B-119634, JUN. 28, 1968
Highlights
THE CLAIM DIVISION OF OUR OFFICE CERTIFIED THAT THERE WAS DUE AND PAYABLE TO MR. COX WAS UNABLE TO FURNISH ANY EVIDENCE OF OVERTIME WORK PERFORMED. NO AMOUNT WAS ALLOWED FOR THE PERIODS OCTOBER 21. YOU HAVE SUBMITTED AFFIDAVITS FROM MR. YOU HAVE FURNISHED AFFIDAVITS FROM MR. THE AFFIDAVITS GENERALLY ARE TO THE EFFECT THAT MR. INCLUDING THE SEVERAL BRIEF PERIODS FOR WHICH RECORDS ARE LACKING. COX FURNISHED IN SUPPORT OF HIS CLAIM WERE THOROUGHLY EXAMINED BOTH BY THE IMMIGRATION AND NATURALIZATION SERVICE AND BY OUR OFFICE. COX LATER WAS GRANTED COMPENSATORY LEAVE. WE HAVE DETERMINED THAT DURING THE ABOVE-STATED PERIOD MR. IT IS APPARENT THAT THE DUTIES PERFORMED BY MR. WHILE HE WAS STATIONED AT DOUGLAS.
B-119634, JUN. 28, 1968
TO HARRY E. WOOD, ESQUIRE:
WE REFER TO YOUR LETTER OF MAY 24, 1968, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF THE CLAIM OF MR. WILLIAM C. COX FOR ADDITIONAL COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911, FOR OVERTIME SERVICES PERFORMED AS A BORDER PATROL OFFICER OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE.
ON FEBRUARY 15, 1968, THE CLAIM DIVISION OF OUR OFFICE CERTIFIED THAT THERE WAS DUE AND PAYABLE TO MR. COX THE SUM OF $970.61, REPRESENTING PAYMENT FOR 552-1/2 HOURS OF OVERTIME WORK PERFORMED BY HIM DURING THE PERIOD OF HIS CLAIM FROM OCTOBER 21, 1946, TO FEBRUARY 11, 1953. DUE TO THE FACT THAT MR. COX WAS UNABLE TO FURNISH ANY EVIDENCE OF OVERTIME WORK PERFORMED, NO AMOUNT WAS ALLOWED FOR THE PERIODS OCTOBER 21, 1946, THROUGH OCTOBER 29, 1949; NOVEMBER 6 THROUGH 12, 1949; AUGUST 1 THROUGH 5, 1950; AUGUST 27 THROUGH 31, 1950; NOVEMBER 12 THROUGH 18, 1950; MAY 6 THROUGH 12, 1951; JUNE 30, 1951; MARCH 9 THROUGH 29, 1952; APRIL 13 THROUGH MAY 10, 1952; JUNE 1 THROUGH 7, 1952; JUNE 29 THROUGH JULY 5, 1952; AUGUST 1 AND 2, 1952; AND JANUARY 18 THROUGH FEBRUARY 10, 1953.
YOU HAVE SUBMITTED AFFIDAVITS FROM MR. COX AND EIGHT OF HIS FELLOW EMPLOYEES TO THE EFFECT THAT DURING THE PERIOD OCTOBER 21, 1946, THROUGH OCTOBER 29, 1949, MR. COX PERFORMED SUBSTANTIAL AMOUNTS OF OVERTIME WORK WHILE STATIONED AT DOUGLAS, ARIZONA. ON THE BASIS OF SUCH AFFIDAVITS, MR. COX HAS REQUESTED PAYMENT OF OVERTIME COMPENSATION FOR AN AVERAGE OF 10 HOURS PER WEEK FOR THE ABOVE-STATED PERIOD.
ALSO, YOU HAVE FURNISHED AFFIDAVITS FROM MR. COX AND SEVERAL FELLOW EMPLOYEES CONCERNING THE PERIOD FROM OCTOBER 30, 1949, THROUGH JANUARY 31, 1953. THE AFFIDAVITS GENERALLY ARE TO THE EFFECT THAT MR. COX PERFORMED A SUBSTANTIAL AMOUNT OF OVERTIME EACH WEEK DURING SUCH PERIOD. MR. COX HAS DETERMINED FROM HIS PERSONAL RECORDS THAT DURING THAT PERIOD HE PERFORMED AN AVERAGE 6.7 HOURS OF OVERTIME PER WEEK. THEREFORE, FOR THE ENTIRE PERIOD OCTOBER 30, 1949, THROUGH JANUARY 31, 1953, INCLUDING THE SEVERAL BRIEF PERIODS FOR WHICH RECORDS ARE LACKING, MR. COX HAS REQUESTED PAYMENT OF OVERTIME COMPENSATION BASED UPON AN AVERAGE OF 6.7 HOURS PER WEEK.
