Byrnes v. United States

• Decision Date: 24 April 1964
• Docket Number: No. 55-60,97-60,171-60,323-60,496-59.,55-60
• Citation: 163 Ct. Cl. 167,330 F.2d 986
• Parties: Jerome BYRNES et al. v. The UNITED STATES. Edren S. BURNS et al. v. The UNITED STATES. Jack A. BLUE et al. v. The UNITED STATES. Russel A. COWLES et al. v. The UNITED STATES. Francis M. FIX et al. v. The UNITED STATES.
• Court: U.S. Claims Court

163 Ct. Cl. 167, 330 F.2d 986 (1964)

Jerome BYRNES et al. v. The UNITED STATES.

Edren S. BURNS et al. v. The UNITED STATES.

Jack A. BLUE et al. v. The UNITED STATES.

Russel A. COWLES et al. v. The UNITED STATES.

Francis M. FIX et al. v. The UNITED STATES.

Nos. 55-60, 97-60, 171-60, 323-60, 496-59.

United States Court of Claims.

November 15, 1963.

As Amended April 17 and 24, 1964.

Irving Wilner, Washington, D. C., for plaintiffs. Seegmiller, Wilner & Custer, Keith L. Seegmiller, Cecil E. Custer, Washington, D. C., and Francis J. McGan, Butte, Mont., were on the brief.

Alfred H. O. Boudreau, Jr., Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant, Joseph J. Stengel, Atty., Office of Chief Counsel, Internal Revenue Service, was on the brief.

Before JONES, Chief Judge, and WHITAKER, LARAMORE, DURFEE and DAVIS, Judges.

DURFEE, Judge.

These five cases, consolidated for trial, present the claims of 65 investigators of the Alcohol and Tobacco Tax Division, Internal Revenue Service, for overtime compensation under the Federal Employees Pay Act of 1945, 59 Stat. 295 (1945), as amended. The actual performance by a number of plaintiffs of work outside or, in addition to, the normal workweek of five eight-hour days, is not in dispute. The principal issue is whether the extra hours actually worked were officially ordered or approved within the meaning of the statute and pertinent regulations.

Section 201 of the Act provides in part as follows:

"Officers and employees to whom this title applies shall, in addition to their basic compensation, be compensated for all hours of employment, officially ordered or approved, in excess of forty hours in any administrative workweek, at overtime rates as follows: * * *" (59 Stat. 296)

Section 605 of the Act provides:

"The Civil Service Commission is hereby authorized to issue such regulations, subject to the approval of the President, as may be necessary for the administration of the foregoing provisions of this Act insofar as this Act affects officers and employees in or under the executive branch of the Government." (59 Stat. 304)

A later 1954 amendment authorized department heads with Civil Service Commission approval to provide that:

"(2) any officer or employee in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular, unscheduled, overtime duty and duty at night and on holidays with the officer or employee generally being responsible for recognizing, without supervision, circumstances which require him to remain on duty, shall receive premium compensation for such duty on an annual basis in lieu of premium compensation provided by any other provisions of this Act, except for regularly scheduled overtime duty. Premium compensation under this paragraph shall be determined as an appropriate percentage (not in excess of 15 per centum) of such part of the rate of basic compensation for any such position as does not exceed the minimum scheduled rate of basic compensation provided for grade GS-9 in the Classification Act of 1949, as amended, by taking into consideration the frequency and duration of night, holiday, and unscheduled overtime duty required in such position." (Sec. 401(2), 68 Stat. 1111 (1954)

Under the authority of this statute and pertinent Civil Service Regulations, the Treasury Department delegated authority to the Internal Revenue Service for application of the 15 percent premium pay provisions, with appropriate rules for entitlement thereto.

These Regulations provided that:

"No overtime * * * shall be ordered or approved except in writing by an officer or employee to whom * * * authority has been specifically delegated by the head of the department. * * *" Emphasis supplied. (Exec. Order No. 9578, 10 Fed.Reg. 8194 (1945), U.S. Code Congressional Service 1945, p. 1267)

In all of its nine Federal Regions, the Alcohol and Tobacco Tax Division of the Internal Revenue Service authorized and paid the 15 percent annual premium pay allowed by statute in lieu of regular overtime to all of its investigators who were entitled thereto under the rules, beginning June 28, 1955. After three months, however, these payments were discontinued in the San Francisco and Omaha Regions, upon the insistence of the national office that these two regions were not faced with a critical liquor enforcement problem. The regional officers in these two regions thereafter refused to authorize premium pay or regular overtime to their investigators, including plaintiffs.

