B-156739, JUN. 22, 1965

B-156739, JUN. 22, 1965

TO MR. PAUL E. RAY:

THIS REFERS TO YOUR LETTER OF MAY 3, 1965, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT DATED APRIL 12, 1965, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR OVERTIME SERVICES ALLEGEDLY PERFORMED BY YOU WHILE AN EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT, TAIPEI, TAIWAN.

THE RECORD SHOWS THAT DURING YOUR TOUR OF DUTY WITH THE AID MISSION TO CHINA FROM DECEMBER 1961 THROUGH OCTOBER 1963, YOU WERE ADMINISTRATIVELY ASSIGNED TO SERVE AS DUTY OFFICER ON THE FOLLOWING DAYS: SUNDAY, DECEMBER 24, 1961, SATURDAY, MAY 26, 1962; SUNDAY, OCTOBER 7, 1962; SATURDAY, JANUARY 19, 1963; SUNDAY, MAY 26, 1963, AND SATURDAY, AUGUST 31, 1963. THE DUTY OFFICER ASSIGNMENTS WERE REFLECTED IN DUTY ROSTERS WHICH WERE POSTED FOR EACH MONTH AND SIGNED BY THE EXECUTIVE OFFICER OF THE MISSION-- - AN OFFICER HAVING THE AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME WORK. THE HOURS OF DUTY OFFICER SERVICE WERE FROM 8 A.M. ON THE DAY ASSIGNED TO 8 A.M. THE FOLLOWING MORNING. ON SATURDAYS, THE DUTY OFFICER WAS REQUIRED TO REPORT TO THE MISSION AT 8 A.M. AND REMAIN THERE UNTIL 12 NOON. HIS PRINCIPAL RESPONSIBILITY WHILE AT THE MISSION ON SATURDAY MORNINGS WAS TO CALL APPROPRIATE PERSONNEL IN THE EVENT CABLES OF SIGNIFICANT IMPORTANCE SHOULD ARRIVE. DURING THE REMAINING HOURS OF DUTY ON SATURDAYS AND DURING ALL OF THE HOURS OF DUTY ON SUNDAYS AND HOLIDAYS, THE DUTY OFFICER WAS NOT REQUIRED TO BE AT THE MISSION NOR WAS HE EVEN REQUIRED TO REMAIN AT HOME. HE WAS REQUIRED ONLY TO BE WITHIN REACH BY TELEPHONE.

THE AGENCY FOR INTERNATIONAL DEVELOPMENT REPORTS THAT IT IS CUSTOMARY IN OVERSEAS OFFICES TO HAVE A FOREIGN SERVICE OFFICER ON DUTY DURING NONWORK HOURS BUT THAT IT HAS NEVER BEEN THE POLICY OF AID TO PAY OVERTIME COMPENSATION FOR SUCH DUTY OFFICER SERVICE, NOR TO GRANT COMPENSATORY TIME OFF IN LIEU OF OVERTIME PAY.

THE CLAIMS DIVISION OF OUR OFFICE DISALLOWED YOUR CLAIM FOR THE REASON THAT THE OVERTIME WORK ALLEGEDLY PERFORMED BY YOU WAS NEITHER OFFICIALLY AUTHORIZED NOR APPROVED AS REQUIRED BY SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911.

IT IS CLEAR FROM THE ADMINISTRATIVE REPORT THAT THE OFFICIALS OF AID NEVER INTENDED TO AUTHORIZE OR APPROVE OVERTIME COMPENSATION FOR WEEKEND DUTY OFFICER SERVICE. MOREOVER, THE MONTHLY DUTY ROSTERS, STANDING ALONE, DO NOT CONSTITUTE OFFICIAL WRITTEN AUTHORIZATIONS FOR OVERTIME WORK. HOWEVER, THE UNITED STATES COURT OF CLAIMS WAS HELD IN A NUMBER OF RECENT DECISIONS THAT THE ABSENCE OF OFFICIAL WRITTEN AUTHORIZATION OR APPROVAL OF OVERTIME WORK DOES NOT NECESSARILY DEFEAT A CLAIM FOR OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA, PROVIDED CERTAIN OTHER FACTORS ARE PRESENT IN THE CASE. SEE ANDERSON ET AL. V. UNITED STATES, 136 CT.CL. 365; ADAMS ET AL. V. UNITED STATES, CT.CL. NO. 66-59 (DECIDED JULY 12, 1963); BYRNES ET AL. V. UNITED STATES, CT.CL. NO. 456-59 (DECIDED NOVEMBER 15, 1963); RAPP AND HAWKINS V. UNITED STATES, CT.CL. NOS. 70 62, 121-62, RESPECTIVELY (DECIDED OCTOBER 16, 1964).

IN LINE WITH THE FOREGOING CASES, IT APPEARS THAT THERE IS SUFFICIENT EVIDENCE HERE TO SUPPORT A FINDING THAT THE OVERTIME SERVICES RENDERED BY YOU AS DUTY OFFICER WERE PERFORMED WITH THE KNOWLEDGE AND APPROVAL OF OFFICIALS HAVING AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME WORK IN WRITING AND THAT SUCH ADMINISTRATIVE ACQUIESCENCE WAS TANTAMOUNT TO EXPRESS AUTHORIZATION SO AS TO REQUIRE THE PAYMENT OF OVERTIME COMPENSATION UNDER SECTION 201 OF THE ACT OF 1945.

OUR FINDING, HOWEVER, DOES NOT MEAN THAT YOU ARE ENTITLED TO OVERTIME COMPENSATION FOR ALL OF THE HOURS YOU SERVED AS DUTY OFFICER. THE HOURS DURING WHICH YOU WERE NOT REQUIRED TO BE AT THE MISSION BUT WERE REQUIRED ONLY TO BE WITHIN REACH BY TELEPHONE ARE NOT REGARDED AS BEING "HOURS OF WORK" WITHIN THE MEANING OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA. SEE RAPP AND HAWKINS V. UNITED STATES, SUPRA. WHILE YOUR MOBILITY MAY HAVE BEEN SOMEWHAT RESTRICTED DURING THESE HOURS, IT CANNOT BE SAID THAT SUCH HOURS WERE SPENT PREDOMINANTLY FOR YOUR EMPLOYER'S BENEFIT. SEE ARMOUR AND COMPANY V. WENTOCK, 323 U.S. 126, 133; 65 SUP.CT. 165, 168.

THEREFORE, YOU ARE ENTITLED TO RECEIVE OVERTIME COMPENSATION ONLY FOR THE HOURS OF WORK FROM 8 A.M. TO 12 NOON ON MAY 26, 1962, JANUARY 19, 1963, AND AUGUST 31, 1963--- I.E., THE HOURS DURING WHICH YOU WERE REQUITED TO REMAIN WITHIN THE CONFINES OF THE MISSION. WE ARE TODAY INSTRUCTING OUR CLAIMS DIVISION TO ISSUE SETTLEMENT TO YOU IN THE PROPER AMOUNT FOUND DUE.