Hendricks v. United States

210 Ct. Cl. 266, 1976 U.S. Ct. Cl. LEXIS 15, 1976 WL 4729
CourtUnited States Court of Claims
DecidedJune 16, 1976
DocketNo. 161-74; No. 163-74; No. 164-74
StatusPublished
Cited by1 cases

This text of 210 Ct. Cl. 266 (Hendricks 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
Hendricks v. United States, 210 Ct. Cl. 266, 1976 U.S. Ct. Cl. LEXIS 15, 1976 WL 4729 (cc 1976).

Opinions

KtjNzig, Judge,

delivered the opinion of the court:

In these consolidated civilian pay cases, plaintiffs, married female employees of the Panama Canal Government or a Canal Zone office of a United States Government agency, claim they have been deprived by regulation of what is known as an overseas tropical differential allowance. Because the regulations correctly deny plaintiffs’ entitlement to the tropical differential and because we find no abuse of discretion, we hold for defendant.

Plaintiffs’ attack on the denial of the tropical differential •requires scrutiny of the statutory underpinnings of the Canal Zone Government and its wage and employment practices.

In 1912, Congress established a government for the Canal Zone and authorized the President to appoint a governor. Act of Aug. 24, 1912, 37 Stat. 560, 561. Congress also empowered the President to fix compensation of Canal Zone Government employees in an amount not to exceed by more than 25 percent that paid to persons employed by the U.S. Government in the continental United States for the same or similar services. See 2 Canal Zone Code (2 C.Z.C.) § 81(c) (1934).1 President Wilson exercised this authority. Exec. Order No. 1888,7 Pan. Can. Pec. 228 (Feb. 2, 1914).

All U.S. citizens employed in the Canal Zone originally received a tropical differential of 25 percent of their base salary. This practice began in 1914 and continued until 1964. Meanwhile, in 1955, the U.S. and Panama entered into a treaty which granted qualified Panamanian citizens the right [270]*270to equal employment opportunity in U.S. Canal Zone offices. The treaty provided that the same basic wages would be paid to Panamanians as paid to U.S. citizen-employees. However, the agreement permitted U.S. citizens to receive a tropical differential allowance in addition to their base fay. Memorandum of Understandings to Treaty of Jan. 25, 1955, implemented by Act of July 25, 1958, 72 Stat. 405, et seq.

Congress had also empowered the President to delegate his Canal Zone administrative powers. This legislation (codified as 2 C.Z.C. § 155 (1962)) provides:

The President may delegate any authority vested in him by this subchapter [governing Canal Zone administration], and may provide for the redelegation of any such authority. [2 C.Z.C. § 155 (b) (1962) ].

Initially, the President delegated his Canal Zone authority to the Secretary of War. Exec. Order No. 9746, 3 C.F.R. 148 (Supp. 1946). Later, President Eisenhower redelegated it to the Secretary of the Army. Exec. Order No. 10595,3 C.F.E.. 58 (Supp. 1955). Finally, in 1958, the President assigned to the Secretary of the Army the Presidential duties to direct the wage and employment practices of the Canal Zone Government (2 C.Z.C. § 142 (1962))2 and to coordinate the departments engaged in Canal Zone activities by issuing regulations (2 C.Z.C. §155(a) (1962)).3 Exec. Order No. 10794, 3 C.F.R. 76-77 (Supp. 1958). In 1964, the President supplemented Exec. Order No. 10794 by, among other items, per[271]*271mitting the Secretary of the Army to exclude employees from the compensation provisions of the Canal Zone Code (a power now given to the President by 2 C.Z.C. § 142(b) (1) (1962), see note 2, supra). Exec. Order No. 11171, 3 C.F.R. 468 (1965).4

Pursuant to the statutes and Executive Orders, the Secretary of the Army issued various regulations. See 5 C.F.R. § 1201 (1964), now 35 C.F.R. § 253 (1975). One of the provisions reduced the tropical differential (previously set at 25 percent for all employees) to 15 percent for some employees and eliminated it altogether for others. 5 C.F.R. § 1204.12 (Supp. 1966).

This action was immediately questioned. Hendricks v. United States, Ct. Cl. No. 202-68 (filed July 15, 1968). Claimants attacked the 1964 regulations and sought recovery of lost differential pay originating with its denial in October 1966. The parties settled the prior action by agreement on May 7, 1971.5

Perhaps spurred in part by that case, in 1971 the Secretary of the Army altered the Canal Zone regulations covering the tropical differential. The 1971 amendments provided in part:

§ 253.135. Tropical differential.
* ❖ * * *
(b) The tropical differential shall be paid to employees who are U.S. citizens except as provided in the following subparagraphs:
(1) When a U.S. citizen employee is married to another U.S. citizen employee, the differential may be paid to one spouse only.
(2) When a U.S. citizen employee is married .to a person not employed by a department such employee is [272]*272eligible to receive the differential only if such, employee is the member of the family whose job may reasonably be deemed to be the job which determines the location of the family in the area. The spouse of a person serving-in the U.S. military forces in the area shall not be deemed to be a person whose job determines such location.
(3) A child or stepchild of a resident of the Canal Zone or the Republic of Panama who is under 21 years-of age and unmarried is not eligible.
[35 Fed. Reg. 19750-51 (1970) (effective Jan. 10,1971)]..

On April 28,1974, further amendments to the tropical differential regulations became effective. 35 C.F.R. § 253., 135 (b) (2) was altered to provide:

The U.S. citizen employee whose spouse is a member-of a U.S. military service stationed in the area may be-paid the differential only to the extent that the amount of the differential otherwise payable exceeds the amount of the total housing allowance (BAQ plus the housing-portion of the station allowance) established for Panama City, Republic of Panama for a military member having the same rank and family size as the employee’s military spouse. The U.S. citizen employee-whose spouse, by reason of U.S. Government employment in the Republic of Panama, is eligible under the-Department of State Standardized Regulations (Government Civilians, Foreign Areas) (DSSR) for a living quarters allowance (-LQA) may be paid the differential only to the extent the amount of the differential otherwise payable exceeds the amount of LQA established for Panama City, Republic of Panama by-sections 920 and 932.22 of the DSSR for one in the same-quarters group and with the same family size as -the employee’s spouse. [39 Fed. Reg. 13650-51 (1974)].

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Bluebook (online)
210 Ct. Cl. 266, 1976 U.S. Ct. Cl. LEXIS 15, 1976 WL 4729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendricks-v-united-states-cc-1976.