B-139121, SEP. 24, 1959

B-139121: Sep 24, 1959

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DRYSDALE WAS ADVISED TO THE SAME EFFECT ON MARCH 3. YOU NOW SAY THAT IT WAS YOUR INTENTION THAT THE CLAIM FILED IN 1951 BE A CLAIM FOR OVERTIME COMPENSATION UNDER THE 1945 PAY ACT. AT THE TIME YOUR 1951 CLAIM WAS RECEIVED HERE. THERE WERE PENDING IN THE COURT OF CLAIMS CERTAIN PETITIONS WHICH HAS BEEN FILED BY MR. OTHERS) WERE DISMISSED BY THE COURT ON DECEMBER 1. IT IS CLEAR TO US THAT THE TERMS OF THE CLAIM WERE IN ACCORDANCE WITH INTENT.

B-139121, SEP. 24, 1959

TO MR. VARDE O. ROBINETTE:

YOUR LETTER OF JUNE 16, 1959, WITH ENCLOSURES, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM FOR OVERTIME COMPENSATION FOR SERVICES RENDERED AS A MEMBER OF THE FORMER U.S. CUSTOMS BORDER PATROL DURING THE PERIOD JULY 1, 1945, THROUGH NOVEMBER 14, 1946.

OUR SETTLEMENT OF JANUARY 7, 1959, ALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, FOR THE PERIOD NOVEMBER 15, 1946, THROUGH JULY 24, 1948, THE FIRST MENTIONED DATE BEING THE BEGINNING OF THE TEN-YEAR PERIOD IMMEDIATELY PRECEDING THE DATE WE RECEIVED YOUR CLAIM FOR ADDITIONAL COMPENSATION UNDER THE 1945 PAY ACT. WE ADVISED YOU IN OUR LETTER OF MARCH 6, 1959, TO THE EFFECT THAT A PRIOR CLAIM FILED HERE IN YOUR BEHALF BY YOUR ATTORNEY, MR. ROBERT M. DRYSDALE, ON APRIL 11, 1951, FOR EXTRA COMPENSATION UNDER THE ACT OF FEBRUARY 13, 1911, AS AMENDED, 19 U.S.C. 267, FOR SUNDAY AND HOLIDAY SERVICES DID NOT SERVE TO TOLL THE TEN-YEAR LIMITATION OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS TO THE OVERTIME CLAIM. MR. DRYSDALE WAS ADVISED TO THE SAME EFFECT ON MARCH 3, 1959.

YOU NOW SAY THAT IT WAS YOUR INTENTION THAT THE CLAIM FILED IN 1951 BE A CLAIM FOR OVERTIME COMPENSATION UNDER THE 1945 PAY ACT. HOWEVER, WE MAY NOT REGARD SUCH PRESENT EXPRESSION OF INTENT AS VARYING THE TERMS OF THE 1951 CLAIM. WE MAY POINT OUT THAT, AT THE TIME YOUR 1951 CLAIM WAS RECEIVED HERE, THERE WERE PENDING IN THE COURT OF CLAIMS CERTAIN PETITIONS WHICH HAS BEEN FILED BY MR. DRYSDALE IN BEHALF OF CUSTOMS PATROL OFFICERS, CLAIMING EXTRA PAY UNDER THE 1911 ACT, AS AMENDED, FOR SUNDAY AND HOLIDAY SERVICES, ONLY. THOSE PETITIONS (RUDOLPH O. LANGE V. UNITED STATES, C.CLS. NO. 47827, AND OTHERS) WERE DISMISSED BY THE COURT ON DECEMBER 1, 1952, 123 C.CLS. 886. IN VIEW OF THE TERMS OF THOSE PETITIONS AND THE REFERENCE IN THE CLAIM FILED HERE TO "TEST CASES" IN THE COURT OF CLAIMS, IT IS CLEAR TO US THAT THE TERMS OF THE CLAIM WERE IN ACCORDANCE WITH INTENT.

UPON FURTHER CONSIDERATION, WE ADHERE TO THE CONCLUSION EXPRESSED IN OUR LETTER OF MARCH 6, 1959, CONCERNING THE OPERATION OF THE TEN YEAR LIMITATION OF THE ACT OF OCTOBER 9, 1940.