Bates v. United States

Skelton, Judge,

dissenting:

I respectfully dissent.

Our trial commissioner based his judgment on the validity and binding effect of the stipulation of counsel in this case to the effect that the local V.A. Hospital Director and Assistant Hospital Director were authorized to approve overtime during the claim period. On that basis, the trial commissioner was correct in entering judgment for the plaintiffs. However, in my opinion, he was in error in holding the government to the stipulation under the facts and the law in this case, and, consequently, his decision was erroneous. In like manner, the decision of the court in upholding his decision for the plaintiffs is an error.

The major question in the case was whether the local director or assistant director, or both, were authorized to approve regular overtime for employees at the hospital. The law is clear that they could not do so. The statute which is applicable is 5 U.S.C. § 911 , which requires overtime work to be officially ordered or approved. It authorized the Civil Service Commission to issue regulations implementing the statute, which has been done. The regulations are 5 C.F.R.. § 25.221 (1949 ed.) and 5 C.F.R. § 550.111 (1964 ed.), which provide that overtime work to be “officially” ordered or approved must be ordered or approved in writing by an official who himself was authorized to order or approve such overtime.

Veterans’ Administration regulations (Regulation MP-5, paragraph 7), provided in pertinent part as follows:

7. Overtime

* * * Supervisory personnel must obtain proper au *372 thorization for overtime before permitting or requiring the performance of overtime woi’k by an employee. Heads of departments and other top staff officials are authorized to prescribe, in their responsible areas, such limitations as are necessary to provide control and prevent abuse of the use of paid overtime. * * * [Emphasis supplied.]

Definitions of regular and irregular overtime were set forth in the regulations as follows:

(a) Regular overtime work means overtime work which is regularly scheduled. For this purpose, any overtime work scheduled for an employee in advance of the administrative workweek in which it first is to occur, and which will recur over an extended period of time (at least 2 consecutive administrative workweeks) constitutes regular overtime.

(b) Irregular occasional overtime work means overtime work which is not regularly scheduled.

Paragraph 5(b) of the June 14, 1965, revision of MP-5 provided:

b. Basic Workweek Plus Regular Overtime. A regularly scheduled administrative workweek consisting of the 40-hour basic workweek, plus a period of regular overtime work, may be established for an employee or groups of employees by department heads or staff office heads, or their designees, for their respective personnel within Central Office, and by Directors or Managers of field stations when authorized ~by their respective department heads. * * * [Emphasis supplied.]

Irregular overtime was covered by paragraph 7 (b) as follows :

(1) Authorization. Staff office heads, heads of departments, Directors and Managers of field stations, Assistant Directors, Supply Service at supply depots, or their designees, are authorized to order and approve irregular or occasional overtime. [Emphasis supplied.]

The V.A. regulations in force during the claim period further provided:

* * * The establishment of a regularly scheduled administrative workweek which includes regularly scheduled overtime shall require approval by the department heads for field stations, and by department heads or top staff officials for Central Office. The document establish *373 ing such, regularly scheduled administrative workweeks shall identify, ¡by calendar days and number of hours per day, the periods of time which do not constitute a part of the basic workweek.

The foregoing regulations show beyond question that regular overtime had to be ordered or approved by the head of the department or staff office heads or their designees in Washington in writing and could not be authorized or ordered by local directors or assistant directors of hospitals. There is no proof in this record that the head of the department or any staff office head, or their designees, ever ordered or approved the alleged overtime claimed by the plaintiffs in this case. Under such circumstances, the plaintiffs have failed to prove an essential element of their case.

The trial commissioner and the court gets around this defect by holding valid and binding the stipulation of counsel that the local director and assistant director of the hospital was authorized to order and approve overtime. This stipulation was clearly erroneous because it was contrary to the above regulations, which were in evidence. Government counsel entered into the stipulation through erroneous information furnished him from Washington. However, he discovered the error after the evidence was closed but before the trial commissioner rendered his decision and called it to the attention of plaintiffs’ counsel and the commissioner and asked to be relieved from the stipulation. He also offered to allow proof to be reopened in the case. Both counsel for the plaintiffs and the commissioner refused. The commissioner proceeded to enter judgment for the plaintiffs based on the stipulation.

