author: SKELTON, Judge. NICHOLS, Judge

text:
    MANEY AIRCRAFT PARTS, INC. v. The UNITED STATES.
    No. 191-70.
    United States Court of Claims.
    June 20, 1973.
    Nichols, J., filed dissenting opinion.
    Frederick T. M. Crowley, Silver Spring, Md., attorney of record for plaintiff.
    Michael J. Rubin, Washington, D.C., with whom was Asst. Atty. Gen. Har-lington Wood, Jr., for defendant.
    Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHI-WA, KUNZIG and BENNETT, Judges.
   ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT

SKELTON, Judge.

The facts in this case are set forth in detail in our prior opinion in Maney Aircraft Parts, Inc. v. United States, 453 F.2d 1260, 197 Ct.Cl. 159 (1972), and for that reason will not be repeated here, except to the extent deemed necessary for this opinion.

This is a contract case in which the contract was terminated for default by the contracting officer. The contract contained the usual disputes clause requiring the contractor to appeal the decision of the contracting officer to the Armed Services Board of Contract Appeals (the Board) in writing within 30 days from the date of receipt of the decision, otherwise the decision of the contracting officer shall be final and conclusive. The contracting officer sent his decision by telegram to the contractor’s principal place of business on Saturday, June 21, 1969. The contractor’s place of business was not open for business on Saturdays, but on this particular day an accountant of the contractor was at the contractor’s place of business doing some work and received the telegram and signed a receipt for it. The accountant did not ordinarily receive the contractor’s mail or telegraphic messages. The telegraphic decision was not brought to the attention of any responsible official of the contractor until the following Monday, June 23, 1969. The contractor sent a telegraphic appeal to the Board on July 22, 1969, which was 31 days after the contracting officer’s telegraphic decision was delivered to the contractor’s accountant at its place of business. The Board dismissed the appeal on the ground that it was untimely and that because of such late filing the Board had no authority, jurisdiction, or power to consider it. The plaintiff appealed to this court, claiming that the appeal was timely. Both parties filed motions for summary judgment. We suspended all proceedings including action on both motions for 90 days for reasons set out below. However, we held that “[W]e find no error of law, no arbitrariness, or any lack of substantial support for the underlying factual findings in the holding [of the Board] that plaintiff’s appeal was out-of-time.” [Id., 453 F.2d at 1262, 197 Ct.Cl. at 162-163.] In so holding we said:

Nevertheless, we are constrained to point out once again that the Board is not powerless to waive or extend the 30-day period specified in the contract — as the Board still seems to believe, see L & V Machine & Tool Works Inc., ASBCA No. 15243, 71-2 BCA ¶ 9035. We indicated in Moran Bros. Inc. v. United States, 346 F.2d 590, 593, 171 Ct.Cl. 245, 250, (1965), that such time limits are not jurisdictional and may be waived in proper cases. In our order of June 11, 1965 in Maitland v. United States, Ct.Cl.No. 74-62, suspending proceedings here so that plaintiff could ask the Board to waive the time-limit, we cited Moran Bros, and said: “We see no reason why the Board, in its sound discretion, may not elect to entertain this appeal and avoid a harsh result, if the allegations of plaintiff are as stated.” In Schlesinger v. United States, 383 F.2d 1004, 1008, 181 Ct.Cl. 21, 28-29 (1967), we again recognized the discretion of the Board to toll or waive the contractual time-limit for appeal. We remain of the same view.
* * * Although we have held that we cannot overturn the Board’s finding of untimeliness, we do feel that “the Board ha[s] leeway to find that the 30-day provision should * * * be considered tolled or waived.” Schlesinger v. United States, supra, 383 F.2d at 1008, 181 Ct.Cl. at 29. While we do not hold that the Board must exercise its discretion favorably to plaintiff, we think that it should consider that possibility squarely, and not simply deem itself powerless to act. [Footnote omitted.] [Id., 453 F.2d at 1262-1263, 197 Ct.Cl. at 163-164.]

We suspended proceedings for 90 days to allow the plaintiff to seek a discretionary waiver of the contractual time limit for its appeal from the Board.

Thereafter, the plaintiff filed a petition with the Board asking for “a discretionary waiver of the contractual time limit of 30 days and for the right to proceed to try its appeal on the merits.”

The Board, in a decision dated April 28, 1972, signed by 12 of its members, with one member dissenting, refused to exercise its discretion to waive the requirement of appeal within 30 days of receipt of the contracting officer’s final decision, as suggested by this court, saying:

* * * However, in this instance, the Board must respectfully decline to follow the Court of Claims’ suggestion concerning its discretion to waive the requirement of appeal within thirty days of receipt of the contracting officer’s final decision.
* * *. Consistently, from the time of the Charter creating the Board’s predecessor, the War Department Board of Contract Appeals, on 8 August 1942, the present Board and its predecessor Boards have held that the filing of a timely notice of appeal is a condition precedent to the Board’s authority to consider an appeal on its merits. * * * [Id. at 3.]

The Board concluded by saying:

•x * x [T]he Board is unwilling to make such a reversal of its uniform, long-standing decisions as to take discretionary jurisdiction over untimely appeals.
Appellant’s petition for discretionary waiver of the contractual time limit is denied and the reinstated appeal dismissed. [Id. at 4-5.]

Thereafter, both parties returned to this court and urged their motions for summary judgment. The plaintiff says that the Board erred in refusing to exercise its discretion to waive the 30-day time limit for the contractor’s appeal in this ease as suggested by this court in our prior opinion. The defendant argues that the action of the Board should be upheld, and that, in any event, the Board did in fact exercise its discretion. We agree with the plaintiff. It is clear from the above-quoted language from the Board’s opinion that it flatly refused to exercise its discretion as to a waiver of the 30-day time limit for plaintiff’s appeal, as suggested by the court. Therefore, the only question to be decided is whether the Board erred.

We think the Board was sincere in its belief that it did not have the power nor authority to waive the 30-day time limit for the plaintiff’s appeal, in the exercise of its discretion. However, we made it perfectly clear in our prior opinion in this case that it did have such power and authority. Other decisions of this court support this principle. In Moran Bros., Inc. v. United States, 346 F.2d 590, 593, 171 Ct.Cl. 245, 250 (1965), we held:

Defendant vigorously argues that the time limit is jurisdictional and may not be waived by the contracting officer, the appeals tribunal, or the head of the agency. This position has been taken by several, if not all, of the contract appeals boards; see e.g., Keenan Pipe & Supply Co., 1962 BCA 17110 (ASBCA 1962). We do not agree that this provision may never be waived.