On September 23, 1955, the San Francisco Regional Chief of Enforcement, pursuant to instruction from the national office, which he later protested, notified the investigators of the termination of their 15 percent annual premium pay in lieu of overtime, but nevertheless added in the notice this statement:

"* * * and it is expected that you will perform without extra compensation any overtime that may be necessary to make good cases and achieve effective results in our enforcement work."

This directive remained in effect. On June 13, 1958, the San Francisco Region instructed its supervisors that: "Most investigators by the very nature of their responsibilities must work irregular hours and perform many hours of overtime duty."

The Civil Service Commission in December, 1955, described the position of these investigators as follows:

"* * * An agent may be frequently called upon to serve in an undercover capacity requiring that he live and associate with criminals for lengthy periods. * * * Performance of these duties may require work at irregular hours, involve personal risks, exposure to all kinds of weather, arduous physical exertion under rigorous and unusual environmental conditions, and considerable travel. * * *" Emphasis supplied.

The record here is replete with evidence that these plaintiffs were called upon to "work at irregular hours" and "for lengthy periods" under the same arduous conditions described above by the Civil Service Commission in prescribing the required conditions for granting premium pay. When premium pay of 15 percent was discontinued, the workweek requirements for plaintiffs remained the same throughout the period in litigation. They were, by express directive, subject to duty twenty-four hours a day. They were obliged to exercise independent judgment with respect to overtime in order to complete an investigation, or when the occasion demanded. Their overtime duty could not be administratively controlled, and it was impractical, if not impossible to secure specific advance authorization for overtime in view of the nature of the work involved.

At a meeting of officials of the Omaha Region, a statement was made that investigators could not be compelled to work overtime without additional compensation, but they could be made to wish they had done so. In a statement circulated to its investigators, the Omaha Division, after outlining the onerous and difficult nature of the duties involved, added this admonition:

"Investigators are subject to duty twenty-four hours per day, and are often on duty as much as eighteen hours." Emphasis supplied.

These directives in both regions were in clear violation of the statutes and regulations, and particularly the following Treasury Department Regulation, IR-Circular No. 57-4:

"Section 7. Ordering or Approving Overtime Duty

".05 A supervisor\'s non-compliance with the requirement that authorization or approval of overtime be in writing while at the same time either ordering overtime duty orally or requesting the performance of work outside of regular tours of duty on a voluntary basis directly or indirectly by implying that employees not `volunteering\' will be in disfavor, cannot and shall not be condoned. Practices of this kind, which may be justified in the mind of the supervisor as being in the interest of the Service, are in direct conflict with Service policy and the intent of law. These practices give rise to complaints of employees being `coerced\' to work overtime without receiving pay or compensatory time off." Emphasis supplied.

In 1956, this court held that patrol inspectors of the Customs Border Patrol, who performed overtime work without compensation under the same statute and circumstances and regulations similar to the instant case, were entitled to recover overtime. Arnvid Anderson et al. v. United States, (1956) 142 F.Supp. 902, 136 Ct.Cl. 365.

The court found that the "Commissioner of Customs and his subordinates rationalized the concept of voluntary overtime into the course of conduct by which the patrol inspectors were induced to perform the overtime work." The court further found that "the withholding of written orders or approval reflected observance of the letter of the regulation but denial of the substance of the statute," and concluded that plaintiffs therein "were induced to perform the overtime" by the district and national officers of the Customs Bureau. The same conclusion was reached in Adams et al. v. United States, Ct.Cl.No.66-59, decided July 12, 1963.

We consider that this conclusion is equally applicable to the facts now before us. The directives to the investigators from the Omaha and San Francisco Regional Offices were issued under orders from the National Office, requiring adequate enforcement of the liquor laws, and at the same time requiring discontinuance of overtime and premium pay for essential work. There is no evidence of bad faith or subterfuge, indeed, the Regional Officers were completely candid in advising the investigators that, although they would be expected and required to work overtime, they would not be paid for it. This candor, however, does not relieve the Government of its responsibility under the statute to pay overtime or premium pay for authorized extra work. The invocation of departmental regulations requiring specific written authority for overtime cannot avoid the plain requirements of...