B-131457, JAN. 24, 1963
Highlights
GEN. 727 HOLDS THAT IT IS "PERMISSIVE" TO INCLUDE HOLIDAY PAY PROVISIONS IN THE CONTRACT. I THINK IT IS ERRONEOUS TO SAY THAT THE USE OF "MAY" IN THE DECISION OR NAVY REGULATIONS CAN CHANGE THE CLEAR LANGUAGE IN THE STATUTE WHICH PROVIDES THAT "THEY SHALL RECEIVE. NO SUCH CLAUSE WAS INCLUDED IN YOUR EMPLOYMENT CONTRACTS AND THEREFORE WE MAY NOT PAY THE AMOUNT CLAIMED. YOU ARE ADVISED THAT WE DO NOT HAVE THAT INFORMATION IN OUR FILES.
B-131457, JAN. 24, 1963
TO MR. THEODORE SPECTOR:
YOUR LETTER OF NOVEMBER 20, 1962, AGAIN REQUESTS THAT WE RECONSIDER YOUR CLAIM FOR HOLIDAY COMPENSATION FOR HOLIDAYS ON WHICH YOU PERFORMED NO SERVICE IN THE PERIOD JULY 16, 1959, TO JUNE 30, 1961, COVERED BY YOUR EMPLOYMENT CONTRACTS FOR PERSONAL SERVICES WITH THE DEPARTMENT OF THE NAVY.
YOUR LETTER READS IN PERTINENT PART AS FOLLOWS:
"YOU STATE THAT 28 COMP. GEN. 727 HOLDS THAT IT IS "PERMISSIVE" TO INCLUDE HOLIDAY PAY PROVISIONS IN THE CONTRACT. I THINK IT IS ERRONEOUS TO SAY THAT THE USE OF "MAY" IN THE DECISION OR NAVY REGULATIONS CAN CHANGE THE CLEAR LANGUAGE IN THE STATUTE WHICH PROVIDES THAT "THEY SHALL RECEIVE--- " 12 (SIC) STAT. 1246.
"IF YOU DO NOT WANT TO RECONSIDER THIS CLAIM PLEASE LET ME KNOW THE DATES AND AMOUNTS DEDUCTED FOR LEGAL HOLIDAYS AS THAT WOULD BE NECESSARY FOR MY PETITION IN THE COURT OF CLAIMS.
"I REGRET THAT MY CLAIM DID NOT RECEIVE A MORE OBJECTIVE CONSIDERATION IN THE LIGHT OF THE UNTENABLE CONCLUSION ALLUDED TO IN THIS LETTER.'
YOU REFER TO THE LANGUAGE OF THE JOINT RESOLUTION APPROVED JUNE 29, 1938, 52 STAT. 1246, WHICH READS "THEY SHALL RECEIVE" AND CONTEND THAT SUCH MANDATORY LANGUAGE PRECLUDES THE USE OF THE WORD ,MAY" IN OUR DECISIONS AND IN THE NAVY DEPARTMENT REGULATIONS QUOTED IN OUR DECISION OF NOVEMBER 14, 1962, TO YOU.
IN OUR DECISION 28 COMP. GEN. 519, WE REFER TO THE REASONS WHY EXPERTS AND CONSULTANTS EMPLOYED UNDER SECTION 15 OF PUBLIC LAW 600, 5 U.S.C. 55A, MAY NOT BE REGARDED AS BEING WITHIN THE PURVIEW OF THE JOINT RESOLUTION OF JUNE 29, 1938. HOWEVER, IN OUR DECISION 28 COMP. GEN 727, AMPLIFYING THE EARLIER DECISION, WE SAID THAT THERE COULD BE INCORPORATED IN THE CONTRACTS MADE WITH EXPERTS AND CONSULTANTS UNDER SECTION 15 A PROVISION FOR HOLIDAY PAY SIMILAR TO THAT PROVIDED BY THE 1938 ACT. NO SUCH CLAUSE WAS INCLUDED IN YOUR EMPLOYMENT CONTRACTS AND THEREFORE WE MAY NOT PAY THE AMOUNT CLAIMED. ACCORDINGLY, OUR EARLIER DECISIONS TO YOU MUST BE AFFIRMED.
REGARDING YOUR REQUEST THAT WE GIVE YOU THE DATES AND AMOUNTS DEDUCTED FOR LEGAL HOLIDAYS, YOU ARE ADVISED THAT WE DO NOT HAVE THAT INFORMATION IN OUR FILES. HOWEVER, THE DEPARTMENT OF THE NAVY, WHICH HAS CUSTODY OF YOUR RECORD, UNDOUBTEDLY CAN FURNISH THAT INFORMATION.