Laurens L. Delano v. The United States

COWEN, Chief Judge

(dissenting):

I agree that there are both practical and equitable considerations which lend support to a decision in favor of the plaintiffs. However, I respectfully dissent, because I believe that, under the statutes and regulations as they presently exist, a holding for the plaintiffs is contrary to the law.

As the majority correctly points out, the Act of March 2, 1931, ch. 368, § 1, 46 Stat. 1467 , as amended, 5 U.S.C. § 342c (1964), vests in the Attorney General a broad discretion to determine what constitutes overtime services. Callahan v. United States, 74 App.D.C. 281 , 122 F.2d 216 (1941). There is also no question that the regulations involved here are valid regulations promulgated pursuant to the authority conferred by the Act of March 2, 1931. My disagreement with the majority is in respect to the scope and application of the regulations. The court holds that, while sections 7 and 9 of the regulations are generally applicable, they do not cover the period of time for which plaintiffs make claim. The opinion reasons that because neither section makes specific mention of the time preceding an en route inspection, the guidelines of those sections necessarily do not apply to the computation of overtime for that period. In my view, the guidelines of section 7, which delineate those periods which are to be given overtime treatment, are clearly applicable to all overtime computations, including those preceding and incidental to an en route inspection program.

I

To properly understand the application of sections 7 and 9, they should be examined in the context in which they were promulgated. Section 7 is the key provision in which are prescribed the guidelines for determining the kind of duty that is entitled to overtime compensation. The significance of section 9 is its incorporation of the section 7 guidelines and *525 its application by way of example of these provisions to the very problem we have before us. It will be helpful, for the purpose of convenient reference, to again quote the provisions of sections 7 and 9.

Section 7, Time on Duty Except Sundays and Holidays, Definition: Time on duty primarily shall be the actual time spent on inspection. In addition, time shall also be allowed for remaining on duty, as follows: Where two hours or less intervene between completion of an immigration officer’s basic hours and the expected or actual time of an arrival, the beginning of time on duty shall be the time at which the immigration officer’s basic hours of work ceased: Provided, That where these ceased before 5 p. m., the beginning of time on duty shall be at 5 p. m. Where more than two hours so intervene, the beginning of time on duty shall be considered to be the time two hours before the time arrival is expected, but in no case earlier than 5 p. m. The ending time shall be the time at which the actual inspection was concluded, 8 a. m., or the beginning time of his next basic hours of duty, whichever is earliest. * * *

******

Section 9, Inspections Outside the United States, Inclusion: Where at the request of carriers, immigration officers of the Immigration and Naturalization Service board conveyances destined to arrive in the United States, and perform inspection of passengers and crews while enroute, or where inspection is otherwise performed in Canada or Mexico at carrier’s request, extra compensations shall be due hereunder at carriers’ expense. Carriers which are inspected enroute need not be off-schedule when they arrive in order to permit billing, and time spent at the port of arrival may be considered as a part of time on duty. For example, a train is inspected on .its trip from Canada to the United States. It leaves Canada at 8 p. m. and arrives in the United States at 9:15 p. m. Inspection is completed at 9:45 p. m., one-half hour after arriving on scheduled time. The billable period is from 6 p. m. to 9:45 p. m.

These sections are contained in the Immigration and Naturalization Service’s Administrative Manual and are but 2 of 22 sections, all of which deal as an unit with the matter of overtime compensation. It is these 22 sections which contain all the rules, regulations, and schedules regarding overtime for the entire Service; matters like the computation of and limitation on overtime earnings are all summarily dealt with in these provisions. Significantly, section 7 is the one provision which defines for the purpose of all the other sections what shall be considered time on duty for the purpose of computing overtime. 1 I point this out to suggest that, as a practical matter, since section 7 is the only regulation which contains the guidelines for measuring overtime employment, it would seem fair to conclude that the section provides the proper and only measure of overtime under all circumstances. Moreover, since time on duty is an integral part of any computation of overtime, and since section 7 provides the only definition of “time on duty” for the purpose of overtime, it is difficult to imagine how the provisions of that section could escape consideration whenever compensable overtime is being computed.

