Aldridge v. United States

Per Curiam :

These cases come before the court on plaintiffs’ exceptions to a recommended decision filed November 24, 1972, by Trial Commissioner Mastin 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 OP COMMISSIONER

White, Oommissioner;

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 N-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 compensable 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:¹

(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 policemen, 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 tbeir colleagues were denied tbte 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 churches, 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.y., 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)² 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 (1944); Skidmore v. Swift & Co., 323 U.S. 134 (1944); Winsberg v. United States, 120 Ct. Cl. 511, 98 F. Supp. 345 (1951); Farley v. United States, 131 Ct. Cl. 776, 127 F. Supp. 562 (1955)).

From the standpoint of the present litigation, the case of Rapp v. United States, 167 Ct. Cl. 852, 340 F. 2d 635 (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 (167 Ct. Cl. at p. 865, 340 F. 2d at p. 642), 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 (167 Ct. Cl. at pp. 866-68, 340 F. 2d at pp. 642-44). 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.³

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.

FINDINGS OF FACT

1. During some or all of the period that began on January 9, 1964, and ended on June 1, 1964, each of the several plaintiffs in these two cases, which were consolidated for trial purposes, was a civilian employee of the defendant and served as a civilian policeman in the Cristobal Police District of the Canal Zone.

2. (a) The Canal Zone is a comparatively narrow strip of land extending across the Isthmus of Panama from the Caribbean Sea to the Pacific Ocean. Its length is approximately 50 miles and its average width is about 10 miles. The total area of the Canal Zone is 552.8 square miles. The Panama Canal runs through the Canal Zone.

'(b) The Canal Zone is located within the Eepublic of Panama, but it is held by the 'United States under a perpetual lease from the Eepublic of Panama and it is subject to the control of the United States.

(c) The Canal Zone Government is headed by a Governor, who performs his functions under the general supervision of the Secretary of the Army. The Canal Zone Government consists of five major offices or bureaus, and one of these is the Civil Affairs Bureau. The Civil Affairs Bureau, in turn, consists of several divisions, and one of these is the ¡Police Division.

3. (a) The Police Division is headed by a Chief. At the time involved in this litigation, the Chief of the Police Division was the only person in the Police Division who was empowered to order, authorize, or approve the performance of overtime work by police personnel, except that the Chief the Police Division had delegated to the District Police Commander in each of the two police districts within the Canal Zone the authority, in emergency situations, to require or authorize overtime work by individual officers on a temporary basis. For example, if an officer assigned to traffic duty or to a radio patrol car became ill while on duty, the District Police Commander could provide a replacement for the remainder of the shift even if this meant the performance of overtime work by the replacement.

•(b) There are two police districts in the Canal Zone — the Balboa Police District on the Pacific side of the Canal Zone and the Cristobal Police District on the ¡Caribbean side. The latter covers approximately '355 square miles. The two districts include all of the Canal Zone.

(c) The top officer in a police district is the District Police Commander, and he is commonly referred to as “Captain.”

(d) As of January 9,1964, there were 95 police officers assigned to the Balboa Police District and '54 assigned to the Cristobal Police District.

4. (a) This litigation had its genesis in a controversy over the flying of the Panamanian flag in the 'Canal Zone.

(b) After some years of discussion between the United States and the [Republic of Panama over the subject of the flying of the Panamanian flag in the Canal Zone, President Eisenhower on September 17, 1960, directed that the flag of the Republic of Panama be flown regularly at a single location in the Canal Zone as a unilateral act on the part of the U.S. Government in recognition of Panama’s titular sovereignty over the area. On September 01, I960, the flags of the United 'States and Panama were raised together at Shaler Plaza in Ancon, 'Canal Zone, near the Bepublic of Panama boundary. Thereafter, the two flags were flown alongside each other at Shaler Plaza on a daily basis.

