B-156227, MAR. 11, 1965

B-156227, MAR. 11, 1965

TO MR. C.H. SCHULTZ, UNITED STATES DEPARTMENT OF THE INTERIOR:

YOUR LETTER OF FEBRUARY 24, 1965, ENCLOSING A VOUCHER FOR $813.12, IN FAVOR OF MR. AUBREY K. FOSTER, A FORMER EMPLOYEE OF THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR, EL PASO, TEXAS, COVERING HIS CLAIM FOR OVERTIME SERVICES ALLEGEDLY PERFORMED IN 1963 AND 1964, INCLUDING A RELATED CAR ALLOWANCE, ASKS OUR DECISION WHETHER THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT.

IN A CLAIM AGAINST THE UNITED STATES THE BURDEN OF ESTABLISHING ENTITLEMENT TO PAYMENT RESTS WITH THE CLAIMANT. THEREFORE, MR. FOSTER, TO RECOVER, WOULD BE REQUIRED TO ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE (1) THAT HE PERFORMED ALL OF THE OVERTIME SERVICE THAT HE ALLEGES AND (2) THAT SUCH SERVICES WERE PERFORMED UNDER CIRCUMSTANCES THAT CREATED A LIABILITY ON THE PART OF THE UNITED STATES TO COMPENSATE HIM THEREFOR.

THE PERTINENT FINDINGS OF FACT OF THE GRIEVANCE COMMITTEE, REPORTED TO THE REGIONAL DIRECTOR ON DECEMBER 14, 1964, WHICH APPEAR TO BE REASONABLY SUPPORTED BY THE TRANSCRIPT OF THE TESTIMONY OFFERED AT THE HEARING, SEEM TO SUPPORT THE CONCLUSIONS---

1. THAT THE CLAIMANT PRESENTED NO CLAIM FOR THE ALLEGED OVERTIME SERVICES TO EITHER HIS IMMEDIATE SUPERVISOR, MR. TROY FOSTER, OR TO ANY HIGHER AUTHORITY UNTIL AFTER HIS SEPARATION FROM THE SERVICE BY REDUCTION IN FORCE.

2. THAT IT WOULD BE IMPOSSIBLE IN VIEW OF THE CONFLICTING TESTIMONY AND THE ABSENCE OF CONTEMPORARY RECORDS, OFFICIAL OR OTHERWISE, NOW TO ESTABLISH EVEN APPROXIMATELY THE ACTUAL NUMBER OF HOURS OF OVERTIME SERVICE PERFORMED BY THE CLAIMANT.

CONCERNING THE HOURS OF DUTY OF THE CLAIMANT, IT IS NOTED FROM THE TESTIMONY OF MR. TROY FOSTER, THE CLAIMANT'S IMMEDIATE SUPERVISOR (PAGE 105 OF THE TRANSCRIPT OF TESTIMONY AT THE HEARING), THAT HE BELIEVED THAT IT WAS THE POLICY OF THE BUREAU OF RECLAMATION THAT AT NO TIME DURING THE IRRIGATION SEASON SHOULD THE CANALS BE UNATTENDED. THIS POINT WAS NOT FURTHER DEVELOPED AT THE HEARING. HOWEVER, IT MUST BE SAID THAT SUCH A POLICY WOULD HAVE BEEN INCONSISTENT NOT ONLY WITH THE SCHEDULED TOURS OF DUTY OF THE THREE EMPLOYEES (INCLUDING THE CLAIMANT)WHO WERE ASSIGNED TO CANAL DUTY (GOVERNMENT EXHIBITS NOS. 4 AND 5) BUT, ALSO, WITH THE WRITTEN INSTRUCTIONS OF THE PROJECT MANAGER, DATED FEBRUARY 27, 1963, AND MARCH 10, 1964, RESPECTIVELY (GOVERNMENT EXHIBITS NOS. 2 AND 3). FURTHER, ON DECEMBER 31, 1964, THE REGIONAL MANAGER IN TRANSMITTING THE CLAIMANT'S APPEAL TO THE COMMISSIONER OF RECLAMATION, COMMENTED ON THE POINT AS FOLLOWS:

