B-130979, APR. 25, 1957

B-130979: Apr 25, 1957

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YOUR CLAIM WAS DISALLOWED ON THE BASIS OF THE DECISION OF THE UNITED STATES SUPREME COURT ON NOVEMBER 19. WHICH HELD THAT GOVERNMENT PER DIEM EMPLOYEES WERE NOT ENTITLED UNDER A JOINT RESOLUTION OF CONGRESS OF JANUARY 6. IT APPEARS TO BE YOUR VIEW THAT SINCE YOUR CLAIM WAS FILED PRIOR TO THE DECISION OF THE UNITED STATES SUPREME COURT IN THE BERGH CASE IT SHOULD HAVE BEEN ALLOWED. AS YOU WERE ADVISED IN THE LAST PARAGRAPH OF THE SETTLEMENT. THE SUPREME COURT'S DECISION UPHELD OUR CONSISTENT CONSTRUCTION OF THE SAID JOINT RESOLUTION AS ENTITLING PER DIEM EMPLOYEES TO "GRATUITY PAY" ONLY FOR HOLIDAYS ON WHICH THEY ARE RELIEVED OR PREVENTED FROM WORKING BY THE OCCURRENCE OF THE HOLIDAY AND NOT FOR HOLIDAYS ON WHICH THEY WORK.

B-130979, APR. 25, 1957

TO MR. SAUL WILSON:

YOUR LETTER OF JANUARY 29, 1957, REQUESTS REVIEW OF SETTLEMENT CERTIFICATE DATED JANUARY 23, 1957, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION ALLEGED TO BE DUE, IN ADDITION TO THAT ALREADY RECEIVED, FOR SERVICES RENDERED ON VARIOUS HOLIDAYS AS AN EMPLOYEE OF THE BOSTON NAVAL SHIPYARD, BOSTON, MASSACHUSETTS.

YOUR CLAIM WAS DISALLOWED ON THE BASIS OF THE DECISION OF THE UNITED STATES SUPREME COURT ON NOVEMBER 19, 1956, IN THE CASE OF UNITED STATES V. ALFRED C. BERGH, ET AL., NO. 17, OCTOBER TERM, 1956, WHICH HELD THAT GOVERNMENT PER DIEM EMPLOYEES WERE NOT ENTITLED UNDER A JOINT RESOLUTION OF CONGRESS OF JANUARY 6, 1885, 23 STAT. 516, TO AN ADDITIONAL DAY'S WAGE AS "GRATUITY PAY" FOR CERTAIN HOLIDAYS WORKED DURING WORLD WAR II. THAT DECISION REVERSED THE DECISION OF THE COURT OF CLAIMS OF JULY 12, 1955, IN ALFRED C. BERGH, ET AL. V. UNITED STATES, NO. 269-52.

IT APPEARS TO BE YOUR VIEW THAT SINCE YOUR CLAIM WAS FILED PRIOR TO THE DECISION OF THE UNITED STATES SUPREME COURT IN THE BERGH CASE IT SHOULD HAVE BEEN ALLOWED. AS YOU WERE ADVISED IN THE LAST PARAGRAPH OF THE SETTLEMENT, THE SUPREME COURT'S DECISION UPHELD OUR CONSISTENT CONSTRUCTION OF THE SAID JOINT RESOLUTION AS ENTITLING PER DIEM EMPLOYEES TO "GRATUITY PAY" ONLY FOR HOLIDAYS ON WHICH THEY ARE RELIEVED OR PREVENTED FROM WORKING BY THE OCCURRENCE OF THE HOLIDAY AND NOT FOR HOLIDAYS ON WHICH THEY WORK. ON THE BASIS OF THIS CONSTRUCTION OF THE LAW, CLAIMS SIMILAR TO YOURS CONSISTENTLY HAVE BEEN DISALLOWED BY OUR OFFICE. ACCORDINGLY, THE SETTLEMENT OF JANUARY 23, 1957, WAS CORRECT AND IS SUSTAINED.

CONCERNING YOUR QUESTION WHETHER OUR REVIEW IS FINAL, AND, IF SO, THE PROPER PROCEDURE FOR FURTHER APPEAL OF YOUR CASE, YOU ARE ADVISED THAT THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS BY LAW MADE FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. HOWEVER, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED THERE WITHIN SIX YEARS AFTER THE CLAIMS FIRST ACCRUE. 28 U.S.C. 2501. SINCE THE UNITED STATES SUPREME COURT HAS REVERSED THE DECISION OF THE COURT OF CLAIMS IN THE BERGH CASE, WHICH IS SIMILAR TO YOURS, IT DOES NOT APPEAR THAT ANY USEFUL PURPOSE WOULD BE SERVED BY FILING YOUR CLAIM IN THE COURT OF CLAIMS.