWED BY SETTLEMENT CERTIFICATE DATED APRIL 5, 1967, AND THAT DISALLOWANCE AFFIRMED BY DECISION OF MARCH 27, 1968. DISALLOWANCE WAS PREDICATED UPON THE FINDING THAT ANY REPORTING FOR ROLL CALL PRIOR TO DUTY HOURS AND ANY DELAYED DEPARTURE WAS NOT AUTHORIZED OR APPROVED BY PROPER ADMINISTRATIVE OFFICIALS AS REQUIRED BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, AS AMENDED, 5 U.S.C. 911 (NOW 5 U.S.C. 5542).

AS A BASIS FOR RECONSIDERATION OF YOUR CLAIM YOU CITE TWO RECENT COURT OF CLAIMS DECISIONS - BATES ET AL. V. UNITED STATES, 196 C. CLS. 362 (1971), AND BAYLOR ET AL. V. UNITED STATES, 198 C. CLS. 331 (1972). WE PRESUME THAT THOSE CASES ARE CITED IN CONNECTION WITH THE ISSUE HERETOFORE DECIDED ADVERSELY TO YOU OF WHETHER AN OFFICIAL HAVING AUTHORITY TO ORDER OR APPROVE OVERTIME DID IN FACT ORDER OR APPROVE THE EARLY REPORTING AND LATE DEPARTURE FOR WHICH YOU CLAIM OVERTIME COMPENSATION.

IN REGARD TO THAT ISSUE, THE BATES CASE PROVIDES LITTLE GUIDANCE. POINTING OUT THAT THE LOCAL VETERANS ADMINISTRATION HOSPITAL DIRECTOR MUST HAVE BEEN AWARE OF THE EARLY REPORTING PROCEDURES THERE INVOLVED, THE COURT, WITHOUT LEGAL DISCUSSION, FOUND THE INDIVIDUAL HOLDING THAT POSITION HAD OFFICIALLY ORDERED AND APPROVED THE OVERTIME IN QUESTION. THE QUESTION OF WHETHER THE HOSPITAL DIRECTOR IN FACT POSSESSED AUTHORITY TO ORDER OR APPROVE OVERTIME WAS DISPOSED OF BY THE COURT ON THE BASIS OF AN ERRONEOUS GOVERNMENT STIPULATION THAT THE DIRECTOR HAD BEEN DELEGATED THAT AUTHORITY.

IN BAYLOR WHETHER THE OFFICIAL WHO ORDERED AND APPROVED OVERTIME IN FACT HAD AUTHORITY TO DO SO WAS NOT IN ISSUE, IT BEING CLEAR FROM THE RECORD THAT THE CHIEF, BUILDINGS MANAGEMENT DIVISION, GENERAL SERVICES ADMINISTRATION, REGION III, AND OTHER OFFICIALS DID HAVE AUTHORITY TO ORDER AND APPROVE OVERTIME WORK THERE INVOLVED. THE ISSUE OF WHETHER THOSE OFFICIALS HAD IN FACT ORDERED OR APPROVED THE WORK IN QUESTION WAS, HOWEVER, FULLY DISCUSSED. REGARDING THE KNOWLEDGE OF THOSE OFFICIALS AS TO THE REPORTING PROCEDURES, THE COURT FOUND AS FOLLOWS AT PAGES 335 AND 357:

"IN 1961, MR. CHARLES C. CASTELLA WAS APPOINTED CHIEF, BUILDINGS MANAGEMENT DIVISION, GSA REGION 3 (IN WHICH REGION THE GOVERNMENT BUILDINGS INVOLVED HEREIN WERE LOCATED); AND HE REMAINED IN THAT POSITION UNTIL HIS RETIREMENT IN AUGUST 1966. DURING THE PART OF THE CLAIM PERIOD FROM APRIL 19, 1961 TO JANUARY 1965, MR. CASTELLA WAS THE ONLY PERSON WHO WAS AUTHORIZED TO ORDER AND APPROVE OVERTIME FOR THE MEMBERS OF THE GSA GUARD FORCE. FROM JANUARY 1965 TO JANUARY 1966, MR. HAROLD KYLE, CHIEF OF THE PROTECTION BRANCH, IN ADDITION TO MR. CASTELLA, COULD ORDER AND APPROVE OVERTIME. FROM JANUARY 1966 TO THE END OF THE CLAIM PERIOD, I.E., FEBRUARY 28, 1966, ONLY MR. KYLE, AS CHIEF OF THE NEWLY ORGANIZED PROTECTION DIVISION, COULD AUTHORIZE OVERTIME. IT IS APPARENT FROM THE FOREGOING 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 PAGE 359:

"*** 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. ***"

YOU INDICATE THAT THE 10 MINUTES EARLY-REPORTING PROCEDURE FOR WHICH YOU CLAIM OVERTIME WAS ORDERED BY THE CHIEF OF CUSTODIAL SERVICES WITH THE APPROVAL OF THE WARDEN AND MAINTAIN THAT THOSE OFFICIALS HAD AUTHORITY TO ORDER AND APPROVE THE OVERTIME IN QUESTION. ALTHOUGH IT IS NOT CLEAR FROM YOUR SUBMISSION WE PRESUME THAT IT IS ALSO YOUR CONTENTION THAT THE LATE DEPARTURE FOR WHICH YOU CLAIM OVERTIME COMPENSATION WAS SIMILARLY ORDERED OR APPROVED.

