Laurens L. Delano v. The United States

393 F.2d 517, 183 Ct. Cl. 379, 1968 U.S. Ct. Cl. LEXIS 207

Opinions

OPINION

COLLINS Judge

*

Plaintiffs, 12 inspectors of the Immigration and Naturalization Service, seek by this action to recover overtime compensation under the Act of March 2, 1931,¹ in addition to the overtime compensation which has been paid to them under that act for services performed as extra inspectors assisting in the examination of passengers on southbound trains entering the United States from Canada.

Pursuant to an agreement between the Delaware and Hudson Railroad and the United States Immigration and Naturalization Service (hereinafter “Immigration Service”), passengers and crews of trains arriving at Rouses Point are inspected by immigration officers while the train is en route between Montreal, Canada, and Rouses Point, New York. Rouses Point is a designated port of entry for aliens arriving in the United States.²

Under the agreement described above, the railroad furnished the transportation for the immigration officers from Rouses Point to Windsor Station in Montreal, where the officers boarded the train bound for the United States.³

Two trains of the Delaware and Hudson Railroad are involved in these claims. Train No. 35 transported the officers to Montreal, while the southbound train from Montreal to the United States is Train No. 10. Train No. 35 has, throughout the period of these claims, left Rouses Point at about 4:30 p. m. and arrived in Montreal at about 5:45 p. m. Train No. 10 has left Montreal on schedules of 10:10 p. m. or 10:20 p. m., arriving at Rouses Point on schedules of 11:22 p. m. or 11:32 p. m.

Two immigration officers, as their regular daily duties, are assigned to conduct inspections on Delaware and Hudson Train No. 10. Those scheduled tours of duty run from 4 p. m. to 12 midnight. They travel northbound from Rouses Point to Montreal on Train No. 35 for the express purpose of catching Train No. 10 back to Rouses Point. There is usually an interval of 4 hours or more between the arrival in Montreal of Train No. 35 and the departure therefrom of Train No. 10. The officers board Train No. 10 shortly prior to departure and make their examinations of passengers en route to Rouses Point.

Additional officers are assigned to assist the two regularly assigned officers when the southbound trains are expected to carry more passengers than usual. Each of the plaintiffs in this action is an immigration officer who has been so assigned as an extra and who has been required to work after his regularly scheduled tour of duty.

On each occasion of the assignment of extra officers to assist with inspections, the officers regularly assigned were paid for a regular tour of duty, i. e., from 4 p. m. to 12 midnight.

Prior to March 1, 1960, the local officer-in-charge at Rouses Point issued written orders to plaintiffs to report for duty at Rouses Point at the departure time of the northbound train for Montreal, and they were paid overtime from 5 p. m. until the arrival of the southbound train in Rouses Point, or upon completion of the inspection of passengers, whichever was later.

On February 29, 1960, the Assistant Regional Commissioner of the Immigration Service issued to the District Director (in Buffalo, New York) the following directive calling for a change in the payment of overtime charges:

A review of inspection overtime charges for Buffalo District immigrant inspectors, who travel to Canada to inspect train passengers enroute to the United States, discloses that extra compensation under the Act of March 2, 1931 is charged for the time, outside of the basic work week, spent en route to the point where inspection begins in Canada by arrangement with the carrier. In addition, inspectors boarding trains at Rouses Point, New York claim roll-back time from the time they board the train at Rouses Point, New York to proceed to Canada.

There is no authority in the Act of March 2, 1931, nor in A.M. 2818, for paying extra compensation for travel to the point of inspection. Inspectors are entitled to make a claim for extra compensation from the time they are ordered to board the train at the point in Canada where inspection begins, plus any allowable roll-back time up to two hours, as covered in A.M. 2818.07, Section 7.

Your consideration is invited to the well established rule that travel time is not compensable as overtime work. The Comptroller General has been consistent in rulings to this effect on numerous occasions. * * *

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Since the travel time under consideration does not involve actual work and is not performed under arduous conditions, we have no alternative but to advise that payment for the travel time in these circumstances cannot be made and should not be claimed in the future.

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As a result of this directive, plaintiffs were thereafter issued orders to report for duty in Montreal at time of train departure, 10:10 or 10:20 p. m., and were paid overtime for the period of time beginning 2 hours prior to departure from Montreal — not for the period beginning at 5 p. m. — and ending with the time of train release in Rouses Point.

