B-74607, DEC. 18, 1962

B-74607, DEC. 18, 1962

TO MR. STEPHEN J. TEICHNER:

YOUR LETTER OF OCTOBER 30, 1962, REQUESTS REVIEW OF OUR SETTLEMENT OF AUGUST 14, 1962, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR "STANDBY DUTY" PERFORMED DURING 15 TWO-WEEK PERIODS IN 1960, 1961, AND 1962, AS AN EMPLOYEE OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE. YOU ALSO SUBMIT AN ADDITIONAL CLAIM FOR SUCH COMPENSATION FOR 5 TWO-WEEK PERIODS DURING THE YEAR 1962.

THE RECORD SHOWS YOU ARE EMPLOYED AS AN IMMIGRANT INSPECTOR WITH THE IMMIGRATION AND NATURALIZATION SERVICE. YOU SAY THE ADMINISTRATIVE DIRECTIVES REQUIRED YOU TO REMAIN IN AN ON-CALL STATUS AT YOUR HOME DURING OFF-DUTY HOURS BETWEEN 5 P.M. AND 8 A.M. FOR THE PERIODS IN QUESTION. DURING THE PERIODS INVOLVED YOU SAY YOU WERE IN AN ON-CALL STATUS FOR 2,330 HOURS OR AN AVERAGE OF 58 HOURS PER WEEK.

YOU CONTEND THAT ALTHOUGH YOU PERFORMED NO OFFICIAL DUTIES WHILE IN AN ON -CALL STATUS YOU WERE REQUIRED TO BE ON A TELEPHONE ALERT STATUS AT YOUR HOME DURING SUCH OFF-DUTY HOURS. YOU SAY THIS WAS NECESSARY BECAUSE YOU HAD TO BE AVAILABLE FOR TELEPHONE CONTACT FOR UNSCHEDULED AND EMERGENCY ARRIVALS OF SHIPS, PLANES, OR OTHER VEHICLES ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND, OR AIR AND TO IMMEDIATELY REPORT TO YOUR DUTY STATION TO PERFORM OFFICIAL DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS.

UNDER SECTION 401 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 208 (A) OF THE ACT OF SEPTEMBER 1, 1954, PUBLIC LAW 763, 68 STAT. 1111, PREMIUM COMPENSATION MAY BE ALLOWED TO AN EMPLOYEE IN A POSITION WHICH REGULARLY REQUIRES THE EMPLOYEE "TO REMAIN AT, OR WITHIN THE CONFINES OF, HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL AMOUNT OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS.'

SEE ALSO THE REGULATIONS APPEARING IN SECTION 25.253 OF CHAPTER Z-1 327 OF THE FEDERAL PERSONNEL MANUAL, ISSUED PURSUANT TO SECTION 401 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

ALTHOUGH YOU SAY YOU WERE SUBJECT TO A TELEPHONE ALERT AT YOUR HOME DURING THE PERIODS IN QUESTION, THE EVIDENCE PRESENTED DOES NOT SHOW THAT YOUR RESIDENCE WAS DESIGNATED ADMINISTRATIVELY AS YOUR OFFICIAL DUTY STATION OR THAT STANDBY OR ON-CALL TIME WAS INCLUDED IN YOUR REGULAR SCHEDULED TOUR OF DUTY. FURTHERMORE, WE FIND NO REQUIREMENT IN THE ADMINISTRATIVE OVERTIME DIRECTIVES THAT RESTRICTED YOU TO THE CONFINES OF YOUR RESIDENCE DURING THE PERIODS COVERED BY YOUR CLAIM, OR THAT YOU WERE REQUIRED TO PROVIDE INFORMATION TO THE ADMINISTRATIVE OFFICIALS AS TO HOW OR WHERE YOU COULD BE CONTACTED.

THE REPORT RECEIVED FROM THE IMMIGRATION AND NATURALIZATION SERVICE SHOWS THAT THE ADMINISTRATIVE REGULATIONS PRESCRIBE THAT TIME ON DUTY OUTSIDE THE REGULAR DUTY HOURS PRIMARILY SHALL BE THE ACTUAL TIME SPENT ON INSPECTION. FURTHERMORE, THE REPORT SHOWS THAT INSPECTION DUTIES WERE NOT PERFORMED BY YOU DURING THE PERIODS OF SUCH STANDBY TIME. PRESUMABLY, YOU HAVE BEEN PAID OVERTIME COMPENSATION FOR ALL TIME ACTUALLY SPENT ON OFFICIAL INSPECTION DUTIES DURING THESE PERIODS.

ON THE BASIS OF THE RECORD BEFORE US, WE KNOW OF NO PROPER BASIS UPON WHICH TO AUTHORIZE PAYMENT OF ADDITIONAL COMPENSATION TO YOU FOR THE 20 TWO-WEEK PERIODS DURING 1960, 1961, AND 1962. THEREFORE, UPON REVIEW, THE DISALLOWANCE OF YOUR CLAIM MUST BE, AND IS, SUSTAINED.