B-143255, AUG. 12, 1960

B-143255: Aug 12, 1960

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WHILE HE WAS EMPLOYED AS A CUSTOMS INSPECTOR AT THE PORT OF NEW YORK. DISALLOWED THE CLAIM FOR THE REASON THAT IT WAS ADMINISTRATIVELY REPORTED THAT THE OFFICIAL RECORDS FOR THE PERIOD INVOLVED HAVE BEEN DESTROYED. OUR OFFICE WAS AFFORDED A BASIS FOR DISALLOWING A VALID CLAIM. WHILE YOUR FEELING IN THE MATTER IS UNDERSTANDABLE. THE FOLLOWING IS A BRIEF HISTORY OF THE CLAIM. THE LETTER ALSO CONTAINED THE STATEMENT THAT "AN AMENDED CLAIM AND COMPUTATION WILL BE FILED SUBSEQUENTLY.'. THIS DOCUMENT WAS NEVER RECEIVED IN THE GENERAL ACCOUNTING OFFICE. THE RECORD SHOWS THAT NO FURTHER COMMUNICATION WAS RECEIVED HERE CONCERNING THE MATTER UNTIL YOUR LETTER OF APRIL 25. WE NOTE THAT YOUR LATE FATHER'S CLAIM WAS FILED IN 1949.

B-143255, AUG. 12, 1960

TO MR. LEWIS E. RITCHIE, JR.:

YOUR LETTER OF JUNE 10, 1960, REQUESTS FURTHER CONSIDERATION OF THE CLAIM FILED BY YOUR DECEASED FATHER, THE LATE MR. LEWIS E. RITCHIE, FOR ADDITIONAL COMPENSATION REPRESENTING OVERTIME SERVICES ALLEGEDLY PERFORMED BY HIM DURING THE PERIOD OCTOBER 4, 1939 TO MARCH 1944, WHILE HE WAS EMPLOYED AS A CUSTOMS INSPECTOR AT THE PORT OF NEW YORK. OUR SETTLEMENT OF MAY 24, 1960, ISSUED TO YOU, DISALLOWED THE CLAIM FOR THE REASON THAT IT WAS ADMINISTRATIVELY REPORTED THAT THE OFFICIAL RECORDS FOR THE PERIOD INVOLVED HAVE BEEN DESTROYED, AND CONSEQUENTLY A REPORT SHOWING THE EXTENT OF SUCH OVERTIME SERVICES COULD NOT BE FURNISHED.

YOU SAY THAT DUE TO THE LAPSE OF TIME INVOLVED IN SETTLING YOUR FATHER'S CLAIM, OUR OFFICE WAS AFFORDED A BASIS FOR DISALLOWING A VALID CLAIM. WHILE YOUR FEELING IN THE MATTER IS UNDERSTANDABLE, THE RECORD INVOLVED DOES NOT REFLECT A LACK OF DILIGENCE ON OUR PART.

THE FOLLOWING IS A BRIEF HISTORY OF THE CLAIM. BY LETTER DATED SEPTEMBER 28, 1949 (RECEIVED HERE SEPTEMBER 30, 1949), MR. RITCHIE SUBMITTED A CLAIM FOR "UNPAID OVERTIME EARNINGS" FOR EXTRA SERVICES PERFORMED DURING THE PERIOD "FROM SEPTEMBER 1939 TO MARCH 1944" IN THE AMOUNT OF $50 FOR EACH YEAR OR A TOTAL OF $250. THE LETTER ALSO CONTAINED THE STATEMENT THAT "AN AMENDED CLAIM AND COMPUTATION WILL BE FILED SUBSEQUENTLY.' THIS DOCUMENT WAS NEVER RECEIVED IN THE GENERAL ACCOUNTING OFFICE. THE RECORD SHOWS THAT NO FURTHER COMMUNICATION WAS RECEIVED HERE CONCERNING THE MATTER UNTIL YOUR LETTER OF APRIL 25, 1957, INFORMING US OF YOUR FATHER'S PASSING. WE NOTE THAT YOUR LATE FATHER'S CLAIM WAS FILED IN 1949--- APPROXIMATELY 10 YEARS FROM THE DATE OF ITS INCEPTION--- AND THAT UNTIL OUR RECEIPT OF YOUR PRIMARY COMMUNICATION IN THE MATTER AN ADDITIONAL SEVEN AND ONE-HALF YEARS HAD ELAPSED.