I think this was error. The defendant called the mistake to the attention of the commissioner and the plaintiffs in plenty of time for the plaintiffs to have offered other or additional proof in support of their case. They chose not to do so. In fact, they have not shown they would have or could have offered any more or different proof had the stipulation not been made. Consequently, they have not shown any prejudice or injury by reason of the stipulation nor any that would result to them if the government were relieved from it.

The situation boils down to the simple proposition that the lawyers for the parties entered into a stipulation through *374 error and mistake that was contrary to the law and the facts in evidence before the trial commissioner. The error was called to the attention of plaintiffs’ counsel and the commissioner at the trial level. The commissioner is an arm of this court. He acts as a trial judge. He had full authority to correct this situation by relieving the defendant of the stipulation and allowing the parties to offer additional evidence at the trial level. In the interest of justice, this should have been done.

The Supreme Court, as well as this court and other courts in the interest of justice have relieved parties from stipulations erroneously entered into that were contrary to the law or the facts, or both. In the case of Swift & Company v. Hocking Talley Ry., 243 U.S. 281 (1917), a stipulation that was contrary to the facts in the case was before the court. The court rejected the stipulation, saying:

If the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously inoperative; since the court cannot be controlled by agreement of counsel on a subsidiary question of law. If the stipulation is to be treated as an attempt to agree “for the purpose only of reviewing the judgment” below that what are the facts shall be assumed not to be facts, a moot or fictitious case is presented. “The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. * * * No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard.” [Footnote omitted.] [ld. at 289.]

This court held in H. B. Zachry Co. v. United States, 170 Ct. Cl. 115 , 344 F. 2d 352 (1965), that it would relieve a party of a stipulation where necessary to prevent an injustice, particularly where facts contrary to the stipulation are established by the evidence. In the recent case of Hegeman-Harris & Co. v. United States, 194 Ct. Cl. 574 , 440 F. 2d 1009 (1971), this court held that the government should be relieved from a stipulation entered into between a government attorney and a contractor during a proceeding before a Board of Contract Appeals, saying:

* * * We think this case presents special considera *375 tions. Where the subcontracts themselves are fart of the record, any stipulation as to their legal effect is not operative. Were we to rule otherwise, this court would be in the position of allowing counsel to stipulate the law, a function which, in the context of a judicial proceeding, is the province of judges. Not only has this court refused to be bound by a stipulation on an issue of law, The Sac & Fox Tribes, et al. v. United States, 161 Ct. 01.189, 315 F. 2d 896 (1963), but the United States Supreme Court has made similar pronouncements, Swift & Co. v. Hocking Valley Ry. 243 U.S. 281 (1917). * * * [Emphasis supplied.] [Id. at 581, 440 F. 2d 1012 .]

The interpretation and construction of a regulation is a question of law to be decided by the court. Nager Electric Co. v. United States, 194 Ct. Cl. 835 , 442 F. 2d 936 (1971).

In the case of Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403, 444 (1902), the Supreme Court held that a stipulation:

* * * [O]ught not to be used as a pitfall, and where the facts subsequently developed show, with respect to a particular matter, that it was inadvertently signed, we think that upon giving notice in sufficient time to prevent prejudice to the opposite party, counsel may repudiate any fact inadvertently incorporated therein. This practice has been frequently upheld in this and other courts. [Cases omitted.]

These cases announce principles that are not only correct in law but also are fair and just. When the stipulation in the case before us is tested by these authorities, it is crystal clear that it must be ignored and the government relieved from it. Otherwise the law and the facts become immaterial.

After all, the trial of a lawsuit is not like playing a game where the outcome is determined by the efforts of the participant who is the most skillful and adroit in “moving his men about the chess board.” The court should be interested in determining the true facts and the law and then applying the law to the facts, regardless of the ingenuity of counsel ■in obtaining stipulations. This is especially true where the stipulation is contrary to the law and the facts, as here.

The stipulation in this case should be set aside or ignored and the defendant relieved from it. When this is done, we are left with the true facts and the law as expressed in the *376 regulations. Under these circumstances, the judgment should be rendered for the government, because the regulations clearly and plainly provide that only the head of the department or his designees can order or approve overtime, and this was not done here.

