B-106783, JUN. 5, 1956

B-106783, JUN. 5, 1956

TO MR. JOHN A. ANDERSON:

YOUR LETTER OF FEBRUARY 14, 1956, REQUESTS US TO RECONSIDER OUR DECISION OF JUNE 30, 1955, WHICH SUSTAINED A SETTLEMENT OF FEBRUARY 10, 1953, DISALLOWING YOUR CLAIM FOR OVERTIME EXTRA COMPENSATION (AS DISTINGUISHED FROM SUNDAY AND HOLIDAY EXTRA COMPENSATION AMOUNTING TO $2,178.85 WHICH YOU WERE ALLOWED IN THE SETTLEMENT) UNDER THE ACT OF FEBRUARY 13, 1911, AS AMENDED, 19 U.S.C. 267, AS AN EMPLOYEE OF THE BUREAU OF CUSTOMS, TREASURY DEPARTMENT.

YOUR PRINCIPAL BASIS FOR PRESSING US TO ALLOW YOUR CLAIM APPEARS TO BE THE ASSERTION IN THE THIRD PARAGRAPH OF YOUR LETTER THAT THE RECORDS SHOW A SPREAD OF 13 OR 14 HOURS IN THE DAILY HOURS OF THE PORT AND THAT ON EACH DAY FOR WHICH YOU CLAIM EXTRA COMPENSATION YOU PERFORMED SERVICES AT ONE TIME OR ANOTHER DURING SUCH HOURS. THAT IS TO SAY, IT APPEARS TO BE YOUR VIEW GENERALLY THAT ALL THE DAILY HOURS OF THE PORT (EXCEPT FOR AN ALLOWANCE FOR MEALS) SHOULD BE TREATED AS COMPENSABLE TIME IN DETERMINING YOUR ENTITLEMENT TO AND THE COMPUTATION OF OVERTIME EXTRA COMPENSATION AT THE RATE OF ONE-HALF DAY'S PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR. HOWEVER, AS YOU PREVIOUSLY HAVE BEEN ADVISED, WE DO NOT TAKE THAT VIEW IN CASES SUCH AS YOURS INVOLVING SMALL BORDER PORTS AT WHICH THE CUSTOMS OFFICE IS LOCATED IN A TOWN OR VILLAGE WITH ADJACENT OR NEARBY LIVING QUARTERS--- IT BEING PROBABLE, IN VIEW OF THE SMALL VOLUME AND INTERMITTENT NATURE OF TRAFFIC, THAT MUCH OF THE EMPLOYEE'S TIME BETWEEN ACTUAL TRANSACTIONS WOULD BE SPENT IN WAYS WHICH WOULD OCCUPY HIS TIME IN ANY EVENT, TAKING INTO ACCOUNT THE NECESSITIES OF HIS EMPLOYMENT FOR WHICH HE RECEIVES A REGULAR SALARY (IN YOUR CASE, RANGING FROM $2,100 TO $3,648 PER ANNUM OVER THE PERIOD OF YOUR CLAIM).

THE DISTINCTION BETWEEN THE CASES JUST MENTIONED AND THE ONES TYPIFIED BY THE O-ROURKE CASE, 109 C.CLS. 33, WAS CAREFULLY EXPLAINED IN OUR DECISION OF JUNE 30, 1955, TO YOU, AND NEED NOT BE REITERATED HERE.

IN CONSONANCE WITH THE FOREGOING CONSIDERATIONS, YOUR CLAIM, AS WELL AS NUMEROUS OTHERS INVOLVING "ONE MAN" PORTS, WAS CONSIDERED AND SETTLED UPON THE BASIS THAT OVERTIME EXTRA COMPENSATION UNDER THE 1911 ACT, AS AMENDED, WOULD BE DISALLOWED IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT THE CUSTOMS OFFICER OR EMPLOYEE WAS REQUIRED ON ANY DAY TO REMAIN AT HIS POST (THAT IS, WITHIN THE CONFINES OF A PLACE SET ASIDE FOR THE TRANSACTION OF GOVERNMENT BUSINESS), WITHOUT BEING FREE DURING MUCH OF THE TIME TO GO ABOUT HIS PERSONAL AFFAIRS, FOR AN AGGREGATE OF AT LEAST THE EIGHT HOURS WHICH IT WAS NECESSARY TO COMPLETE BEFORE BECOMING ENTITLED TO THE OVERTIME EXTRA COMPENSATION UNDER RULES LAID DOWN BY THE SUPREME COURT IN THE MYERS CASE OR IN THE COURT OF CLAIMS DECISION IN THE O-ROURKE AND BROWN CASES, PLUS A MINIMUM OF ONE HOUR.

