B-144559, FEBRUARY 1, 1961, 40 COMP. GEN. 439

B-144559, FEBRUARY 1, 1961, 40 COMP. GEN. 439

CIVILIAN PERSONNEL - TRAVEL TIME - OVERTIME COMPENSATION THE TRAVEL OF AN EMPLOYEE BY PASSENGER-CARRYING VEHICLE UNDER NONEMERGENT CONDITIONS, WHETHER THE EMPLOYEE TRAVELS AS PASSENGER OR DRIVER, ON TEMPORARY DUTY AWAY FROM HEADQUARTERS DOES NOT CONSTITUTE PERFORMANCE OF WORK OR TRAVEL UNDER ARDUOUS CONDITIONS TO ENTITLE THE EMPLOYEE TO OVERTIME COMPENSATION, AND THE FACT THAT, INCIDENT TO THE PURPOSES OF THE TRAVEL, FILES, SUPPLIES, EQUIPMENT ARE TRANSPORTED DOES NOT CHANGE THE CHARACTER OF THE TRAVEL, NOR DOES NONARDUOUS TRAVEL BECOME ARDUOUS WITHIN THE OVERTIME COMPENSATION PROVISION IN SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 912B, BECAUSE THE AGGREGATE AMOUNT OF TIME OUTSIDE OF REGULAR WORKING HOURS SPENT IN SUCH TRAVEL IS SUBSTANTIAL OVER A PERIOD OF TIME. AN EMPLOYEE SUBJECT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, WHO CLAIMS OVERTIME COMPENSATION FOR TRAVEL BY GOVERNMENT AUTOMOBILE ON SUNDAYS, HOLIDAYS, AND ON WORKDAYS OUTSIDE OF NORMAL DUTY MAY NOT HAVE SUCH TRAVEL REGARDED AS ARDUOUS WITHIN THE OVERTIME COMPENSATION LAW, NOTWITHSTANDING THAT THE AGGREGATE AMOUNT OF TRAVEL TIME IS SUBSTANTIAL OVER A PERIOD OF TIME AND, FURTHER, IN THE ABSENCE OF ANYTHING IN THE RECORD TO SHOW THAT THE TIME WAS "OFFICIALLY ORDERED OR APPROVED" AS OVERTIME--- THE TRAVEL AUTHORIZATIONS AND APPROVAL OF THE TRAVEL VOUCHERS DO NOT CONSTITUTE SUCH AUTHORIZATION OR APPROVAL--- THE DISALLOWANCE OF OVERTIME CLAIM IS SUSTAINED.

TO JOSEPH L. NANUS, FEBRUARY 1, 1961,*

WE REFER TO YOUR LETTER OF NOVEMBER 15, 1960, CONCERNING YOUR CLAIM FOR OVERTIME COMPENSATION ON ACCOUNT OF TRAVEL PERFORMED BY GOVERNMENT AUTOMOBILE ON SUNDAYS AND HOLIDAYS AND ON WORKDAYS OUTSIDE NORMAL DUTY HOURS DURING THE YEARS 1956 TO 1960, INCLUSIVE, AS A NATURALIZATION EXAMINER, IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF OCTOBER 14, 1960.

IN CONNECTION WITH SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 205 (B) OF THE ACT OF SEPTEMBER 1, 1954 (1PUBLIC LAW 763), 5 U.S.C. 912 (B), CITED IN YOUR ORIGINAL CLAIM LETTER OF SEPTEMBER 2, 1960, THE CONFERENCE REPORT (1HOUSE REPORT NO. 2665) ON H.R. 2263, 83D CONGRESS, WHICH BECAME PUBLIC LAW 763, CONTAINS THE FOLLOWING STATEMENT AT PAGE 22:

THE NEW SECTION 204 PLACES ON A STATUTORY BASIS THOSE PRINCIPLES NOW ESTABLISHED BY DECISIONS OF THE COMPTROLLER GENERAL WHICH RELATE TO TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL DUTY STATION OF AN OFFICER OR EMPLOYEE. UNDER THE NEW SECTION 204 SUCH TIME IS TREATED AS HOURS OF EMPLOYMENT ONLY WHEN: (1) WITHIN THE REGULARLY SCHEDULED WORKWEEK, INCLUDING REGULARLY SCHEDULED OVERTIME, OF THE OFFICER OR EMPLOYEE, OR (2) THE TRAVEL INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING OR IS CARRIED OUT UNDER ARDUOUS CONDITIONS WHICH HAVE THE EFFECT OF MAKING SUCH TRAVEL INSEPARABLE FROM WORK.

