B-65123, MAY 5, 1947, 26 COMP. GEN. 848

B-65123: May 5, 1947

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WHEN MOST FEDERAL EMPLOYEES WERE EXCUSED FROM DUTY FOR ONE-HALF DAY PURSUANT TO EXECUTIVE ORDER NO. 9810. ARE ENTITLED UNDER SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. DURING WHICH THE VARIOUS GOVERNMENT OFFICES WERE CLOSED AND MOST EMPLOYEES WERE EXCUSED FROM DUTY UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9810. 1947: REFERENCE IS MADE TO YOUR LETTER OF MARCH 28. AS FOLLOWS: YOUR DECISION IS REQUESTED ON CERTAIN QUESTIONS WHICH HAVE ARISEN RELATIVE TO THE APPLICATION OF EXECUTIVE ORDER NO. 9810 UNDER THE PROVISIONS OF WHICH EMPLOYEES OF THE FEDERAL GOVERNMENT. WERE EXCUSED FROM DUTY FOR A HALF DAY ON DECEMBER 24. THAT SUCH HALF DAY ON WHICH EMPLOYEES WERE TO BE EXCUSED FROM DUTY CONSTITUTES A "HOLIDAY" WITHIN THE MEANING OF SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

B-65123, MAY 5, 1947, 26 COMP. GEN. 848

HOLIDAYS - COMPENSATION - HALF-DAY ON DECEMBER 24, 1946 - CUSTOMS SERVICE EMPLOYEES CUSTOMS SERVICE EMPLOYEES, NOT WITHIN THE PURVIEW OF THE HOLIDAY PAY PROVISIONS OF THE CUSTOMS LAWS, WHO HAD WORKED THEIR REGULAR TOUR OF DUTY FROM 12:01 A.M. TO 8 A.M. ON DECEMBER 24, 1946, WHEN MOST FEDERAL EMPLOYEES WERE EXCUSED FROM DUTY FOR ONE-HALF DAY PURSUANT TO EXECUTIVE ORDER NO. 9810, ARE ENTITLED UNDER SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, TO PREMIUM PAY AS FOR HOLIDAY WORK DURING THE LATTER HALF OF SUCH TOUR OF DUTY. THE HALF-DAY ON DECEMBER 24, 1946, DURING WHICH THE VARIOUS GOVERNMENT OFFICES WERE CLOSED AND MOST EMPLOYEES WERE EXCUSED FROM DUTY UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9810, MAY NOT BE REGARDED AS A HOLIDAY WITHIN THE MEANING OF THE CUSTOMS LAWS AUTHORIZING THE PAYMENT OF TWO DAYS' EXTRA COMPENSATION FOR SERVICES PERFORMED BY CERTAIN CUSTOMS SERVICE EMPLOYEES ON A HOLIDAY; HOWEVER, IF PROPER ADMINISTRATIVE ACTION HAD BEEN TAKEN TO CLOSE THE PARTICULAR OFFICES DURING SUCH HALF-DAY, PAYMENT OF HOLIDAY COMPENSATION TO SUCH EMPLOYEES FOR SERVICES PERFORMED ON THAT DAY MAY BE MADE IN ACCORDANCE WITH AND PURSUANT TO SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, MAY 5, 1947:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 28, 1947, FILE 129.15, AS FOLLOWS:

YOUR DECISION IS REQUESTED ON CERTAIN QUESTIONS WHICH HAVE ARISEN RELATIVE TO THE APPLICATION OF EXECUTIVE ORDER NO. 9810 UNDER THE PROVISIONS OF WHICH EMPLOYEES OF THE FEDERAL GOVERNMENT, WITH CERTAIN EXCEPTIONS, WERE EXCUSED FROM DUTY FOR A HALF DAY ON DECEMBER 24, 1946, AND OF YOUR DECISION OF DECEMBER 20, 1946 (B-62569), THAT SUCH HALF DAY ON WHICH EMPLOYEES WERE TO BE EXCUSED FROM DUTY CONSTITUTES A "HOLIDAY" WITHIN THE MEANING OF SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.

