B-202694, JAN 4, 1982

B-202694, JAN 4, 1982

DIGEST: EMPLOYEE'S CLAIM FOR OVERTIME COMPENSATION UNDER 5 U.S.C. 5542(B)(2)(B)(IV) FOR OVERSEAS TRAVEL TO MEET WITH REPRESENTATIVES OF FOREIGN GOVERNMENT IS DISALLOWED. FACT THAT EMPLOYEE'S AGENCY INDIRECTLY SCHEDULED MEETING THROUGH USAID MISSION IN FOREIGN COUNTRY DOES NOT RENDER MEETINGS AN ADMINISTRATIVELY UNCONTROLLABLE OR UNSCHEDULABLE EVENT. THOUGH SCHEDULING MAY HAVE BEEN A MATTER OF ACCOMMODATION BETWEEN U. S. AND FOREIGN PARTICIPANTS, THE LACK OF GOVERNMENTAL CONTROL CONTEMPLATED BY 5 U.S.C. 5546(B)(2)(B)(IV) WAS NOT PRESENT.

JAMES M. RAY:

THIS ACTION IS IN RESPONSE TO A LETTER DATED MARCH 9, 1981, FROM MR. JAMES M. RAY, AN EMPLOYEE OF THE BUREAU OF THE CENSUS, DEPARTMENT OF COMMERCE, CONCERNING HIS ENTITLEMENT TO OVERTIME COMPENSATION FOR TIME SPENT WHILE TRAVELING ON GOVERNMENT BUSINESS.

MR. RAY'S CLAIM WAS DISALLOWED BY OUR CLAIMS GROUP'S SETTLEMENT CERTIFICATE DATED FEBRUARY 24, 1981, FOR THE REASON THAT THE TRAVELTIME INVOLVED DID NOT QUALIFY AS HOURS OF WORK UNDER 5 U.S.C. 5542(B)(2)(B) AND BECAUSE AN AGENCY'S FAILURE TO SCHEDULE AN EMPLOYEE'S TRAVEL WITHIN HIS REGULAR WORKWEEK DOES NOT ITSELF PROVIDE A BASIS FOR PAYMENT OF OVERTIME COMPENSATION.

IN APPEALING FROM THE CLAIMS GROUP'S DISALLOWANCE, MR. RAY CONTENDS THAT HIS TRAVEL WAS OCCASIONED BY AN EVENT THAT COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY, AND THAT HIS TIME IN A TRAVEL STATUS, THEREFORE, IS COMPENSABLE AS OVERTIME HOURS OF WORK UNDER THE AUTHORITY OF 5 U.S.C. 5542(B)(2)(B)(IV) WHICH PROVIDES:

"(B) FOR THE PURPOSE OF THIS SUBCHAPTER -

"(2) TIME SPENT IN TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY STATION OF AN EMPLOYEE IS NOT HOURS OF EMPLOYMENT UNLESS -

"(B) THE TRAVEL *** (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY."

IT IS MR. RAY'S CONTENTION THAT THE EVENTS WHICH NECESSITATED HIS TRAVEL - MEETINGS WITH HIS COUNTERPARTS IN THEIR RESPECTIVE FOREIGN COUNTRIES - WERE SCHEDULED BY THE FOREIGN GOVERNMENTS INVOLVED. HE STATES:

"*** THE TRAVEL IN THIS CASE COULD NOT BE CONTROLLED OR SCHEDULED BY THE EMPLOYER BECAUSE HE MUST REQUEST THAT THE USAID MISSION IN THE HOST COUNTRY SCHEDULE THE EVENT WITH THE CLAIMANT'S COUNTERPARTS IN THE HOST COUNTRY. THE HOST GOVERNMENT ACTUALLY MAKES THE SCHEDULE AT THE REQUEST OF THE MISSION. THE MISSION THEN INFORMS THE EMPLOYER OF THE SCHEDULE WHICH THE EMPLOYER CANNOT REFUSE IN VIEW OF HIS ORIGINAL REQUEST FOR A MEETING. IT IS OBVIOUS THAT THE EMPLOYER DOES NOT EXERCISE AUTHORITY OR DOMINATING INFLUENCE OVER THIS EVENT. ***"

HOWEVER, THE CHIEF, PERSONNEL DIVISION, BUREAU OF THE CENSUS, FOUND THAT THE MEETINGS COULD BE ARRANGED AND SCHEDULED "TO MEET THE CONVENIENCE OF THE BUREAU." THE BUREAU ALSO FOUND THAT:

"1. THE EVENTS PRECIPITATING TRAVEL ARE ADMINISTRATIVELY CONTROLLED AND SCHEDULED BY THE BUREAU AND USUALLY ARRANGED 30 DAYS IN ADVANCE,

"2. IF THE CLIENT REQUESTS DATES FOR THE EVENT WHICH ARE INCONVENIENT TO THE BUREAU, RE-SCHEDULING WITH MORE SUITABLE DATES IS ARRANGED, AND

"3. THE TRAVELING ARRANGEMENTS FOR OVERSEAS TRIPS ARE SCHEDULED BY THE EMPLOYEE, WITH MUCH FLEXIBILITY GIVEN TO THE EMPLOYEE FOR SETTING UP THE ITINERARY - TIMES/DATES/STOPOVERS."

