Bowser v. United States

215 Ct. Cl. 168, 1977 U.S. Ct. Cl. LEXIS 125, 1977 WL 5320
CourtUnited States Court of Claims
DecidedDecember 14, 1977
DocketNo. 176-75
StatusPublished
Cited by5 cases

This text of 215 Ct. Cl. 168 (Bowser 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
Bowser v. United States, 215 Ct. Cl. 168, 1977 U.S. Ct. Cl. LEXIS 125, 1977 WL 5320 (cc 1977).

Opinion

Nichols, Judge,

delivered the opinion of the court:

Plaintiffs in this civilian pay case are ten immigration inspectors, presently or formerly employed by the Immigration and Naturalization Service, claiming compensation for overtime and standby time in addition to overtime already paid to each of them, for the period from May 23, 1969 until February 15, 1974. Throughout this period plaintiffs were assigned to the Immigration suboffices at Port Everglades and West Palm Beach, Florida. Prior to May 12, 1965, their duties consisted primarily of conducting inspections of aliens seeking admission to the United States at these ports of entry.

On May 12, 1965, the Immigration and Naturalization Service and the United States Bureau of Customs adopted [170]*170a joint inspections procedure modifying plaintiffs’ duties. The object was to conserve person power (we presume manpower is a taboo word) by mutual assumption of one another’s inspectional duties. In addition to their usual tasks as immigrations inspectors, under the new procedure plaintiffs were also required to conduct customs inspections for all commercial vessels and yachts entering the United States between 5:00 p.m. and 8:00 a.m., and on weekends and holidays. It is stated that private yachts, particularly, were —ften —uilty of arriving with short advance radio notification or none at all. Inspectors were scheduled to perform these dual inspections on a rotating basis. In conjunction with overtime inspections, they were also required to serve standby duty at their homes prepared to receive telephone notice of a need for their services, and to depart, at once or nearly, to the port of entry for the purpose of inspecting arriving vessels and aliens. Only four individuals were available for this duty at each port, and, consequently, each plaintiff was on standby duty at least 25 percent of each year. Plaintiffs state that standby duty was obligatory and interfered substantially with their family and social lives. Without disputing about semantics, —e call this duty of awaiting telephone calls standby duty because plaintiffs do. In view of the result we reach, we state the facts according to plaintiffs’ version.

Defendant has offered evidence to the effect that because of the lucrative nature of the overtime income, inspectors were far from reluctant to be available for overtime inspections. A Deputy District Director for the Immigration and Naturalization Service stated that in many ports the inspection officers were free to work out overtime arrangements among themselves, and were not subject to a directive that particular individuals be available at specific times. Plaintiffs assert, and we assume, that the scheduling and posting of names and hours for awaiting calls was a function performed by management.

Although there is some controversy as to whether standby and overtime duties were truly mandatory, we will accept plaintiffs’ assertion that these duties were not assigned on a voluntary basis. Even so, under existing law, [171]*171we cannot order further premium compensation for plaintiffs.

Plaintiffs have been amply compensated for their overtime duty under the terms of 8 U.S.C. § 1353a, which pertains specifically to employees of the Immigration and Naturalization Service, and provides, in pertinent part:

The Attorney General shall fix a reasonable rate of extra compensation for overtime services of immigration officers and employees of the Immigration and Naturalization Service who may be required to remain on duty between the hours of five o’clock postmeridian and eight o’clock antemeridian, or on Sundays or holidays, to perform duties in connection with the examination and landing of passengers and crews of steamships, trains, airplanes or other vehicles, arriving in the United States from a foreign port by water, land, or air, such rates to be fixed on a basis of one-half day’s additional pay for each two hours or fraction thereof of at least one hour that the overtime extends beyond five o’clock postmeridian (but not to exceed two and one-half days’ pay for the full period from five o’clock postmeridian to eight o’clock antemeridian) and two additional days’ pay for Sunday and holiday duty; * * *.

By guaranteeing that inspectors will be paid at least double their normal hourly wage for inspections performed outside of office hours, section 1353a effects a generous system of phantom hours for those employees called upon to conduct inspections at irregular, and perhaps inconvenient, times. An employee who works, for example, two hours or any fraction thereof during the designated hours, is paid for a half-day; if he works three hours, or up to four hours, he is paid for a full days’ work. In other words, for every two hours he works, he is paid for another two hours which in reality he did not work. Hence, the term "phantom” hours. To illustrate the level of compensation of plaintiffs pursuant to section 1353a, overtime and total pay for the year 1973 was as follows:

[172]*172 Regular Salary Overtime Salary Total

Bowser $15,155.20 $17,139.57 $32,294.77

Carter 15.504.80 17,577.03 33,081.83

Cockerel 11.666.40 17,279.61 28,946.01

Grimm 14.553.60 16,206.56 30,505.54

Harvin 13.798.80 21,445.45 34,658.25

Kile 10,164.48 13,798.91 23,963.39

McHugh 18.265.60 23,013.14 41,278.74

Ryals 15.097.60 22,788.98 37,886.58

Smith 14.382.40 17.259.41 31,641.81

Turner 15,155.20 17.564.41 32,719.61

Presumably, this liberal feature is intended in some measure to recompense for the disruption of the home lives of officers who must be available for and report to duty at unusual hours. At least, such disruption is commonly urged as justifying it. The question presented to this court is whether plaintiffs, who have already been paid under section 1353a for hours at the duty station, can recover any further amounts under other statutes pertaining to government employees.

The general provisions governing premium pay for federal employees are contained in subchapter V of 5 U.S.C. §§ 5541-49. Section 5542 sets forth the overall scheme for overtime pay by providing that work in excess of the basic 40 hour workweek shall be compensated at an hourly rate equal to one and one-half times the hourly rate of basic pay of the employee. Section 5545 establishes a pay differential for night, standby, Sunday, irregular, and hazardous duty. Section 5549 precludes any employee from obtaining overtime, or premium, pay, under subchapter V for services for which he has already been compensated under 8 U.S.C. § 1353a. Insofar as relevant, the texts of these provisions are contained in the Appendix following this opinion.

Plaintiffs fix their sights primarily on the § 5545 differential for standby and irregular time. When this is made applicable, no attempt is made to record or calculate the actual hours worked and instead an addition is made to [173]*173the basic annual salary at an arbitrary rate, not in excess of 25 percent. They say that management abused its discretion in not fixing such a rate for them. They focus less on the time and a half rate under § 5542(a).

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Bluebook (online)
215 Ct. Cl. 168, 1977 U.S. Ct. Cl. LEXIS 125, 1977 WL 5320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowser-v-united-states-cc-1977.