The majority concludes that section 7 contemplates only the situation where an inspector remains on duty at an inspection station, and, since it fails to make express mention of en route inspection, does not apply to the en route procedure. Arguably, the “an arrival” language in *526 section 7 could be interpreted as limiting the regulation to station inspections alone; however, since the vast majority of all inspections are undoubtedly conducted at the port of arrival, it would seem no more than a natural expedient to couch the regulation in the conventional terms of general procedure. To me, “an arrival” simply stands for the commencement of an inspection period. Moreover, it would seem unreasonable to conclude that the Attorney General would promulgate for an agency an exhaustive body of provisions to regulate the entire field of overtime and then limit, as the majority suggests he intended, his definition of overtime duty to employment at the port of entry alone, leaving unregulated all other types of inspection activity.

Fortunately, there is little need to speculate over the scope of the intended application of section 7 guidelines, for I think section 9 is dispositive of the matter.

The purpose of section 9 is to assign liability to carriers for overtime accumulated by inspectors during enroute inspections made at the carriers’ request. For our purposes, however, the section establishes two important points. First, it quite obviously indicates that immigration inspectors are entitled to overtime compensation for the time they spend on duty during an en route inspection. Second, and most importantly, it illustrates, in contradistinction to the majority holding, that section 7 guidelines are applicable to en route inspection matters. This is clear from the example used to illustrate the boundaries of a “billable period.” Starting with the requirement of section 9 that the carrier pay for all overtime compensation accumulated incidental to a requested en route inspection, 2 the example indicates that the inspectors have earned and therefore are entitled only to overtime pay for the period of actual time spent on inspection (8 p. m. to 9:45 p. m.) plus a 2-hour rollback (8 p. m. to 6 p. m.). The example has necessarily adopted the requirements of section 7, for that is the only provision which delineates compensable overtime as “actual time spent on inspection” and provides, in addition, for a 2-hour rollback. That the Attorney General applied the guidelines of section 7 to an en route problem without further discussion is, to me, conclusive evidence that section 7 provisions are generally applicable to all overtime computation matters, including, of course, en route inspections.

Since section 7 contains the exclusive definition of what constitutes time on duty for the purpose of computing overtime, plaintiffs have no ground on which to recover, because the period for which they claim overtime compensation (5 p. m. to sometime shortly after 8 p. m.) was neither time spent at inspection nor withr in the 2-hour rollback period. That they spent part of the disputed time traveling to and waiting for their en route inspection is largely irrelevant, for that time nonetheless fell outside the section 7 definitions of compensable overtime. Once it is determined that section 7 guidelines apply to en route inspections — and section 9 would seem to make that clear — plaintiffs’ claim is little different from that of an inspector who, after his regular tour of duty concluded at 5 p. m., waited at a port of entry until approximately 10 p. m. for the next arrival. There is no question but that the inspector in that situation would be entitled to overtime compensation only for the time he spent on inspection after 10 p. m. in addition to a 2-hour rollback to 8 p. m.

Plaintiffs contend that they did more than merely travel to and wait at the Montreal station and that they were actually on duty during the period for which they claim. They emphasize the *527 fact that they were in uniform during the travel to Montreal and that they occasionally answered inquiries from passengers and Canadian officials. In addition, they show that they generally returned to the railroad station before the scheduled departure. The undisputed evidence shows that none of these activities was ordered or required. The orders issued to plaintiffs specified only that they were to report at the railroad station at the scheduled time for the departure of the southbound train to the United States. In the disputed period between 5 p. m. and the scheduled time for the departure of the southbound train (usually 10:10 p. m.), plaintiffs were in fact free to spend that time as they chose. As good public servants, plaintiffs are to be commended for their gratuitous answering of questions on the trip from Rouses Point to Montreal and for voluntarily returning to the railroad station in Montreal well in advance of the time the southbound train left for Rouses Point. However, their testimony on cross-eaxamination demonstrates conclusively that these activities were performed at their volition. Since they were not engaged in the performance of compensable overtime service between 5 p. m. and 2 hours prior to the train departure, I would strike the court’s finding 6(a). Their conduct in the circumstances is comparable for example, to that of a police officer who reports early to the station house to take care of administrative matters which would otherwise burden his patrol time, and, who, when proceeding to or after leaving from his duty station, takes the trouble to answer inquiries of pedestrians and motorists.

