B-153385, JUL. 21, 1964

B-153385, JUL. 21, 1964

TO MR. RALPH W. DUSHA:

WE REFER TO YOUR LETTER OF MAY 11, 1964, CONCERNING YOUR CLAIM OF OCTOBER 19, 1963, RECEIVED HERE NOVEMBER 22, 1963, FOR ADDITIONAL OVERTIME COMPENSATION AS A BORDER PATROL OFFICER OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE.

ON APRIL 22, 1964, THE CLAIMS DIVISION OF OUR OFFICE RETURNED YOUR CLAIM FOR ADDITIONAL OVERTIME COMPENSATION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR THE PERIODS JULY 1, 1945, TO DECEMBER 17, 1947, AND JANUARY 24, 1949, TO JUNE 24, 1951, PURSUANT TO THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, BECAUSE SUCH CLAIM WAS NOT RECEIVED IN OUR OFFICE UNTIL MORE THAN TEN YEARS AFTER IT HAD FIRST ACCRUED. YOU INDICATE IN YOUR LETTER OF MAY 11 THAT YOUR CLAIM SHOULD NOT BE BARRED BECAUSE YOU SUBMITTED A CLAIM ON DECEMBER 5, 1949, FOR "EXTRA PAY FOR SUNDAYS AND HOLIDAYS AND OVERTIME PERFORMED AS A BORDER PATROL OFFICER IN THE IMMIGRATION AND NATURALIZATION SERVICE," WHICH YOU APPARENTLY BELIEVE TOLLED THE STATUTE OF LIMITATIONS FOR THE PURPOSE OF YOUR PRESENT CLAIM.

YOUR CLAIM OF DECEMBER 5, 1949, WHICH MADE NO REFERENCE TO THE 1945 PAY ACT WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT OF MARCH 20, 1952. THAT SETTLEMENT WAS MAILED TO YOU AT 300 YALE ROAD, EL PASO, TEXAS, AND ON MARCH 24, 1952, THE SETTLEMENT LETTER WAS FORWARDED BY THE EL PASO POST OFFICE TO GENERAL DELIVERY, PEMBINA, NORTH DAKOTA. ON OR ABOUT MARCH 27 IT WAS RETURNED TO OUR OFFICE BY THE PEMBINA POST OFFICE FOR THE REASON THAT YOU HAD MOVED AND LEFT NO ADDRESS. A COPY OF THAT SETTLEMENT IS ENCLOSED FOR YOUR INFORMATION.

YOUR CLAIM OF DECEMBER 5, 1949, WAS, IN PERTINENT PART, AS FOLLOWS:

"RE: CLAIM TO EXTRA PAY FOR SUNDAYS AND HOLIDAYS AND OVERTIME PERFORMED AS A BORDER PATROL OFFICER IN THE IMMIGRATION AND NATURALIZATION SERVICE.

"GENTLEMEN:

"I, RALPH W. DUSHA HEREBY REQUEST SETTLEMENT AND PAYMENT OF MY CLAIM TO SERVICES AS A BORDER PATROL OFFICER IN THE UNITED STATES IMMIGRATION SERVICE DURING THE TEN YEAR PERIOD IMMEDIATELY PRECEEDING THE DATE OF FILING THIS APPLICATION. WITHIN THIS PERIOD I PERFORMED MY ACCUSTOMED DUTIES AS A BORDER PATROLMAN IN EXCESS OF EIGHT HOURS A DAY AND, AFTER DECEMBER 1, 1942, IN EXCESS OF FORTY HOURS A WEEK. SUCH EXCESS HOURS OF DUTY WERE KNOWN TO AND EITHER PREVIOUSLY AUTHORIZED OR ACQUIESCED IN BY MY SUPERIOR OFFICERS. I HAVE NOT BEEN PAID FOR SUCH EXTRA SERVICES IN ACCORDANCE WITH APPLICABLE EXTRA PAY AND OVERTIME LAWS.

"PLEASE DIRECT CORRESPONDENCE AND NOTICES RESPECTING THE ABOVE CLAIM TO ME PERSONALLY TO THE ADDRESS GIVEN BELOW. YOU WILL BE NOTIFIED IMMEDIATELY OF ANY CHANGE IN MY PERSONAL MAILING ADDRESS.'

