B-134038, B-138771, MAY 23, 1968

B-134038, B-138771, MAY 23, 1968

TO HARRY E. WOOD, ESQUIRE

THIS REFERS TO YOUR LETTER OF MARCH 25, 1968, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF THE CLAIM OF MR. KENNETH S. ADAMS 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 29, 1968, THE CLAIMS DIVISION OF OUR OFFICE CERTIFIED THAT THERE WAS DUE AND PAYABLE TO MR. ADAMS THE SUM OF $1,440.20, REPRESENTING PAYMENT FOR 791-1/2 HOURS OF OVERTIME WORK PERFORMED BY HIM DURING THE PERIOD FROM SEPTEMBER 30, 1947, TO NOVEMBER 8, 1951. NO AMOUNT WAS ALLOWED FOR THE PERIODS OCTOBER 22 TO NOVEMBER 5, 1950; MAY 13 TO JUNE 9, 1951; AND NOVEMBER 9, 1951, TO FEBRUARY 11, 1953, FOR THE REASON THAT MR. ADAMS WAS UNABLE TO FURNISH ANY EVIDENCE OF OVERTIME PERFORMED DURING THOSE PERIODS.

YOU SUBMIT THAT THE DENIAL OF OVERTIME COMPENSATION FOR THE ABOVE STATED PERIODS, EXCEPT FOR THE PERIOD FEBRUARY 1-11, 1953, IS IMPROPER AND UNJUST. IN SUPPORT OF YOUR CONTENTION YOU HAVE FURNISHED AFFIDAVITS FROM MR. ADAMS AND THREE OF HIS FELLOW EMPLOYEES TO THE EFFECT THAT MR. ADAMS PERFORMED AN AVERAGE OF SEVEN TO EIGHT HOURS OF OVERTIME WORK PER WEEK THROUGHOUT THE ENTIRE PERIOD OF HIS CLAIM. YOU BELIEVE THAT SUCH AFFIDAVITS ARE MORE RELIABLE AND ARE DESERVING OF MORE EVIDENTIARY WEIGHT THAN ARE THE PERSONAL RECORDS SUBMITTED BY MR. ADAMS SINCE HE HAD NO INCENTIVE TO KEEP ACCURATE RECORDS OF THE AMOUNT OF OVERTIME PERFORMED BY HIM DURING THE PERIOD UNDER CONSIDERATION. YOU SUGGEST THAT ON THE BASIS OF THOSE AFFIDAVITS MR. ADAMS IS ENTITLED TO OVERTIME COMPENSATION FOR AN AVERAGE OF SEVEN TO EIGHT HOURS PER WEEK FOR THE ENTIRE PERIOD OF HIS CLAIM. IN THE ALTERNATIVE YOU REQUEST THAT FOR THE PERIODS THAT RECORDS ARE LACKING MR. ADAMS BE PAID ON THE BASIS OF THE AVERAGE AMOUNT OF OVERTIME PERFORMED BY HIM PER WEEK AS DETERMINED FROM HIS PERSONAL RECORDS.

WHILE WE CONCEDE THAT MR. ADAMS' DIARIES 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 THE INFORMATION CONTEMPORANEOUSLY RECORDED THEREIN AFFORDS 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 IN QUESTION AFFORD A REASONABLE BASIS FOR RECONSTRUCTING THE AMOUNT OF OVERTIME WORK PERFORMED BY MR. ADAMS DURING THE PERIOD OF HIS CLAIM.

HOWEVER, WE DO ACCEPT SUCH AFFIDAVITS AS ESTABLISHING THAT MR. ADAMS DID CONTINUOUSLY PERFORM SOME OVERTIME WORK THROUGHOUT THE ENTIRE PERIOD OF HIS CLAIM INCLUDING THOSE PERIODS NOT SUPPORTED BY PERSONAL RECORDS. THEREFORE, FOR THOSE PERIODS MR. ADAMS MAY BE ALLOWED ADDITIONAL COMPENSATION BASED ON THE AVERAGE AMOUNT OF OVERTIME WORK PERFORMED BY HIM PER WEEK AS DETERMINED FROM HIS PERSONAL RECORDS. IN THAT REGARD WE HAVE DETERMINED THAT DURING THE PERIOD FROM MAY 1, 1949, TO NOVEMBER 8, 1951, WHILE STATIONED AT TUCSON, ARIZONA, MR. ADAMS AVERAGED 4-1/2 HOURS OF OVERTIME PER WEEK. THEREFORE, HE IS ENTITLED TO ADDITIONAL OVERTIME COMPENSATION AS FOLLOWS:

OCTOBER 22 - NOVEMBER 5, 1950 - 9 HOURS

MAY 13 - JUNE 9, 1951 - 18 HOURS

NOVEMBER 9, 1951 - JANUARY 31, 1953 - 288 HOURS

WE HAVE INSTRUCTED OUR CLAIMS DIVISION TO ISSUE A SETTLEMENT IN FAVOR OF MR. ADAMS FOR THE ADDITIONAL AMOUNT FOUND DUE.

