DeCosta v. United States

23 Cl. Ct. 582, 30 Wage & Hour Cas. (BNA) 825, 1991 U.S. Claims LEXIS 324, 1991 WL 141009
CourtUnited States Court of Claims
DecidedJuly 30, 1991
DocketNo. 721-88C
StatusPublished
Cited by1 cases

This text of 23 Cl. Ct. 582 (DeCosta 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
DeCosta v. United States, 23 Cl. Ct. 582, 30 Wage & Hour Cas. (BNA) 825, 1991 U.S. Claims LEXIS 324, 1991 WL 141009 (cc 1991).

Opinion

OPINION

BRUGGINK, Judge.

This is an action brought under certain provisions of the Federal Employees Pay Act (“Title 5”). 5 U.S.C. §§ 5542, 5545, 5546 (1988). As firefighters, plaintiffs presently receive standby premium pay in lieu of other types of premium pays. 5 U.S.C. § 5545(c)(1); 5 C.F.R. § 550.141 (1990). They contend that the amount of pay they would otherwise receive for dif[583]*583ferent types of premium pay is greater than the standby premium pay they presently receive, and that therefore, pursuant to 5 C.F.R. § 550.142, they should be getting those other premium pays, and not standby pay.

Trial was held on the question of the amount of time during which plaintiffs regularly perform actual work in excess of an eight-hour workday. The court found that plaintiffs currently work 4 hours and 40 minutes of actual work beyond 8 hours per day, and that 2 hours and 40 minutes of this work is nighttime work. 22 Cl.Ct. 165, 177 (1990). The court directed the parties to determine whether, in accordance with section 550.142(a), plaintiffs received more by way of an annual premium pay for regularly scheduled standby duty than the premium pay they would otherwise receive under the individual Title 5 premium statutes. The court also directed the parties to determine the amount of plaintiffs’ recovery if the Government has improperly compensated plaintiffs in accordance with section 550.142.

Plaintiffs submitted calculations to defendant regarding the Government’s liability and the amount of damages, as well as a document titled, Plaintiffs' Methodology Regarding Calculation of Damages. Defendant’s counsel raised two objections to plaintiffs’ analysis and calculations, and the court allowed the parties to brief the following: (1) whether, for purposes of determining liability and for purposes of determining damages, the premium for daily overtime hours up to the fortieth hour of work in a week should be calculated at one and one-half times or at one-half times each plaintiff’s hourly rate of basic pay, capped at GS-10, Step 1; and (2) if liability attaches under the individual premium pay statutes, whether defendant was entitled to apply the two-thirds rule in lieu of calculating the time plaintiffs spent eating and sleeping for purposes of overtime calculation under section 5542.

For the reasons set forth below, the court holds that plaintiffs’ premium for daily overtime hours up to the fortieth hour of work in a week should be calculated at one-half times their hourly rate of basic pay when they have already received basic pay for those same hours. Using this method of calculating overtime compensation, the court finds that the standby pay plaintiffs currently receive is greater than the amount they would have received under the individual premium statutes. Since liability does not attach under the individual premium pay statutes, it becomes unnecessary to address the second issue.

I. FACTUAL BACKGROUND

Plaintiff James E. DeCosta has been employed as a firefighter since 1975. DeCos-ta was promoted to the civilian position of Assistant Chief for Operations for Andrews Air Force Base (“AAFB") Fire Department on August 22, 1982. Plaintiff claims that he has been improperly compensated for this work since December 13, 1982 until the present.

Plaintiff Vinson D. Thomas has been employed by defendant as a firefighter since 1969. Thomas was promoted to Assistant Chief for Operations for AAFB Fire Department on November 27, 1983. Thomas claims he has been improperly compensated for the work he has done since his promotion to Assistant Chief until the present.

Both Assistant Chief DeCosta and Assistant Chief Thomas are at Grade 10, Step 7 on the General Schedule (“GS”) and earn an annual basic rate of pay of $32,648. On a weekly basis plaintiffs have received basic pay computed by dividing the annual basic pay by 2,087 hours pursuant to 5 U.S.C. § 5504(b) and by multiplying that amount by the number of hours worked. In addition to their basic pay, plaintiffs have also received from the date of their promotion to Assistant Chief “standby premium pay” in the amount of 25 percent of their rate of basic pay (calculated at a rate of GS-10, Step 1) pursuant to 5 U.S.C. § 5545(c)(1).

Plaintiffs currently work 3 alternating 24-hour shifts per week, resulting in a 72-hour tour of duty.1 22 Cl.Ct. at 168. Dur[584]*584ing each 24-hour shift, plaintiffs perform 12 hours and 40 minutes of actual work per day (8 hours of regular work and 4 hours and 40 minutes of overtime, of which 2 hours and 40 minutes are performed within the nighttime differential period). Id. at 177. Thus, plaintiffs currently perform 38 hours of actual work per week.

II. STATUTORY BASIS FOR PLAINTIFFS’ CLAIMS

Five different types of premium pay are authorized by 5 U.S.C. Ch. 55, Subchapter V and 5 C.F.R. Part 550, Subpart A (1990): 5 U.S.C. § 5542 (overtime), 5545(a) (nighttime work), 5546(a) (Sunday work), 5546(b) (holiday work), and 5545(c)(1) (standby pay). Standby premium pay is allowed in lieu of rather than in addition to the other premium pays. The statutory authorization for standby premium pay states in relevant part:

(c) The head of an agency, with the approval of the Office of Personnel Management may provide that—
(1) an employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter____ Premium pay under this paragraph is determined as an appropriate percentage not in excess of 25 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS-10 ... by taking into consideration the number of hours of actual work required in the position, the number of hours required in a standby status at or within the confines of the station, the extent to which the duties of the position are made onerous by night, Sunday, or holiday work, or by being extended over periods of more than 40 hours a week, and other relevant factors____

5 U.S.C. § 5545(c)(1).

The statute is expressed in regulatory terms at 5 C.F.R. § 550.141. That section provides in relevant part:

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Related

James E. Decosta, Vinson D. Thomas v. The United States
987 F.2d 1556 (Federal Circuit, 1993)

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Bluebook (online)
23 Cl. Ct. 582, 30 Wage & Hour Cas. (BNA) 825, 1991 U.S. Claims LEXIS 324, 1991 WL 141009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/decosta-v-united-states-cc-1991.