B-153107, OCT. 30, 1969

B-153107, OCT. 30, 1969

COMPENSATION--OVERTIME--INSPECTIONAL SERVICE EMPLOYEES--HOLIDAYS- EXECUTIVE ORDER, ETC. TREASURY SECRETARY IS ADVISED CUSTOMS EMPLOYEES WHO WERE PAID HOLIDAY PAY FOR JULY 21, 1969, WHICH PRESIDENTIAL PROCLAMATION AND MEMORANDUM DATED JULY 16 DESIGNATED AS HOLIDAY FOR GOVERNMENT EMPLOYEES "WITHIN MEANING OF EXECUTIVE ORDER NO. 10358 OF JUNE 9, 1952 * * *" AND OF ALL COMPENSATION AND LEAVE STATUTES, INCIDENT TO APOLLO 11 MOON LANDING, ARE CONSIDERED TO HAVE RECEIVED ERRONEOUS PAYMENTS OF PAY WHICH ARE SUBJECT TO CONSIDERATION FOR WAIVER UNDER PUB. L. 90-616, SINCE ORDERS IN SAID PROCLAMATION SHOULD BE GIVEN SAME FORCE AND EFFECT AS IF CONTAINED IN NUMBERED EXECUTIVE ORDER AND IT HAS BEEN HELD CUSTOMS OVERTIME PROVISIONS IN 1911 AND 1930 ACTS DO NOT APPLY TO HOLIDAYS ESTABLISHED BY EXECUTIVE ORDER. SEE 26 COMP. GEN. 848. FEES- SERVICES TO PUBLIC--INSPECTIONAL SERVICE EMPLOYEES--HOLIDAY PAY TREASURY SECRETARY IS ADVISED THAT THOSE WHO USED CUSTOMS SERVICES ON JULY 21, 1969, DAY DESIGNATED AS HOLIDAY FOR GOVERNMENT EMPLOYEES BY PRESIDENTIAL PROCLAMATION AND MEMORANDUM DATED JULY 16, 1969, INCIDENT TO APOLLO 11 MOON LANDING, SHOULD NOT BE REQUIRED TO REIMBURSE GOVERNMENT AS PROVIDED IN 1930 ACT, AND ANY MONEY COLLECTED FOR SUCH SERVICES SHOULD BE REFUNDED SINCE FOR PURPOSES OF APPLYING CUSTOMS OVERTIME LAW, DAYS WHICH ARE DECLARED TO BE HOLIDAYS FOR GOVERNMENT EMPLOYEES BY EXECUTIVE ORDER ARE NOT TO BE CONSIDERED HOLIDAYS, AND ORDERS IN AFORESAID PROCLAMATION ARE BELIEVED TO HAVE SAME FORCE AND EFFECT AS IF THEY HAD BEEN CONTAINED IN EXECUTIVE ORDER. SEE 26 COMP. GEN. 848.

TO MR. SECRETARY:

WE REFER TO THE LETTER DATED AUGUST 26, 1969, OF YOUR ASSISTANT SECRETARY, YOUR REFERENCE CC 191 G, CONCERNING THE APPLICABILITY OF THE CUSTOMS OVERTIME AND HOLIDAY LAW, SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, CHAPTER 46, 36 STAT. 901, AS AMENDED, 19 U.S.C. 267, AND THE RELATED PROVISIONS OF SECTION 451 OF THE ACT OF JUNE 17, 1930, CHAPTER 497, 46 STAT. 715, AS AMENDED, 19 U.S.C. 1451, TO SERVICES OTHERWISE COVERED BY THOSE PROVISIONS WHICH WERE PERFORMED BY EMPLOYEES OF THE BUREAU OF CUSTOMS ON JULY 21, 1969, WHICH THE PRESIDENT DESIGNATED AS A HOLIDAY FOR GOVERNMENT EMPLOYEES IN CONNECTION WITH THE APOLLO 11 LANDING ON THE MOON.

PRESIDENTIAL PROCLAMATION 3919, JULY 16, 1969, DIRECTED GOVERNMENT AGENCIES TO BE CLOSED ON JULY 21, 1969, AND EXCUSED EMPLOYEES, OTHER THAN THOSE WHO WERE REQUIRED TO BE AT THEIR POSTS FOR REASONS OF NATIONAL SECURITY OR OTHER PUBLIC REASONS, FROM DUTY ON THAT DAY. IN A MEMORANDUM OF THE SAME DATE, THE PRESIDENT DIRECTED THAT JULY 21 SHOULD "BE CONSIDERED A HOLIDAY WITHIN THE MEANING OF EXECUTIVE ORDER NO. 10358 OF JUNE 9, 1952, AND OF ALL STATUTES SO FAR AS THEY RELATE TO THE COMPENSATION AND LEAVE OF EMPLOYEES OF THE UNITED STATES.'