THE PERSONAL RECORDS (COPIES OF DAILY REPORT FORM I-50) WHICH MR. COX FURNISHED IN SUPPORT OF HIS CLAIM WERE THOROUGHLY EXAMINED BOTH BY THE IMMIGRATION AND NATURALIZATION SERVICE AND BY OUR OFFICE. THOSE RECORDS DISCLOSE THAT DURING THE PERIOD FROM OCTOBER 30, 1949, THROUGH JANUARY 17, 1953, MR. COX RECORDED A TOTAL OF 1,266-1/2 HOURS OF OVERTIME DUTY. THAT AMOUNT, HOWEVER, 316 HOURS REPRESENTED OVERTIME FOR WHICH MR. COX LATER WAS GRANTED COMPENSATORY LEAVE; 189 1/2 HOURS REPRESENTED DIRECTED OVERTIME FOR WHICH PAYMENT REPORTEDLY HAS BEEN MADE; AND 208-1/2 HOURS REPRESENTED, IN OUR OPINION, PURE TRAVEL. THUS, WE HAVE DETERMINED THAT DURING THE ABOVE-STATED PERIOD MR. COX PERFORMED AN AVERAGE OF 3-1/2 HOURS OVERTIME PER WEEK.
WHILE WE CONCEDE THAT THE RECORDS FURNISHED BY MR. COX MAY NOT BE ENTIRELY ACCURATE AS TO THE NUMBER OF HOURS OF OVERTIME WORK PERFORMED BY HIM DURING THE PERIOD OF HIS CLAIM, WE, NEVERTHELESS, BELIEVE THAT SUCH RECORDS DO AFFORD A MORE RELIABLE AND ACCEPTABLE BASIS FOR DETERMINING THE AMOUNT OF OVERTIME PERFORMED THAN DO ESTIMATED AVERAGES SUBMITTED BY FELLOW EMPLOYEES MANY YEARS AFTER THE FACT. AS YOU KNOW, ACTION BY OUR OFFICE ON A CLAIM PRESENTED FOR SETTLEMENT MUST BE PREDICATED UPON OFFICIAL RECORDS OR OTHER PERTINENT DATA FROM WHICH THE NECESSARY INFORMATION REASONABLY MAY BE RECONSTRUCTED. WE DO NOT BELIEVE THAT THE AFFIDAVITS TRANSMITTED WITH YOUR LETTER OF MAY 24 AFFORD A REASONABLE BASIS FOR RECONSTRUCTING THE AMOUNT OF OVERTIME WORK PERFORMED BY MR. COX DURING THE PERIOD OF HIS CLAIM.