COMMITTEE REPORTS ON RELATED BILLS WERE TO THE SAME EFFECT.

OUR DECISIONS HOLD THAT THE TRAVEL OF AN EMPLOYEE BY PASSENGER CARRYING VEHICLE UNDER NONEMERGENT CONDITIONS, WHETHER THE EMPLOYEE TRAVELS AS PASSENGER OR DRIVER, IN CONNECTION WITH TEMPORARY DUTY AWAY FROM HEADQUARTERS, DOES NOT CONSTITUTE PERFORMANCE OF WORK OR TRAVEL UNDER ARDUOUS CONDITIONS FOR OVERTIME COMPENSATION PURPOSES. 24 COMP. GEN. 456; 30 ID. 72; 31 ID. 362. MOREOVER, THE FACT THAT, INCIDENTAL TO THE PURPOSES OF THE TRAVEL, FILES, SUPPLIES, TYPEWRITER, TC; ARE TRANSPORTED DOES NOT, IN OUR OPINION, CHANGE THE CHARACTER OF THE TRAVEL. NEITHER DO WE FEEL THAT OTHERWISE NONARDUOUS TRAVEL BECOMES ARDUOUS WITHIN THE CONTEMPLATION OF THE OVERTIME COMPENSATION LAW BECAUSE THE AGGREGATE AMOUNT OF TIME OUTSIDE OF REGULAR WORKING HOURS SPENT IN TRAVELING IS SUBSTANTIAL OVER A PERIOD OF TIME (SUCH AS 625 HOURS OVER A 4-YEAR PERIOD, WHICH YOU ALLEGE).

ASIDE FROM THE FOREGOING, ANOTHER REASON FOR DISALLOWING YOUR CLAIM IS THAT THERE IS NOTHING OF RECORD HERE TO SHOW THAT THE TIME INVOLVED WAS "OFFICIALLY ORDERED OR APPROVED" AS OVERTIME AS REQUIRED BY LAW AND SECTION 25.221 OF THE FEDERAL EMPLOYEES' PAY AND REGULATIONS (5 C.F.R. 25.221). THE UNITED STATES COURT OF CLAIMS HAS DENIED CLAIMS FOR OVERTIME COMPENSATION FOR TRAVEL TIME UPON THE GROUND JUST STATED IN POST V. UNITED STATES, 121 CT. CL. 94, AND GAINES V. UNITED STATES, 132 ID. 408.

THE ISSUANCE OF TRAVEL AUTHORIZATIONS AND THE APPROVAL OF TRAVEL VOUCHERS PRIOR TO PAYMENT DO NOT CONSTITUTE AUTHORIZATION OR APPROVAL OF TRAVEL TIME FOR OVERTIME COMPENSATION PURPOSES.

UPON REVIEW THE SETTLEMENT OF OCTOBER 14, 1960, IS SUSTAINED.

CONCERNING YOUR INQUIRY AS TO WHETHER THERE IS AN APPEAL FROM OUR DENIAL OF YOUR CLAIM, YOU ARE INFORMED THAT UNDER THE PROVISIONS OF 31 U.S.C. 74 OUR SETTLEMENTS ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, INDEPENDENTLY OF OUR ACTIONS, THE UNITED STATES COURT OF CLAIMS HAS JURISDICTION OVER CLAIMS AGAINST THE UNITED STATES, AS PROVIDED IN 28 U.S.C. 1491.