THE SUBJECT CLAIM IS SIMILAR TO A NUMBER OF CLAIMS WE HAVE RECEIVED FROM CUSTOMS INSPECTORS EMPLOYED AT THE NEW YORK BUREAU OF CUSTOMS FOR READJUSTMENT OF EXTRA COMPENSATION UNDER THE ACT OF FEBRUARY 13, 1911, AS AMENDED, 19 U.S.C. 267, FOR DUTY BEFORE 8 A.M., AND AFTER 5 P.M., ON SUNDAYS AND HOLIDAYS AS A RESULT OF THE DECISION OF THE UNITED STATES SUPREME COURT IN UNITED STATES V. MYERS (1944), 320 U.S. 561. THE EXTRA COMPENSATION STATUTE PROVIDES TWO RATES, NAMELY, A NIGHT OVERTIME RATE OF ONE-HALF DAY'S PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR FOR DUTY BETWEEN 5 P.M., AND 8 A.M., AND A SUNDAY AND HOLIDAY RATE OF TWO DAYS' PAY. THE TWO DAYS' EXTRA COMPENSATION WAS PAID FOR SUNDAY AND HOLIDAY DUTY REGARDLESS OF HOW SHORT IN DURATION. FROM 1920 UNTIL 1944 WHEN THE MYERS DECISION WAS RENDERED, THE REGULATIONS REFLECTED THE INTERPRETATION THAT THE TWO DAY RATE WOULD BE PAYABLE ONLY FOR DUTY BETWEEN 8 A.M., AND 5 .M., ON SUNDAYS AND HOLIDAYS. THE NIGHT OVERTIME RATE WAS PAID FOR DUTY BEFORE 8 A.M., AND AFTER 5 P.M. FOLLOWING THE DECISION IN THE MYERS CASE, THE ADMINISTRATIVE REGULATIONS WERE CHANGED TO PROVIDE FOR PAYMENT OF TWO DAYS' EXTRA COMPENSATION FOR SERVICES UP TO A TOTAL OF 8 HOURS ON A SUNDAY OR HOLIDAY AND FOR PAYMENT OF THE OVERTIME RATE FOR SERVICES IN EXCESS OF 8 HOURS, REGARDLESS OF THE TIME OF DAY OR NIGHT DURING THE 24 HOURS OF A SUNDAY OR HOLIDAY AT WHICH SUCH SERVICES WERE PERFORMED.

THE POSITION OF OUR OFFICE PRIOR TO THE DECISION IN SCHIABLE, ET AL. V. UNITED STATES, 135 C.CLS. 890 (1956) WAS THAT LONG-SETTLED ACCOUNTS (INVOLVING NOT ONLY PAYMENTS TO INSPECTIONAL PERSONNEL BUT COLLECTIONS OF REIMBURSABLE EXTRA COMPENSATION FROM PRIVATE SHIPPING INTERESTS AS WELL) SHOULD NOT BE REOPENED TO GIVE RETROACTIVE EFFECT TO CHANGES IN THE REGULATIONS. SINCE THE COURT OF CLAIMS HELD OTHERWISE IN THE SCHIABLE CASE, UPON THE GROUND THAT THE ACCEPTANCE BY AN EMPLOYEE OF LESS THAN THE LAWFUL COMPENSATION UNDER A MISTAKE OF LAW DOES NOT BAR A CLAIM FOR THE DIFFERENCE AT A LATER DATE, WE HAVE BEEN FOLLOWING THAT DECISION IN THOSE CASES IN WHICH WE WERE FURNISHED REASONABLY RELIABLE EVIDENCE OF SUCH TIME WORKED BY THE CLAIMANTS.

WHILE THE SCHIABLE CASE WAS PENDING IN COURT OUR OFFICE NATURALLY REFRAINED FROM TAKING ACTION ON SIMILAR CLAIMS PENDING HERE IN VIEW OF OUR POSITION AS EXPLAINED ABOVE.

IN OUR EFFORTS TO SETTLE THIS CLASS OF CLAIMS WE HAD BEEN CONFRONTED WITH THE FACT THAT THE OFFICIAL RECORDS OF THE TIME WORKED AND THE AMOUNTS OF OVERTIME ALREADY PAID TO THE CUSTOMS INSPECTORS INVOLVED HAVE BEEN DESTROYED BECAUSE OF LAPSE OF TIME. IN THE CIRCUMSTANCES WE DETERMINED THAT WE WOULD ACCEPT COMPUTATIONS BASED UPON PERSONAL DIARIES, PROVIDED THE DIARIES BE FURNISHED US FOR EXAMINATION ALONG WITH THE COMPUTATIONS, AND THAT THE BUREAU OF CUSTOMS COULD VERIFY FROM STILL AVAILABLE PORT RECORDS THAT THE VESSELS IN CONNECTION WITH WHICH INSPECTIONAL SERVICES WERE ALLEGED TO HAVE BEEN RENDERED WERE IN PORT ON THE DATES CLAIMED.

IN VIEW OF THE FACT THAT SUCH EMPLOYEES CUSTOMARILY MAINTAINED OPERATIONAL DIARIES OR OTHER RECORDS OF PERTINENT BASIC INFORMATION, THE SUBMISSION OF SUCH EVIDENTIARY MATERIAL IS ESSENTIAL TO SUPPORT THIS CLASS OF CLAIMS. WITHOUT THE DIARIES OR OTHER RECORDS OF THE ENTIRE ACCOUNT OF THE PERIOD OF THE CLAIM WE CANNOT DETERMINE WHAT PRIOR PAYMENTS ARE AVAILABLE AS OFFSETS AGAINST ADDITIONAL AMOUNTS CLAIMED. THE POSSIBLE OFFSETS ARISE BECAUSE IN SOME RESPECTS THE PREVIOUS METHOD OF COMPUTING COMPENSATION WAS MORE FAVORABLE TO THE INSPECTORS THAN THE METHOD NOW IN USE.

SINCE UNDER THE JURISDICTION CONFERRED UPON OUR OFFICE BY THE PROVISIONS OF 31 U.S.C. 71 WE CANNOT DIRECT THE PAYMENT FROM APPROPRIATED FUNDS OF CLAIMS AGAINST THE GOVERNMENT BASED SOLELY UPON UNSUPPORTED STATEMENTS OF THE CLAIMANT AND AS THE ADMINISTRATIVE OFFICE HAS REPORTED THAT IT IS UNABLE TO FURNISH INFORMATION SUBSTANTIATING YOUR CLAIM, FAVORABLE CONSIDERATION WOULD NOT BE JUSTIFIED ON THE BASIS OF THE PRESENT RECORD. THEREFORE, OUR SETTLEMENT OF MAY 24, 1960, IS SUSTAINED.