Qualls v. United States

678 F.2d 190, 230 Ct. Cl. 534, 25 Wage & Hour Cas. (BNA) 572, 1982 U.S. Ct. Cl. LEXIS 259
CourtUnited States Court of Claims
DecidedMay 5, 1982
DocketNo. 285-79C
StatusPublished
Cited by22 cases

This text of 678 F.2d 190 (Qualls 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
Qualls v. United States, 678 F.2d 190, 230 Ct. Cl. 534, 25 Wage & Hour Cas. (BNA) 572, 1982 U.S. Ct. Cl. LEXIS 259 (cc 1982).

Opinion

PER CURIAM:

This civilian pay case comes before the court on the exceptions of the parties to the opinion and findings of Trial Judge Mastin G. White, filed April 7,1981, pursuant to Rule 134(h). Oral argument has been heard in this matter. Since the court agrees with the decision of the trial judge, as hereinafter set forth,1 it hereby affirms and adopts that decision, with minor modification, as the basis for its judgment in this case, together with the following supplemental discussion.

The underlying basis of plaintiffs claim before the court is the alleged violation of his substantive rights as protected by the Fair Labor Standards Act (the act or FLSA), 29 U.S.C. §§ 201 et seq. (1976 & Supps.).2 In his brief before the court and again at oral argument, plaintiff took exception to the trial judge’s failure to discuss these alleged violations within the context of the Act. While we agree that a more [536]*536thorough treatment of the Act as applied to the facts of this case was warranted, we find it to be implicit in the decision of the trial judge that no violations thereof occurred which are cognizable in this court.

Plaintiff invokes the jurisdiction of the court under section 216(b) of the Act.3 Generally, section 216(b) authorizes a private right of action for recovery of unpaid minimum wages, unpaid overtime compensation and violations of section 215(a)(3) of the Act.4 This provision further provides that such action may be maintained in any federal or state court of competent jurisdiction.

Plaintiffs original claim involved the defendant’s failure to pay overtime compensation and travel expenses (mileage and per diem) in connection with his transfer to the Huxtable Pumping Plant (Huxtable) near Marianna, Arkansas, allegedly in violation of section 207(a) of the Act, which requires compensatory overtime for hours worked in excess of 40 per week, and various provisions of the Joint Travel Regulations issued pursuant to title 5 of the United States Code.

This court has previously held that it has jurisdiction to determine violations of section 207 of the FLSA as provided by section 216(b). Beebe v. United States, 226 Ct. Cl. 308, 328-29, 640 F.2d 1283, 1288-89 (1981). Our general jurisdictional statute also is construed as empowering the court to render judgment on any claim founded on a statute or regulation expressly or by implication mandating the payment of money damages for violation thereof. 28 U.S.C. § 1491 (Supp. II 1978). Defendant has interposed no objec[537]*537tions to our review of plaintiffs claim for travel time and expenses with respect to his assignment to Huxtable, and indeed it cannot, for we are clearly authorized to consider the matter.

Section 207(a) of the Act requires that an employee receive compensatory overtime if he shall be "employed” for a workweek longer than 40 hours. Within the meaning of the Act, "employ” includes "to suffer or permit to work.” 29 U.S.C. § 203(g) (1976). The application of these overtime provisions of the Act to federal employees has been explained by a series of letters published by the United States Civil Service Commission. One such letter, Federal Personnel Manual (FPM) Letter 551-10, issued April 30, 1976, and entitled "Travel Time as 'Hours Worked’ Under FLSA,” explains the criteria to be used in determining what periods of time spent by employees will be considered "hours of work” for compensation purposes. As stated in paragraph 3 of FPM Letter 551-10, "authorized travel time outside regular working hours is 'hours of work’ under FLSA if an employee * * * (2) travels as a passenger to a temporary duty station and returns during the same day, * * * >>

Thus, essential to a determination in plaintiffs favor on this aspect of his claim is a finding that during plaintiffs assignment to Huxtable, he was in a temporary duty status and required to commute from his permanent duty station in Memphis. However, the trial judge found that, in fact, plaintiff had been permanently assigned to Huxtable and that it was by his own choice that he incurred the costs and inconvenience of commuting to his worksite. We are in complete agreement with this finding. Plaintiff has shown no entitlement to recovery under section 207(a) of the Act.

Nor has plaintiff established any entitlement to travel expenses under title 5. Plaintiffs claim for reimbursement in reliance on Memphis District Memorandum No. 55-1-1 is flawed for exactly the same reason as his claim under the FLSA. Both paragraphs of the memorandum to which we are directed clearly condition reimbursement on travel to a temporary duty station, a condition plaintiff has failed to satisfy.

[538]*538The remainder of plaintiffs claim before the court rests on the alleged violation of section 215(a)(3) of the Act, which prohibits discrimination against an employee asserting a claim under the FLSA. Specifically, plaintiff alleges that the delay in his eventual promotion to grade GS-09 and then grade GS-11 and his transfers to Cairo, Illinois, and Caruthersville, Missouri, were in retaliation for his having instituted an action to recover damages in connection with his assignment to Huxtable. Although not succinctly stated, plaintiff seeks such legal and equitable relief as may be appropriate to remedy defendant’s alleged retaliatory acts.

However, this court is not a competent forum, as required by section 216(b), to adjudicate this aspect of plaintiffs claim. As pointed out by the trial judge, our ability to consider these matters is precluded by the often-articulated limits on our jurisdiction. The circumscription of our ability to promote a government employee and award back pay is well recognized, United States v. Testan, 424 U.S. 392, 402 (1975); Guy v. United States, 221 Ct. Cl. 427, 439-40, 608 F.2d 867, 874 (1979), and we see no reason to repeat the trial judge’s discussion of this subject. It suffices to say that plaintiff has demonstrated no clear, legal entitlement to a promotion in this case. Moreover, to the extent that plaintiff charges defendant with acting in a discriminatory or retaliatory manner towards him, such allegations are tortious in nature, as held by the trial judge, and are not actionable in this court.5 Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 609, 372 F.2d 1002, 1010 (1967). In sum, the court does not have jurisdiction in this case over the subject matter of plaintiffs claim with respect to the alleged violations of section 215(a)(3) of the FLSA.

OPINION OF THE TRIAL JUDGE

WHITE, Senior Trial Judge:

The plaintiff, an electrical engineer who has been employed as a civilian by the Memphis District, Corps of Engineers, U.S.

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Bluebook (online)
678 F.2d 190, 230 Ct. Cl. 534, 25 Wage & Hour Cas. (BNA) 572, 1982 U.S. Ct. Cl. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/qualls-v-united-states-cc-1982.