Sullivan v. United States

665 F.2d 1012, 229 Ct. Cl. 82, 1981 U.S. Ct. Cl. LEXIS 570
CourtUnited States Court of Claims
DecidedNovember 4, 1981
DocketNo. 47-80C
StatusPublished
Cited by3 cases

This text of 665 F.2d 1012 (Sullivan 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
Sullivan v. United States, 665 F.2d 1012, 229 Ct. Cl. 82, 1981 U.S. Ct. Cl. LEXIS 570 (cc 1981).

Opinion

SMITH, Judge,

delivered the opinion of the court:

This civilian pay case, on which we have heard oral argument, is before the court on the parties’ cross-motions for summary judgment. Plaintiffs, John L. Sullivan and Henry R. Potosky, are special agent criminal investigators with the United States Secret Service assigned to New York City. They have petitioned the court1 for additional compensation for overtime alleged to have been capable of regular scheduling and for other relief on behalf of themselves and for all other special agent criminal investigators similarly situated. Since plaintiffs’ claims were not representative of any particular class of agents, plaintiffs were not allowed to proceed on behalf of any other agents. The case therefore presents only two basic questions: (1) whether Special Agent Sullivan should have received time and one-half pay for the overtime that he incurred on a protection detail assignment and (2) whether the statutory ceiling on aggregate pay, including overtime, requires plaintiffs to perform services for which they are not compensated, in violation of their constitutional rights. For reasons discussed below, we conclude that defendant should prevail on both of these issues, and plaintiffs’ prayers for relief are denied.

Sullivan’s Claim

On November 28 and 29, 1978, the Secret Service field office in New York City made preparations for the visit on November 30 of then Secretary of the Treasury, W. Michael Blumenthal. Special Agent Sullivan and two other agents were assigned to cover the protection detail of the Secretary. Due to that assignment, it was necessary for Sullivan to remain on duty past the termination of his normal workday and work some 6 hours of overtime on the day of the Secretary’s visit. He was credited with the extra 6 hours as administratively uncontrollable overtime and received premium compensation therefor on an annual basis in [84]*84accordance with the limited pay provisions of 5 U.S.C. § 5545(c)(2) (1976).2

It is Sullivan’s position that the overtime he incurred as a result of this assignment should not have been classified as administratively uncontrollable overtime. He insists that he was entitled to receive, pursuant to the provisions of 5 U.S.C. § 5542(a)(1) (1976), time and one-half pay. We cannot agree.

Hours of work performed by an employee in excess of the regular 40-hour administrative workweek or the 8-hour administrative workday which have been "officially ordered or approved” constitute overtime. In accordance with 5 U.S.C. § 5542(a)(1), it is to be compensated at an hourly rate equal to one and one-half times the employee’s hourly compensation.3 An employee, however, who occupies a position requiring "substantial amounts of irregular, unscheduled overtime” in which the hours of duty cannot be "controlled administratively” is not compensated on an hourly basis and instead receives premium pay4 on an annual basis. Congress gave the head of each agency the responsibility for determining the form of compensation to be paid to its employees on overtime assignments.5 The Secret Service promulgated its own guidelines to govern the appropriateness of the two forms of compensation in [85]*85various detail assignments. The two methods of compensation were distinguished as follows6

* * * [Rjegularly scheduled overtime is that work in excess of eight hours in a day or forty hours in a week that is regularly scheduled in advance for two or more days in succession * * * after specified intervals * * *. Also, in order for overtime to be recurring it must be the same number of hours (i.e., two hours each day or four hours each Saturday). Otherwise, it is irregularly scheduled overtime work which is covered by the provisions for premium pay.

The determination that Sullivan is entitled to administratively uncontrollable overtime must be upheld unless (a) it clearly contradicts the terms or purpose of the statute or (b) clearly contradicts the implementing regulations promulgated by the Civil Service Commission.7 Sullivan contends that the Secret Service’s interpretation of "recurring” overtime is too restrictive; that the protection of Government officials is by its very nature "regularly” scheduled and "recurring”; and that his advance assignment to the Blumenthal detail, which was well planned and detailed, demonstrates that the overtime involved was administratively controllable. Plaintiff contends further that he had no control over or need to exercise his discretion to determine what overtime was necessary. It is not determinative of the latter issue that, in the course of this single visit of the Secretary, where the overtime for a relatively short period was directed, it.was not in fact necessary for plaintiff to exercise his discretion to determine what overtime was necessary. Once assigned and performing in his role as the Secretary’s protector, he had that discretion in the event the visit did not proceed as planned.

[86]*86As to plaintiffs contention that the visit was well planned and detailed in advance, we are bound by and restate with approval our holding in Burich.8 The distinction between administratively uncontrollable overtime and regularly scheduled overtime is not whether the overtime is anticipated, but rather whether it can be regulated. The assignment to protection of the Secretary for part of a single day did not meet the Service’s definition, applicable to all assignments, of regularly scheduled overtime.9 Although scheduling the protection of various Government officials is a "normal” activity of the Secret Service, in that it occurs frequently, it is not necessarily "regular” in the sense of recurring at uniform or stated intervals. The "two or more days in succession” and identity of period requirements are not unreasonable, are not inconsistent with the statute, and are applied generally. Since Sullivan’s overtime on November 30, 1978, does not fall within that definition, but is covered by the provision for "irregularly scheduled overtime,” his compensation by means of premium pay pursuant to the provisions of section 5545(c)(2) was proper, and his claim must fail.

Potosky’s Claim

Special Agent Potosky claims that he worked 88 hours of overtime in a 2-week pay period and that, although he received premium pay, such premium pay was limited by 5 U.S.C. §5547,10 and that, accordingly, he was not compensated for part of his overtime work during the period in question. Specifically, Potosky claims that the limitation imposed by section 5547 resulted in his being paid, for 88 hours of overtime, the same amount he could have earned by working only 45 hours of overtime; therefore, he claims he was required to work the hours in excess of 45 hours without being compensated therefor, in violation of the fifth and thirteenth amendments to the United States Constitution.

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Bluebook (online)
665 F.2d 1012, 229 Ct. Cl. 82, 1981 U.S. Ct. Cl. LEXIS 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-united-states-cc-1981.