(c) Later, as a result of negotiations between the two countries, it was agreed on January 10,1963, that the Panamanian flag would be flown together with the United States flag “on land in the Canal Zone where the flag of the United States of America is flown by civilian authorities.” Pursuant to this agreement, a system of dual flagpoles was established at 17 locations in the Canal Zone; and after the flagpoles were erected, the flags of Panama and the United States were flown together at the various locations. However, because of what was regarded as the likelihood of friction between national groups at the four high schools in the Canal Zone, no arrangements were made for the flying of dual flags at the high schools, and the previous practice of flying United States flags at the high schools was discontinued.

(d) Some high school students in the Canal Zone were dissatisfied over the official decision to discontinue the flying of the American flag at the high schools. On the morning of January 7,1964, a group of students succeeded in raising the American flag on the flagpole at Balboa High School, on the Pacific side of the Canal Zone. The flag was lowered that evening by students, but it was raised again on January 8, and also on January 9. The Panamanian press and radio stations gave wide publicity to these actions on the part of students at the Balboa High School.

5. (a) Sometime between 4 and 5 o’clock in the afternoon of January 9, 1964, a group of approximately 200 Panamanians — mostly students from the National Institute in Panama City, which is the Capital of the Bepublic of Panama — crossed the boundary separating Panama City and the Canal Zone on the Pacific side, and intruded into the Canal Zone. The group marched past the Governor’s House and the Administration Building, and on to the Balboa High School. They went to the flagpole area of the high school and remained there for approximately an hour, making attempts to lower the United States flag and raise the Panamanian flag at that location. Efforts were made throughout the period by Canal Zone officials to persuade the Panamanian student group to leave the area and return to Panama City, and buses were called in to provide them with transportation. The group did not heed the request, however; and as time went on, large numbers of people, both United States citizens and Panamanians, were attracted to the scene.

(b) Chief Eugene S. Shipley, of the Police Division, District Police Commander Gaddis Wall, of the Balboa Police District, and a number of policemen assigned to the Balboa District had reached the Balboa High School at about the same time that the Panamanian student group did. Seeing that the situation was deteriorating after about an hour, Chief Shipley instructed Captain Wall to assemble his men who were at the scene and push the Panamanian student group out of the Balboa High School area and toward Panama City. Chief Shipley also issued instructions to the effect that all off-duty personnel of the Balboa Police District should be called to duty and held at the Police Station in Balboa to await further orders.

(c) In accordance with the instructions from Chief Ship-ley, Captain Wall and Ms men pushed the Panamanian student group away from the Balboa High School area and back to the boundary separating the Canal Zone and Panama City. Some automobile windows were broken and other damage was done to motor vehicles along the route by members of the Panamanian student group.

(d) At about the time when the Panamanian student group left the Pacific side of the Canal Zone, Chief SMpley got in touch with the Cristobal Police District and directed that all off-duty personnel of that district be called to duty and held at the Police Station in Cristobal to await any trouble that might develop on the Caribbean side of the Canal Zone.

6. (a) As the members of the Panamanian student group mentioned in finding 5 were in the process of leaving the Canal Zone, officials of the Canal Zone notified the Pana-manían authorities that the group would soon be leaving the Canal Zone, and requested the assistance of the Panamanian authorities in handling the students on their return to the boundary between Panama City and the Canal Zone. The Panamanian authorities did not respond to this request at the time. In the absence of prompt action by the Panamanian authorities, the frustration and anger of the Panamanian students over the failure of their mission in the Canal Zone became the spark for incursions by Panamanian mobs into the Canal Zone at numerous points, both on the Pacific side and on the Caribbean side. The mobs attacked and killed United States and Panamanian citizens, and burned and looted their properties. A maximum effort by the Canal Zone police force was required to prevent the mobs from reaching residential areas in the Canal Zone. The number and force of the mob attacks upon persons and property in the Canal Zone exceeded the capacity of the police to contain them; and at 8 p.m. on January 9,1964, the Governor of the Canal Zone called on the Commander of the U.S. Armed Forces in the Canal Zone to assume responsibility for law and order in the Canal Zone.

