B-163846, MAY 31, 1968

B-163846: May 31, 1968

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YOU WERE ADVISED THAT SINCE YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON OCTOBER 2. IS PRECLUDED BY THE ACT OF OCTOBER 9. YOU TAKE ISSUE WITH THE PRECEDING STATEMENT CONTENDING THAT YOUR CLAIM FOR OVERTIME COMPENSATION INITIALLY WAS FILED WITH OUR OFFICE IN DECEMBER 1949. THAT NO PORTION OF YOUR CLAIM IS BARRED BY THE STATUTE CITED ABOVE. SUCH EXCESS HOURS OF DUTY WERE KNOWN TO AND EITHER PREVIOUSLY AUTHORIZED OR ACQUESCED IN BY MY SUPERIOR OFFICERS. I HAVE NOT BEEN PAID FOR SUCH EXTRA SERVICES IN ACCORDANCE WITH APPLICABLE EXTRA PAY AND OVERTIME LAWS.'. OVER 500 SIMILAR CLAIMS WERE FILED IN THIS OFFICE BY BORDER PATROL OFFICERS OF THE IMMIGRATION AND NATURALIZATION SERVICE.

B-163846, MAY 31, 1968

TO MR. HENRY V. STALLINGS:

THIS REFERS TO YOUR LETTER OF MARCH 9, 1968, CONCERNING YOUR CLAIM FOR ADDITIONAL COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911, FOR OVERTIME SERVICES PERFORMED AS A BORDER PATROL OFFICER OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE.

BY LETTER DATED MARCH 5, 1968, THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU THAT YOUR CLAIM HAD BEEN REFERRED TO THE IMMIGRATION AND NATURALIZATION SERVICE FOR SETTLEMENT. ALSO, YOU WERE ADVISED THAT SINCE YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON OCTOBER 2, 1963, CONSIDERATION OF THAT PORTION OF YOUR CLAIM FOR THE PERIOD PRIOR TO OCTOBER 2, 1953, IS PRECLUDED BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A.

YOU TAKE ISSUE WITH THE PRECEDING STATEMENT CONTENDING THAT YOUR CLAIM FOR OVERTIME COMPENSATION INITIALLY WAS FILED WITH OUR OFFICE IN DECEMBER 1949. YOU BELIEVE, THEREFORE, THAT NO PORTION OF YOUR CLAIM IS BARRED BY THE STATUTE CITED ABOVE.

ON DECEMBER 12, 1949, WE DID RECEIVE A CLAIM FROM YOU WHICH READ, IN PERTINENT PART, AS OLLOWS:

"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, HENRY V. STALLINGS 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 PRECEDING 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 ACQUESCED IN BY MY SUPERIOR OFFICERS. I HAVE NOT BEEN PAID FOR SUCH EXTRA SERVICES IN ACCORDANCE WITH APPLICABLE EXTRA PAY AND OVERTIME LAWS.'

IN THE YEARS 1949, 1950, AND EARLY 1951, OVER 500 SIMILAR CLAIMS WERE FILED IN THIS OFFICE BY BORDER PATROL OFFICERS OF THE IMMIGRATION AND NATURALIZATION SERVICE. 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, AS AMENDED, 19 U.S.C. 267; AND IN THE ACT OF MARCH 2, 1931, AS AMENDED, 5 U.S.C. 342C, RESPECTIVELY

SOME OF THE CLAIMANTS BASED THEIR CLAIMS FOR EXTRA COMPENSATION SPECIFICALLY ON THE ACT OF MARCH 2, 1931, WHILE OTHERS, SUCH AS YOURSELF, MADE NO REFERENCE TO ANY STATUTE. ALL OF THE CLAIMS, HOWEVER, WERE UNIFORMLY AND REASONABLY UNDERSTOOD BY BOTH THE IMMIGRATION AND NATURALIZATION SERVICE AND BY THE GENERAL ACCOUNTING OFFICE AS BEING CLAIMS FOR OVERTIME AND EXTRA SUNDAY AND HOLIDAY COMPENSATION UNDER THE ACT OF MARCH 2, 1931.

FOLLOWING THE DECISION OF THE COURT OF CLAIMS IN GREENE V UNITED STATES, 118 CT. CL. 248 (1951), OUR CLAIMS DIVISION ISSUED SETTLEMENTS DISALLOWING THE CLAIMS REFERRED TO ABOVE. BY SETTLEMENT DATED MAY 21, 1951, YOU WERE ADVISED THAT YOUR CLAIM FOR ADDITIONAL COMPENSATION WAS DISALLOWED UNDER THE ACT OF MARCH 2, 1931, AS INTERPRETED BY THE COURT OF CLAIMS IN THE GREENE DECISION. AFTER THE ISSUANCE OF THAT SETTLEMENT WE RECEIVED NO FURTHER WORD FROM YOU REGARDING YOUR CLAIM UNTIL OCTOBER 2, 1963. ON THAT DATE WE RECEIVED YOUR LETTER REQUESTING PAYMENT OF OVERTIME COMPENSATION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945. THAT LETTER CONSTITUTED YOUR INITIAL CLAIM FOR OVERTIME COMPENSATION UNDER THE 1945 PAY ACT. ACCORDINGLY, NO CONSIDERATION MAY BE GIVEN TO THAT PORTION OF YOUR CLAIM FOR THE PERIOD PRIOR TO OCTOBER 2, 1953.