Plaintiffs contend that the change in the method of computing overtime was invalid, and in this action they are suing for that additional overtime compensation from March 1, 1960, for the period between 5 p. m. and 2 hours before departure from Montreal.

To judge the validity of the change in overtime computation, we must examine the statutory and regulatory authority under which it was promulgated.

The basic statute governing overtime compensation for the Immigration Service, the Act of March 2, 1931, ch. 368, § 1, 46 Stat. 1467, as amended, 5 U.S.C. § 342e (1964), provides in pertinent part as follows:

§ 342c. Officers and employees; overtime services; extra compensation ; length of working day.

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 ante-meridian, 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’3 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 post-meridian to eight o’clock antemeridian) and two additional days’ pay for Sunday and holiday duty; * * *

Thus, the statute delegates to the Attorney General the authority to fix a rate of overtime compensation. In a case construing a similar statute⁴ directing the Secretary of the Treasury to “fix a reasonable rate of extra compensation for overtime services,” it was held that the authority to fix a rate of overtime compensation also carried with it very broad discretion in determining what constitutes overtime services. Callahan v. United States, 122 F.2d 216 (D.C.Cir. 1941).

Pursuant to this delegation of authority to the Attorney General, the following regulations (in effect for all times here in issue) prescribing overtime compensation were promulgated as sections 7, 9, and 9a of Part 2818 of the Immigration Service’s Administrative Manual:

Section 7, Time on Duty Except Sundays and Holidays, Definition: Time on duty primarily shall be the actual time spent on inspection. In addition, time shall also be allowed for remaining on duty, as follows: Where two hours or less intervene between completion of an immigration officer’s basic hours and the expected or actual time of an arrival, the beginning of time on duty shall be the time at which the immigration officer’s basic hours of work ceased: Provided, That where these ceased before 5 p. m., the beginning of time on duty shall be at 5 p. m. Where more than two hours so intervene, the beginning of time on duty shall be considered to be the time two hours before the time arrival is expected, but in no ease earlier than 5 p. m. The ending time shall be the time at which the actual inspection was concluded, 8 a. m., or the beginning time of his next basic hours of duty, whichever is earliest. * * *

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Section 9, Inspections Outside the United States, Inclusion: Where at the request of carriers, immigration officers of the Immigration and Naturalization Service board conveyances destined to arrive in the United States, and perform inspection of passengers and crews while enroute, or where inspection is otherwise performed in Canada or Mexico at carrier’s request, extra compensations shall be due hereunder at carriers’ expense. Carriers which are inspected enroute need not be off-schedule when they arrive in order to permit billing, and time spent at the port of arrival may be considered as a part of time on duty. For example, a train is inspected on its trip from Canada to the United States. It leaves Canada at 8 p. m. and arrives in the United States at 9:15 p. m. Inspection is completed at 9:45 p. m., one-half hour after arriving on scheduled time. The billable period is from 6 p. m. to 9:45 p. m.

Section 9a, Willingness of Carriers to Pay: Billing is proper only where the carriers have agreed to these arrangements in preference to having all of the inspection performed at the port of entry, or where they otherwise benefit from such arangements.

We note at the outset that both the Act of March 2, 1931, and section 7 of the Manual stipulate that no overtime shall be paid for services rendered prior to 5 p. m. This explains why, prior to March 1,1960, plaintiffs’ overtime period commenced at 5 p. m. and why, in this action, plaintiffs do not seek overtime compensation for any period prior to 5 p. m. As to plaintiffs’ entitlement to overtime compensation for the period between 5 p. m. and 2 hours prior to departure from Montreal at 10:10 or 10:20 p. m., we conclude that none of the above-cited regulations govern or are applicable to the situation existing here.

In section 7, the Attorney General has defined overtime services in terms of “time on duty.” The basic premise of the section is that “[t]ime on duty primarily shall be the actual time spent on inspection.” However, the section also allows overtime compensation for “remaining on duty” by providing that where more than 2 hours intervene between “completion of an immigration officer’s basic hours and the expected or actual time of an arrival, * * * the beginning of time on duty shall be considered to be the time two hours before the time arrival is expected * * (This 2-hour allowance is often referred to as a “rollback” allowance.)