(b) For about 4 days, extremist elements of the left in Panama sought, by the use of public information media, by haranguing crowds, and by organizing demonstrations, to stimulate and maintain violent attacks on property and lives in the Canal Zone. For some 2y2 days, Panamanian mobs made repeated attempts to penetrate deeply into the Canal Zone; and for approximately 314 days, scores of Panamanian snipers, some of them armed with automatic weapons, were firing into the Canal Zone at certain points, both on the Pacific side and on the Caribbean side. Finally, on January 13, 1964, the Panama National Guard moved with force to put down the violence on the Panamanian side of the boundary with the Canal Zone; and order was promptly established on the Panamanian side.

(c) During the course of rioting referred to in paragraph (b) of this finding, five persons died in the Canal Zone, and ■there were more than 200 United States casualties.

7. (a) After the U.S. Armed Forces assumed responsibility for the maintenance of law and order in the Canal Zone, as indicated in paragraph (a) of finding 6, the Canal Zone police continued to function actively as a supplementary force. Military units took their stations, and attempted to handle the situation, along the boundary between the Canal Zone and the Eepublic of Panama, while the Canal Zone police were actively engaged in the protection of lives and property within the rear areas of the Canal Zone.

'(b) Responsibility for the maintenance of law and order in the Canal Zone reverted to the civilian authorities, including the 'Police Division, at the end of about a week after January 9,1972. ;

8. (a) Most members of the Canal Zone police force were on duty continuously for 24 hours after the beginning of the trouble referred to in findings 5 and 6. After that initial period, a regular work schedule was set up which required policemen to be on duty for 16 hours and off duty for 8 hours each day; but this work schedule was in effect for only a few days. Then, a work schedule was promulgated which required policemen to be on duty for 12 hours and off duty for 12 hours each day, 7 days a week; and this arrangement continued for some time. The next work schedule required policemen to be on duty for 12 hours and off duty for 12 hours each day, 6 days a week, the other day of the week being an off-duty day. Eventually, as conditions improved, the Canal Zone police reverted to the customary work schedule, which called for them to be on duty for 8 hours and off duty for 16 hours each day, 5 days a week, the other 2 days of the week being off-duty days.

(b)t Throughout the period that is involved in the present litigation, the Canal Zone police 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. However, they were not compensated for any off-duty time.

(c) The present action involves claims by the plaintiffs, as Canal Zone policemen assigned to the Cristobal Police District, for compensation with respect to all the time (other than sleeping and eating time) when they were off duty during the period that began on January 9,1964, and ended on June 1,1964.

9. (a) On or about January 10,1972, Chief Shipley called Captain Donald Y. Howerth, District Police Commander in charge of the Cristobal Police District, on the telephone and told him to make sure that he had adequate police personnel available at all times for immediate call to duty, so that if a large number of policemen should be needed at any time, they could be quickly assembled. Chief Shipley further told Captain Howerth to inform the men of the Cristobal Police District that at all times when they were off duty, they were to be either at their quarters or at some other place where they could be reached by telephone for an immediate call to duty; that a policeman, before leaving his quarters for another place that had a telephone, must 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; and that the policeman, upon returning to his quarters 'from another place, must telephone the Desk Sergeant and inform him of such return.

(b) Chief Shipley issued similar instructions orally to the District Police Commander in charge of the Balboa Police District.

(c) The instructions from Chief Shipley, as outlined in paragraph (a) of this finding, were passed on orally and promptly to the policemen assigned to the Cristobal Police District, including the plaintiffs.

(d) Within a few days after January 10, 1964, Chief Shipley’s oral instructions were slightly expanded to impose the geographical restriction that an off-duty policeman, if he left his quarters, could go only to another place within his police district where he could be reached by telephone for immediate call to duty. However, Chief Shipley delegated to each of the District Police Commanders the authority to grant exceptions to this geographical restriction in emergency situations. The Canal Zone police, including the plaintiffs, were informed of this change.

10. On January 16, 1964, 56 Locks Security Guards, 10 Customs Guards, 9 Terminal Division Guards, and 5 Tour Guides were transferred to the Police Division as police privates. They were assigned to the police districts as follows: 43 were assigned to the Balboa Police District (increasing the police force m that district from 95 to 138 men), and 37 were assigned to the Cristobal Police District (increasing the police force in that district from 54 to 91 men).