It is important to note that even if the plaintiffs, for some purposes, could be regarded as being on duty during the period between 5 p. m. and 10 p. m. they would still be ineligible for overtime compensation under the provisions of section 7. When that section is read carefully, it is clear that an employee is not necessarily entitled to overtime compensation even though he remains on duty after his regular tour. Section 7 carefully provides that the employee will be entitled to extra pay for “actual time spent on inspection”, and, in addition to that, for the purposes of overtime compensation “time shall also be allowed for remaining on duty, as follows: * * * Where more than two hours so intervene [between the time at which the officer’s basic hours of work ceased and the next inspection period], the beginning of the time on duty shall be considered to be the time two hours before the time of arrival * * ” [emphasis added]. I call attention to the italicized words and suggest that, properly interpreted, the regulation provides that when an employee remains on duty for several hours after the expiration of his basic work period, he nonetheless is entitled to overtime compensation only for the subsequent inspection period and the two hours preceding that inspection. Were the plaintiffs regarded as being on duty for the period between 5 p. m. and 10 p. m., it might perhaps be argued that they should at least receive regular pay for the time they spent in excess of their basic work period but prior to the beginning of the 2-hour rollback period (i. e., roughly between 5 p. m. and 8 p. m.), but this is not an issue now before the court. I find only that the plaintiffs are not entitled to overtime compensation for the disputed period under the existing regulations.

Finally, there is good judicial support for the position I have taken. Interestingly, section 9(b) of the Service regulations, entitled “References”, indicates that the provisions of section 9 are based, in part, on the ease of United States v. Central Vt. Ry., Inc., 16 F.Supp. 864 (D.Vt.1936). In that case, the United States sought to recover from the railroad, under a statute similar in terms to section 9, compensation for the overtime earned by its inspectors during en route inspections between Canada and the United States. Notably, the inspectors there, like the plaintiffs before us, commonly traveled from the port of entry, St. Al-bans, Vermont, to Montreal and there boarded the southboard train to begin *528 the inspection program. The district court held that the United States was entitled to recover, but what I find significant is the fact that though the carrier was held liable for the full overtime, compensation due the inspectors, recovery was limited to the time spent on actual inspection. Admittedly, there was no claim made, as here, for overtime compensation for the travel period to Montreal; however, unless the regular pay period of each inspector ended the moment he boarded the southbound train and not before' — a dubious supposition — -it is clear that neither the United States, the employees, nor the district court thought the inspectors were entitled to overtime pay for travel to the site of an en route inspection. Coincidentally, the example in section 9 also involves an en route inspection between Canada and the United States. Since my observations here are equally applicable to that illustration, it would seem that if the travel and wait preceding an en route inspection represented compensable overtime, as plaintiffs argue, then that example would be fatally incomplete.

II

The court holds that neither section 7 nor 9 is applicable to the period for which plaintiffs make claim and that they are entitled to recover for that time directly under the authority of the Act of March 2, 1931, supra. To support this conclusion, the opinion points out that such an interpretation is consistent with a long history of administrative construction and parallels the treatment given customs inspectors whose overtime compensation is regulated under a similar statute.

It is true that the plaintiffs’ counterparts in the Customs Service do get overtime compensation for the period here in issue. It is also true that we have before noted the practices of the Customs Service as an important analogical aid in the disposition of immigration matters and have concluded that the purpose of the 1931 Act was to put immigration inspectors on a parity with customs inspectors. Bishop v. United States, 355 F.2d 617, 620 , 174 Ct.Cl. 31, 38 (1966). Moreover, the language in the Act which gives the Attorney General authority to fix reasonable overtime rates is practically identical to the language in the Customs Service Act (Act of Feb. 13, 1911, ch. 46, § 5, 36 Stat. 901 , as amended, 19 U.S.C. § 267 , (1964)) which vests the Secretary of the Treasury with the same authority.

However, the decisive difference between the two services is that different regulations govern the overtime compensation payable to the respective employees. 3

To ignore the difference between the regulations of the two departments is to ignore the fact that, although a certain degree of parity was intended, Congress chose to vest the Secretary of the Treasury and the Attorney General, respectively, with the authority to independently exercise their discretion in defining com-pensable overtime.