CERTAIN CUSTOMS EMPLOYEES WERE REQUIRED TO REMAIN ON DUTY FOR A FULL TOUR OF DUTY ON THAT DAY IN ORDER TO PROTECT THE REVENUE. IT WOULD APPEAR FROM YOUR DECISION THAT THOSE CUSTOMS EMPLOYEES, IF OTHERWISE ELIGIBLE, WOULD BE ENTITLED TO DOUBLE-TIME HOLIDAY COMPENSATION AUTHORIZED BY THAT SECTION OF THE FEDERAL EMPLOYEES PAY ACT, AS AMENDED. IT SEEMS CLEAR THAT THIS WOULD APPLY TO THOSE EMPLOYEES WHO WERE ON REGULARLY ASSIGNED TOURS OF DUTY WTHIN THE USUAL DAYLIGHT HOURS OF SERVICE. HOWEVER, IN THOSE CUSTOMS DISTRICTS AND PORTS WHERE SERVICES ARE REQUIRED TO BE RENDERED BEYOND THE USUAL DAYLIGHT HOURS OF SERVICE OR DURING THE ENTIRE 24 HOURS OF THE DAY ASSIGNMENT OF TOURS OF DUTY IS MADE ON A "SHIFT" BASIS SO THAT, FOR EXAMPLE, A TOUR MAY HAVE BEEN FROM 12:01 A.M. TO 8 A.M. ON DECEMBER 24, 1946. IN SUCH CASE IT IS LESS CLEAR WHETHER THE DOUBLE-TIME HOLIDAY COMPENSATION IS AUTHORIZED AND PAYABLE FOR HOURS OF DUTY DURING THE LATTER HALF OF THAT ASSIGNED TOUR. YOUR DECISION IS REQUESTED CLARIFYING THIS POINT.

THE CUSTOMS OVERTIME LAWS, SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED (19 U.S.C. 267), AND THE ACT OF JUNE 3, 1944 (19 U.S.C., SUPP. V., 1451) PROVIDE FOR THE PAYMENT OF EXTRA COMPENSATION FOR CERTAIN SERVICES PERFORMED ON HOLIDAYS. THE DECISION OF THE SUPREME COURT IN THE CASE OF UNITED STATES V. HOWARD C. MYERS (1944) 320 U.S. 561; 320 U.S. 750, CONSTRUING THE ACT OF FEBRUARY 13, 1911, AS AMENDED, MAKES IT CLEAR THAT 2 DAYS' HOLIDAY EXTRA COMPENSATION IS PAYABLE FOR ANY OF THE INCLUDED SERVICES PERFORMED ON A HOLIDAY WITHIN THE MEANING OF THAT ACT. THAT SAME CONSTRUCTION HAS BEEN EXTENDED TO THE ACT OF JUNE 3, 1944, BY THE INCORPORATION IN THAT ACT OF EXPRESS REFERENCE TO THE MYERS CASE DECISION. THUS, FOR EXAMPLE, A CUSTOMS INSPECTOR WHO WORKED 1 HOUR BEYOND THE HALF DAY ON WHICH HE WAS NOT EXCUSED FROM DUTY BY THE EXECUTIVE ORDER COULD RECEIVE NO LESS THAN 2 DAYS' PAY IN ADDITION TO HIS BASIC RATE OF COMPENSATION FOR SUCH SERVICE, IF WITHIN HIS BASIC WORKWEEK, IF THE HALF DAY ON WHICH THE EXECUTIVE ORDER EXCUSED EMPLOYEES GENERALLY IS CONSIDERED TO BE A HOLIDAY WITHIN THE MEANING AND INTENDMENT OF THOSE CUSTOMS OVERTIME LAWS.