In Arthur Venneri Co. v. United States, 381 F.2d 748, 180 Ct.Cl. 920 (1967), we stated that the disputes clause is contractual rather than jurisdictional (381 F.2d at 751, n. 3, 180 Ct. Cl. at 925, n. 3). In Schlesinger v. United States, 383 F.2d 1004, 181 Ct.Cl. 21 (1967), we indicated that the Board could in its discretion waive the 30-day requirement for good cause. We held in Burnett Constr. Co. v. United States, 186 Ct.Cl. 953 (1968), that where the Board considered plaintiff’s appeal, the 30-day requirement was waived even if the appeal was untimely. To the same effect is our decision in Whittaker Corp. v. United States, 443 F.2d 1373, 195 Ct. Cl. 161 (1971).

We considered this question settled in our decision in Monroe M. Tapper & Assocs. v. United States, 458 F.2d 66, 198 Ct.Cl. 72 (1972), when we said:

The major theme of the petition and of plaintiff’s argument is, first, that the Board had power to enlarge the appeal-period and waive the lateness of the filing, and, second, that that is what should have been done in this instance. We need not linger over the first point. The court has recently reaffirmed the rule that Boards of Contract Appeals have power, in proper circumstances, to waive or extend the appeal period specified in the usual disputes clauses. Maney Aircraft Parts, Inc. v. United States, 453 F.2d 1260, 197 Ct.Cl. 159 (1972). Cf. Schacht v. United States, 398 U.S. 58, 63-65, 66-69, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970). The Government’s rights under the clause do not “vest” until the Board refuses to take jurisdiction because of untimeliness. Thus, if the Board does take jurisdiction, it is not waiving a vested right because the right does not vest until and unless the Board refuses to take jurisdiction. If it awards relief, the disbursing officer can take comfort in the fact that he is not waiving a vested right. [Footnote omitted.] [Id., 458 F.2d at 68,198 Ct.Cl. at 76.]

The Tapper opinion was handed down on April 14, 1972, which was two weeks before the Board issued its opinion in this ease. See also, SWH Company, DOT-CAB No. 72-29, 72-2 BCA ¶ 9570 (1972).

We hold that a Board of Contract Appeals, such as the Board in the present case, has the power and authority, in its discretion, for good cause shown, to waive the requirement that a contractor must file his appeal with the Board within 30 days after he receives the decision of the contracting officer. The 30-day requirement is contractual and not jurisdictional and may be tolled or excused by the Board, in the exercise of its discretion, if the contractor has good cause for failing to file his appeal within such time period. Such good cause must be shown to exist not only during the 30-day period, but also up to the time the appeal is actually filed.

The Board stated in its opinion that if it is to exercise this type of discretion it should be done under “clear-cut, explicit rules with appropriate safeguards.” We do not entirely agree with this statement, as we doubt that rigid rules could be established that would be workable. Of course, the Board can make its own rules in this regard, but in doing so it should be careful not to unduly limit or circumscribe its exercise of discretion in this area. The decision of the Board on this problem is essentially equitable rather than legal, with an objective to do justice under the circumstances. In order to accomplish this purpose, the exercise of discretion by the Board should be as free and unfettered as possible. It is not practical for this court to establish inflexible rules for the exercise of discretion by the Board, as we cannot anticipate the many problems that may arise in future cases. No doubt, the Board will have to solve the problem on a case by case basis. However, we can repeat and approve what we said in Tapper, supra. The burden rests on the contractor, who fails to comply with the requirement that an appeal be filed within the 30-day period, to persuade and convince the Board that under the circumstances of his case a waiver of the time limit should be granted. Prejudice to the government is a factor to be considered, but the lack of such prejudice does not automatically entitle the plaintiff to a waiver. Furthermore, carelessness or neglect on the part of the contractor is relevant, though not necessarily conclusive. In exercising its discretion, the Board should consider all facts and circumstances, including the conduct of both the contractor and the government and arrive at a decision that it considers fair, just, and equitable to both parties.

Based on the foregoing, we conclude that the Board erred when it refused to exercise its discretion to waive the late filing by the contractor in this case. When we handed down our prior opinion, we did not have the authority to remand the case to the Board with instructions. Consequently, we suspended proceedings in the court to allow the plaintiff to go back to the Board and request a waiver. In the meantime, on August 29, 1972, Congress enacted Public Law 92-415, 86 Stat. 652, amending 28 U.S.C. § 1491, which provides as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the first paragraph of section 1491 of title 28, United States Code, is amended by adding thereto the following: “To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate official of the United States. In any case w’ithin its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just.”
Sec. 2. This Act shall be applicable to all judicial proceedings pending on or instituted after the date of its enactment.

This statute authorizes this court to remand this case to the Board “with such direction as it may deem proper and just.”

Accordingly, we remand the case to the Armed Services Board of Contract Appeals and direct it to exercise its discretion as to whether or not the plaintiff has shown good cause or a justifiable excuse, under all the facts and circumstances of the case, for failing to file its appeal within the 30-day time limit, and by virtue thereof the 30-day time limit requirement should be waived. In remanding the case, we do not mean to imply or suggest in any way that the Board should or should not allow the plaintiff a waiver of the time limit requirement. This is a decision that the Board itself must make in the free exercise of its discretion. Proceedings in this court are suspended for 90 days from this date pending action of the Board.

NICHOLS, Judge

(dissenting):

My own attitude in this matter has been slow in jelling, which is regrettable ; if I had known what to do from the outset, I might have had more influence with my colleagues. In Monroe M. Tapper & Assocs. v. United States, 458 F.2d 66, 198 Ct.Cl. 72 (1972), I deplored the very existence of this branch of jurisprudence, and predicted, all too truly, that Judge Davis’ careful analysis would not contribute to the ultimate disposition of the case. Now we have Monroe M. Tapper & Assocs. back before us again, no nearer than 4 years ago to a decision as to whether their case can be heard on the merits, and if so, by whom.

