Lemily v. United States

Decision Date12 December 1969
Docket NumberNo. 44-60.,44-60.
Citation418 F.2d 1337,190 Ct. Cl. 57
PartiesJohn T. LEMILY et al., v. The UNITED STATES.
CourtU.S. Claims Court

Rufus W. Peckham, Jr., Washington, D. C., for plaintiffs. Carl L. Shipley, Washington, D. C., attorney of record; Shipley, Akerman & Pickett, Washington, D. C., of counsel.

Allen Van Emmerik, Washington, D. C., with whom was Asst. Atty. Gen. William D. Ruckelshaus, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

OPINION

PER CURIAM:

This case was referred to Trial Commissioner George Willi with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a) since September 1, 1969, Rule 134(h). The commissioner has done so in an opinion and report filed on March 13, 1969. Exceptions to the commissioner's findings, opinion and recommended conclusion of law were filed by plaintiff. Defendant elected to submit the case on the commissioner's report without exceptions or brief. The case has been submitted to the court on oral argument of counsel. Since the court agrees with the commissioner's opinion, findings and recommended conclusion of law with a minor modification, it hereby adopts the same, as modified, as the basis for its judgments in this case. Therefore, plaintiffs are not entitled to recover and the petition is dismissed.

Commissioner Willi's opinion, as modified by the court, is as follows:

Plaintiffs in this case are civilian employees who served as relief deck officers and relief engineers in the ports of Seattle and New York for the Military Sea Transportation Service (hereinafter referred to as MSTS) of the Navy Department during the period in suit, February 10, 1954 to August 16, 1958. They were hired as temporary employees and paid at an hourly rate on a when-actually-employed basis. When on duty their work was to stand evening, weekend, and holiday watches in place of the officers on MSTS ships that were in port.

The sole question is whether plaintiffs' employment by MSTS prior to August 16, 1958 entitled them to the annual and sick leave benefits accorded government employees generally. Since that date they have been credited with leave.

The relevant statutory provisions are contained in the Annual and Sick Leave Act of 1951, 65 Stat. 679. Section 202 of that Act enumerates various categories of employees excluded from its general coverage. Among those exclusions is the following:1

* * * part-time officers and employees (except hourly employees in the field service of the Post Office Department) for whom there has not been established a regular tour of duty during each administrative work-week. * * *

The defendant relies on the above provision, as applied to the MSTS relief officer employment procedures used until August 16, 1958, as barring plaintiffs from the leave for which they sue. Defendant's position is that plaintiffs were part-time employees whose compensable labor was not performed within an established and regular tour of duty as envisioned by the statute.

Plaintiffs advance four arguments, one general and three specific, in support of their claims.

They contend, generally, that since the 1951 Act is concerned with matters of respite from labor and mitigation of the economic consequences of illness, its coverage should, as a matter of policy, be liberally construed to embrace all civil service employees unless clearly excepted.

Plaintiffs' specific contentions are (1) that to the extent that they actually worked the equivalent of 40 hours a week on an annual basis, they were full-time employees and therefore not the "part-time" employees described in the exclusionary provision, quoted above; (2) that denial of leave prior to August 16, 1958, was wrongful because MSTS could theretofore have instituted its current employment procedures as readily as it did thereafter; and (3) that, in any event, those relief officers employed by MSTS' Pacific Area were entitled to leave because, even if deemed "part-time" employees, there had been established for them "a regular tour of duty during each administrative workweek."

The nature of the arguments urged is such that a reasonably complete recitation of the facts is necessary to an adequate evaluation of the claims and an understanding of the conclusions reached herein.

Most of the plaintiffs in this action served as relief officers in the Atlantic Area of MSTS which covered New York harbor. The remainder were employed at Seattle by the Pacific Area. The Pacific Area has long-since been disestablished with the consequent destruction or loss of records and dispersion of supervisory personnel. At their election, no plaintiffs employed by that Area testified in this case. Accordingly, the factual situation applicable to the Pacific Area is based on such scant records as the parties were able to locate, augmented by the testimony of an Industrial Relations Officer stationed at the Washington, D.C. headquarters of MSTS during approximately the last half of the period in suit.