IT IS THE VIEW OF THIS DEPARTMENT THAT, SINCE THE EXECUTIVE ORDER DOES NOT EXPRESSLY CREATE ,HOLIDAY," AND SINCE NO PROVISION IS MADE IN THE CUSTOMS OVERTIME STATUTES FOR "HALF HOLIDAYS" STRONG DOUBT EXISTS THAT THE HALF DAY IN QUESTION IS A "HOLIDAY" WITHIN THE MEANING OF THOSE ACTS. THIS CONNECTION, IT IS OF INTEREST TO NOTE THE RECENT DECISION OF THE COURT OF CLAIMS GIVING CONSTRUCTION TO THE WORD "HOLIDAY" AS CONTAINED IN THE ACT OF FEBRUARY 13, 1911, AS AMENDED, COURT OF CLAIMS NO. 46806, JOHN DI BENEDETTO V. UNITED STATES, DECIDED JANUARY 6, 1947. THERE IS LANGUAGE IN THAT DECISION WHICH INDICATES THAT THE HALF DAY COVERED BY THE EXECUTIVE ORDER, BEING GENERALLY A PERIOD WHEN ALL EMPLOYEES OF THE FEDERAL GOVERNMENT WERE EXCUSED FROM DUTY, WOULD BE CONSIDERED WITHIN THE MEANING OF THE CUSTOMS OVERTIME LAWS EXCEPT FOR THE CONSIDERATIONS EXPRESSED IN THE DEPARTMENT'S VIEWS, AS STATED ABOVE.

IT IS APPARENT THAT IF THE HALF DAY COVERED BY THE EXECUTIVE ORDER IS A "HOLIDAY" WITHIN THE MEANING AND INTENDMENT OF THE CUSTOMS OVERTIME STATUTES, 2 DAYS' COMPENSATION IS PAYABLE FOR ANY INCLUDED SERVICES PERFORMED DURING THAT HALF DAY. THOSE LAWS, AS CONSTRUED BY THE SUPREME COURT, DO NOT SEEM TO PERMIT ANY DIVISION OF THAT RATE OF COMPENSATION APPLICABLE TO A HALF HOLIDAY. IT IS ALSO APPARENT THAT SUCH EXTRA COMPENSATION WOULD BE DUE FOR ANY SERVICES CONTEMPLATED BY THOSE LAWS IF PERFORMED DURING A PERIOD OF TIME CONSIDERED TO BE WITHIN THE HALF DAY CONSTITUTING THE HOLIDAY, DEPENDING UPON THE DETERMINATION TO BE MADE AS TO WHETHER, FOR EXAMPLE, THE LAST 4 HOURS OF A TOUR OF DUTY FROM 12:01 A.M. TO 8 A.M. ON DECEMBER 24, 1946, IS TO BE DEEMED THE HALF DAY COVERED BY THE EXECUTIVE ORDER.

SHOULD YOU DETERMINE THAT THE HALF DAY IN QUESTION IS A "HOLIDAY" WITHIN THE MEANING AND INTENDMENT OF THE CUSTOMS OVERTIME STATUTES, SUPRA, IT IS TO BE NOTED THAT INSOFAR AS THE EXTRA COMPENSATION PROVIDED BY THOSE STATUTES IS REIMBURSABLE TO THE GOVERNMENT, REIMBURSEMENT OF THE AMOUNTS TO BE PAID TO THE CUSTOMS INSPECTORS, STOREKEEPERS, OR OTHER EMPLOYEES, WILL HAVE TO BE OBTAINED FROM THE PARTIES FOR WHOM THE SERVICES WERE PERFORMED AS PROVIDED BY LAW. NONREIMBURSABLE EXTRA COMPENSATION WOULD BE PAYABLE BY THE GOVERNMENT OUT OF THE APPROPRIATION FOR COLLECTING THE REVENUE FROM CUSTOMS WITHOUT REIMBURSEMENT.