OVER 500 SIMILAR CLAIMS WERE RECEIVED AT ABOUT THE SAME TIME FROM BORDER PATROL OFFICERS OF THE IMMIGRATION AND NATURALIZATION SERVICE OR FROM THE REPRESENTATIVES OF SUCH OFFICERS. THOSE CLAIMS RESULTED FROM THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN UNITED STATES V. MYERS, 320 U.S. 561 (1944), AND THE COURT OF CLAIMS DECISIONS IN RENNER AND KRUPP V. UNITED STATES, 106 CT.CL. 676 (1946); AND O-ROURKE V. UNITED STATES, 109 CT.CL. 33 (1947). THOSE DECISIONS INTERPRETED THE EXTRA PAY PROVISIONS WHICH ARE APPLICABLE TO INSPECTORS OF THE BUREAU OF CUSTOMS AND TO INSPECTORS OF THE IMMIGRATION AND NATURALIZATION SERVICE AS FOUND IN SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, CH. 46, 36 STAT. 901, AS AMENDED, 19 U.S.C. 267; AND IN THE ACT OF MARCH 2, 1931, CH. 368, 46 STAT. 1467, AS AMENDED, 5 U.S.C. 342C, RESPECTIVELY. AFTER THE DECISION OF THE COURT OF CLAIMS IN GREENE V. UNITED STATES, 118 CT.CL. 248 (1951), BY WHICH THE COURT DECIDED THAT IMMIGRATION AND NATURALIZATION SERVICE BORDER PATROL OFFICERS WERE NOT ENTITLED TO EXTRA COMPENSATION UNDER THE 1931 ACT, ABOVE, SETTLEMENTS WERE ISSUED BY THE CLAIMS DIVISION OF OUR OFFICE DISALLOWING THE CLAIMS IN QUESTION. YOUR CLAIM WAS DISALLOWED AT THAT TIME.

IN 1956 THE COURT OF CLAIMS IN ANDERSON V. UNITED STATES, 136 CT.CL. 365, DETERMINED THAT BORDER PATROL INSPECTORS OF THE BUREAU OF CUSTOMS WERE ENTITLED TO OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, CH. 212, 59 STAT. 296, AS AMENDED, 5 U.S.C. 911, FOR CERTAIN HOURS OF OVERTIME WORK WHICH HAD BEEN DESIGNATED AS ,VOLUNTARY OVERTIME" AND WHICH HAD NOT BEEN ADMINISTRATIVELY TREATED AS THE BASIS FOR OVERTIME COMPENSATION. SIMILAR CONCLUSION WAS REACHED WITH REGARD TO IMMIGRATION AND NATURALIZATION SERVICE BORDER PATROL OFFICERS IN THE CASE OF ADAMS, ET AL. V. UNITED STATES, CT.CL. NO. 66-59, DECIDED JULY 12, 1963. YOUR CLAIM OF OCTOBER 19, 1963, IS SPECIFICALLY BASED UPON THE LATTER DECISION.

THE OVERTIME COMPENSATION PROVISIONS OF SECTION 1 OF THE ACT OF MARCH 2, 1931, ARE AS FOLLOWS:

"THE ATTORNEY GENERAL SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF IMMIGRATION OFFICERS AND EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O-CLOCK POST MERIDIAN AND EIGHT O-CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND, OR AIR, SUCH RATES TO BE FIXED ON A BASIS OF ONE-HALF DAYS' ADDITIONAL PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR THAT THE OVERTIME EXTENDS BEYOND FIVE O-CLOCK POST MERIDIAN (BUT NOT TO EXCEED TWO AND ONE-HALF DAYS' PAY FOR THE FULL PERIOD FROM FIVE O-CLOCK POST-MERIDIAN TO EIGHT O-CLOCK ANTEMERIDIAN) AND TWO ADDITIONAL DAYS' PAY FOR SUNDAY AND HOLIDAY DUTY; IN THOSE PORTS WHERE THE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HERETOFORE MENTIONED, THE ATTORNEY GENERAL IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF SUCH EMPLOYEES SO AS TO AGREE WITH THE PREVAILING WORKING HOURS IN SAID PORTS, BUT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR SUCH EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED.'