THE AVAILABLE EVIDENCE DID NOT WARRANT A CONCLUSION THAT YOU WERE ENTITLED TO OVERTIME EXTRA COMPENSATION UNDER THE ABOVE-STATED RULE ADOPTED FOR SETTLING THIS CLASS OF CLAIM. NOTWITHSTANDING THE STATEMENT IN THE ADMINISTRATIVE REPORT ON YOUR CLAIM THAT IT WAS BASED UPON OFFICIAL RECORDS, IT DEVELOPED UPON INVESTIGATION THAT THERE WERE NO PRIMARY RECORDS OF THE ACTUAL TIME YOU SPENT IN THE TRANSACTION OF BUSINESS OR WITHIN THE CONFINES OF YOUR CUSTOMS OFFICE AWAITING BUSINESS; AND THAT THE PURPORTED "OFFICIAL RECORDS" OF THE TIME WORKED WERE THE TOURIST REGISTER OR "BLOTTER" IN WHICH THE MOVEMENT OF TRAFFIC--- MOSTLY PRIVATE AUTOMOBILES--- IN AND OUT OF ANTLER, NORTH DAKOTA, WAS RECORDED. ALSO, IT TURNED OUT THAT YOU YOURSELF PREPARED THE MATERIAL ON WHICH THE REPORT WAS BASED. THE "BLOTTER" WAS USED AS EVIDENCE OF YOUR PRESENCE AT YOUR POST OF DUTY ON SUNDAYS AND HOLIDAYS FOR THE PURPOSE OF COMPUTING EXTRA COMPENSATION FOR THOSE DAYS--- THERE BEING NO REQUIREMENT FOR ANY PARTICULAR LENGTH OF DUTY ON THOSE DAYS TO ENTITLE THE EMPLOYEE TO TWO DAYS' EXTRA COMPENSATION. (IN THAT CONNECTION, WE MAY POINT OUT THAT YOU WERE ALLOWED TWO DAYS' EXTRA COMPENSATION FOR EACH OF 19 SUNDAYS AND HOLIDAYS FOR WHICH THE ,BLOTTER" CONTAINS NO ENTRIES AT ALL TO INDICATE YOUR PRESENCE; NEVERTHELESS, YOU WERE GIVEN THE BENEFIT OF THE DOUBT AND YOUR PRESENCE WAS PRESUMED FOR THE PARTICULAR PURPOSE.) HOWEVER, FOR PURPOSES OF THE OVERTIME PORTION OF YOUR CLAIM, THE "BLOTTER" WAS NOT, IN OUR OPINION, SUSCEPTIBLE OF INFERENCES FAVORING ALLOWANCE OF ANY PART OF THE CLAIM, WHEN CONSIDERED IN THE LIGHT OF ALL THE CIRCUMSTANCES PREVAILING AT ANTLER.

ONE OF YOUR CRITICISMS OF OUR ACTION ON YOUR CLAIM IS THAT WE HAVE FAILED TO "AUDIT" THE DAY-TO-DAY TRAFFIC RECORDS (MEANING THE "BLOTTER"). HOWEVER, IT SHOULD BE OBVIOUS FROM OUR DECISION OF JUNE 30, 1955, AS WELL AS WHAT IS STATED HEREIN, THAT WE HAVE CAREFULLY WEIGHED ALL THE AVAILABLE EVIDENCE, INCLUDING THE "BLOTTER.'

THE MATTERS OF THE NOTICE CARDS AND YOUR CIVIC ACTIVITIES WERE CITED BY US AS EXEMPLIFYING THE NATURAL SUPPOSITION THAT UNDER THE CIRCUMSTANCES OF THIS PARTICULAR TYPE OF ASSIGNMENT THE EMPLOYEES HAD THE OPPORTUNITY TO AND DID SPEND MUCH OF THEIR TIME IN WAYS OF THEIR OWN CHOOSING. YOUR EXPLANATION OF THESE MATTERS--- WHETHER OR NOT IT BE TAKEN AS CORRECT--- DOES NOT AFFECT OUR OVERALL CONCLUSION ON YOUR CLAIM.