11. (a) On February 20, 1964, Captain D. Y. Howerth, District Police Commander of the Cristobal District, issued to all police personnel in the district a memorandum with the heading “Standby Alert” and reading as follows:

You are reminded that everyone is on standby when off duty, including pass days. The situation is such that we must not relax and pass days are being given because we do not want the men to become exhausted.

You must remain where you can be reached by a telephone at all times and when you leave your residence you must notify the Desk Sgt. where you may be reached. From time to time we may call a practice alert and you will be expected to report to the Police Station promptly.

(b) A “pass day” for a Canal Zone policeman is a 24-hour period, beginning at midnight and ending the next midnight, during which no regular duty is scheduled for the particular policeman.

12. On March 9, 1964, Captain D. V. Howerth addressed the following memorandum on the subject of “On-call alert status (revised)” to 'all police personnel of the Cristóbal District:

On Thursday, March 5, 1964, ten of our temporary policemen were returned to their respective positions and we were cut back to one standby riot squad on duty. This cutback made it all the more urgent that we remain alert and all personnel are requested to continue to keep the Desk informed as to where they may be reached by telephone at all times.

'In the event trouble should occur on the boundary line, it may be difficult, particularly for policemen, to return from ’Colon to the Canal Zone, and for this reason it is requested that all police personnel remain within the Police District.

Previous orders that are in conflict with the above, are hereby rescinded.

13. On March 11, 1964, E. S. Shipley, Chief, Police Division, Canal Zone Government, wrote the following memorandum to the District Police Commander, Cristobal District, on the subject of “Status of ‘on call’ policemen”:

1. During the present emergency all off duty policemen are in an “on call” status. It is imperative for off duty police officers to be available to report for duty with a minimum of delay. To do this it is essential that they •remain within their work district. Cooperation in this respect has 'been excellent and is very much appreciated.

2. While in an “on call” status they are required to notify the Desk Sergeant when they leave their home for travel within the district and advise him where they may be reached at all times.

'3. If they wish to leave their work district they are required to notify the District Police Commander or the Assistant District Police Commander of their intention prior to doing so.

14. On April 2, 1964, Captain D. V. Howerth wrote the following memorandum to all police personnel of the Cristo-bal District on the subject of “On-Call Status”:

Effective Sunday, April 5th, temporary policemen are being returned to their respective divisions and police are reverting to a 40-hour week. However, the situation is still serious in as much as we do not have relations with Panama and the danger of further disturbances persists. Previous instructions concerning your “on-call status” must continue, of course, until further notice.

Policemen who are scheduled for leave in the United States will be allowed to go as scheduled, however, no local leave can be authorized at the present time. Probably not until after the elections on May 10th.

15. On June 1, 1964, Captain D. V. Howerth wrote the following memorandum on the subject of “On-Call Status” to all police personnel of the Cristobal District:

Effective today “On Call” status ceases. Thank you for your cooperation throughout this trying period and I am sorry if we have interfered with your personal activities.

16. (a) On several occasions during the period that is involved 'in the present litigation, the plaintiff Eichard IL Soyster requested permission to go outside the Cristobal Police District on off-duty time to places that were equipped with telephones. His requests were denied, except that on one occasion in February, 1964, he was permitted on an off-duty day to go by train to Albrook Air Force Base, which is located within the Balboa Police District, in order to make arrangements for a bowling tournament to be held by a bowling league, of which he was the head. The round trip, and the transaction of his business at Albrook Air Force Base, required a period of time that began at 12:10 p.m. and ended at 6:20 p.m. on the same day.

(b) On an occasion early in the period that is involved in the present litigation, the plaintiff Edmund S. Coe requested permission to go from the Cristobal Police District into the Balboa Police District for the purpose of assisting his family to move from Balboa to quarters within the Cristobal Police District. Officer Coe had been transferred from the Balboa Police District to the Cristobal Police District on January 5, 1964. Officer Coe’s request was denied.