ON THE OTHER HAND, SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IN FORCE DURING THE PERIODS IN QUESTION PROVIDED THE FOLLOWING WITH REGARD TO OVERTIME COMPENSATION (QUOTING FROM THE UNITED STATES CODE).

"OFFICERS AND EMPLOYEES TO WHOM THIS SUBCHAPTER APPLIES SHALL, IN ADDITION TO THEIR BASIC COMPENSATION, BE COMPENSATED FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK, AT OVERTIME RATES AS FOLLOWS: * * *"

THE TWO STATUTES ARE SEPARATE AND DISTINCT BOTH IN THE CIRCUMSTANCES PRESCRIBED FOR PAYMENT OF OVERTIME COMPENSATION AND IN THE AMOUNT OF OVERTIME COMPENSATION TO BE PAID. THE FACTS CONSIDERED IN DETERMINING THE VALIDITY OF A CLAIM UNDER THE 1931 ACT ARE TOTALLY DIFFERENT FROM THOSE WHICH MUST BE CONSIDERED IN DETERMINING THE VALIDITY OF A CLAIM UNDER THE 1945 ACT. SINCE THE PRIMARY PURPOSE OF THE ACT OF OCTOBER 9, 1940, AS SHOWN BY ITS LEGISLATIVE HISTORY, WAS TO RELIEVE THE GOVERNMENT OF THE NECESSITY FOR RETAINING OR GOING BACK OVER OLD RECORDS FOR THE PURPOSE OF SETTLING STALE CLAIMS, WE MUST HOLD THAT YOUR CLAIM FOR OVERTIME UNDER THE 1945 ACT IS A NEW CLAIM SUBJECT TO THE 10-YEAR LIMITATION IMPOSED BY THAT ACT. SEE GENERALLY 32 COMP. GEN. 107.

REGARDING THE FACT THAT YOUR ORIGINAL CLAIM WAS NOT SPECIFICALLY LIMITED TO EXTRA COMPENSATION UNDER THE 1931 ACT, WE NOTE THAT YOUR CLAIM AND THE NUMEROUS SIMILAR CLAIMS SUBMITTED TO US WERE CONSIDERED AS CLAIMS UNDER THE 1931 ACT AND WERE DISALLOWED UNDER THOSE PROVISIONS. OUR OPINION IS THAT OUR SETTLEMENT OF MARCH 1952 WAS A COMPLETE RESPONSE TO THE 1949 CLAIM AND THE SETTLEMENT IS NOT TO BE REOPENED AND REVIEWED. YOUR SPECIFIC CLAIM OF ENTITLEMENT TO ADDITIONAL OVERTIME COMPENSATION UNDER THE 1945 ACT WAS NOT PRESENTED UNTIL SOME 11 YEARS AFTER THAT DISALLOWANCE. THE LACK OF SPECIFICITY OF YOUR ORIGINAL CLAIM CANNOT HAVE THE EFFECT OF KEEPING ALIVE YOUR RIGHT TO PROSECUTE THIS NEW CLAIM AFTER THE EXPIRATION OF THE 10-YEAR PERIOD ALLOWED BY STATUTE. FURTHERMORE, YOUR FAILURE TO KEEP OUR OFFICE INFORMED OF YOUR CURRENT ADDRESS WHICH RESULTED IN YOUR FAILURE TO RECEIVE OUR OFFICE SETTLEMENT OF MARCH 20, 1952, CAN PLACE YOU IN NO BETTER POSITION WITH REGARD TO YOUR 1949 CLAIM THAN THAT IN WHICH YOU WOULD HAVE BEEN HAD YOU RECEIVED THAT SETTLEMENT IN DUE COURSE.

FOR THE REASONS STATED, OUR CLAIMS DIVISION ACTION OF APRIL 22, 1964, APPLYING THE BARRING PROVISIONS OF THE ACT OF OCTOBER 9, 1940, TO YOUR CLAIM FOR ADDITIONAL OVERTIME COMPENSATION FOR THE PERIODS PRIOR TO NOVEMBER 22, 1953, IS SUSTAINED. YOUR CLAIM LETTER OF OCTOBER 19, 1963, TOGETHER WITH CLAIMS DIVISION LETTER OF APRIL 22, 1964, AND A COPY OF THE 1940 ACT, WHICH YOU ENCLOSED WITH YOUR LETTER OF MAY 11, ARE HEREWITH RETURNED.