REGARDING THE MATTER OF DAYS ON WHICH BORDER CROSSERS SIGNED THEMSELVES IN, YOU SUGGEST THAT YOUR CLAIM COULD BE FAIRLY DISPOSED OF BY MERELY ELIMINATING THOSE DAYS. OBVIOUSLY, THAT WOULD BE NO SOLUTION TO THE MATTER. IT STILL IS NOT ESTABLISHED THAT YOU REMAINED IN THE CUSTOMS OFFICE AT ALL OTHER TIMES BETWEEN TRANSACTIONS OR WHEN THE "BLOTTER" REFLECTS NO TRANSACTIONS AT ALL. YOUR EXPLANATION THAT THE BORDER-CROSSER SIGNINGS OCCURRED ONLY IN THE EARLY PART OF THE FIRST 22 MONTHS OF YOUR ASSIGNMENT TO ANTLER AND THAT THEY WERE MADE ONLY DURING THE VERY BRIEF INTERVALS OF YOUR ABSENCES FROM THE CUSTOMS OFFICE IS NOT BORNE OUT BY CAREFUL ANALYSIS OF THE "BLOTTER" ENTRIES.

YOU WOULD REFUTE OUR CONCLUSIONS AS TO THE 1 P.M. SATURDAY OPENING HOUR FOR THE PORT BY THE EXPLANATION THAT PERSONS LIVING IN RURAL AREAS RARELY COME TO TOWN ON SATURDAY MORNINGS BUT CUSTOMARILY POSTPONE THEIR VISITS UNTIL THE AFTERNOON. HOWEVER, THERE IS NO EVIDENCE OTHER THAN YOUR OWN SELF-SERVING STATEMENT THAT YOU SPENT YOUR TIME ON SATURDAY MORNINGS WAITING IN THE CUSTOMS OFFICE IN A DUTY STATUS FOR THE ARRIVAL OF TRAFFIC. ON THE CONTRARY, THE SEVERAL INSTANCES OF ENTRIES IN THE "BLOTTER" BY THE BORDER CROSSERS THEMSELVES AS AGAINST THE FEW ENTRIES IN YOUR OWN HANDWRITING JUSTIFIES THE INFERENCE THAT IT WAS NOT YOUR CUSTOM TO REMAIN IN THE CUSTOMS OFFICE IN A DUTY STATUS ON THE SATURDAY MORNINGS OCCURRING DURING THE PERIODS IN QUESTION. THE STATEMENT IN OUR DECISION OF JUNE 30, 1955, TO THE EFFECT THAT YOUR PRESENCE AT THE CUSTOMS OFFICE ON OCCASION APPEARED TO BE "FORTUITOUS" WAS BASED UPON THE OBSERVATION OF CERTAIN INSTANCES IN THE "BLOTTER" SUCH AS JULY 13, 1940, WHERE THE FIRST ENTRY AT 7:50 A.M. IS IN YOUR HANDWRITING BUT THE NEXT TWO ENTRIES, ONE AT 11:30 A.M. AND THE OTHER AT 11:45 A.M., WERE IN DISTINCTLY DIFFERENT HANDWRITINGS. IN ANY EVENT, IF THE CUSTOM TO WHICH YOU REFER IS AS FIRMLY ESTABLISHED AS YOU SAY, THAT WOULD BE ALL THE MORE REASON FOR INFERRING THAT YOU WERE SUBSTANTIALLY FREE OF OFFICIAL DUTIES ON SATURDAY MORNINGS.

THE CONTENTION THAT YOUR CLAIM SHOULD BE ALLOWED BECAUSE WE ALLOWED OTHER SIMILAR CLAIMS IS WITHOUT MERIT. THE SETTLEMENT OF AN INDIVIDUAL CLAIM IS NOT REGARDED BY US AS NECESSARILY ESTABLISHING A PRECEDENT TO BE CONTROLLING IN THE SETTLEMENT OF OTHER SIMILAR CLAIMS. 17 COMP. GEN. 445, 449; 18 ID. 609, 611. CERTAINLY WE ARE NOT REQUIRED TO CERTIFY WHAT WE REGARD AS A PAYMENT NOT AUTHORIZED BY LAW MERELY BECAUSE THROUGH ERROR A SIMILAR PAYMENT HAD PREVIOUSLY BEEN CERTIFIED.

THE ALLEGATION THAT THE PERSONAL BIAS OF OUR INVESTIGATOR UNDULY INFLUENCED THE DISPOSITION OF YOUR CLAIM DESERVES NO COMMENT.

YOUR CLAIM HAS BEEN GIVEN CAREFUL CONSIDERATION, BUT THE RECORD DOES NOT WARRANT ANY CHANGE IN THE CONCLUSION HERETOFORE REACHED. ACCORDINGLY, THE DECISION OF JUNE 30, 1955, SUSTAINING THE SETTLEMENT OF FEBRUARY 10, 1953, IS AFFIRMED.