17. (a) At the time involved hi the present litigation, the population of the Cristobal Police District consisted of from 10,000 to 12,000 civilian personnel, mostly distributed among the towns of Cristobal, Margarita, Gatun, and Coco Solo, and of approximately 5,000 military personnel, assigned to duty at several Army and Air Force installations.

(b) The several civilian communities in the Cristobal Police District had places, as indicated below, which were equipped with telephones and to Which off-duty policemen were free to go during the period that is involved in this litigation, provided they notified the Desk Sergeant at the Cristobal Police Station in advance of their intention:

(1)i Margarita — service center, which included a restaurant, theatre, barber shop, cleaning and pressing shop, bowling alleys, and commissary; Knights of Columbus Club; VFW Club; Elks Club; several churches; first-aid station; gymnasium; clubhouse at police park; gun club; and golf club.

(2) Gatun — service center (similar to the one at Margarita); American Legion Club; swimming pool; Masonic lodge; and yacht club.

(8) Coco Solo — service center (similar to the one at Margarita); golf and country club; hobby shop; swimming pool; clothing store; social club; library; and hospital.

(4) Cristobal — service center (similar to the one at Margarita); YMCA; yacht club; and social club.

(c) 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 during the period that is involved in this litigation, provided they notified the Desk Sergeant at the Cristobal Police Station in advance of their intention.

(d) There were schools at each of the civilian communities, and they were equipped with telephones.

18. As the plaintiffs, during the period January 9-June 1, 1964, were forbidden to spend off-duty time at places — even if within the Cristobal Police District — that did not have telephones, the plaintiffs 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.

19. During the period involved in the present litigation, Chapter H2 of the Personnel Manual issued by the Canal Zone Government dealt with the subject of “Hours of Duty and Premium Compensation.” Sections 3.06 and 3.07 of that chapter provided as follows:

Sec. 3.06 Definitions of and 'policy applicable to standby status are as follows:

(a) Standby status and standby duty means 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.

(b) Duty station or designated area means:

(1) An employee’s regular duty station.

(2) In quarters or waiting rooms provided by the Company and Government, which are not the employee’s ordinary living quarters, and which are specifically provided for use of personnel required to standby 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.

(c) Geographical situations. Standby duty is not performed in situations where, by reason of the isolated location of the work, weather, or other causes, employees are required to wait during hours outside their scheduled work week in reporting for or returning from a place of work.

(d) Compensation for standby duty. Except where premium compensation on an annual basis is approved for employees with substantial amounts of standby duty, as provided in Part 7, employees shall be compensated on an hour for hour basis for periods of standby duty at their regular or overtime rates, as appropriate.

Sec. 3.07 Definition of and policy relative to on-call status are as follows:

(a) On-call status means being subject to call to work during hours outside the scheduled work week and during other periods when in a non-work status.

(b) On-call status not compensable. An employee in an on-call status is in a non-work status. He is not entitled to compensation for the period he is in an on-call status for the reasons that (1) his time is his own, and (2) except as provided in paragraph

(c), below, no restriction or limit is, or may be, placed on his freedom of movement or on his freedom to engage in personal activities of his selection.

(c) Place of Call. Employees in an on-call status are required to provide information as to how or where they may be contacted should a call for their services become necessary. With regard to specific occasions when it appears likely that their services may be needed, employees designated to remain in an on-call status are required to provide information on where they may be reached if they should leave the place at which a call to them would ordinarily be made.

(d) Unanswered call. In individual or isolated instances, if a call to work is made to an on-call employee and he cannot be located through no fault of his own, the matter ends and the next employee on the list is called.

(e) Answered call. When an on-call employee reports for work in response to a call for Ms services, be is paid for the work performed in accordance with tbe callback or other appropriate pay-provisions.

CONCLUSION OF LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that the plaintiffs are not entitled to recover, and the petitions are dismissed.

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

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

3 The fact that police officials may Initially have referred to “standby” and “standby alert” does not show that they were Invoking1 Section 3.00. 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. ]