IN THE SETTLEMENT OF FEBRUARY 29, 1968, MR. ADAMS WAS ADVISED THAT IN VIEW OF THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, NO CONSIDERATION MAY BE GIVEN TO THAT PORTION OF HIS CLAIM FOR THE PERIOD PRIOR TO SEPTEMBER 30, 1947, SINCE HIS CLAIM FOR OVERTIME COMPENSATION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON SEPTEMBER 30, 1957. ON BEHALF OF MR. ADAMS YOU CONTEND THAT HIS CLAIM FOR OVERTIME COMPENSATION UNDER THE PAY ACT OF 1945 INITIALLY WAS FILED WITH OUR OFFICE IN 1951 AND THAT, THEREFORE, NO PORTION OF SUCH CLAIM IS BARRED BY THE STATUTE CITED ABOVE.

ON FEBRUARY 8, 1951, WE DID RECEIVE A CLAIM FROM MR. ADAMS WHICH READ, IN PERTINENT PART, AS FOLLOWS:

"RE: CLAIM TO EXTRA PAY FOR SUNDAYS AND HOLIDAYS AND OVERTIME PERFORMED AS A BORDER PATROL OFFICER IN THE IMMIGRATION AND NATURALIZATION SERVICE "GENTLEMEN:

I, KENNETH S. ADAMS HEREBY REQUEST SETTLEMENT AND PAYMENT OF MY CLAIM FOR SERVICES AS A BORDER PATROL OFFICER IN THE UNITED STATES IMMIGRATION SERVICE DURING THE TEN YEAR PERIOD IMMEDIATELY PRECEDING THE DATE OF FILING THIS APPLICATION. WITHIN THIS PERIOD I PERFORMED MY ACCUSTOMED DUTIES AS A BORDER PATROLMAN IN EXCESS OF EIGHT HOURS PER DAY AND, AFTER DECEMBER 1, 1942, IN EXCESS OF FORTY HOURS PER WEEK. SUCH EXCESS HOURS OF DUTY WERE KNOWN TO AND EITHER PREVIOUSLY AUTHORIZED, OR ACQUIESCED IN, BY MY SUPERIOR OFFICERS. I HAVE NOT BEEN PAID FOR SUCH EXTRA SERVICES IN ACCORDANCE WITH APPLICABLE EXTRA PAY AND OVERTIME LAWS.'

IN THE YEARS 1949, 1950, AND EARLY 1951, OVER 500 SIMILAR CLAIMS WERE FILED IN THIS OFFICE BY BORDER PATROL OFFICERS OF THE IMMIGRATION AND NATURALIZATION SERVICE. THESE CLAIMS RESULTED FROM THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN UNITED STATES V MYERS, 320 U.S. 561 (1944), AND THE COURT OF CLAIMS DECISIONS IN RANNER AND KRUPP V UNITED STATES, 106 CT. CL. 676 (1946) AND O-ROURKE V UNITED STATES, 109 CT. CL. 33 (1947). THOSE DECISIONS INTERPRETED THE EXTRA PAY PROVISIONS WHICH ARE APPLICABLE TO INSPECTORS OF THE BUREAU OF CUSTOMS AND TO INSPECTORS OF THE IMMIGRATION AND NATURALIZATION SERVICE AS FOUND IN SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, 19 U.S.C. 267, AND IN THE ACT OF MARCH 2, 1931, AS AMENDED, 5 U.S.C. 342C, RESPECTIVELY.

SOME OF THE CLAIMANTS BASED THEIR CLAIMS FOR EXTRA COMPENSATION SPECIFICALLY ON THE ACT OF MARCH 2, 1931, WHILE OTHERS, SUCH AS MR. ADAMS, MADE NO REFERENCE TO ANY STATUTS. ALL OF THE CLAIMS, HOWEVER, WERE UNIFORMLY AND REASONABLY UNDERSTOOD BY BOTH THE IMMIGRATION AND NATURALIZATION SERVICE AND BY THE GENERAL ACCOUNTING OFFICE AS BEING CLAIMS FOR OVERTIME AND EXTRA SUNDAY AND HOLIDAY COMPENSATION UNDER THE ACT OF MARCH 2, 1931.