The court’s opinion speaks of some judges believing that even if the stipulation is not binding, the regulations can be read to say that the local director of the hospital can order or approve regular overtime. In my opinion, this is a strained construction of the regulations that is contrary to the plain and unmistakable language contained therein. All that is needed to refute this view is to read the regulations themselves. Furthermore, this construction of the regulations will lead to a serious problem later on for any judge holding this view, because in a companion case already tried in this court {Anderson v. United States, Court of Claims No. 151-68), where the facts are the same as here (except for the stipulation) , a high level official of the V.A. testified without contradiction that no local hospital official was authorized to approve or order regularly scheduled overtime and that the lowest level agency official who could do so was the Chief Medical Director of the agency (in Washington).

The opinion acknowledges that there is a division among the judges as to the stipulation issue as well as on the interpretation of the regulations. Yet it does not show how the judges are divided as to the number favoring or rejecting each issue. Consequently, it is impossible for anyone reading the opinion to determine whether a majority approves the decision of the trial commissioner based on the validity and binding effect of the stipulation. For the same reason it cannot be determined whether a majority reject the stipulation and interpret the regulations favorable to the plaintiffs. It is clear that we do not have a majority decision of the court on these issues. Furthermore, the opinion states that it does not decide whether time required for changing into or out of uniforms, considered separately, is or is not compensable. It is obvious that the court has avoided and side-stepped all the issues in the case and has decided none of them. All that it has decided is that by some sort of a jury verdict the plain *377 tiffs are entitled to a judgment without showing why this is so.

This is an important case. In fact, it is a test case that was instigated by an employees’ union. The government says it may affect 750,000 government workers. I think the government, the workers, the union, as well as the 'bench and bar are entitled to have a decision of this court on the issues in this case. This is also true with respect to our trial commissioners who now have one or more cases before them involving the same issues. All that anyone can deduce from the opinion of the court is that the plaintiffs win and the government loses.

I think the opinion should 'be written to show the majority vote of the judges of the court on each issue. If there is a division in the opinions of the judges, that should be shown also — how each judge stands. That is the customary procedure in this court and it is the only way the court and the bench and 'bar can work effectively.

The plaintiffs make an alternative contention that the claimed overtime here was actually “irregular” overtime and the local director was authorized to order and approve it. This is not sound, because the regulations quoted above provide that:

Irregular occasional overtime work means overtime work which is not regularly scheduled.

This clearly means work of an emergency nature that occurs only occasionally. This does not jibe with plaintiffs’ claim here. They claim they worked overtime regularly every day for six years. This could not be “irregular” or “occasional” overtime.

The defendant contends that even if the local director of the hospital had the authority to order or approve regular overtime, which it does not admit but denies, he did not ever do so. There was some evidence, objected to by defendant, that prior to the claim period a chief nurse named Fitz-simmons posted a notice to nurses under the authority of the then Hospital Director, a Dr. Tighe who was deceased at the time of the trial, directing them to report in uniform 15 minutes prior to their work shift. However, there was no *378 evidence that this Fitzsimmons’ memorandum, if it ever existed, was still in effect during any part of the claim period. In fact, the chief nurse and his associate chief testified that no such rule had been in effect during the claim period. Dr. Brannon, the Hospital Director during the claim period, never heard of such a memorandum and the trial commissioner so found. Under all of these circumstances, the Fitz-simmons’ memorandum should not he considered for any purpose.

This leaves us to consider what Dr. Brannon did by way of issuing orders relating to work during the claimed period. The only orders he issued in this regard were those prohibiting the wearing of uniforms to and from home and requiring them to be kept in lockers at the hospital, and an order urging all employees to be at their respective duty posts in sufficient time “to commence work at the scheduled time.” The defendant says this was merely a “don’t be tardy” memorandum. It is true that the order did not require the workers to report for work any specified time or number of minutes before their scheduled time began. It seems to me the order is too general, vague, and indefinite to be considered as an order which schedules regular overtime that is com-pensable. It is more in the nature of a condition of the employment, somewhat like telling a school teacher to be on time for the opening of her class, or instructing a school bus driver to have his bus filled with gas and oil in time to start on his route, or telling a mailman or newspaper boy to be at their stations in time to start their deliveries on schedule.

The fact that the local director of the hospital knew that the plaintiffs were reporting eai’ly for work does not help them. We held in Bilello v. United States, 174 Ct. Cl. 1253 (1966), that mere knowledge of overtime by an official was not sufficient to enable an employee to recover for overtime in the absence of an order authorizing overtime by an authorized official.

I would deny plaintiffs any recovery and dismiss their petition.