B-149741, SEP. 11, 1962

B-149741, SEP. 11, 1962

TO COMMISSIONER, BUREAU OF CUSTOMS:

ON AUGUST 10, 1962, THE CHAIRMAN, COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES, FORWARDED FOR OUR REPORT THE LETTER OF MR. J. M. WILL, CHAIRMAN OF THE BOARD AND PRESIDENT OF AMERICAN EXPORT LINES, INC., DATED JULY 31, 1962, TO HIM, CONCERNING THE INDEBTEDNESS OF HIS COMPANY FOR REIMBURSABLE CUSTOMS SERVICES FURNISHED BY YOUR BUREAU ON FRIDAY JULY 3, 1959, AND THEIR LIABILITY FOR "HOLIDAY" COMPENSATION PAYABLE TO CUSTOMS INSPECTORS PURSUANT TO PUBLIC LAW 86-362, AS TO FUTURE DATES.

THE ACT OF SEPTEMBER 22, 1959, PUB.L. 86-362, 73 STAT. 643, 5 U.S.C. 87C, PROVIDES, IN PART, THAT THE DAY PRECEDING A HOLIDAY WHICH FALLS ON SATURDAY WILL BE CONSIDERED A HOLIDAY FOR THE PURPOSES OF THE PROVISIONS OF LAW RELATING TO PAY AND LEAVE OF ABSENCE OF OFFICERS AND EMPLOYEES OF THE UNITED STATES WHOSE BASIC WORKWEEK IS MONDAY THROUGH FRIDAY. MR. WILL CONTENDS THAT PREMIUM COMPENSATION PAID UNDER THAT ACT TO CUSTOMS INSPECTORS MAY NOT BE COLLECTED FROM PERSONS USING CUSTOMS SERVICES ON SUCH FRIDAYS AS PROVIDED BY SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, CH. 46, 36 STAT. 901, AS AMENDED BY THE ACT OF FEBRUARY 7, 1920, CH. 61, 41 STAT. 402, 19 U.S.C. 267.

THE ACT OF SEPTEMBER 22, 1959, BY ITS TERMS APPLIES TO ALL PROVISIONS OF LAW RELATING TO PAY AND LEAVE OF ABSENCE OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT. THE ACT OF FEBRUARY 13, 1911, PROVIDES EXTRA COMPENSATION FOR INSPECTORS OF THE CUSTOMS SERVICE FOR SERVICES PERFORMED ON HOLIDAYS. ALTHOUGH THE 1911 ACT DOES NOT SPECIFY THE HOLIDAYS TO WHICH IT APPLIES THE COURT OF CLAIMS IN DI BENEDETTO V. UNITED STATES, 108 CT.CL. 18, 26 (1947), SAID:

"* * * WE THINK, THEREFORE, THAT CONGRESS INTENDED, IN THE ACT OF 1911, TO CURE THE EVIL THAT WAS PRESENTED TO IT, AND TO AWARD EXTRA COMPENSATION TO CUSTOMS INSPECTORS FOR WORK ON DAYS THAT WERE HOLIDAYS IN FACT, DAYS ON WHICH THEIR FELLOW GOVERNMENT EMPLOYEES WERE NOT REQUIRED TO RK.'

THEREFORE, WE BELIEVE THAT THE HOLIDAY PAY ASPECTS OF THE ACT OF SEPTEMBER 22, 1959, ARE APPLICABLE TO THE PAYMENT OF COMPENSATION TO CUSTOMS INSPECTORS. WE FIND NO EVIDENCE IN THE 1959 ACT OR IN THE LEGISLATIVE HISTORY THEREOF WHICH WOULD SUPPORT THE VIEW THAT HOLIDAY COMPENSATION PAID CUSTOMS EMPLOYEES IS NOT TO BE COLLECTED FROM PERSONS REQUESTING AND USING CUSTOMS SERVICES ON SUCH FRIDAYS.