FOLLOWING THE DECISION OF THE COURT OF CLAIMS IN GREENE V UNITED STATES, 118 CT. CL. 248 (1951), THE CLAIMS DIVISION OF OUR OFFICE ISSUED SETTLEMENTS DISALLOWING THE CLAIMS REFERRED TO ABOVE. MR. ADAMS WAS ADVISED BY SETTLEMENT DATED MAY 24, 1951, THAT HIS CLAIM FOR ADDITIONAL COMPENSATION WAS DISALLOWED UNDER THE ACT OF MARCH 2, 1931, AS INTERPRETED BY THE COURT OF CLAIMS IN THE GREENE DECISION. AFTER THE ISSUANCE OF THAT SETTLEMENT WE HEARD NOTHING FURTHER FROM MR. ADAMS REGARDING HIS CLAIM UNTIL SEPTEMBER 30, 1957. ON THAT DATE WE RECEIVED A LETTER FROM HIM REQUESTING RECONSIDERATION OF THE 1951 SETTLEMENT AND PAYMENT OF OVERTIME COMPENSATION SPECIFICALLY UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945. OUR OPINION THAT LETTER CONSTITUTED MR. ADAMS' INITIAL CLAIM FOR OVERTIME COMPENSATION UNDER THE PAY ACT OF 1945. ACCORDINGLY, NO CONSIDERATION MAY BE GIVEN TO THAT PORTION OF HIS CLAIM FOR THE PERIOD PRIOR TO SEPTEMBER 30, 1947.

THE SETTLEMENT OF FEBRUARY 29, 1968, AUTHORIZED PAYMENT TO MR. ADAMS FOR 791-1/2 HOURS OF OVERTIME PERFORMED DURING THE PERIOD SEPTEMBER 30, 1947, TO NOVEMBER 8, 1951. DURING THAT PERIOD MR. ADAMS RECORDED 1,098-1/2 HOURS OF OVERTIME DUTY IN HIS DIARIES. HOWEVER, 112 OF THOSE HOURS REPRESENTED OVERTIME FOR WHICH HE LATER WAS GRANTED COMPENSATORY LEAVE AND 195 OF THOSE HOURS REPRESENTED, IN OUR OPINION, PURE TRAVEL. YOU OBJECT TO THE EXCLUSION OF TRAVEL TIME CONTENDING THAT THE TRAVEL PERFORMED BY MR. ADAMS CONSTITUTED "WORK" WITHIN THE MEANING OF THE OVERTIME STATUTE.

AS YOU CORRECTLY POINT OUT IN YOUR LETTER, SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 912B, WAS NOT ENACTED UNTIL SEPTEMBER 1954 AND, THUS, IS INAPPLICABLE TO MR. ADAMS' CLAIM. THAT PROVISION, HOWEVER, WAS BASED UPON THE DECISIONS OF THIS OFFICE WHICH LONG HAD 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. SEE H. REPT. NO. 2665 ON H.R. 2663, 83RD CONG., PAGE 22.

WE RECOGNIZE THAT IN CARRYING OUT HIS DUTIES AS A BORDER PATROL OFFICER MR. ADAMS FREQUENTLY WAS REQUIRED TO TRAVEL BY AUTOMOBILE OR OTHER VEHICLE. YOU POINT OUT THAT ACTIVITIES SUCH AS ,SIGN CUTTING," SCOUTING, AND ESCORTING ALIENS FROM ONE POINT TO ANOTHER, WHILE PERFORMED WITHIN A MOVING VEHICLE, NEVERTHELESS CONSTITUTE "WORK.' WE AGREE WITH THAT STATEMENT AND CAN ASSURE YOU THAT NO DEDUCTION WAS MADE FOR TRAVEL PERFORMED IN CONNECTION WITH SUCH ACTIVITIES. RATHER, WE DEDUCTED ONLY THAT TRAVEL WHICH WAS NOT PERFORMED WITHIN THE HOURS OF MR. ADAMS' 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. ADAMS 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 SUBMISSION OF THIS CLAIM TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928 (31 U.S.C. 236), YOU ARE ADVISED THAT OUR OFFICE HAS VIEWED THAT ACT AS PROVIDING AN EXTRAORDINARY REMEDY FOR USE IN EXTRAORDINARY CIRCUMSTANCES. THE CASES WHICH WE HAVE REPORTED TO THE CONGRESS UNDER 31 U.S.C. 236 GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM. TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES. SUCH A RESULT WOULD OCCUR HERE SINCE, AS YOU KNOW, THERE ARE HUNDREDS OF CLAIMANTS IN THE SAME CIRCUMSTANCES AS MR. ADAMS. MOREOVER, ASSUMING THE CLAIM WERE OTHERWISE ELIGIBLE FOR PRESENTATION TO THE CONGRESS AS A "MERITORIOUS CLAIM," WE COULD NOT AS A MATTER OF LAW REPORT THAT PART OF THE CLAIM THAT IS BARRED BY 31 U.S.C. 71A. NO ACTION, THEREFORE, WILL BE TAKEN TO REPORT THIS CLAIM TO THE CONGRESS.