IF, ON THE OTHER HAND, YOU DETERMINE THAT THE HALF DAY IN QUESTION IS NOT A "HOLIDAY" WITHIN THE MEANING OF THE CUSTOMS OVERTIME STATUTES, SUPRA, THEN IT IS APPARENT THAT THE DOUBLE-TIME HOLIDAY COMPENSATION PROVIDED BY SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, WOULD APPLY FOR THE PAYMENT OF ALL CUSTOMS EMPLOYEES WHO PERFORMED SERVICES ON THE ,HOLIDAY" AS CONSTRUED TO BE WITHIN THE CONTEMPLATION OF THAT ACT.

YOUR DECISION ON THESE QUESTIONS IS REQUESTED IN ORDER THAT THE REQUIRED PAYMENTS AND ACCOUNTINGS MAY BE MADE AS SOON AS POSSIBLE.

IT IS UNDERSTOOD THAT THE QUESTION PROPOUNDED IN THE LAST SENTENCE OF THE SECOND PARAGRAPH OF YOUR LETTER, SUPRA, PRIMARILY HAS REFERENCE TO THOSE CUSTOMS EMPLOYEES WHO ORDINARILY WOULD NOT BE ELIGIBLE TO RECEIVE HOLIDAY COMPENSATION UNDER THE PROVISIONS OF SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, 36 STAT. 901, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402 (19 U.S.C. 267), OR UNDER THE PROVISIONS OF SECTION 451 OF THE TARIFF ACT OF 1930, AS AMENDED BY THE ACT OF JUNE 25, 1938, 52 STAT. 1082, AND THE ACT OF JUNE 3, 1944, 58 STAT. 269 (19 U.S.C. 1451). OF COURSE, IT IS FURTHER UNDERSTOOD THAT SAID QUESTION WOULD HAVE REFERENCE TO THOSE CUSTOMS EMPLOYEES WHO ORDINARILY WOULD BE ELIGIBLE TO RECEIVE HOLIDAY COMPENSATION IN ACCORDANCE WITH THOSE ACTS ONLY IF IT SHOULD BE DETERMINED THAT THE HALF HOLIDAY DECLARED BY THE PRESIDENT ON DECEMBER 24, 1946, DID NOT CONSTITUTE A HOLIDAY WITHIN THE MEANING OF THOSE ACTS.

EXECUTIVE ORDER 9810, DATED DECEMBER 12, 1946, PROVIDES AS FOLLOWS:

BY VIRTUE OF THE AUTHORITY VESTED IN ME AS PRESIDENT OF THE UNITED STATES, IT IS HEREBY ORDERED AS FOLLOWS:

1. THE SEVERAL EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHER GOVERNMENTAL AGENCIES IN THE DISTRICT OF COLUMBIA, INCLUDING THE GENERAL ACCOUNTING OFFICE, THE GOVERNMENT PRINTING OFFICE AND THE NAVY YARD AND NAVAL STATIONS SHALL BE CLOSED ONE-HALF DAY ON TUESDAY, DECEMBER 24, 1946, THE DAY PRECEDING CHRISTMAS DAY; AND ALL EMPLOYEES IN THE FEDERAL SERVICE IN THE DISTRICT OF COLUMBIA, AND IN THE FIELD SERVICE OF THE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, OR AGENCIES OR THOSE WHOSE ABSENCE FROM DUTY WOULD BE INCONSISTENT WITH THE PROVISIONS OF EXISTING LAW, SHALL BE EXCUSED FROM DUTY FOR ONE HALF DAY ON DECEMBER 24, 1946.

SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, AS AMENDED BY SECTION 11 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 218, PROVIDES IN PERTINENT PART:

* * * ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER DURING HOURS WHICH FALL WITHIN HIS BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS SHALL BE COMPENSATED FOR NOT TO EXCEED EIGHT HOURS OF SUCH DUTY, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, IN LIEU OF HIS REGULAR RATE OF BASIC COMPENSATION FOR SUCH DUTY, AT THE RATE OF TWICE SUCH REGULAR RATE OF BASIC COMPENSATION, IN ADDITION TO ANY EXTRA COMPENSATION FOR NIGHT DUTY PROVIDED BY SECTION 301 OF THIS ACT * * * ( ITALICS SUPPLIED.)