This section quite obviously contemplates the usual situation of an immigration officer who, after finishing his regular duty hours at an inspection station in the United States, remains on duty to await the arrival of a later train at that inspection station. One may speculate as to the considerations which might have led to the Attorney General’s decision as expressed in section 7) to allow only a 2-hour rollback. If the interval between the completion of regular duty and the arrival of the new train is great, it is usually simple enough for the officer to leave the inspection station and go home to eat, or whatever else he may care to do, and still arrange to get back to the inspection station shortly before arrival time. The 2-hour rollback would ordinarily compensate the officer for any added inconvenience and would give him time to pick up his gear, get ready for the arrival, etc.

At any rate, section 7, concerned as it is with inspections at stations in the United States, gives no consideration to what constitutes time on duty for officers who, at the request of carriers, board trains outside the United States after their regular duty hours in order to conduct inspections en route to the United States. Section 9 does deal specifically with this situation, but it still fails to answer the problem presented in the instant case. In providing that “extra compensations shall be due hereunder at carriers’ expense,” section 9 states only that “time spent at the port of arrival may be considered as a part of time on duty.” The section gives an example of a situation in which a train leaves Canada at 8 p. m., arrives in the United States at 9:15 p. m., and inspection is completed at 9:45 p. m. In such a case, the section provides, “[t]he billable period is from 6 p. m. to 9:45 p. m.”

Of course, the fact that time spent at the port of arrival in the United States “may be considered as a part of time on duty” does not mean that time spent in Canada prior to the arrival of the southbound train cannot be so considered. In other words, that language is permissive and does not prohibit what the plaintiffs are seeking.

The fact that the example in section 9 allows a 2-hour rollback from the time the Canadian train leaves is also inconclusive. The example only states that the train leaves Canada at 8 p. m., but it does not consider how or when the officers get to Canada. It is most likely directed to the usual situation in which the officers are free to choose a means of transportation to suit their own convenience and can arrange to arrive in Canada shortly before departure time of the southbound train. Had this been true for plaintiffs, they would clearly be covered by section 9. However, as will be explained in further detail, plaintiffs, having only one practical means of transportation available to them, traveled at the convenience of the railroad and arrived in Canada many hours before the departure of the southbound train. Section 9 does not purport to deal with such a situation, and thus it is silent as to the precise question before the court.

Therefore, we conclude that neither the basic statute nor the regulations of the Attorney General (sections 7 and 9 of the Immigration Service’s Administrative Manual) explicitly or necessarily required the change in overtime computation and the resulting denial of overtime compensation for the time periods claimed by plaintiffs. The issue then narrows down to the question of whether the directive of the Assistant Regional Commissioner ordering such change was a reasonable interpretation of the statute and the regulations of the Attorney General. We conclude that it was not.

Of primary importance to our conclusion is the long-standing administrative construction given to this statute. One of the plaintiffs testified that he had been paid overtime under the old method of computation ever since he became an inspector at Rouses Point — October 1944. Thus, it is reasonable to assume that for over 15 years all interested parties (the Immigration Service, the railroad, and the officers) interpreted the overtime statute as treating officers in plaintiffs’ positions as on duty from 5 p. m. until the release of southbound Train No. 10 at Rouses Point.

It is a well-established rule of statutory construction that courts pay great deference to an administrative construction consistently maintained by the agency charged with its administration. Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); Udall v. Tallman, 380 U.S. 1, 15, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); and Ganse v. United States, 376 F.2d 900, 904, 180 Ct.Cl. 183, 189 (1967). Where the contemporaneous administrative construction of a law is reasonable and not opposed to the language of the statute, it should be followed. Schellfeffer v. United States, 343 F.2d 936, 942, 170 Ct.Cl. 178, 187 (1965).

Since the Immigration Service, prior to 1960, had consistently read the Act of March 2, 1931, in the manner here contended for by plaintiffs, and since that construction was and is reasonable, the court will adhere to that construction.

A strong indication of the reasonableness of that construction is the fact that the railroad never challenged it, for under section 9 it is the railroad which bears the ultimate cost of this arrangement.