HOWEVER, WHEN CONSIDERED TOGETHER WITH THE RECORDS FURNISHED BY MR. COX, WE DO ACCEPT SUCH AFFIDAVITS AS ESTABLISHING THAT MR. COX DID CONTINUOUSLY PERFORM SOME OVERTIME WORK THROUGHOUT THE ENTIRE PERIOD OF HIS CLAIM INCLUDING THOSE PERIODS NOT SUPPORTED BY RECORDS. ALSO, IT IS APPARENT THAT THE DUTIES PERFORMED BY MR. COX DURING THE PERIOD BETWEEN OCTOBER 1946 AND JUNE 1949, WHILE HE WAS STATIONED AT DOUGLAS, ARIZONA, WERE SUBSTANTIALLY THE SAME IN CHARACTER AS THOSE HE PERFORMED WHILE SUBSEQUENTLY STATIONED AT GILA BEND, ARIZONA -- BOTH STATIONS BEING LOCATED WITHIN THE TUCSON SECTOR HEADQUARTERS. THEREFORE, FOR THOSE PERIODS NOT SUPPORTED BY RECORDS MR. COX MAY BE ALLOWED ADDITIONAL COMPENSATION BASED UPON THE AVERAGE AMOUNT OF OVERTIME WORK PERFORMED BY HIM PER WEEK AS DETERMINED FROM HIS PERSONAL RECORDS. AS STATED ABOVE, WE HAVE DETERMINED SUCH AVERAGE TO BE 3 1/2 HOURS. ACCORDINGLY, MR. COX IS ENTITLED TO ADDITIONAL OVERTIME COMPENSATION AS FOLLOWS:
OCTOBER 21, 1946, THROUGH OCTOBER 29, 1949 553HOURS
NOVEMBER 6 THROUGH 12, 1949 3-1/2 HOURS
AUGUST 1 THROUGH 5, 1950 3-1/2 HOURS
AUGUST 27 THROUGH 31, 1950 3-1/2 HOURS
NOVEMBER 12 THROUGH 18, 1950 3-1/2 HOURS
MAY 6 THROUGH 12, 1951 3-1/2 HOURS
MARCH 9 THROUGH 29, 1952 10-1/2 HOURS
APRIL 13 THROUGH MAY 10, 1952 14 HOURS
JUNE 1 THROUGH 7, 1952 3-1/2 HOURS
JUNE 29 THROUGH JULY 5, 1952 3-1/2 HOURS
JANUARY 18 THROUGH 31, 1953 7 HOURS
WE HAVE INSTRUCTED OUR CLAIMS DIVISION TO ISSUE A SETTLEMENT IN FAVOR OF MR. COX FOR THE ADDITIONAL AMOUNT FOUND DUE.
IN OUR SETTLEMENT OF FEBRUARY 15, 1968, WE EXCLUDED 208-1/2 HOURS FROM THE TOTAL AMOUNT OF OVERTIME RECORDED BY MR. COX AS CONSTITUTING PURE TRAVEL. YOU OBJECT TO SUCH EXCLUSION ON THE BASIS THAT THE TRAVEL PERFORMED BY MR. COX CONSTITUTED "WORK" WITHIN THE MEANING OF THE OVERTIME STATUTE.
AS YOU ARE AWARE, THE DECISIONS OF THIS OFFICE LONG HAVE HELD THAT TRAVEL TIME ALONE (WITHOUT THE PERFORMANCE OF ACTUAL DUTY) OUTSIDE THE REGULARLY ESTABLISHED HOURS OF WORK DOES NOT ENTITLE A PER ANNUM EMPLOYEE EITHER TO REGULAR COMPENSATION OR OVERTIME COMPENSATION FOR THE TIME SO SPENT.
WE RECOGNIZE THAT IN CARRYING OUT HIS DUTIES AS A BORDER PATROL OFFICER MR. COX FREQUENTLY WAS REQUIRED TO TRAVEL BY AUTOMOBILE OR OTHER VEHICLE. IN THAT CONNECTION WE REALIZE THAT CERTAIN OF THE ACTIVITIES PERFORMED BY MR. COX SUCH AS "SIGN CUTTING," SCOUTING, AND ESCORTING ALIENS FROM ONE POINT TO ANOTHER, WHILE PERFORMED WITHIN A MOVING VEHICLE, NEVERTHELESS CONSTITUTED "WORK". THEREFORE, WE MADE NO DEDUCTION FOR HOURS OF TRAVEL PERFORMED IN CONNECTION WITH SUCH ACTIVITIES. RATHER, WE DEDUCTED ONLY THAT TRAVEL WHICH WAS NOT PERFORMED WITHIN THE HOURS OF MR. COX'S REGULAR TOUR OF DUTY AND WHICH DID NOT APPEAR TO INVOLVE THE PERFORMANCE OF WORK. AN EXAMPLE OF THE ABOVE IS THE TRAVEL PERFORMED BY MR. COX IN RETURNING TO HIS OFFICIAL STATION AFTER DELIVERING ALIENS TO A DETENTION CENTER. SEE BURICH V UNITED STATES, 177 CT. CL. 139 (1966).
CONCERNING YOUR REQUEST FOR RETURN OF THE AFFIDAVITS SUBMITTED WITH YOUR LETTER OF MAY 24, YOU ARE ADVISED THAT LETTERS AND DOCUMENTS SUBMITTED IN SUPPORT OF A CLAIM BEFORE OUR OFFICE BECOME A PART OF THE PERMANENT FILES OF OUR OFFICE AND MAY NOT BE RETURNED.