THE DECISION OF DECEMBER 20, 1946, B-62569, 26 COMP. GEN. 431, REFERRED TO IN YOUR LETTER, HELD INTER ALIA THAT THE HALF HOLIDAY ON DECEMBER 24, 1946, FOR WHICH EMPLOYEES OF THE FEDERAL GOVERNMENT, WITH CERTAIN EXCEPTIONS WERE EXCUSED FROM DUTY UNDER THE PROVISIONS OF EXECUTIVE ORDER 9810, CONSTITUTED A HOLIDAY DESIGNATED BY EXECUTIVE ORDER WITHIN THE MEANING OF SECTION 302 OF THE STATUTE, SUPRA, SO AS TO ENTITLE OTHERWISE ELIGIBLE EMPLOYEES WHO WERE REQUIRED TO PERFORM DUTY ON THAT HALF DAY TO THE DOUBLE COMPENSATION PROVIDED BY THAT SECTION FOR SERVICES PERFORMED ON HOLIDAYS. HOWEVER, THERE IS FOR NOTING IN THAT CONNECTION DECISION OF MARCH 6, 1947, B-63833, 26 COMP. GEN. 663, WHEREIN--- IN APPLYING EXECUTIVE ORDER 9810 TO AN EMPLOYEE WHOSE USUAL TOUR OF DUTY WAS FROM 4 P.M. TO 12 MIDNIGHT IN THE VETERANS' ADMINISTRATION WHERE THE OFFICE WAS OFFICIALLY CLOSED FROM 12 NOON TO 5 P.M. ON DECEMBER 24, 1946 (PRESUMABLY INCLUDING THE USUAL LUNCHEON PERIOD/--- IT WAS HELD AS FOLLOWS:

AS SAID EXECUTIVE ORDER DID NOT SPECIFY THE HOURS BETWEEN WHICH THE VARIOUS GOVERNMENT OFFICES WERE TO BE CLOSED, IT BECAME NECESSARY FOR THE RESPECTIVE DEPARTMENTS OR AGENCIES TO FIX THE HOURS BETWEEN WHICH THE OFFICES SHOULD BE CLOSED FOR THE ONE-HALF DAY AND, WHEN SO FIXED, SUCH HOURS CONSTITUTED NONWORK HOURS OR AN EXECUTIVE ORDER HOLIDAY TO THAT EXTENT, AND ANY EMPLOYEE REQUIRED TO WORK DURING THE HOURS THE OFFICE WAS CLOSED BECAME ENTITLED TO PREMIUM OR HOLIDAY PAY. IT FOLLOWS THAT NO PART OF THE REMAINING 20 HOURS OF THAT DAY SHOULD BE CONSIDERED A HOLIDAY AND, ACCORDINGLY, THOSE EMPLOYEES WHOSE TOUR OF DUTY INCLUDED HOURS OUTSIDE THE HOURS THE OFFICE WAS CLOSED ARE ENTITLED TO NO HOLIDAY BENEFIT THEREFROM SO FAR AS SUCH OUTSIDE HOURS ARE CONCERNED.

ON THE STATEMENT OF FACTS PRESENTED IN YOUR SUBMISSION, THE EMPLOYEE WHOSE TOUR OF DUTY EXTENDED FROM 4 P.M. TO 12 M. DECEMBER 24, 1946, WOULD BE ENTITLED TO HOLIDAY OR PREMIUM PAY FOR ONE HOUR, ONLY.