Also, the railroad must have considered it to its benefit to have plaintiffs inspect en route from Canada to the United States because section 9a provides that “Milling is proper only where the carriers have agreed to these arrangements in preference to having all of the inspection performed at the port of entry, or where they otherwise benefit from such arrangements.” This is relevant in terms of the overall position in which plaintiffs were placed. After a full day’s work, usually ending at 4 p. m., plaintiffs were told they must go to Montreal, for the convenience of the railroad. It would not have been practical for plaintiffs to have driven there, since they would have had no way to get their ears back to Rouses Point. Therefore, plaintiffs traveled to Montreal by the only available means of transportation which would get them there in time — Train No. 35. As mentioned above, this train left Rouses Point at about 4:30 p .m. and arrived in Montreal at about 5:45 p. m. Thus, plaintiffs, having already put in a full day's work, found themselves traveling to Montreal for the benefit of, and at the convenience of, the railroad, with no alternative but to leave at 4:30 p. m.

These facts distinguish the instant case from the cases cited by defendant,⁵ which hold that travel time alone, to and from work stations, does not entitle a Federal employee to overtime compensation. Travel time can usually be arranged to fit the employee’s schedule and convenience, so that all that is involved is a loss of the actual time spent traveling, a loss which all commuters bear.

For plaintiffs, taking Train No. 35 and arriving in Montreal four or more hours before the arrival of the southbound train are duties practically inseparable from plaintiffs’ inspection duty. The contemporaneous construction of the agency treating plaintiffs as on duty from 5 p. m. seems very reasonable under the above set of facts. It is certainly entitled to more weight than the Assistant Regional Commissioner’s 1960 directive, which abruptly overruled many years of operating under this construction and peremptorily directed that plaintiffs could no longer be paid for this time, even though there had been no change in the underlying facts or in plaintiffs’ working conditions.

Further evidence of the reasonableness of the contemporaneous construction of the statute is the fact that customs inspectors stationed at Rouses Point, who departed for Montreal on the same train as plaintiffs and who performed inspec-tional services on the southbound trains just as plaintiffs did, were (and still are) paid overtime compensation beginning at 5 p. m. under the comparable Customs Service Act.⁶ This court has often considered the analogy between the Immigration Service and the Customs Service and has concluded that the purpose of the 1931 Immigration Service Act, quoted supra, was to put immigration inspectors on equal footing with customs inspectors. Bishop v. United States, 355 F.2d 617, 620, 174 Ct.Cl. 31, 38 (1966).

In Bishop, the court (174 Ct.Cl. at 38-39, 355 F.2d at 621) quoted with approval a Senate Committee on Immigration Report on the 1931 act:

One of the best reasons for favoring this legislation is that for many years the customs employees have had a similar overtime provision to that proposed in this bill, while the immigration officers working side by side with them in the performance of their duties have been, so far, discriminated against. [S.Rep.No.1720, 72d Cong., 1st Sess. (1931).]

We agree that this accurately states the purpose of the 1931 act. The relevant language of the Customs Service Act is almost identical to the language of the 1931 act in that it provides that the Secretary of the Treasury “shall fix a reasonable rate of extra compensation for overtime services of * * * employees who may be required to remain on duty between the hours of five o’clock postmeridian and eight o’clock antemeridian * * 19U.S.C. §:267 (1964).

No reason has been suggested why this language should be interpreted one way for plaintiff-immigration officers and another way for similarly situated customs officers. That would defeat the purpose of the 1931 act. This consideration buttresses our conclusion that the original administrative interpretation was a reasonable one because it was consistent with the interpretation of the Customs Service Act.

Furthermore, the facts show that plaintiffs did perform certain duties prior to departure from Montreal. When called for overtime service, plaintiffs reported to headquarters at Rouses Point at about 4 p. m. to obtain their working equipment, update their alien “lookout” book, and familiarize themselves with current directives. On the northbound trip to Montreal, plaintiffs, like the regular immigration officers, were in uniform⁷ and were available to answer any inquiries by passengers or Canadian officials relative to immigration matters. United States forms collected by Canadian officials were also turned over to plaintiffs during this trip northbound. After depositing their train bags at their office at the Montreal station, plaintiffs and the regular officers generally had dinner out, and then returned to the office and made themselves available to preinspect any passengers entering the United States on Train No. 10 and to answer any inquiries. This advance inspection in the station shortened the processing time required on board train and thus may have avoided the detention of the train in Rouses Point pending completion of inspection, or at least shortened the time for such detention. We need not consider whether these duties were enough to have prevented an original determination by the Service that plaintiffs were not on duty. For our purposes, it is enough to note that these duties do affirm the reasonableness of the original and long-standing administrative interpretation that plaintiffs were on duty. See Zemel v. Rusk, supra, and Udall v. Tallman, supra.

