Barth v. United States

568 F.2d 1329, 215 Ct. Cl. 383, 1978 U.S. Ct. Cl. LEXIS 10
CourtUnited States Court of Claims
DecidedJanuary 25, 1978
DocketNo. 349-74
StatusPublished
Cited by1 cases

This text of 568 F.2d 1329 (Barth v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barth v. United States, 568 F.2d 1329, 215 Ct. Cl. 383, 1978 U.S. Ct. Cl. LEXIS 10 (cc 1978).

Opinion

Kunzig, Judge,

delivered the opinion of the court:

This civilian pay case is before the court on cross-motions for summary judgment. Jack E. Barth and William Levine (plaintiffs), civilian employees of the Department of the [385]*385Navy, were, for a period of time, directed to report to a test site some 40 miles away from their assigned duty station. They claim entitlement to overtime and night differential pay for time spent in travel status between the duty station and the test site (i.e., driving time each duty day prior to reaching the site for a regular work shift and again upon the conclusion of the shift). The general rule is that travel time is not considered hours of employment. We hold that the facts of this case do not bring plaintiffs’ travel within the peculiar language of the narrowly drawn statutory exception to this rule.

This suit covers a period of time, commencing in 1971 and continuing through 1972, during which the plaintiffs were directed by the Navy to observe, monitor and evaluate the results of tests on a weapons system which were being conducted by the Sperry Rand Company under a contract with the Government. Throughout the time in question, plaintiffs traveled between Great Neck, New York (the duty station) and Ronkonkoma (the test site). Plaintiffs reported routinely to Ronkonkoma, according to a schedule prepared in advance, where they worked regular shifts either from 8:00 AM to 4:30 PM or from 4:00 PM to 12:30 AM. That regular schedule was maintained without variance though sometimes, of course, plaintiffs were required to remain later and, on rare occasion, arrive earlier; in such instances they received overtime pay for the additional time actually spent at the test site.

Plaintiffs were, as a rule, provided with free use of a Government car for the trip and when one was not available, plaintiffs received transportation allowances and reimbursable expenses. Plaintiffs also received per diem allowances every time they went to Ronkonkoma. In this manner, apart from salaries and use of Government transportation, each plaintiff was paid in excess of $800.

In addition to the allowances and expenses already received, Barth and Levine seek overtime and night differential for that time spent in travel status to and from Ronkonkoma.1 Plaintiff Barth sought to have his travel [386]*386time reclassified as hours of employment in a claim which was rejected by the General Accounting Office on April 23, 1973. Plaintiff Levine made a similar claim to the Naval Plant Representative Office at Great Neck, and it was similarly rejected in November 1973.

Plaintiffs filed their petition in this court on September 25, 1974. The pay claim (amounting to more than $2000 each) is based on the Federal Employees Pay Act of 1945, as amended. 5 U.S.C. § 5542 and § 5545 (1970). Section 5542 establishes overtime pay rates and sets up both the general rule re travel time and its exceptions. The specific portion of the Act which governs this case is 5 U.S.C. § 5542(b)(2)(B)(iv)(1970)2 (the statutory exception).

The Government argues that travel time is generally not compensable. The only circumstances in which time spent in travel status may be counted as hours of employment are those provided for by Congress in the statutory exception. The relevant exception requires that the travel result "from an event which could not be scheduled or controlled administratively.” 5 U.S.C. § 5542(b)(2)(B)(iv) (emphasis added). Defendant contends that the work shift certainly was scheduled administratively throughout the period in question and further maintains that the testing "event” itself was at least partially controlled administratively. The Government concludes that plaintiffs simply do not fit under the statutory exception and that plaintiffs’ claim must, therefore, be denied.

[387]*387Plaintiffs respond by focusing attention on the Sperry Rand Company, the private contractor which actually performed the tests. Plaintiffs’ view is that, where a private contractor runs the testing, as in this case, "control” of the "event” necessarily passes out of the hands of the agency. According to this view, plaintiffs assert that their travel time qualifies as hours of employment since it results from an event not "controlled administratively.”

After fully considering plaintiffs’ contentions, we nonetheless hold for defendant. Our starting point is the proposition that travel which has no purpose other than to transport an employee to and from the place where he is to perform his duties is not work and is not compensable as overtime, e.g., Ayres v. United States, 186 Ct. Cl. 350 (1968); Biggs v. United States, 152 Ct. Cl. 545, 287 F.2d 908 (1961); Ahearn v. United States, 142 Ct.Cl. 309 (1958), cert. denied, 364 U.S. 932 (1961).3 That basic rule is currently reflected in the Federal Employees Pay Act, 5 U.S.C. § 5542(b)(2) and is subject only to those exceptions now codified at § 5542(b)(2)(A) and (B). The ground rules long established continue to apply; plaintiffs, if they are to recover, must come within a statutory exception. Plaintiffs do not do so here.

The work shifts at Ronkonkoma were scheduled administratively. Plaintiffs traveled to and from the test site over periods of several weeks. The starting and finishing times of their duty shifts were set by the Navy and remained constant. The contractor advised the Navy sufficiently in advance of any test phase so that the Navy was able to schedule personnel on monitoring shifts. Such scheduling of plaintiffs’ travel was predictable and planned by the agency. It is beyond question that plaintiffs’ travel was in response to a wholly foreseeable directive and that they, in fact, went to work at the same place at the same time over a period of weeks and months. In this regard they were much like any other commuters and certainly not within the "could not be scheduled” portion of the statute upon which they must rely.

[388]*388Turning to the "could not be controlled” portion of the statute, we agree with defendant that this case presents a middle situation with respect to control of the testing "event.” While this is not an instance of total control by the Government, neither is it one where there is a total lack of Government control (which the exception requires). This is, instead, an intermediate case where the agency shares control with the contractor and exercises its control indirectly.

It is clear that the testing "event” was administratively controllable to some extent. Plaintiffs make much of defendant’s admission that the scheduling of the tests may not have been "technically” within the Government’s control because the testing was actually performed by the contractor. Even so, the testing remained controllable by the Government in certain essential aspects. The testing was conducted by Sperry Rand under contract with the Government.

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Abrahams v. United States
1 Cl. Ct. 305 (Court of Claims, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
568 F.2d 1329, 215 Ct. Cl. 383, 1978 U.S. Ct. Cl. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barth-v-united-states-cc-1978.