The Board’s decision of April 28, 1972, in the instant Maney Aircraft case and the appended dissent, deserve our careful scrutiny, for the learning displayed, the capability of its authors and signers, and the contribution it makes to the possible resolution of the problem. They reaffirm their belief that plaintiff has no contract right to a disputes clause appeal if, for almost any reason whatever, he fails to file it within 30 days. They allow rare instances of tolling. They also show that anyway, the Service Secretaries never intended to authorize them to exercise discretion in the premises.

The first proposition reflects only their personal opinion, which is legally inoperative in view of several contrary court decisions. The second ought to give us pause. It is rested primarily on the Secretaries’ acquiescence, over the years, in the involved Board position. Also, they point out that complaints about about the shortness of the 30-day period were met by requiring that the contracting officer’s decision letter expressly state the contractor’s appeal rights and that the 30-day period was running. I think we ought to indulge in a strong if not conclusive presumption that a subordinate Department of Defense official is telling the truth if he says he is not authorized to do a particular thing. Presumably the Board operates under the Secretaries’ constant scrutiny. If it does what it was not authorized to do, or refuses to do what it was intended to do, they will no doubt at once take corrective action. In the circumstances, for any outsider, even an omniscient Article III court, to say oh no, the Secretaries really intended the Board to exercise discretion, is to take a position more courageous than prudent. The Secretaries need only state a contrary position to make us look absurd.

Where the matter stands, in my view, therefore, is that a contractor delinquent in filing a 30-day appeal has a contract right to a discretionary decision whether he is to be allowed to appeal nevertheless, but the Department of Defense has provided no tribunal or official to exercise this discretion. Our former statements that Appeal Boards had discretion to receive late appeals rested on the assumption, now shown to be erroneous, that such Boards were intended to afford entire remedies wherever contracts created them. We do not, I think, even under Public Law 92-415, have the right to single out a body of government employees and say they are to do something they were not brought together to do. If I am wrong in this we could direct the ASBCA to correct military records and the BCMR to entertain contractor appeals. Technicality though it may be, if the Secretary of Defense has not created a tribunal to do what we think ought to be done, our remand under Public Law 92-415 should surely be addressed to the Secretary himself. The majority decision is clearly erroneous in this.

The remand would be futile here for the further reason that the Board’s observations show that if compelled to exercise discretion, they would exercise it adversely to the contractor except in cases of a strength only rarely encountered in life. This particular case is not strong as such cases go. Tapper’s was better. Do I not see the court’s tongue in its cheek, as its hand waves the contractor back to a tribunal we all know will chop off his head ?

In United States v. Anthony Grace & Sons, 384 U.S. 424, 430, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966), the Supreme Court indicates that the contractor is not required to exhaust the administrative procedure if it is “inadequate or unavailable.” I suggest the only tribunal that exists in the Department of Defense to pass on contractor appeals has clearly indicated not just its “unwillingness to act” in the Supreme Court’s words but its lack of authority to do so, also. Moreover, it is so hostile towards appellants in the position of this one, that even a clear directive to exercise discretion would likely be futile. Therefore, though we could remand the case to the Secretary with instructions to refer it to a new, unprejudiced tribunal of his creation, we are not required to do so. The Court’s exception allows us to take jurisdiction ourselves rather than to mandate new administrative procedures that would supplement those that are “inadequate or unavilable.” We don’t have to keep remanding forever.

Plaintiff prays that this court exercise its discretion. It says that there are no facts in dispute. It does not add by offer of proof or affidavit any facts in addition to or contradicting those the ASBCA found in its decision of February 18, 1970. The notice of default termination was a formidable looking telegram. It included a full warning that the right of appeal to the ASBCA had to be exercised within 30 days. When it came under the eyes of plaintiff’s president, 28 days were left. No reason is even suggested still less shown, why 28 days were not enough. Judge Davis in Monroe M. Tapper & Assocs. for a unanimous court, says the burden is on the contractor to show that a waiver of the 30-day rule is warranted, and “carelessness or neglect on the part of the applicant is relevant.” Plaintiff here fails to meet this standard, and therefore only one finding is possible: it has failed to exhaust its administrative remedy, in not appealing within 30 days. The petition should be dismissed.

      . In the case of William Green Constr. Co. v. United States, Ct.Cl. 477 F.2d 930 at 937 decided May 11, 1973, we said “The time-limit for appeals to contract appeals boards is not beyond enlargement,” citing the first Maney Aircraft and Monroe M. Tapper opinions,


source: Caselaw Access Project

author: SKELTON, Judge.

license: Public Domain

text:
    Tom S. ACUNA et al. v. The UNITED STATES. Arthur C. ARCHIBALD et al. v. The UNITED STATES. Court P. ALLEN et al. v. The UNITED STATES. Cecil B. BARNETT et al. v. The UNITED STATES.
    Nos. 259-70, 292-70, 349-70 and 458-70.
    United States Court of Claims.
    June 20, 1973.

      Robert C. Baxley, San Diego, Cal., atty. of record, for plaintiffs; Jones, Baxley, Crouch & McCarty, John S. Rhoades, and Holt, Rhoades & Hollywood, San Diego, Cal., of counsel.
    Thomas E. Thomason, Washington, D. C., with whom was Asst. Atty. Gen. Harlington Wood, Jr., for defendant.
    Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASH-IWA, KUNZIG and BENNETT, Judges.
   ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS’ CROSS MOTION FOR SUMMARY JUDGMENT

SKELTON, Judge.

The 336 plaintiffs in these four cases are suing to recover compensation for work performed by them as immigration inspectors for the Immigration and Naturalization Service, United States Department of Justice (hereinafter sometimes referred to as the Service), at several different ports in three of the Service’s four regions. Plaintiffs regularly work six days a week and receive the equivalent of seven days’ pay. They claim, however, that they are entitled by law to receive the equivalent of eight and one-half days’ pay. The case is before the court on cross-motions for summary judgment.

In order to earn their annual salary, immigration inspectors are required to work a 40-hour week, normally comprised of five days, eight hours a day. The existing Immigration and Naturalization Regulations state that the eight hours a day shall be performed between Monday and Saturday. In addition to the regularly scheduled 40-hour week, all immigration inspectors have been regularly required to perform inspectional duties for eight hours on Sunday in connection with the examination of persons entering the United States. In effect, therefore, immigration inspectors are required to be on duty forty-eight hours a week, consisting of eight hours a day, six days a week, and one of those six days is always Sunday.