IT IS MY CONCLUSION (1) THAT THE CANAL PATROLMEN IS NOT RESPONSIBLE FOR MAINTAINING WATCH OVER THE CANAL OTHER THAN DURING THEIR REGULARLY ASSIGNED HOURS, (2) THAT WORK WAS NEITHER NEEDED NOR PERFORMED FOR MORE TIME THAN THAT FOR WHICH CLAIMANT WAS COMPENSATED, AND (3) THAT ADDITIONAL WORK WAS NOT AUTHORIZED NOR NEEDED IN THE PUBLIC INTEREST AS REQUIRED BY STATUTES AND GULATIONS.'

THIS STATEMENT OF THE REGIONAL MANAGER IS IN CONFLICT WITH TROY FOSTER'S VIEW AS TO THE BUREAU'S ACTUAL POLICY CONCERNING THE NEED FOR CONTINUOUS COVERAGE OF THE CANAL AND THE GRIEVANCE COMMITTEE MAY HAVE BEEN MISLED ON THIS MATERIAL ISSUE IN REACHING ITS CONCLUSION AS TO ANY OFFICIAL NEED FOR THE CLAIMANT TO WORK HOURS IN EXCESS OF HIS ASSIGNED TOUR OF 48 HOURS A WEEK.

HOWEVER, THE LEGAL BASIS FOR THE PAYMENT OF OVERTIME COMPENSATION IS THAT THE OVERTIME SERVICE MUST BE AUTHORIZED OR APPROVED BY AN OFFICIAL CLOTHED WITH AUTHORITY BY THE HEAD OF THE DEPARTMENT OR AGENCY TO SO OBLIGATE THE GOVERNMENT. IN THIS CASE THAT AUTHORITY HAD BEEN DELEGATED TO THE PROJECT MANAGER. IT IS CLEAR FROM THE RECORD THAT HE NEITHER AUTHORIZED NOR APPROVED THE OVERTIME SERVICE IN QUESTION.

THERE IS NO EVIDENCE WHATEVER THAT THE CLAIMANT WAS INDUCED OR DIRECTED BY THE PROJECT MANAGER OR OTHER AUTHORIZED OFFICIAL TO WORK OVERTIME OR THAT ANY SUCH OFFICER HAD KNOWLEDGE OR WAS CHARGEABLE WITH NOTICE THAT THE CLAIMANT WAS WORKING IN EXCESS OF 48 HOURS A WEEK. SEE GRAY V. UNITED STATES, 136 CT.CL. 312; CF. ANDERSON V. UNITED STATES, 136 CT.CL. 365. FURTHER, THE RECORD ESTABLISHES THAT THE CLAIMANT DID NOT COMPLAIN EITHER TO HIS IMMEDIATE SUPERVISOR OR TO ANY OFFICER AT A HIGHER LEVEL THAT HE WAS REQUIRED TO WORK ADDITIONAL OVERTIME WITHOUT COMPENSATION. SEE BANTOM, JR. ET AL. V. UNITED STATES, CT.CL. NO. 481-61, DECIDED MARCH 13, 1964.

WE MUST CONCLUDE THAT MR. FOSTER DOES NOT SATISFACTORILY PROVE THE NUMBER OF HOURS HE ALLEGES HE WORKED IN EXCESS OF 48 HOURS WEEKLY. NEITHER DOES HE SHOW A LEGAL LIABILITY ON THE PART OF THE UNITED STATES TO PAY OVERTIME COMPENSATION FOR ANY SUCH EXCESS HOURS WHICH HE MAY HAVE WORKED. SINCE NO AUTHORITY EXISTS FOR PAYMENT OF ADDITIONAL OVERTIME COMPENSATION, IT FOLLOWS THE CLAIM FOR AN ASSOCIATED CAR ALLOWANCE ALSO MUST BE DENIED.

THE VOUCHER, WITH SUPPORTING DOCUMENTS TRANSMITTED WITH YOUR LETTER, IS RETURNED HEREWITH AND ..END :