B-147190, B-271406, DEC. 1, 1961

B-147190, B-271406, DEC. 1, 1961

TO MR. JOHN S. BRADFORD:

YOUR LETTER OF AUGUST 28, 1961, RECEIVED HERE ON SEPTEMBER 6, REQUESTS THE REOPENING OF YOUR CLAIM OF JANUARY 31, 1950, WHICH YOU NOW DESCRIBE AS HAVING BEEN FOR COMPENSATION FOR WORK PERFORMED ON SUNDAYS AND HOLIDAYS AND IN EXCESS OF THE REQUIRED WORKWEEK "UNDER THE PAY ACTS OF 1931, 1942 AND 1945" AS AN EMPLOYEE OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE.

NOTWITHSTANDING YOUR PRESENT DESCRIPTION OF THE SCOPE OF THE 1950 CLAIM, OUR RECORDS SHOW THAT THE CLAIM SPECIFICALLY WAS FOR EXTRA COMPENSATION UNDER THE ACT OF MARCH 2, 1931, 46 STAT. 1467, FOR DUTY ON SUNDAYS AND HOLIDAYS, AS FOLLOWS (QUOTING FROM YOUR LETTER OF JANUARY 31, 1950):

"/1) SUNDAY AND HOLIDAYS COMPENSATION AS FOLLOWS:

"/A) TWO DAYS PAY FOR DUTY OF AT LEAST ONE HOUR AND NOT MORE THAN EIGHT HOURS, WITHIN THE 24 HOUR PERIOD FROM MIDNIGHT TO AND INCLUDING MIDNIGHT:

"/B) TWO DAYS PAY FOR DUTY OF AT LEAST ONE HOUR AND NOT MORE THAN EIGHT HOURS, WITHIN THE 24 HOUR PERIOD FROM 12 MIDNIGHT TO AND INCLUDING MIDNIGHT--- LESS EXTRA COMPENSATION PREVIOUSLY PAID ME AT THE "OVERTIME" RATE OF ONE-HALF DAY'S PAY FOR EACH TWO-HOUR PERIOD ON SUCH DAYS WHEN I RECEIVED LESS THAN FOUR ONE-HALF DAYS UNITE OF PAY:

"/C) TWO DAYS PAY FOR DUTY OF AT LEAST ONE HOUR AND NOT MORE THAN EIGHT HOURS, WITHIN THE 24 HOUR PERIOD FROM 12 MIDNIGHT TO AND INCLUDING MIDNIGHT ON WARTIME HOLIDAYS, THAT IS, HOLIDAYS DECLARED REGULAR WORKING DAYS BY ADMINISTRATIVE ORDER (JAN. 1, 1942 THROUGH JULY 5, 1945).'

THAT CLAIM WAS DISALLOWED BY OUR OFFICE SETTLEMENT OF MAY 14, 1951,PRIMARILY UPON THE BASIS OF THE DECISION OF THE COURT OF CLAIMS IN GREENE, ET AL. V. UNITED STATES, 118 CT.CL. 248, WHICH HELD TO THE EFFECT THAT SERVICES RENDERED BY IMMIGRATION PATROL INSPECTORS DID NOT CONSTITUTE THE TYPE OF SERVICE FOR WHICH EXTRA COMPENSATION UNDER THE 1931 ACT WAS AUTHORIZED.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1051, BARS US FROM CONSIDERING CLAIMS NOT RECEIVED HERE WITHIN TEN FULL YEARS AFTER THE CLAIM FIRST ACCRUED. A COPY OF THAT ACT IS ENCLOSED.

THE CLAIM OF JANUARY 31, 1950, FOR EXTRA COMPENSATION UNDER THE ACT OF MARCH 2, 1931, FOR SUNDAY AND HOLIDAY SERVICE IS DIFFERENT FROM A CLAIM FOR OVERTIME COMPENSATION UNDER THE OTHER ACTS CITED BY YOU FOR SERVICE IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK. THE TWO DAYS' EXTRA COMPENSATION PROVIDED BY THE 1931 ACT FOR SUNDAY AND HOLIDAY WORK IS NOT FOR OVERTIME SERVICE BUT IS PAYABLE ONLY FOR NONOVERTIME HOURS, THAT IS, FOR HOURS TOTALING EIGHT OR LESS IN ONE DAY AND WITHOUT REGARD TO THE NUMBER OF HOURS OR DAYS OF SERVICE OTHERWISE RENDERED DURING THE WEEK. SINCE YOUR ORIGINAL CLAIM WAS SPECIFICALLY LIMITED TO THE TWO DAYS' EXTRA COMPENSATION UNDER THE 1931 ACT, IT MAY NOT BE CONSIDERED AS HAVING BEEN FOR OVERTIME COMPENSATION SO AS TO TOLL THE TEN-YEAR LIMITATION OF THE ACT OF OCTOBER 9, 1940. CONSEQUENTLY, YOUR PRESENT CLAIM FOR OVERTIME COMPENSATION MAY NOT, IN VIEW OF THE 1940 STATUTE, BE CONSIDERED FOR ANY PERIOD PRIOR TO SEPTEMBER 6, 1951.

AS YOU INDICATE IN YOUR LETTER, CERTAIN "TEST CASES" INVOLVING CLAIMS FOR ADDITIONAL COMPENSATION, SIMILAR TO YOURS, BY BORDER PATROL INSPECTORS NOW ARE PENDING IN THE UNITED STATES COURT OF CLAIMS (KENNETH S. ADAMS, ET AL. V. UNITED STATES, CT.CL.NO. 66-59; STEUART H. ADAMS, ET AL. V. UNITED STATES, CT.CL.NO. 157-59, AMONG OTHERS). IN VIEW THEREOF, AND FOLLOWING OUR OFFICE POLICY THAT WE SUSPEND CONSIDERATION OF A CLAIM FILED HERE WHILE THE CLAIM IS ALSO BEING LITIGATED, WE SHALL WITHHOLD FURTHER ACTION ON THAT PART OF YOUR CLAIM WHICH IS WITHIN THE TEN-YEAR PERIOD COGNIZABLE UNDER THE 1940 STATUTE, PENDING THE OUTCOME OF THE COURT CASES.

REFERRING TO YOUR LETTER OF NOVEMBER 23, 1961, YOU ARE ADVISED THAT YOUR NEW CLAIM WILL BE HANDLED UNDER THE OLD CLAIM NUMBER, NAMELY, Z 271406.