The rule of statutory construction, which relies on long continued and consistent administrative interpretation, is not, in my opinion, applicable under the facts of this case. Before March 1,1960, the local officer-in-charge at Rouses Point issued written orders for the inspectors to report for duty at Rouses Point, at departure time for the northbound train to Montreal. As a result, the inspectors (not on regular tour of duty) were paid overtime compensation from 5 p. m. until the southbound train from Montreal arrived back at Rouses Point about 11:30 p. m. On February 29, 1960, the Assistant Regional Commissioner determined that there was no authority in the Act of March 2, 1931, or in the regu *529 lations for paying the inspectors any overtime compensation for travel to the point of inspection or for any waiting time prior to the beginning of their inspection duties, except for the 2-hour rollback time. Thereafter, the plaintiffs were ordered to report for duty at Montreal at train departure time (10:10 or 10:20 p .m.), and were paid for the actual inspection time on the southbound trip, as well as for the 2 hours earlier. I think the Assistant Regional Commissioner correctly concluded that the practice followed prior to March 1, 1960, was contrary to the applicable regulations. Therefore, I would place no reliance on a repudiated and erroneous construction of the regulations. County of Marin v. United States, 356 U.S. 412, 420 , 78 S.Ct. 880 , 2 L.Ed.2d 879 (1958).

Ill

The case law is clear that Government employees are simply not entitled to overtime compensation for time spent in travel to a duty station or for waiting at or around the duty station until services are scheduled to commence. Therefore, the regulations here in issue do not produce an unlawful result when applied to plaintiffs.

The claimants suggest that because their waiting period was confined to Montreal, away from their homes and headquarters at Rouses Point, they were necessarily on duty status. In a case very much in point on this issue, Baca v. United States, 150 Ct.Cl. 70 , cert. den. 364 U.S. 892 , 81 S.Ct. 224 , 5 L.Ed.2d 188 (1960), this court held that civilian bus drivers, who were employed by the Army to transport personnel between the White Sands Missile Range and their homes in the surrounding area, were not entitled to overtime compensation for the time they had to spend in waiting at the Range between their morning and afternoon transport duties, notwithstanding the fact that the isolation of the Range and the lack of any practicable means of leaving the post left the employees with no choice but to remain there. The court noted that— * * * time spent while waiting to perform actual labor constitutes working time under some circumstances and, therefore, is compensable. However, it is characteristic of the cases so holding that they involved situations where the employee was under orders from the employer to wait at a particular place, the employee was liable to be called upon at any moment for the performance of actual labor, and he was not at liberty to go away for the purpose of engaging in other activities of his own choice. Armour & Co. v. Wantock, 323 U.S. 126, 133 , 65 S.Ct. 165 , 89 L.Ed. 118 (1944); Farley v. United States, 131 Ct.Cl. 776, 779 (1955); see Missouri, K. & T. Ry. Co. v. United States, 231 U.S. 112, 119 , 34 S.Ct. 26 , 58 L.Ed. 144 (1913). In other words, waiting time is working time only if the employee has been “engaged to wait.” Skidmore v. Swift & Co., 323 U.S. 134, 137 , 65 S.Ct. 161 (1944). It necessarily follows that in a situation where an employee has complete freedom during a waiting period to go where he pleases and do what he pleases, so long as he is at the proper place when the time arrives for the beginning of his actual labor, the waiting time is not working time, and is not compensable. Abbott v. United States, 138 Ct.Cl. 459, 464 , 161 F.Supp. 929 (1957). [ 150 Ct.Cl. at 77-78 ]

Similarly, this court has also found travel to duty posts noncompensable as overtime. In my view, the court has failed to distinguish Biggs v. United States, 152 Ct.Cl. 545 , 287 F.2d 908 (1961) and Ahearn v. United States, 142 Ct.Cl. 309 (1958). The court suggests that the plaintiffs are entitled to compensation for travel because Train No. 35 was the only available means of transportation which would get them to Montreal in time, and passage thereon required them to leave their homes considerably earlier than would otherwise be necessary. Since under the Baca decision waiting time— even under confining conditions — is not compensable, it would seem irrelevant that plaintiffs had to arrive early in *530 Montreal, and, under the authority of Ahearn, relied upon in part by Biggs, it is immaterial that employees are required to travel on a particular conveyance. In Ahearn, plaintiff-firefighters, employed at the United States Naval Base, Newport, Rhode Island, had to spend a total of one hour each day traveling by boat to and from their stations. In denying plaintiffs’ claim for overtime compensation for the travel time, this court held that—

* * * The trip here * * * was made before reporting for work; it was not required by defendant, although it was the only way they could get there, and it involved no more risk than the travel to and from work performed by any employee. * * * We think the time spent in this travel is no more compensable than the time spent by any employee in going from his home to his work. [ 142 Ct.Cl., at 313 ] [emphasis added].

In the matter before us, the regular employees were employed from 4 p. m. in the afternoon to 12 midnight, and, consequently, they were on regular working hours during their trip to Canada and therefore properly entitled to compensation. The plaintiffs, on the other hand, were not on their regular duty tour during this period and therefore, under the statute, regulations, and case law, were not entitled to overtime. The apparent inequity with this arrangement is that both the regular employees and the plaintiffs were engaged in exactly the same activity while only the regular employees were compensated for their waiting and travel time; however, this is not entirely correct. Section 7 provides for overtime compensation during a 2-hour rollback period. This rollback quite obviously, by its very terms, represents compensation for a period in excess of “time on duty” which is defined in section 7 as “primarily * * * actual time spent on inspection.” Moreover, it is apparent that the Attorney General provided for the rollback to cover exigencies just such as that presented in this case — -that is, to provide compensation for overtime employees who must either wait for “an arrival” or travel to the site of the inspection before they can begin their “actual time spent on inspection” and receive credit for “time on duty.” Under the circumstances of this case, the 2-hour rollback provision has the effect of putting the overtime employees more nearly on parity with the regular employees for the period before actual inspection begins. It must be remembered that overtime compensation, in this case, is twice the ordinary compensation, and the 2-hour rollback therefore provides the equivalent of 4 hours of regular-pay compensation. Here then, the plaintiffs, who were not ordered to report for duty until at or about 10 p. m., received compensation equivalent to the regular rate for 4 hours during the waiting period between 5 p. m. and 10 p. m. in contrast to the regular employees who were assigned to duty during this period and received ordinary compensation for 5 hours during the same interval. Once the plaintiffs began their duties at 10 p. m., they began earning their overtime pay at a rate twice that of the regular employees. Clearly, they received more than the regular employees for their entire evening’s work.

We may think it an unwise and unfortunate policy to deny the immigration inspectors the overtime compensation granted to their counterparts in the Customs Service. However, the right to change that policy rests with the Attorney General in whom Congress has vested authority to determine the extent to which waiting time spent by immigration inspectors is to be compensated at the statutory overtime rates. Since I have concluded that the regulations constitute a reasonable exercise of the discretion granted to the Attorney General and that such regulations are applicable under the facts of this case, I would hold that plaintiffs are not entitled to recover.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner *531 W. Ney Evans, and the briefs and argument of counsel, makes findings of fact as follows:

1. (a) Rouses Point, New York, is a designated port of entry for aliens arriving in the United States by means of travel other than aircraft. 1

(b) Pursuant to agreement between the Delaware and Hudson Railroad and the United States Immigration and Naturalization Service (hereinafter Immigration Service), passengers and crews of trains arriving at Rouses Point are inspected by immigration officers while the train is en route between Montreal and Rouses Point. 2

2. (a) Under the agreement described in finding 1(b), the Delaware and Hudson Railroad furnished the transportation for the immigration officers from Rouses Point, New York, to Windsor Station in Montreal, Canada, where the officers boarded the train bound for the United States. 3

(b) Two trains of the Delaware and Hudson Railroad are involved in these claims. Train No. 35 transported the officers to Montreal, while the southbound train from Montreal to the United States is Train No. 10. Train No. 35 has, throughout the period of these claims, left Rouses Point at about 4:30 p. m., and arrived in Montreal at about 5:45 p. m. Train No. 10 has left Montreal on schedules of 10:10 p. m. or 10:20 p. m., arriving in Rouses Point on schedules of 11:22 p. m. or 11«:32 p. m.

3. (a) Two immigration officers are regularly assigned to conduct inspections on Delaware and Hudson Train No. 10. Their duties are performed during their regularly scheduled tours of duty, from 4 p. m. to 12 midnight. They travel from Rouses Point northbound to Montreal on Train No. 35 for the express purpose of catching Train No. 10 back to Rouses Point. There is usually an interval of 4 hours or more between the arrival in Montreal of Train No. 35 and the departure therefrom of Train No. 10. The officers board Train No. 10 when it is ready (usually several minutes prior to departure) and make their examinations of passengers en route to Rouses Point.

(b) Additional officers are assigned to assist the two regularly assigned officers when the southbound trains are expected to carry more passengers than usual. Each of the plaintiffs in this action is an immigration officer who has been so assigned as an extra and required to work outside (beyond) his regularly scheduled tour of duty.

4. (a) On each occasion of the assignment of extra officers to assist with inspections, the officers regularly assigned were paid for a regular tour of duty, i. e., from 4 p. m. to 12 midnight.

(b) Customs inspectors stationed at Rouses Point, who departed for Montreal on the same train as plaintiffs and who performed inspectional services on the southbound trains just as plaintiffs did, were paid overtime compensation beginning at 5 p. m. under the comparable Customs Service Act.

(c) On each occasion of the assignment of one of the plaintiffs as an extra officer for which claim is now made, the individual plaintiff has been paid overtime compensation under the provisions of the Act of March 2, 1931 (5 U.S.C. § *532 342c), for a period of time beginning 2 hours prior to the departure of Train No. 10 from Montreal and ending with the arrival of the train in Rouses Point or upon completion of inspection of passengers, whichever is later.

(d) Each of the plaintiffs stationed at Rouses Point 4 now claims the payment of overtime compensation under the act above cited for the period beginning at 5 p. m. and extending to the beginning of his “rollback” period (2 hours prior to train departure). 5

(e) The parties have stipulated that the claim of plaintiff James W. Hudson (No. 3) is identical to the claims of the other plaintiffs except that (1) plaintiff Hudson was stationed at St. Albans, Vermont, and (2) the train designations for travel from St. Albans to Montreal and return vary accordingly.

5. (a) Prior to March 1, 1960, plaintiffs were paid overtime compensation under the Act of March 2, 1931, for services as extra inspectors for the frill period from 5 p. m. until the time of train release in Rouses Point or St. Albans. 6

(b) On February 29, 1960, the Assistant Regional Commissioner of the Immigration Service (in Burlington, Vermont) issued a directive to the District Director (in Buffalo, New York) inviting attention to “the well established rule that travel time is not compensable as overtime work,” and directing payment to “overtime” inspectors of “extra compensation from the time they are ordered to board the [southbound] train * * * plus any allowable roll-back time up to two hours * *

(c) Plaintiffs’ claims for the overtime compensation of which they were deprived by the foregoing directive were presented to and denied by the General Accounting Office.

6. The facts concerning plaintiffs’ activities prior to departure of Train No. 10 from Montreal are as follows: When called for overtime services, plaintiffs reported to headquarters at Rouses Point at about 4 p. m. to obtain their working equipment, up date their alien “lookout” book, and familiarize themselves with current directives. On the northbound trip to Montreal, plaintiffs, like the regular immigration officers, were in uniform and were available to answer any inquiries by passengers or Canadian officials relative to immigration matters. United States forms collected by Canadian officials were also turned over to plaintiffs during this trip northbound.

7. After depositing their train bags at their office at the Montreal station, plaintiffs and the regular officers generally had dinner, and then returned to the office and made themselves available to preinspect any passengers entering the United States on Train No. 10 and to answer any inquiries. This advance inspection in the station shortened the processing time required on board train and, thus, may have avoided the detention of the train in Rouses Point, pending completion of inspection or, at least, shortened the time for such detention.

8. Train No. 35 was the only practical means of transportation upon which plaintiffs could rely to get them to Montreal in time to catch the southbound train back. It would not have been practical for plaintiffs to have driven there, since they would have had no way to get their cars back to Rouses Point.

9. (a) Plaintiffs were in the performance of their duties during the period of time after 5 p. m. on each of the days involved in this action and were entitled to recover overtime pay accordingly under the Act of March 2, 1931.

*533 (b) The parties have stipulated the March 1,1960, to June 15,1965 (the date following amounts of recovery due each of completion of the trial): plaintiff for the period extending from »

1. Laurens L. DeLano -------------------------- $403.48

2. Samuel M. Dickson---------------------------- 619.60

3. James W. Hudson ---------------------------- 304.72

4. Wilbur A. Jennings -------------------------- 686.08

5. William Kodl -------------------------------- 813.44

6. Emil J. Mayer-------------------------------- 460.24

7. R. W. McPheeters ____________________________ 467.28

8. Truman O. Murray -------------------------- 368.80

9. John J. O’Loughlin------------------ 588.72

10. Russell G. Pilger------------------------------ 489.44

11. Leonard Roth, Jr. ---------------------------- 156.76

12. Wilfred C. Viens______________________________ 333.20

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are entitled to recover, for the period extending from March 1, 1960, to June 15, 1965, in the following amounts:

1. Laurens L. DeLano -------------------------- $403.48

2. Samuel M. Dickson---------------------------- 619.60

3. James W. Hudson ---------------------------- 304.72

4. Wilbur A. Jennings -------------------------- 686.08

5. William Kodl -------------------------------- 813.44

6. Emil J. Mayer-------------------------------- 460.24

7. R. W. McPheeters ____________________________ 467.28

8. Truman O. Murray -------------------------- 368.80

9. John J. O’Loughlin---------------------------- 588.72

10. Russell G. Pilger------------------------------ 489.44

11. Leonard Roth, Jr. ----------------------------- 156.76

12. Wilfred C. Viens------------------------------ 333.20

The parties may resolve before the commissioner the question of whether any additional amounts are due by reason of continuing claim. Therefore, judgment is entered for plaintiffs with the determination of the amounts of recovery reserved for further proceedings under Rule 47(c).

. It is important to note that section 7 does not provide a standard by which to determine what generally constitutes time on duty. Rather, it provides a formula for determining time on duty for the limited purposes of computing overtime. This distinction is important and discussion will later return to it, for it explains how an employee might seemingly be on duty after the expiration of his regular working hours and nonetheless be ineligible for overtime compensation.

. That the carrier is liable for all overtime accumulated incidental to inspection of its passengers after 5 p. m., see generally Mellon v. Minneapolis, St. P. & S.S.M. Ry. Co., 56 App.D.C. 160 , 11 F.2d 332 , cert. den. 271 U.S. 678 , 46 S.Ct. 630 , 70 L.Ed. 1147 (1926); Port Huron & Sarnia Ferry Co. v. Lawson, 292 F. 216 (E.D.Mich.1923); United States v. Central Vt. Ry., Inc., 16 F.Supp. 864 (D.Vt.1936).

. The customs regulations provide, inter alia, that if more than 2 hours intervene between periods of actual service, the collector has the discretion to determine according to the circumstances of the case whether the service will be treated as continuous with compensable waiting time or as two separate assignments, 19 C.F.R. 24.16(f) [emphasis added] ; in addition, customs inspectors are given the benefit of a 4-hour rollback, 19 C.F.R. 24.16(g).

. St. Albans, Vermont (station of plaintiff James W. Hudson), is likewise a designated port of entry for aliens arriving in the United States by railroad.

. A similar agreement between the Immigration Service and the Central Vermont Railway, Inc., provides inspection while the train is en route between Montreal and St. Albans.

These agreements were in effect at all times material to this action.

The procedure (in effect along the Canadian border) avoids delay of trains at the ports of entry.

. Similarly, the Central Vermont Railway furnished transportation for the officers from St. Albans, Vermont, to Montreal.

. For a description of the claim of the plaintiff stationed at St. Albans, see finding 4(e), infra.

. No claims are involved for overtime compensation under the 1931 act for services performed on Sundays or holidays.

. The services performed after March 1, 1960, were the same as the services performed prior to that date.