IN LINE WITH THAT DECISION, I HAVE TO ADVISE THAT EMPLOYEES WHOSE USUAL TOUR OF DUTY WAS FROM 2:01 A.M. TO 8 A.M. ON DECEMBER 24, 1946, WHO WERE ASSIGNED TO DUTY DURING THE ENTIRE USUAL PERIOD OF DUTY PROPERLY ARE ENTITLED TO PREMIUM OR HOLIDAY PAY UNDER THE PROVISIONS OF SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, DURING THE LATTER HALF OF THAT ASSIGNED TOUR OF DUTY ONLY IF PROPER ADMINISTRATIVE ACTION HAD BEEN TAKEN TO CLOSE THE OFFICES IN WHICH SUCH EMPLOYEES WERE EMPLOYED DURING THE LATTER HALF OF THE TOUR OF DUTY. THAT QUESTION IS ANSWERED ACCORDINGLY.

SECTION 5 OF THE ACT OF FEBRUARY 13, 19411, 36 STAT. 901, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, 41 STAT. 402 (19 U.S.C. 267), PROVIDES IN PERTINENT PART AS FOLLOWS:

THE SECRETARY OF THE TREASURY SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS, STOREKEEPERS, WEIGHERS, AND OTHER CUSTOMS OFFICERS AND EMPLOYEES WHO MAY BE REQUIRED TO REMAIN ON DUTY * * * ON SUNDAYS OR HOLIDAYS, TO PERFORM SERVICES IN CONNECTION WITH THE * * * EXAMINATION OF PASSENGERS' BAGGAGE * * * TWO ADDITIONAL DAYS' PAY FOR SUNDAY OR HOLIDAY DUTY. THE SAID EXTRA COMPENSATION SHALL BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE WHENEVER SUCH SPECIAL LICENSE OR PERMIT FOR IMMEDIATE LADING OR UNLADING * * * ON SUNDAYS OR HOLIDAYS SHALL BE GRANTED TO THE COLLECTOR OF CUSTOMS, WHO SHALL PAY THE SAME TO THE SEVERAL CUSTOMS OFFICERS AND EMPLOYEES ENTITLED THERETO ACCORDING TO THE RATES FIXED THEREFOR BY THE SECRETARY OF THE TREASURY. * * *

EXTRA COMPENSATION FOR SIMILAR SERVICES IS PROVIDED FOR CERTAIN OTHER CUSTOMS OFFICERS AND EMPLOYEES BY SECTION 451 OF THE TARIFF ACT OF 1930, AS AMENDED BY THE ACT OF JUNE 25, 1938, 52 STAT. 1082, AND THE ACT OF JUNE 3, 1944, 58 STAT. 269 (19 U.S.C. 1451), WHICH SECTION SPECIFICALLY PROVIDES FOR PAYMENT IN ACCORDANCE WITH EXISTING LAW AS INTERPRETED BY THE UNITED STATES SUPREME COURT IN THE CASE OF UNITED STATES V. HOWARD C. MYERS, 320 U.S. 561. AS STATED IN YOUR LETTER, SUPRA, THAT COURT DECISION MAKES CLEAR THAT UNDER THE STATUTES QUOTED AND CITED ABOVE, TWO DAYS' EXTRA COMPENSATION IS PAYABLE TO ANY OF THE EMPLOYEES COVERED THEREBY FOR THE PERFORMANCE OF ANY OF THE SPECIFIED DUTIES ON A HOLIDAY. NONE OF THOSE ACTS CONTAINS WORDING SIMILAR TO THAT CONTAINED IN SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, WHICH SPECIFICALLY INCLUDES A HOLIDAY DESIGNATED BY EXECUTIVE ORDER. NEITHER DO ANY OF THOSE ACTS DEFINE A HOLIDAY FOR THE PURPOSES OF THOSE ACTS. THERE IS NO FEDERAL STATUTE GENERALLY DEFINING HOLIDAYS FOR ALL PURPOSES. THEREFORE, WITH REFERENCE TO SUCH EMPLOYEES, THE QUESTION PRIMARILY FOR DETERMINATION IS WHETHER EXECUTIVE ORDER 9810, DATED DECEMBER 12, 1946, ACTUALLY CREATED A HOLIDAY WITHIN THE MEANING OF THOSE ACTS. PARAGRAPH (B) OF SECTION 24.16 OF THE CUSTOMS REGULATIONS OF 1943, AS AMENDED, PROVIDES WITH REFERENCE TO THE PAYMENT OF HOLIDAY PAY UNDER THOSE STATUTES:

* * * FOR SUCH PURPOSE THE TERM "HOLIDAY" SHALL INCLUDE ONLY DAYS ON WHICH CUSTOMS EMPLOYEES GENERALLY ARE NOT REQUIRED TO WORK AND WHICH ARE USUALLY OBSERVED AS NATIONAL HOLIDAYS. * * *

FOOTNOTE 5 TO THAT SECTION STATES: THE DAYS USUALLY OBSERVED AS NATIONAL HOLIDAYS ARE: JANUARY 1, FEBRUARY 22, MAY 30, JULY 4, THE FIRST MONDAY IN SEPTEMBER, NOVEMBER 11, THANKSGIVING DAY, AND DECEMBER 25.

SIMILAR INTERPRETATION OF THE TERM,"HOLIDAY," AS USED IN THE ACT OF FEBRUARY 13, 1911, 36 STAT. 901, CONTINUOUSLY HAS EXISTED SINCE SOON AFTER THE ENACTMENT OF THAT ACT. FOR EXAMPLE, IN TREASURY DECISION 32043, DATED NOVEMBER 29, 1911, IT WAS CONCLUDED THAT:

THE TERM "HOLIDAY," AS USED IN THE ACT OF FEBRUARY 13, 1911, MUST BE CONSTRUED TO INCLUDE ONLY SUCH DAYS AS CONGRESS HAS BY ITS OWN ENACTMENTS OR RESOLUTIONS MADE SUCH, AND THAT CUSTOMS OFFICERS PERFORMING SERVICES UNDER THE PROVISIONS OF SAID ACT ARE ENTITLED TO EXTRA COMPENSATION ONLY ON THE DAYS DESIGNATED BY CONGRESS AS HOLIDAYS.

IN TREASURY DECISION 38290, DATED FEBRUARY 21, 1920, IT WAS STATED:

THE TERM "HOLIDAYS" AS USED IN THE SAID ACT SHALL INCLUDE ONLY NATIONAL HOLIDAYS, VIZ: JANUARY 1, FEBRUARY 22, MAY 30, JULY 4, THE FIRST MONDAY IN SEPTEMBER, THANKSGIVING DAY (WHEN DESIGNATED BY THE PRESIDENT), AND DECEMBER 25.

IN DECISION DATED APRIL 22, 1931, 10 COMP. GEN. 487, 490, TO THE SECRETARY OF LABOR, WITH REFERENCE TO REGULATIONS PROPOSED TO BE ISSUED IN ACCORDANCE WITH THE ACT OF MARCH 2, 1931, 46 STAT. 1467--- SIMILAR TO THE ACT OF FEBRUARY 13, 1911, AS AMENDED, BUT APPLICABLE TO EMPLOYEES OF THE ESTABLISHMENT THEN KNOWN AS THE IMMIGRATION SERVICE, AND WHICH, AFTER NAMING SPECIFIC HOLIDAYS, PROPOSED TO INCLUDE "SUCH OTHER DAYS AS MAY BE MADE NATIONAL HOLIDAYS"--- IT WAS HELD:

THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THIS PARAGRAPH WITH THE EXCEPTION OF THE WORDS ,AND SUCH OTHER DAYS AS MAY BE MADE NATIONAL HOLIDAYS," WHICH MIGHT BE CONSTRUED AS INCLUDING ADDITIONAL HOLIDAYS AUTHORIZED BY EXECUTIVE ORDER AND WHICH MIGHT NOT BE INCLUDED WITHIN THE TERMS OF THE ACT. SAID CLAUSE SHOULD BE ELIMINATED FROM THE PROPOSED REGULATIONS, OR BE AMENDED BY ADDING THE WORDS "BY ACT OF CONGRESS" AFTER THE WORD "HOLIDAYS.' SEE TREASURY DECISION NO. 38290, DATED FEBRUARY 21, 1920.