Since 1931, plaintiffs have received preferential pay treatment with respect to other Federal workers in the form of “extra compensation” for overtime, Sunday, and holiday work. The Act of March 2, 1931 grants immigration inspectors two days’ extra compensation for Sunday and holiday duty. Subsequently, the Federal Employees Pay Act of 1945 was passed which provides generally that government employees’ working hours officially ordered or approved in excess of'40 hours in an administrative workweek, or in excess of eight hours in a day, are overtime and shall be paid for at a premium rate of one and one-half times the basic hourly rate. This latter act, however, contains an anti-pyramiding provision, the effect of which is to prevent an employee from receiving premium pay under the 1945 Pay Act for the same services for which he is paid under another listed statute. Listed therein are “sections 1353(a) and 1353(b) of title 8,” the Act of March 2, 1931.

The Immigration and Naturalization Service has designated the seven consecutive days beginning Sunday at 12:01 a. m. and running through Saturday, midnight, as the administrative workweek. Further, they have designated Monday through Saturday as the basic workweek for immigration inspectors. The placing of Sunday outside the basic five-day 40 hour workweek and making it the sixth work day of the administrative workweek by the Service had the effect of preventing the immigration inspectors from receiving one and one-half days’ of premium pay under the 1945 Federal Employees Pay Act for the sixth day worked since they already receive two additional days’ pay for Sunday duty under the Act of March 2, 1931, for the same services. Plaintiffs work six days per week and receive the equivalent of seven days’ pay. Their basic workweek runs from Monday through Saturday, during which period they work five days and get one day off. It is within the basic workweek that they must work their 40 hour week as a credit towards their annual salary. Thus, during the basic workweek plaintiffs work five days out of six and receive five days’ pay. In addition, they are required to work on Sunday, which, under the present arrangement, is outside the basic workweek. Since Sunday is outside the basic workweek, Sunday work is not counted towards earning their annual salary. Plaintiffs do receive two additional days’ pay as extra compensation under the Act of March 2, 1931 for work performed on Sunday. They do not receive one and one-half days of premium pay under the 1945 Federal Employees Pay Act for “eight hours of work officially ordered or approved in excess of 40 hours in an administrative workweek” because those eight excess hours of work are considered to have been performed on Sunday (as a result of the manner in which the Service has scheduled the administrative workweek and the basic workweek) and the anti-pyramiding provision of the Federal Employees Pay Act of 1945 does not permit an employee to receive premium pay under that Act for the same services for which he is paid under the Act of March 2, 1931.

The issue presented for decision in this case is whether the Immigration and Naturalization Service abused its discretion by scheduling Sunday outside of the basic workweek, where the administrative workweek commenced on Sunday, and plaintiffs were regularly and consistently required to work on Sundays, and the effect of such scheduling was to deny to plaintiffs premium pay under the Federal Employees Pay Act of 1945.

Plaintiffs contend that the basic workweek should begin on Sunday, the same day on which the administrative workweek begins, and that the Service’s failure to so schedule the basic workweek is an abuse of discretion and an unreasonable interpretation of the relevant statutes. The effect of having the basic workweek commence on Sunday, as plaintiffs urge, is that the immigration inspectors would work a 40-hour period between Sunday and Friday, having one full day off, and then work overtime on Saturday. According to plaintiffs’ theory, they should receive three days’ pay for Sunday (one day’s pay as a part of the basic workweek and two additional days’ pay under the Act of March 2, 1931, for Sunday work) and one and one-half days’ pay for Saturday (time and a half for overtime work in excess of 40 hours a week). In other words, plaintiffs claim that they are entitled to receive the equivalent of eight and one-half days’ pay for six days of work.

Defendant’s position is that the Service was given discretion to consider its costs and proper functioning in scheduling the basic workweek and that it has properly exercised its discretion by scheduling a basic workweek of five days during Monday through Saturday. We agree with the defendant and hold that there was no abuse of discretion on the part of the Service for all of the reasons set out below.

The Federal Employees Pay Act of 1945, 59 Stat. 303, as amended by the “Fringe Benefits Bill,” 68 Stat. 1112, signed into law on September 1, 1954, subsequently amended and now codified as 5 U.S.C. § 6101(a) (1970), provides in pertinent part:

§ 6101. Basic 40-hour workweek; work schedules; regulations.

(a)(1) * * *
(2) The head of each Executive agency, military department, and of the government of the District of Columbia shall-—
(A) establish a basic administrative workweek of 40 hours for each full-time employee in his organization ; and
(B) require that the hours of work within that workweek be performed within a period of not more than 6 of any 7 consecutive days. (3) Except when the head of an
Executive agency, a military department, or of the government of the District of Columbia determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that—
(A) assignments to tours of duty are scheduled in advance over periods of not less than 1 week;
(B) the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive ;
(C) the working hours in each day in the basic workweek are the same;
(D) the basic nonovertime workday may not exceed 8 hours;
(E) the occurrence of holidays may not affect the designation of the basic workweek; and
(F) breaks in working hours of more than 1 hour may not be scheduled in a basic workday. [Emphasis supplied.]
*- -x- * -* * *

The requirements contained in section 6101(a)(2)(A) and (B), that the head of the agency establish a basic workweek of 40 hours for each full-time employee and require that the hours of work within that workweek be performed within a period of not more than 6 of any 7 consecutive days are mandatory, as indicated by the use of the word “shall.” Moreover, the basic workweek established by the Service in this ease clearly met these mandatory requirements. On the other hand, the several provisions contained in section 6101(a)(3), including the provision that the basic 40-hour workweek be scheduled on 5 days, Monday through Friday when possible, and that the 2 days outside the basic workweek be consecutive,' are subject to the discretion of the agency head. The above-cited statutory language makes it abundantly clear that in scheduling the basic 40-hour workweek the head o.f an Executive agency was given discretion to vary from the usual Monday through Friday workweek, etc., where he determined that the functions of the agency would be impeded or where the costs would be substantially increased as a result of following the various prescriptions of section 6101(a)(3). By providing for such discretion, Congress recognized that the proper functioning of certain agencies would require more latitude in the scheduling of basic workweeks.

5 U.S.C. § 6101(c) (1970) provides:

(c) The Civil Service Commission may prescribe regulations, subject to the approval of the President, necessary for the administration of this section insofar as this section affects employees in or under an Executive agency.