IN PREVIOUSLY DISALLOWING YOUR CLAIM, IT WAS CONCLUDED THAT AUTHORITY TO ORDER OVERTIME ON A RECURRING OR CONTINUAL BASIS AS HERE INVOLVED HAD NEVER BEEN DELEGATED BY AND HENCE REMAINED IN THE DIRECTOR, BUREAU OF PRISONS. FURTHER, THERE WAS NO INDICATION THAT THE EARLY-REPORTING OR LATE-DEPARTURE PRACTICES AT THE PETERSBURG FACILITY HAD BEEN ORDERED OR APPROVED BY THE DIRECTOR.

EVEN IF DURING PORTIONS OF THE PERIOD OF YOUR CLAIM INDIVIDUALS WHO HELD THE POSITION OF EITHER CAPTAIN OR WARDEN WERE AWARE OF THE EARLY REPORTING, WE ARE UNABLE TO CONCLUDE THAT THOSE INDIVIDUALS POSSESSED AUTHORITY TO ORDER OR APPROVE OVERTIME OF THE NAURE HERE INVOLVED. INDICATED IN THE DECISION OF MARCH 27, 1968, B-163016, PARAGRAPH 6 OF THE BUREAU OF PRISONS MANUAL OF POLICIES AND PROCEDURES, PART 4 - BUSINESS ADMINISTRATION, SECTION 5 - MISCELLANEOUS, CHAPTER XII - OVERTIME REGULATIONS, WHICH, AS IN EXISTENCE THROUGHOUT THE PERIOD OF YOUR CLAIM, PROVIDED ESSENTIALLY AS FOLLOWS:

"WRITTEN AUTHORIZATION AND APPROVAL

"(B) DELEGATIONS TO AUTHORIZE - THE WARDEN MAY DELEGATE AUTHORITY TO POSITIONS SUCH AS CAPTAIN, LIEUTENANT, CHIEF OF MECHANICAL SERVICES, ETC., TO ORDER AND AUTHORIZE OVERTIME. SUCH DELEGATION SHALL BE IN WRITING AND SHALL INCLUDE SUCH LIMITATIONS AS TO EMPLOYEES AND PURPOSES AS COVERED BY THIS CHAPTER. A COPY OF EACH DELEGATION SHALL BE ON FILE WITH THE PAYROLL CLERK.

"(C) FINAL APPROVAL - FINAL APPROVAL IN EVERY INSTANCE SHALL BE BY THE WARDEN, BEFORE PROCESSING FOR VOUCHER PREPARATION."

PARAGRAPH 8 OF THAT SAME REGULATION PRESCRIBES THE LIMITS OF THE DELEGATION AND SETS FORTH THE SITUATIONS IN WHICH OVERTIME COMPENSATION IS AUTHORIZED AND IN WHICH IT MAY BE AUTHORIZED IN THE MANNER PRESCRIBED IN PARAGRAPH 6, QUOTED ABOVE. EARLY REPORTING OR LATE DEPARTURE ON A CONTINUING BASIS IS NOT COVERED BY PARAGRAPH 8 OR OTHERWISE BY THE LANGUAGE OF THE REGULATION AND WOULD THUS COME WITHIN THE PURVIEW OF PARAGRAPH 4 THEREOF WHICH PROVIDES IN PART AS FOLLOWS:

"4. BUREAU APPROVAL REQUIRED - CASES NOT COVERED BY DELEGATION HEREINAFTER ENUMERATED SHALL BE REFERRED TO THE BUREAU FOR APPROVAL PREFERABLY PRIOR TO AUTHORIZATION. ***"

WE FIND NO INDICATION THAT IN ACCORDANCE WITH PARAGRAPH 4, QUOTED ABOVE, THE MATTER OF EARLY REPORTING OR LATE DEPARTURE WAS EVER REFERRED TO THE DIRECTOR OR THAT HIS APPROVAL WAS EVER GIVEN. MOREOVER WE FIND NOTHING IN THE RECORD TO SUGGEST THAT THE DIRECTOR WAS AWARE OF THE EARLY-REPORTING OR LATE-DEPARTURE PROCEDURES. WE ARE THUS UNABLE TO FIND THAT EARLY REPORTING OR LATE DEPARTURE WAS EVER ORDERED OR APPROVED BY AN OFFICIAL HAVING AUTHORITY TO ORDER OR APPROVE OVERTIME OF THAT NATURE.

IN REGARD TO THE SUGGESTION ABOVE THAT OTHER INDIVIDUALS WHO DID NOT POSSESS THE NECESSARY AUTHORITY MIGHT BE FOUND TO HAVE ORDERED THE EARLY REPORTING OR LATE DEPARTURE, THAT FACT PROVIDES NO BASIS UPON WHICH PAYMENT OF OVERTIME COMPENSATION MAY BE MADE. INSOFAR AS THEY MIGHT BE FOUND TO HAVE ACTIVELY INDUCED PERFORMANCE OF SUCH ACTIVITIES, THOSE INDIVIDUALS WOULD HAVE BEEN 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 AND 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 THE PREVIOUS DISALLOWANCE OF YOUR CLAIM FOR OVERTIME COMPENSATION IS SUSTAINED.