IT THUS APPEARS THAT THE DEFINITION OF "HOLIDAY" WITHIN THE MEANING OF THE ACTS PROVIDING EXTRA HOLIDAY COMPENSATION FOR CERTAIN CUSTOMS OFFICERS AND EMPLOYEES AS PRESENTLY INCLUDED IN THE CUSTOMS REGULATIONS OF 1943, AS AMENDED, IS SUBSTANTIALLY THE SAME AS HAS EXISTED FOR ALMOST 36 YEARS. THAT DEFINITION DOES NOT INCLUDE A HOLIDAY BY EXECUTIVE ORDER. INCLUDES ONLY THOSE HOLIDAYS SPECIFICALLY SET OUT, WHICH DAYS GENERALLY ARE UNDERSTOOD NOT ONLY BY GOVERNMENT EMPLOYEES BUT BY THE PUBLIC TO BE HOLIDAYS.

WHILE THERE IS WORDING IN THE CASE OF JOHN DIBENEDETTO V. UNITED STATES, C.CLS. 46806, DECIDED JANUARY 6, 1947, WHICH WOULD INDICATE THAT THE TERM "HOLIDAY" AS USED IN THE ACT OF FEBRUARY 13, 1911, AS AMENDED, DOES INCLUDE A HOLIDAY DESIGNATED BY EXECUTIVE ORDER, THAT POINT WAS NOT SPECIFICALLY BEFORE THE COURT FOR DECISION, AND WHAT WAS SAID BY THE COURT IN THAT CONNECTION WAS NOT NECESSARY TO ITS DISPOSITION OF THE CASE, AND THEREFORE CONSTITUTED OBITER DICTUM. THE COURT IN THAT CASE DECIDED ONLY THAT UNDER THE ACTS WHICH GRANT EXTRA COMPENSATION TO CERTAIN CUSTOMS EMPLOYEES FOR WORK PERFORMED ON HOLIDAYS, PAYMENT OF EXTRA COMPENSATION WAS NOT REQUIRED FOR SERVICES PERFORMED ON HOLIDAYS WHICH OCCURRED DURING THE WAR PERIOD WHEN FEDERAL EMPLOYEES GENERALLY WERE NOT EXCUSED FROM WORK. I FIND NOTING IN THAT DECISION WHICH WOULD WARRANT A CONCLUSION THAT DAYS WHICH HERETOFORE, AND FOR ALMOST 36 YEARS, HAVE NOT BEEN CONSIDERED AS HOLIDAYS WITHIN THE MEANING OF THE HOLIDAY PAY PROVISIONS OF THE CUSTOMS LAWS, NOW SHOULD BE CONSIDERED AS HOLIDAYS WITHIN THE MEANING OF THOSE LAWS.

SPECIFICALLY, IT IS CONCLUDED THAT THE HALF DAY ON DECEMBER 24, 1946, DURING WHICH THE VARIOUS GOVERNMENT OFFICES WERE CLOSED AND EMPLOYEES EXCUSED FROM WORK BY EXECUTIVE ORDER 9810 OF DECEMBER 12, 1946, WAS NOT A HOLIDAY WITHIN THE MEANING OF THE CUSTOMS LAWS, SUPRA, AUTHORIZING THE PAYMENT OF EXTRA COMPENSATION FOR SERVICES PERFORMED ON HOLIDAYS. ANY PAYMENT OF HOLIDAY COMPENSATION TO SUCH EMPLOYEES FOR SERVICES PERFORMED ON THAT DATE MUST BE IN ACCORDANCE WITH AND PURSUANT TO SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AS THAT SECTION WAS APPLIED IN THE ANSWER TO THE QUESTION PRESENTED IN THE LAST SENTENCE OF THE SECOND PARAGRAPH OF YOUR LETTER, SUPRA. ..END :