Unlike the men in the Atlantic Area, who were essentially land-based, the relief officers in the Pacific Area regularly went to sea on MSTS ships and served as relief officers only during intermittent periods ashore between seagoing assignments. Actual work assignment procedures, however, did not materially differ as between the two Areas.

In the Pacific Area, weekly advance listings of vessels scheduled to be in port and requiring relief officers were drawn up. These listings, which were subject to revision because of unanticipated and unscheduled ship movements, showed only the projected potential for future employment of relief officers. They did not purport to assign particular men to any of the listed ships. Notification of work assignments was usually by telephone, generally 7 to 72 hours in advance of duty for deck officers, and 4 to 8 hours for engineers. On the strength of the vessel listings, the Pacific Area MSTS Command, beginning April 24, 1954, credited its relief officers with annual and sick leave on the basis of all hours for which they received pay. A General Accounting Office audit resulted in an October 11, 1954 letter from GAO advising the Command that the weekly vessel listings, which in terms did not effect work assignments as to any specific relief officers, did not constitute the establishment of "a regular tour of duty during each administrative workweek" within the meaning of Section 202 of the Annual and Sick Leave Act of 1951, supra. The Pacific Area Command thereupon cancelled all accrued but unused leave and recovered the pay involved for the leave that had been used. No new or different employment procedures were thereafter instituted by the Pacific Area Command and no more leave was credited to the relief officers employed by it.

In the Atlantic Area, prior to August 16, 1958, the matter of work assignments for relief officers was altogether handled orally by a dispatcher who testified at length at the trial.

During the period in suit, MSTS ship traffic in the New York harbor was materially heavier than it has been since. Thus, whereas the relief officer program now functions there with 25 deck officers and 37 engineers, it then had approximately 50 of each type.

As previously noted, the Atlantic Area plaintiffs were men of seafaring background who, for various reasons, had determined to remain ashore. For approximately 65 percent of them, relief officer duty represented their sole source of employment and income. The remainder held various regular jobs ashore, the hours of which did not conflict with at least some of the established relief officer watch periods at night or on weekends and holidays.

There was an unwritten but established policy in the Atlantic Area Command under which any regular seagoing deck and engineering officers of MSTS who happened to be in port and desired supplementary relief officer duty were given the first opportunity to fill available assignments. Duty by such persons did not bulk large in the Atlantic Area's relief officer program, however, and none of them are plaintiffs in this case.

Within the category of essentially land-based officers with which we are here concerned, the Atlantic Area dispatcher evolved and applied his own system of priority in making duty assignments. Under this system he gave preference to the men that he knew relied on relief officer work as their sole source of income. As noted, this group represented approximately 65 percent of the total force. The dispatcher attempted to equalize the available work among these men so that each had the opportunity of being paid for approximately 35-40 hours per week. The remainder of the force, consisting of the men to whom relief officer duty represented a source of income supplementing that from their regular jobs, were used mainly as fill-ins on a rotating basis so that there was a general equivalence among them in MSTS earnings.

All of the information utilized by the dispatcher in classifying the men, as above described, was based on his informal personal contacts with them.

The basic source of information that he used, both before and after August 1958, in making duty assignments was a sheet regularly furnished him by the Atlantic Area's operations office showing the present location and projected port arrival and departure times of all MSTS ships using the New York harbor.

The dispatcher's working file on the men consisted of a series of cards showing the name, telephone number, capability (deck officer or engineer), and duty-hour availability of each of them.

As a matter of routine, the men who desired to work regularly as relief officers contacted the dispatcher by telephone every second or third day. The others did so less frequently. When the men called, the dispatcher advised them of the likelihood of upcoming assignments based (1) on the arrival and...

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  • Cutright v. U.S., s. 91-5031
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    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
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    ...not have an established regular tour of duty during the administrative workweek; 5 U.S.C. § 6301(2)(B)(ii). In Lemily v. United States, 418 F.2d 1337, 190 Ct.Cl. 57 (1969), the United States Court of Claims explained the meaning of the phrase "part-time employee who does not have an establi......
  • In re Additional Compensation, Annual Leave & Cost-of Living Allowance, B-171947
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