MR. WILL FURTHER CONTENDS THAT REGARDLESS OF THE CONCLUSION REACHED AS TO THEIR LIABILITY FOR SERVICES PERFORMED ON FRIDAYS PRECEDING SATURDAY HOLIDAYS WHICH OCCUR SUBSEQUENT TO SEPTEMBER 22, 1959, THE DATE OF ENACTMENT OF THE BILL IN QUESTION, THEY ARE NOT LIABLE FOR CUSTOMS SERVICES PERFORMED FOR THEM ON FRIDAY, JULY 3, 1959, EVEN THOUGH THE ACT OF SEPTEMBER 22, WAS RETROACTIVELY EFFECTIVE TO JULY 1, 1959.

THE ACT OF FEBRUARY 13, 1911, PROVIDES IN PERTINENT PART:

"* * * 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 OR FOR LADING OR UNLADING AT NIGHT OR 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. * * *"

UNDER THE QUOTED LANGUAGE THE PARTY FOR WHOM SPECIAL SERVICES ARE RENDERED IS OBLIGED TO PAY THE COLLECTOR OF CUSTOMS THE EXTRA COMPENSATION COSTS WHEN HE HAS APPLIED FOR AND HAS BEEN GRANTED SPECIAL LICENSE OR PERMIT FOR LADING OR UNLADING ON A HOLIDAY. THAT IS TO SAY, THE LIABILITY ARISES WHEN SPECIAL SERVICES HAVE BEEN REQUESTED AND RENDERED PURSUANT TO SUCH REQUEST. SINCE AT THE TIME THE SERVICES WERE RENDERED, JULY 3, 1959, THAT DATE WAS NOT CONSIDERED A HOLIDAY, CUSTOMS SERVICES PERFORMED ON THAT DAY WERE NOT PERFORMED UNDER SPECIAL LICENSE. WE DO NOT BELIEVE THAT THE ACT OF SEPTEMBER 22, RETROACTIVELY CREATED AN OBLIGATION ON THE PART OF CUSTOMS SERVICE USERS TO PAY FOR SERVICES RENDERED ON JULY 3, 1959, AS IF A SPECIAL LICENSE HAD BEEN OBTAINED UNDER THE 1911 ACT. THUS, IT IS OUR OPINION THAT AMERICAN EXPORT LINES AND OTHER CUSTOMS SERVICE USERS WERE NOT OBLIGATED TO REIMBURSE THE GOVERNMENT FOR HOLIDAY COMPENSATION PAID CUSTOMS EMPLOYEES ON JULY 3, 1959. WE TOOK THE SAME POSITION IN THE PELTZ BROTHERS, INC., CASE WHICH WAS THE SUBJECT OF A REPORT TO US (YOUR REFERENCE FP 129.15C) DATED AUGUST 17, 1961, FROM MR. STRUBINGER, ACTING COMMISSIONER OF CUSTOMS. CF. 38 COMP. GEN. 103 HOLDING THAT THE RETROACTIVE SALARY INCREASE PROVISIONS OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, APPROVED JUNE 20, 1948, PUB.L. 85-462, 72 STAT. 203, DID NOT INVALIDATE PAYMENTS OF RETIRED PAY MADE TO A RETIRED OFFICER CONCURRENTLY WITH THE COMPENSATION OF HIS CIVILIAN POSITION, WHICH PAYMENTS WERE VALID WHEN MADE; AND 41 COMP. GEN. 320, 327, HOLDING THAT MILITARY LEAVE PROPERLY GRANTED AN EMPLOYEE PRIOR TO THE APPROVAL OF SECTION 7 OF THE ACT OF OCTOBER 4, 1961, PUB.L. 87 378, 75 STAT. 809, WOULD NOT BE DISTURBED ALTHOUGH THAT ACT RETROACTIVELY MADE SUCH GRANT OF MILITARY LEAVE IMPROPER.

ACTION SHOULD BE TAKEN TO REFUND THE HOLIDAY COMPENSATION ALREADY COLLECTED FROM CUSTOMS SERVICE USERS FOR SERVICES PERFORMED ON JULY 3, 1959, AND OUTSTANDING INDEBTEDNESSES FOR SUCH SERVICES SHOULD BE CANCELLED.

WE HAVE TODAY FURNISHED A COPY OF THIS LETTER TO THE CHAIRMAN, COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES.