            In the United States Court of Federal Claims
                                   No. 11-766 C
                              (Filed January 9, 2015)

RUTH MILLER,                              )
                           Plaintiff,     )
              v.                          )
                                          )
THE UNITED STATES,                        )
                           Defendant.     )


                                        OPINION

      This opinion addresses government’s motion for summary judgment seeking
dismissal of counts I and VI of plaintiff’s second amended complaint, counts II
through V having been previously dismissed. Docs. 64, 33-1, 30.

                                        FACTS

        Plaintiff, Ruth R. Miller, is a radiological technologist employed since 1993
by the United States Department of Veterans Affairs (“VA”). Doc. 64 at 10-14. At
all relevant times plaintiff has performed a regular tour of duty at the VA hospital,
10 North Greene Street, Baltimore, Maryland. Id. The tour of duty is comprised
of eight-hour days, Monday through Friday. Id.

       After completing her regular daily tour of duty at the VA hospital, Ms.
Miller is scheduled for periods, usually every other week, to carry a pager or
cellular telephone so that she can be reached by the hospital to return in the event
she is needed to perform a procedure. Id.

       During her scheduled periods to carry a pager or cellular telephone and
respond to a hospital call to return to perform a procedure, Ms. Miller is not
required to remain at any particular location – such as the hospital or her residence.
Doc. 64, App. at A42, A97-98, A103, A106. Rather, she may move about and
engage in any activity consistent with responding to a page or telephone call and
returning to the hospital within one hour, if necessary. Id. A20-21.
      On July 5, 1998, Ms. Miller began receiving 25 percent of her annual salary
added to her base pay as premium pay for scheduled standby duty. Doc. 64, App.
at A10, A109. In June of 2011, plaintiff was notified as follows:

      Dear Ms. Miller:

      1.     This is to inform you that you have been receiving a 25%
      premium for standby pay from July 5, 1998 through the Present. Due
      to an administrative error, you were coded into the system as eligible
      to receive standby pay when standby pay was discountinued [sic]
      effective October 16, 1989.

      2.    We have taken action to correct the 25% premium pay
      processing a termination of the Standby Premium Pay effective June
      18, 2011, and coding you in the system for On-call pay in the amount
      of 10% of your overtime rate effectice [sic] June 19, 2011.

      3.    I regret this error and inconvenience to you. If you have any
      questions regarding this, please contact Wanda Moody, Lead Civilian
      Payroll Technician, at 1-800-949-1003 ext. 6549 or Myself at 1-800-
      949-1003 ext. 2956.

      Sincerely,

      Kenneth Reil Jr., Human Resource Specialist, VAMHCS

Doc. 65-14.

       Plaintiff’s second amended complaint in count I alleges that the VA violated
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. by failing to pay
her standby pay and overtime compensation. In count VI plaintiff alleges the VA
violated the Federal Employee Pay Act (“FEPA”), 5 U.S.C. § 5541 et seq., by
failing to pay her “premium” pay. Doc. 33-1.

                                 DISCUSSION

      In its motion for summary judgment, the government argues that plaintiff’s
VA work situation does not meet the requirements of the FEPA, 5 U.S.C. §
5545(c)(1), for payment of 25 percent annual premium pay. To be eligible for the
25 percent annual premium pay an employee is required, when on-call “to remain
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at, or within the confines” of her duty station. 5 U.S.C. § 5545(c)(1); 5 C.F.R. §§
550.141, 550.143.

       Plaintiff argues that her residence is her duty station and the government
asserts that her duty station is the hospital. The lack of agreement as to duty
station is irrelevant in that the undisputed facts are that after completion of her
regular tour of duty at the hospital plaintiff was not confined to either location
during on-call hours. During periods of on-call duty, Ms. Miller could go
wherever she wanted as long as she could return to the hospital within an hour of
the page. Doc. 64, App. at A20-21.

       It is concluded that Ms. Miller’s VA work requirements do not include the
restrictions during on-call periods which are required to obtain 25 percent premium
pay, and payment of this premium by the VA was indeed as an “administrative
error.” Huskey v. Trujillo, 302 F.3d 1307 (Fed. Cir. 2002).

       In addition to continuing payment of 25 percent standby premium pay,
plaintiff also seeks to recover FLSA overtime compensation, 29 U.S.C. §
207(a)(1), for each hour she was subject to recall to the hospital to perform a
procedure. For essentially the same reasons that defendant opposes plaintiff’s
recovery of 25 percent standby premium pay, it opposes plaintiff’s claim for FLSA
overtime.

      The governing regulations implementing the FLSA for federal employees
address when standby or on-call duty counts as hours of work. Thus 5 C.F.R. §
551.431 provides as follows (in relevant part):

      (a)(l) An employee is on duty, and time spent on standby duty is
      hours of work if, for work-related reasons, the employee is restricted
      by official order to a designated post of duty and is assigned to be in a
      state of readiness to perform work with limitations on the employee’s
      activities so substantial that the employee cannot use the time
      effectively for his or her own purposes. A finding that an employee’s
      activities are substantially limited may not be based on the fact that an
      employee is subject to restrictions necessary to ensure that the
      employee will be able to perform his or her duties and responsibilities,
      such as restrictions on alcohol consumption or use of certain
      medications. …



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      (b) An employee will be considered off duty and time spent in an on-
      call status shall not be considered hours of work if:

             (1) The employee is allowed to leave a telephone number or to
                carry an electronic device for the purpose of being
                contacted, even though the employee is required to remain
                within a reasonable call-back radius; or

             (2) The employee is allowed to make arrangements such that
                any work which may arise during the on-call period will be
                performed by another person.


      The undisputed facts as to Ms. Miller’s work requirements after completing
her regular tour of duty at the hospital are fully consistent with the description in 5
C.F.R. § 551.431(b)(1). Thus, her on-call hours are not hours of work and do not
generate entitlement to FLSA overtime. See Allen v. United States, 1 Cl. Ct. 649
(1983); Reimer v. Champion Healthcare, Corp., 258 F.3d 720 (8th Cir. 2001);
Bright v. Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671, 676 (5th Cir. 1991).

       In support of her claim for continued FEPA 25 percent standby premium
pay, together with FLSA overtime, plaintiff relies on the VA’s actions from 1998
to 2011 paying her this compensation. This reliance by plaintiff is to no avail. As
a federal employee holding her position by appointment, any entitlement to
allowances must be based on the applicable statutes and regulations. Chu v. United
States, 773 F.2d 1226, 1229 (Fed. Cir. 1985). Everyone entering into an
arrangement with the government takes the risk of having accurately ascertained
that the person purporting to act for the government has the requisite authority to
confer the benefits involved. See Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380,
384 (1947). The United States is not bound nor estopped by the VA’s actions “in
entering into an arrangement or agreement to do or cause to be done what the law
does not sanction or permit.” Office of Personal Management v. Richmond, 496
U.S. 414, 420 (1990) (citation omitted).

      At all relevant times plaintiff has failed to meet the requirements to receive
FEPA 25 percent standby premium pay and FLSA overtime pay for the standby
hours. The VA was correct in its 2011 action terminating this compensation and,
instead, switching plaintiff to the 10 percent of overtime rate for on-call duty
hours, pursuant to 38 U.S.C. § 7457, which accurately covers her working
conditions.

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       Finally, plaintiff claims that in pay periods for 2008-June 2011, the VA
improperly cut some $15,843.96 worth of hours from her standby pay. Doc. 68-1.
Defendant submits a detailed response which comprises a defense of certain
deductions, such as for sleep time, but asserts generally that the claim for proper
computation of FEPA 25 percent standby premium compensation and FLSA
overtime for standby hours is simply irrelevant as plaintiff did not fulfill the
requirements for this compensation at any relevant time. Doc. 70. Defendant
asserts, and supports with the declaration of Laurie Bisbee, a VA Human
Resources Specialist, that between November 26, 2008 and August 27, 2011,
plaintiff was paid $44,175.37 more than she would have been paid had she been
correctly compensated pursuant to the on-call sums authorized by 38 U.S.C. §
7457. Doc. 70-4, App. at A464, A477. Plaintiff concedes that the compensation
she received for this period exceeds the amount she would have received under the
on-call provisions of 38 U.S.C. § 7457. Doc. 71 at 2.

       Defendant states that it does not seek reimbursement for any of the premium
pay that Ms. Miller has received, Doc. 66 at 5, but argues that in view of this
overpayment, whether VA properly or improperly cut hours worth $15,843.96
from plaintiff’s standby pay lacks relevance. Plaintiff has clearly been paid more
than the sums to which she is entitled for the period involved.

                                 CONCLUSION

      As plaintiff received compensation somewhat in excess of the amount she
would have received had she been correctly compensated for her on-call duty,
pursuant to 38 U.S.C. § 7457, and as plaintiff has not established any entitlement
to compensation for her on-call duty other than that provided by 38 U.S.C. § 7457,
defendant’s motion for summary judgment is GRANTED and judgment shall be
issued dismissing plaintiff’s second amended complaint.




                                            s/ James F. Merow
                                            James F. Merow
                                            Senior Judge




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