A final important factor confirming the reasonableness of that original interpretation is the fact that the two regular immigration officers, whom plaintiffs assisted, were paid for a regular tour of duty; i. e., from 4 p. m. to 12 midnight. If the Immigration Service considered those officers in duty status, how could it not similarly consider plaintiffs? The plaintiffs followed the same schedule as the regular officers and did exactly the same work. The only difference between the two groups of officers is that generally plaintiffs had already worked a regular tour of duty, so they were in an overtime status in the performance of the duties at issue in this case.

In light of this fact, as well as the other factors mentioned supra, it is little wonder that for so many years everyone concerned — the Immigration Service, the railroad, and plaintiffs themselves — operated under the assumption that plaintiffs were in a duty status after 5 p. m. As stated throughout this opinion, that was a very reasonable interpretation of the Act of March 2, 1931, and of the regulations of the Attorney General.

In summary, we find that plaintiffs were in the performance of their duties during the period of time after 5 p. m. on each of the days involved in this action and were entitled to recover overtime pay accordingly under the Act of March 2, 1931. In view of the longstanding and reasonable administrative interpretation to this effect prior to 1960, the 1960 directive of the Assistant Regional Commissioner, changing plaintiffs’ duty status, was an invalid interpretation of the Act of March 2, 1931, and of the regulations of the Attorney General.

Liability having been decided, the parties have stipulated the following amount of recovery due each plaintiff for the period extending from March 1, 1960, to June 15, 1965 (the date of completion of the trial):

1. Laurens L. DeLano ---- $403.48

2. Samuel M. Dickson---------------------------- 619.60

3. James W. Hudson ---------------------------- 304.72

4. Wilbur A. Jennings -------------------------- 686.08

5. William Kodl ________________________________ 813.44

6. Emil J. Mayer-------------------------------- 460.24

7. R. W. McPheeters ____________________________ 467.28

8. Truman O. Murray -------------------------- 368.80

9. John J. O’Loughlin---------------------------- 588.72

10. Russell G. Pilger------------------------------ 489.44

11. Leonard Roth, Jr. ____________________________ 156.76

12. Wilfred C. Viens______________________________ 333.20

The parties jnay resolve before the commissioner the question of whether any additional amounts are due by reason of continuing claim. Therefore, judgment is entered for plaintiffs with the determination of the amounts of recovery reserved for further proceedings under Rule 47(c).

This case was referred to Commissioner W. Ney Evans, pursuant to Rule 57(a), for findings of fact and recommended conclusion of law. The court agrees with both, and both, with added discussion, are made a part of this opinion.

1

. Chapter 368, 46 Stat. 1467 (1931), as amended, 5 U.S.C. § 342e (1964).

2

. All plaintiffs but one were stationed at Rouses Point during the periods for which they seek compensation. Plaintiff James W. Hudson was stationed at St. Albans, Vermont, which is also a designated port of entry for aliens.

3

. A similar agreement between the Immigration Service and the Central Vermont Railway, Inc., provides inspection while the train is en route between Montreal and St. Albans.

Since the legal principle is identical, wo will assume, in the opinion, that all plaintiffs were stationed at Rouses Point.

4

. Act of February 13, 1911, ch. 46, § 5, 36 Stat. 901, as amended, 19 U.S.C. § 267 (1964).

5

. Biggs v. United States, 287 F.2d 908, 152 Ct.Cl. 545 (1961); Ahearn v. United States, 142 Ct.Cl. 309 (1958).

6

. Act of February 13, 1911, ch. 46, § 5, 36 Stat. 901, as amended, 19 U.S.C. § 267 (1964).

7

. Defendant complains that plaintiffs were not required to be in uniform. However, considering the fact that they were in uniform when they finished duty at 4 p. m. and had to be in uniform on the southbound train from Montreal, it is more reasonable to expect them to be in uniform the whole time than it is to expect them to make two unnecessary changes of clothes. At any rate, plaintiffs were in uniform because they considered themselves to be on duty.