The implementing regulations promulgated by the Civil Service Commission do not require that the agency follow guidelines other than those set forth in section 6101(a)(2) and (3). Concerning the establishment of a basic workweek, 5 C.F.R. § 610.102(c) (1970), “Definitions,” reads:

(c) “Basic workweek,” for full-time employees, means the 40-hour workweek established in accordance with § 610.111.

5 C.F.R. § 610.111(a) (1970), “Establishment of Workweeks,” then provides in part:

(a) The head of each agency, with respect to each group of full-time employees to whom this subpart applies, shall establish by regulation:
(1) A basic workweek of 40 hours which does not extend over more than 6 of any 7 consecutive days. Except as provided in paragraphs (b) and (c) of this section, the regulation shall specify the calendar days constituting the basic workweek and the number of hours of employment for each calendar day included within the basic workweek.
* * * * * *

In accordance with these directives and under the delegation of authority from the Attorney General, 28 C.F.R. § 0.144 (1970), the Commissioner of Immigration and Naturalization has by Immigration and Naturalization Service Administrative Manual (I & N Service AM) at 2818.03 (May 15, 1962) established a basic workweek as follows:

Definitions:

* * * * * *

The term “basic workweek” for full-time officers and employees means the 40-hour workweek which shall not extend over more than six of the seven days in the administrative workweek. The I & N Service AM, at 2818.04, further provides:
Section 1c, Scheduling the Basic Workweek: Daily tours of duty in the basic workweek shall be established within a maximum of 9 continuous clock hours, with 1 hour for food and rest. Normally, each tour will consist of 8 hours of duty over a period of 8 hours and 30 minutes. The basic workweek for immigration officers performing inspection duties shall be established on weekdays, Monday through Saturday, including holidays occurring on those days, but excluding Sunday. When it is impracticable to prepare work schedules in advance for periods of not less than two weeks that coincide with pay periods, as provided in AM 2961, such work schedules for the basic workweek must be prepared and posted not later than the close of business on the Friday preceding the week for which the work schedules apply. [Emphasis in original.]

With respect to the establishment of an administrative workweek, 5 C.F.R. § 610.102(a) and (b) (1970) state:

(a) “Administrative workweek” means a period of 7 consecutive calendar days designated in advance by the head of an agency under section 6101 of title 5, United States Code.
(b) “Regularly scheduled administrative workweek,” for full-time employees, means the period within an administrative workweek, established in accordance with § 610.111, within which these employees are required to be on duty regularly. For part-time employees, it means the officially prescribed days and hours within an administrative workweek during which these employees are required to be on duty regularly.

5 C.F.R. § 610.111(a)(2) (1970) provides further that the head of each agency shall establish:

(2) A regularly scheduled administrative workweek which consists of the 40-hour basic workweek established in accordance with subpara-graph (1) of this paragraph, plus the period of overtime work, if any, regularly required of each group of employees. Except as provided in paragraphs (b) and (c) of this section, the regulation, for purposes of leave and overtime pay administration, shall specify by calendar days and number of hours a day the periods included in the regularly scheduled administrative workweek which do not constitute a part of the basic workweek.

Consistent with these Civil Service Commission regulations, the Immigration and Naturalization Service in I & N Service AM at 2818.03 (May 5, 1962) has defined these terms as follows:

The term “administrative workweek” means the seven consecutive days from 12:01 a. m. Sunday to midnight Saturday.
■Yt # * * *>:* *
The term “regularly scheduled administrative workweek” for full-time officers and employees means the period within an administrative workweek when such officers and employees are required to be on duty regularly.

The statute and implementing regulations thus describe an agency’s discretion to designate a seven-day administrative workweek, and, within such administrative workweek, a five-day period known as a basic workweek. Further, the regularly scheduled administrative workweek includes the 40-hour basic workweek, plus regularly scheduled overtime. While a preference is expressed for a basic workweek running from Monday through Friday, and for the two days outside the basic workweek to be consecutive, the head of an agency is given discretion to deviate from this preferred pattern where he “determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased.” Since it is quite apparent that the Service was given discretion to consider agency functions and costs in scheduling the basic workweek, we must now consider whether it properly exercised that discretion.

In a memorandum dated November 2, 1954, the Commissioner of Immigration and Naturalization stated to the Attorney General of the United States (the head of the agency) that broad application of certain provisions of the September 1, 1954, amendment to the Federal Employees Pay Act of 1945 (including the provision that the basic 40-hour workweek be scheduled on 5 days and that the 2 days outside the basic workweek be consecutive) “would not only substantially increase costs, but might well cripple the Service.” The memorandum requested that the Service be permitted to schedule and operate on hours of duty which deviated from those set forth in the 1954 amendment. In support of his request, the Commissioner attached to his memorandum a justification for exceptions from the provisions of the amendment. This justification contained an exhaustive discussion of the nature of work performed by immigrant inspectors and the inherent administrative difficulties in scheduling their hours of duty. The Attorney General granted the Commissioner’s request that Immigration and Naturalization employees be excepted from these provisions of the amendment to the Pay Act where operations would suffer or costs would be increased, and the District Directors of the Immigration and Naturalization Service were so notified on November 12, 1954.

It is therefore clear that the Service, after carefully considering the mandate of the 1954 amendment and the discretionary exception therein contained, determined that an exception from the normal scheduling was justified, in view of agency functions and the costs involved.

Plaintiffs apparently do not deny that the Service had discretion to schedule the basic workweek in a manner different from that prescribed in the 1954 amendment to the Federal Employees Pay Act of 1945. Rather, plaintiffs complain that it was an abuse of discretion to schedule a basic workweek the beginning of which does not coincide with the beginning of the administrative workweek, since the effect of such scheduling denies them premium pay for regularly scheduled overtime work under the Federal Employees Pay Act of 1945.

Neither 5 U.S.C. § 6101(a) nor the Civil Service Commission’s implementing regulations contain any suggestion that the first day of the administrative workweek on which employees regularly work must be the first day of the basic workweek. On the contrary, 5 C.F.R. § 610.111(b) (1970) strongly implies that this is not required. It states:

(b) When it is impracticable to prescribe a regular schedule of definite hours of duty for each workday of a regularly scheduled administrative workweek, the head of an agency may establish the first 40 hours of duty performed within a period of not more than 6 days of the administrative workweek as the basic workweek, and additional hours of officially ordered or approved duty within the administrative workweek are overtime work.