THE FACT THAT THE MEETINGS WERE NOT DIRECTLY SCHEDULED BY THE CLAIMANT'S EMPLOYER DOES NOT RENDER THEM AN UNSCHEDULABLE OR UNCONTROLLABLE EVENT. WHERE AN EVENT IS SCHEDULED BY ONE AGENCY TO BE ATTENDED BY THE EMPLOYEE OF ANOTHER AGENCY, IT SUFFICES THAT THE CONTROL REMAINS WITHIN THE GOVERNMENT, EVEN THOUGH THAT CONTROL MUST BE EXERCISED WITH A VIEW TOWARD ACCOMMODATING NONGOVERNMENTAL PARTIES. SEE B-180021, AUGUST 31, 1978.

IN MR. RAY'S CASE, THE FACT THAT SCHEDULING WITH THE HOST COUNTRY WAS ACCOMPLISHED THROUGH THE USAID MISSION RATHER THAN DIRECTLY BY THE BUREAU OF THE CENSUS DOES NOT RENDER THE MEETINGS A MATTER BEYOND ADMINISTRATIVE CONTROL OR SCHEDULING. THE RECORD INDICATES THAT THERE WAS LITTLE IF ANY URGENCY CONNECTED WITH THE MEETINGS AND THAT SCHEDULING WAS A MATTER OF ACCOMMODATION BETWEEN THE AGENCY AND THE FOREIGN GOVERNMENT. IN BARTH AND LEVINE V. UNITED STATES, 215 CT.CL. 383 (1978), THE COURT OF CLAIMS ADDRESSED A SITUATION SIMILAR TO MR. RAY'S IN THAT IT INVOLVED AN EVENT NOT WHOLLY WITHIN THE CONTROL OF THE GOVERNMENT. IN DISALLOWING THE NAVY EMPLOYEES' CLAIM FOR OVERTIME COMPENSATION FOR TRAVEL TO OBSERVE, MONITOR AND EVALUATE THE RESULTS OF TESTS CONDUCTED BY A NAVY CONTRACTOR, THE COURT SPECIFICALLY RECOGNIZED THAT 5 U.S.C. 5542(B)(2)(B)(IV) CONTEMPLATES A LACK OF GOVERNMENT CONTROL AS A PREREQUISITE TO ENTITLEMENT. THE COURT HELD THAT THE CASE IN WHICH AN AGENCY SHARES CONTROL OR AN EVENT WITH A NONGOVERNMENTAL PARTY AND EXERCISES THAT CONTROL INDIRECTLY IS NOT ONE FOR WHICH SUBSECTION 5542(B)(2)(B)(IV) AUTHORIZES OVERTIME COMPENSATION.

IN BARTH AND LEVINE V. UNITED STATES, SUPRA, THE COURT ALSO REJECTED MR. RAY'S ARGUMENT THAT 5 U.S.C. 6101(B)(2) PROVIDES AN INDEPENDENT BASIS FOR FINDING ENTITLEMENT TO OVERTIME COMPENSATION. THE FOLLOWING STATEMENT APPEARS AT 215 CT.CL. 383, 389:

"THOUGH WE MAY PERHAPS SYMPATHIZE WITH THE PLAINTIFFS IN THIS CASE, WE ARE BOUND TO APPLY THE STATUTE AS WE FIND IT WRITTEN. THE CURRENT STATUTORY SCHEME DOES NOT PERMIT US TO COMPENSATE THE PLAINTIFFS. THOUGH WE ARE AWARE THAT CONGRESS HAS EXHORTED THE AGENCIES TO SCHEDULE TRAVEL TIME SO THAT IT OCCURS WITHIN THE WORK SHIFT, 5 U.S.C. SEC. 6101(B)(2) (1970), SOMETIMES THIS IS IMPOSSIBLE. YET CONGRESS, FAR FROM PROVIDING A REMEDY, HAS AFFIRMATIVELY PROHIBITED AN AWARD OF OVERTIME PAY FOR TRAVEL TIME UNLESS THE PECULIAR CONDITIONS OF THE STATUTORY EXCEPTION ARE MET. NO DOUBT IT WOULD BE A DIFFICULT TASK TO DRAFT A PROVISION WHICH IS MORE REALISTIC AND YET AVOIDS THE LEWIS CARROLLIAN RESULT OF PAYING ALL FEDERAL EMPLOYEES TO DRIVE TO WORK. BUT SUCH A TASK, QUITE PROPERLY, DOES NOT LIE WITHIN THE POWER OF THE JUDICIARY; IT LIES WITH THE LEGISLATURE. TO ACHIEVE WHAT THEY DESIRE, PLAINTIFFS MUST OBTAIN APPROPRIATE STATUTORY AMENDMENTS FROM THE ONLY BODY SO EMPOWERED, CONGRESS. IN SUMMARY, WE HAVE HELD THAT THE TIME THESE PLAINTIFFS SPENT IN TRAVEL STATUS AWAY FROM THEIR OFFICIAL DUTY STATION DOES NOT FIT WITHIN THE LANGUAGE OF THE STATUTORY EXCEPTION. AS A RESULT, WE MUST APPLY THE GENERAL RULE THAT TRAVEL TIME IS NOT CONSIDERED HOURS OF EMPLOYMENT AND IS NOT COMPENSABLE."

TO THE SAME EFFECT, SEE B-197128, MARCH 31, 1980.

BECAUSE MR. RAY'S TRAVEL WAS NOT OCCASIONED BY AN ADMINISTRATIVELY UNSCHEDULABLE OR UNCONTROLLABLE EVENT, OUR CLAIMS GROUP'S DISALLOWANCE OF HIS CLAIM FOR OVERTIME COMPENSATION IS SUSTAINED.