WE BELIEVE THAT THE PRESIDENT'S ORDERS AS CONTAINED IN PROCLAMATION 3919 AND HIS MEMORANDUM OF JULY 16 SHOULD BE GIVEN THE SAME FORCE AND EFFECT AS IF THEY HAD BEEN CONTAINED IN A NUMBERED EXECUTIVE ORDER FOR PURPOSE OF LAWS RELATING TO THE OBSERVANCE OF HOLIDAYS ESTABLISHED BY ,EXECUTIVE ORDER.'

WE HELD IN THE DECISION 26 COMP. GEN. 848 AT 852 THAT THE CUSTOMS OVERTIME PROVISIONS CONTAINED IN THE 1911 AND 1930 ACTS DO NOT APPLY TO HOLIDAYS ESTABLISHED BY EXECUTIVE ORDER BUT ONLY TO ,THOSE HOLIDAYS SPECIFICALLY SET OUT, WHICH DAYS GENERALLY ARE UNDERSTOOD NOT ONLY BY GOVERNMENT EMPLOYEES BUT BY THE PUBLIC TO BE HOLIDAYS.'

WE DO NOT BELIEVE THAT THE ENACTMENT OF THE ACT OF SEPTEMBER 22, 1959, PUBLIC LAW 86-362, NOW CODIFIED AS 5 U.S.C. 6103 (B), PROVIDES A BASIS FOR CHANGING THE CONCLUSION REACHED IN THAT DECISION SINCE THAT ACT DOES NOT PURPORT TO FIX HOLIDAYS BUT MERELY PROVIDES RULES FOR ENTITLEMENT OF GOVERNMENT EMPLOYEES TO HOLIDAY PAY FOR HOLIDAYS WHICH OCCUR ON SATURDAY. IN THAT CONNECTION WE NOTE THAT THE ACT OF JUNE 29, 1938 (5 U.S.C. 86A (1964 ED.), NOW 5 U.S.C. 6104), IN EXISTENCE AT THE TIME THE DECISION IN QUESTION (26 COMP. GEN. 848) WAS RENDERED ALSO RECOGNIZED THE EXISTENCE OF HOLIDAYS DECLARED BY EXECUTIVE ORDER AS WELL AS SPECIFIC HOLIDAYS FOR THE PURPOSE OF GRANTING HOLIDAY PAY TO DAILY, HOURLY AND PIECEWORK EMPLOYEES.

IN THE DECISION 26 COMP. GEN. 848 WE RECOGNIZED THAT THE CUSTOMS OVERTIME PAY PROVISIONS HAD BEEN CONSIDERED AS NOT APPLICABLE TO HOLIDAYS DECLARED BY EXECUTIVE ORDER "FOR ALMOST 36 YEARS.' APPARENTLY, THAT RULE HAS NOW BEEN APPLIED FOR ALMOST 59 YEARS EXCEPT WITH REGARD TO JULY 21, 1969, WHICH WE UNDERSTAND THE BUREAU OF CUSTOMS HAS TREATED AS A HOLIDAY UNDER THE PROVISIONS OF 19 U.S.C. 267 AND 1451.

WE DO NOT FIND A SUFFICIENT BASIS IN LAW TO CHANGE THE RULE WHICH HAS BEEN APPLIED FOR SO MANY YEARS TO THE PAYMENT OF HOLIDAY PAY UNDER CITED PROVISIONS OF LAW. ACCORDINGLY, FOR PURPOSES OF APPLYING THE CUSTOMS OVERTIME LAW, DAYS WHICH ARE DECLARED TO BE HOLIDAYS FOR GOVERNMENT EMPLOYEES BY EXECUTIVE ORDER ARE NOT TO BE CONSIDERED HOLIDAYS.

CONCERNING THE ACTIONS TAKEN BY THE BUREAU OF CUSTOMS WITH REGARD TO JULY 21, 1969, THOSE WHO USED CUSTOMS SERVICES ON THAT DAY SHOULD NOT BE REQUIRED TO REIMBURSE THE GOVERNMENT AS PROVIDED IN THE 1930 ACT AND ANY MONEY COLLECTED FOR SUCH SERVICES SHOULD BE REFUNDED. CUSTOMS EMPLOYEES WHO WERE PAID HOLIDAY PAY FOR THAT DAY MAY BE CONSIDERED TO HAVE RECEIVED AN ERRONEOUS PAYMENT OF PAY THE RECOVERY OF WHICH MAY BE CONSIDERED FOR WAIVER UNDER THE PROVISIONS OF 5 U.S.C. 5584 (THE ACT OF OCTOBER 21, 1968, PUBLIC LAW 90-616) AND THE REGULATIONS ISSUED PURSUANT THERETO (4 CFR 201- 203.