The obvious implication to be drawn from permitting the first 40 hours of duty performed within the administrative workweek to be considered the basic workweek in a situation where it is impracticable to prescribe a regular schedule of duty, is that where a regular schedule of duty can be prescribed, as in the instant case, the basic workweek need not be the first 40 hours of duty performed. 5 C.F.R. § 610.111(a)(2) (1970), set out in full earlier in this opinion, merely states that the regulations established by the agency head, “for purposes of leave and overtime pay administration, shall specify by calendar days and number of hours a day the periods included in the regularly scheduled administrative workweek which do not constitute a part of the basic workweek.” There is no requirement in the Civil Service Commission’s regulation that work regularly scheduled beyond the 40-hour basic workweek be scheduled at the end of the administrative workweek, after the basic workweek has been completed. The requirement is simply that, once the agency has selected such period, its regulations specify the period by calendar day, etc., regardless of where in the administrative workweek it occurs. This is entirely consistent with the statute, wherein, as mentioned earlier, the only requirement not subject to agency discretion is that the agency head establish a basic workweek of 40 hours for each full-time employee and require that the hours of work within that workweek be performed within a period of not more than six of any seven consecutive days. Since the Service has established a basic 40-hour workweek over a period of six consecutive days, Monday through Saturday, and since its regulations clearly specify that Sunday is excluded from the basic workweek, the requirements of the statute and of the Civil Service Commission’s implementing regulations have been met.

Moreover, there is no logical reason why an employee’s basic workweek should necessarily commence on the first day of the administrative workweek that he is scheduled to work. Both the scheduling actually used by the Service and that proposed by the plaintiffs seem equally appealing from a purely logical point of view.

What plaintiffs are really arguing in this suit, when their argument is distilled to its purest form, is that the failure of the Service to schedule the basic workweek for immigration inspectors in a manner that would maximize all possible benefits under the pay statutes herein involved amounts to an abuse of discretion.

This argument contradicts the plain meaning of section 6101(a) which permits the head of an agency to consider costs in scheduling work. If Congress had intended a result like that which plaintiffs are urging herein, it would obviously not have given such discretion to the agencies. Nor would it have included the anti-pyramiding provision in section 5549. The manifest intent of Congress in passing section 5549 was to preserve overtime benefits already possessed by groups like the immigration inspectors while preventing them from being paid under two different overtime statutes for the same services. With that congressional purpose clearly in mind, it seems more appropriate to view the plaintiffs’ proposed method of scheduling as a device to avoid the anti-pyramiding provisions then to view the Service’s actual scheduling as a scheme to avoid paying plaintiffs overtime under the Federal Employees Pay Act of 1945.

Plaintiffs cite the case of Anderson v. United States, 136 Ct.Cl. 365 (1956) where this court stated, in reference to patrol inspectors of the Customs Border Patrol, as follows:

* * * It may be that Congress would have been well advised to omit such employees from the Overtime Pay Act of 1945, or to make some different arrangement for their compensation. But Congress did not omit them, and their superiors were not authorized to deny to them the benefits of the act, on the ground that the administration of the act would be difficult, almost to the point of impossibility, or that money had not been provided to pay the employees what they were entitled to under the law. [Id. at 367.]

Anderson, however, did not involve a claim for benefits under more than one overtime pay statute. The concern of the court there was that plaintiffs were compensated for overtime work. There is a vast difference between an agency acting to deprive its employees of pay benefits granted by a statute, and an agency exercising discretion conferred by statute in scheduling work so as not to maximize every conceivable pay benefit.

The practice of the agency in establishing a basic workweek of five days from Monday through Saturday and an administrative, workweek from Sunday through Saturday is reasonable and in harmony with section 6101(a) and the implementing regulations thereunder. Where an agency’s long-standing administration and interpretation of existing statutes and regulations is reasonable and not contrary to the language of those statutes it is entitled to great weight. State of Alabama v. United States, 461 F.2d 1324, 198 Ct.Cl. 683 (1972); Barrington Manor Apartments Corp. v. United States, 459 F.2d 499, 198 Ct.Cl. 298 (1972); Malandra v. United States, 195 Ct.Cl. 11 (1971); DeLano v. United States, 393 F.2d 517, 183 Ct.Cl. 379, 388 (1968). (Immigration and Naturalization Service practice under the Act of March 2, 1931.)

In order to add even more weight to its contention that the Service’s practice of excluding Sunday from its basic workweek was reasonable, the defendant points to the fact that the Bureau of Customs has, since 1944, followed a similar practice of excluding Sunday from its basic workweek. This practice has the effect of denying customs inspectors overtime compensation under the Federal Employees Pay Act of 1945, by virtue of the anti-pyramiding provision, since they receive special compensation for Sunday work under the Act of February 13, 1911, 36 Stat. 901, as amended, Act of February 7, 1920, 41 Stat. 402 as amended, 19 U.S.C. § 267 (1970), the act on which the Act of March 2, 1931 was patterned. Plaintiffs counter by asserting that, since the Bureau of Customs begins its administrative workweek and its basic workweek on the same day, Monday, its exclusion of Sunday from, the basic workweek, while proper, in no way aids the defendant’s position in the instant case. However, since the court has decided that the Service’s practice of excluding Sunday from its basic workweek was proper in its own right, we do not deem it necessary to consider the practice followed by the Customs Bureau or to comment on the propriety thereof.

In conclusion, we hold that the Immigration and Naturalization Service properly exercised its discretion in excluding Sundays from the basic workweek. Furthermore, the Service’s long-standing interpretation and application of the pertinent statutes and implementing regulations is reasonable and is therefore entitled to considerable weight. Plaintiffs have already received all extra compensation due them and are therefore not entitled to recover in this suit.

Accordingly, defendant’s motion for summary judgment is granted, plaintiffs’ cross motion for summary judgment is denied, and plaintiffs’ petitions are dismissed.

      . On March 1, 1971, this court ordered that these four petitions be consolidated pursuant to Rule 131(a).

      . Immigration & Naturalization Service Administrative Manual 2818.04, section 1c, dated May 15,1962.

      . For purposes of its motion, defendant has admitted that plaintiffs regularly worked eight hours on Sundays during the claim periods and that this work was officially ordered or approved within the contemplation of agency regulations implementing the Federal Employees Pay Act of 1945, as amended, 5 U.S.C. § 5542 (a)(1970).

      . 46 Stat. 1467, as amended, 8 U.S.C. § 1353a (1970), reads as follows: “§ 1353a. 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 antemeridian, 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-lialf day’s 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-lialf days’ pay for the full period from five o’clock postmeridian to eight o’clock antemeridian) and two additional days’ pay for Sunday and holiday duty; in those ports where the customary working hours are other than those heretofore mentioned, the Attorney General is vested with authority to regulate the hours of such employees so as to agree with the prevailing working hours in said ports, but notiiing contained in tiiis section shall be construed in any manner to affect or alter the length of a working day for such employees or the overtime pay herein fixed.”

      . 5 U.S.C. § 5542 (1970), reads in pertinent part as follows:
      “§ 5542. Overtime rates; computation.
      (a) Hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or (with the exception of an employee engaged in professional or technical engineering or scientific activities for whom the first 40 hours of duty in an administrative workweek is the basic workweek and an employee whose basic pay exceeds the minimum rate for GS-10 for whom the first 40 hours of duty in an administrative workweek is the basic workweek) in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for, except as otherwise provided by this subchapter, at the following rates:
      (1) For an employee whose basic pay is at a rate which does not exceed the minimum rate of basic pay for GS-10, the overtime hourly rate of pay is an amount equal to one and one-lialf times the hourly rate of basic pay of the employee, and all that amount is premium pay.
      (2) For an employee whose basic pay is at a rate which exceeds the minimum rate of basic pay for GS-10, the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of the minimum rate of basic pay for GS-10, and all that amount is premium pay.”

      . 59 Stat. 302, as amended, 5 U.S.O. § 5549 (1970) provides as follows:
      5549. Effect on other statutes.
      This subchapter does not prevent payment for overtime services or for Sunday or holiday work under any of the following statutes—
      (1) section 394 of title 7;
      (2) sections 1353a and 1353b of title 8;
      (3) sections 261, 267, 1450, 1451, 1451a, and 1452 of title 19;
      (4) section 382b of title 46; and
      (5) section 154(f)(3) of title 47. However, an employee may not receive premium pay under this subchapter for the same services for which he is paid under one of these statutes.”

      . Plaintiffs do not make any claim based on the scheduling of a basic workweek over six days, rather than five.


author: PER CURIAM:

text:
    Calvin R. ALDRIDGE et al. v. The UNITED STATES. Thomas B. ADDLESBERGER et al. v. The UNITED STATES.
    Nos. 411-66 and 426-69.
    United States Court of Claims.
    Decided June 20, 1973.
    Jeffrey M. Glosser, Washington, D. C., atty. of record, for plaintiffs; Albert J. Joyce, Jr., Balboa, Canal Zone, and Pasternak, Kaufmann, Kaufmann & Gloss-er, Washington, D. C., of counsel.
    George M. Beasley, III, Washington, D. C., with whom was Asst. Atty. Gen., Harlington Wood, Jr., for defendant.
    Before COWEN, Chief Judge, LARA-MORE, Senior Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA and KUNZIG, Judges.
   OPINION

PER CURIAM:

These cases come before the court on plaintiffs’ exceptions to a recommended decision filed November 24, 1972, by Trial Commissioner Mastín G. White pursuant to Rule 134(h). The court has considered the cases on the briefs and oral argument of counsel. Since the court agrees with the decision, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, plaintiffs are not entitled to recover and the petitions are dismissed.

OPINION OF COMMISSIONER

WHITE, Commissioner: In these two civilian pay cases, which were consolidated for trial purposes, a total of 89 plaintiffs are suing the defendant for additional compensation with respect to the period that began on January 9, 1964, and ended on June 1, 1964.

It is my opinion that the plaintiffs are not entitled to recover.

At the time that is involved in the present litigation, the plaintiffs were working as civilian policemen in the Canal Zone and were assigned to the Cristobal Police District. The entire Canal Zone, covering a geographical area of approximately 550 square miles, was divided into two police districts, the Cristobal Police District, on the Caribbean side of the Canal Zone, and the Balboa Police District, on the Pacific side of the Canal Zone. The Cristobal Police District covered an area of approximately 355 square miles.

Because of incursions into the Canal Zone by riotous and destructive Panamanian mobs over a period of several days beginning on January 9, 1964 (see findings 4-6), and because of subsequent apprehension concerning the possible renewal of such trouble, the plaintiffs and other police personnel assigned to the Cristobal Police District (as well as police personnel assigned to the Balboa Police District) were required to perform many hours of overtime duty during the period that began on January 9, 1964, and ended on June 1, 1964 (see findings 7 and 8). Throughout this period, the plaintiffs received their regular pay for hours on duty up to 8 in a day and 40 in a week, and they received overtime pay for all time on duty in excess of 8 hours in any day or in excess of 40 hours in any week.

The plaintiffs contend in the present action, however, that the restrictions which were imposed by competent authority on their personal activities during their off-duty time were of such a nature that, except for the time spent in eating and sleeping, they should be regarded as having been on “standby duty” all the time when they were technically off duty during the period January 9-June 1, 1964; and, therefore that all of their off-duty time during the period in question actually constituted com-pensable hours of work, with the exception of the time spent in eating and sleeping.

Because it was thought necessary that policemen of the Cristobal Police District, while off duty during the period in question, should be available for an immediate call to duty if an emergency should arise, the following restrictions were imposed by competent authority on the personal activities of the policemen while in an off-duty status i

(1) They were forbidden to go outside the geographical boundaries of the district.

(2) They were required to be either at their quarters or at some other place within the district where they could be reached by telephone for an immediate call to duty.

(3) A policeman, before leaving his quarters to go to another place that had a telephone, was required to telephone the Desk Sergeant at the Cristobal Police Station, inform him of such intention, and furnish him the telephone number of the place to which the policeman was going.

(4) A policeman, upon returning to his quarters from another place, was required to telephone the Desk Sergeant and inform him of such return.

With respect to geographical restriction (1) previously mentioned, the District Police Commander in charge of the Cristobal Police District had the authority to permit a policeman to leave the district if the official believed that such an exception was warranted by an emergency situation; and on one occasion the District Police Commander did permit a plaintiff to go into the Balboa Police District for a few hours on an off-duty day. Also, after April 2, 1964, policemen of the Cristobal Police District who were scheduled for leave in the United States were allowed to go to the United States in accordance with the schedule.

As the plaintiffs and other policemen of the Cristobal Police District were forbidden during the period January 9-June 1, 1964, to spend off-duty time at places (even if within the district) that did not have telephones, the plaintiffs and their colleagues were denied the privilege of participating in such recreational activities within the district as hunting, fishing, boating, picnicking, and going to the beach while off duty.

On the other hand, the plaintiffs (and their colleagues) actually had great freedom of movement and activity within the district while off duty during the period in question, since the Cristobal Police District covered approximately 355 square miles and there were many different types of places within the district which were equipped with telephones and to which off-duty policemen were free to go during their off-duty time, provided they notified the Desk Sergeant at the Cristobal Police Station in advance of such intention. Included among the places to which policemen were free to go and spend off-duty time were churces, commissaries (grocery stores), theatres, barber shops, cleaning and pressing shops, bowling alleys, social clubs, golf clubs, swimming pools, hobby shops, a clothing store, a first-aid station, a gymnasium, a library, a hospital, and a YMCA. In addition, virtually all of the civilian and military quarters located within the Cristobal Police District were equipped with telephones, and off-duty policemen were free to visit the homes of their friends within the district. Also, there were schools at each of the civilian communities within the Cristobal Police District, the schools were equipped with telephones, and policemen could visit the schools, if they had occasion to go there during off-duty time (e. g., to attend PTA meetings).

If the off-duty time of the plaintiffs during the period January 9 — June 1, 1964, constituted “hours of work” because of the restrictions imposed by competent authority on the plaintiffs’ personal activities, the Canal Zone Government was obligated by 5 U.S.C. § 911 (1964) to compensate the plaintiffs for their off-duty time (with the exception of time devoted to eating and sleeping). However, it is my opinion that considerable violence to the English language would be done by a holding to the effect that the plaintiffs were engaged in “work” for the Government while they were attending church services, or making purchases at grocery stores, or watching shows at theatres, or visiting the homes of friends, or entertaining friends in their own homes or pursuing hobbies at hobby shops, or swimming at swimming pools, or participating in social activities at social clubs, or playing golf at golf clubs, or getting haircuts, or bowling at bowling alleys, or carrying on in their own homes whatever activities in the way of recreation, diversion, or relaxation that might suit their fancy.

The plaintiffs’ situation is readily distinguishable from that involved in other cases where employees were required to remain at a specific place designated by the employer while awaiting a possible need for their services, and the courts held that the waiting time, although not productive, constituted compensable hours of work (e. g., Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944); Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944); Winsberg v. United States, 98 F.Supp. 345, 120 Ct.Cl. 511 (1951); Farley v. United States, 127 F.Supp. 562, 131 Ct.Cl. 776 (1955)).

From the standpoint of the present litigation, the case of Rapp v. United States, 340 F.2d 635, 167 Ct.Cl. 852 (1964), is especially significant. The claimants in that case were employees of the Office of Civil and Defense Mobilization (and of its predecessor agency) during the period that was involved in the litigation, and they were suing for compensation with respect to the time when they severally served as duty officer for the agency during non-work hours. Generally speaking, the function of a duty officer was to receive telephone calls relating to natural disasters and other emergencies, to develop additional information if necessary, and either to take appropriate action himself or to telephone one of his superiors and request advice regarding the action to be taken. The duty officer function was performed for 16 hours after the close of business on a normal workday, or for 24 hours on a Saturday, Sunday, or holiday.

During the initial phase of the period that was involved in the Rapp case, a duty officer performed this function at his home for the 16 hours or 24 hours of the assignment, and he was free to occupy his time at home as he saw fit while awaiting possible telephone calls concerning emergencies. He was not required to perform any other duties. Later, a duty officer was required to perform this function at the agency’s control center; and in addition to being available to receive possible telephone calls concerning emergencies, he was required to maintain a log, to make and receive regular telephone calls, and to test electronic equipment. Except for these duties a duty officer was free to read, eat, or sleep (on a cot provided by the agency).

This court held in the Rapp case that during the time when duty officers performed the function at home, the hours devoted to such duty did not constitute compensable hours of work (340 F.2d at p. 642, 167 Ct.Cl. at p. 865), but that the hours of duty performed at the control center (except for the time spent in eating and sleeping) were predominantly for the benefit of the employer and, therefore, constituted compensable hours of work (340 F.2d at pp. 642-644, 167 Ct.Cl. at pp. 866-868). Our present plaintiffs had substantially greater freedom of movement and activity during their off-duty time than did the duty officers in the Rapp case while functioning in their homes.

The plaintiffs rely principally upon Section 3.06 of Chapter H2 of the Canal Zone Government’s Personnel Manual. That section, at the time involved in the present litigation, declared that “standby duty” was compensable for civilian personnel of the Canal Zone; and “standby duty” was defined to mean “remaining, on orders from competent authority, at or within the confines of a duty station or designated area, in a state of readiness to perform actual work when the need arises or when called.” The term “duty station or designated area,” in turn, was defined in the following language:

(1) An employee’s regular duty station.
(2) In quarters or waiting rooms provided by the Panama Canal Company and Government, which are not the employee’s ordinary living quarters, and which are specifically provided for use of personnel required to stand by in readiness to perform actual work when the need arises or when called.
(3) In an employee’s living quarters, whether public or private property, when specifically designated by competent authority.

Section 3.06 does not appear to be applicable to the plaintiffs’ off-duty time during the period January 9-June 1, 1964, because the plaintiffs were not ordered by competent authority to “remain” during off-duty time in their “regular duty station,” or in “quarters or waiting rooms * * * specifically provided for use of [standby] personnel,” or in their own “living quarters.” Actually, the plaintiffs were not ordered to “remain” at any specific place. On the contrary, they were free during off-duty periods to go anywhere they wished within the 355 square miles of the Cristobal Police District, so long as the places to which they went had telephones and they kept the Desk Sergeant at the Cristobal Police Station informed as to their whereabouts.

It necessarily follows, from what has previously been said in this opinion, that the plaintiffs have not shown their entitlement to recover, and that the petitions should be dismissed.

      . Similar restrictions were imposed on the personal activities of policemen assigned to the Balboa Police District.

      . The pertinent statutory provision is now codified as 5 U.S.C. § 5542 (1970).

      . The fact that police officials may initially have referred to “standby” and “standby alert” does not show that they were invoking Section 3.06. It seems plain that those terms were used colloquially and in a general sense, not in the specific meaning of the regulation. These officials later corrected themselves to refer to “on call” status. [Footnote by the court.]