109 Ct. Cl. 33 | Ct. Cl. | 1947
Lead Opinion
delivered the opinion of the court:
The plaintiff sues for compensation for services as a Deputy Collector of Customs. The services were rendered at the Port of Roseau, Minnesota, which is located on a free public highway which crosses the boundary of the United States and Canada. The plaintiff was paid the regular annual salary for his services and this suit is for extra compensation for overtime services, and for services on Sundays and holidays, to which he claims he is entitled under statutes hereinafter discussed.
In the case of Howard C. Myers v. United States, 99 C. Cls. 158, entitled in the Supreme Court, United States v. Myers, 320 U. S. 561, the pertinent provisions of the Act of February 13, 1911, as amended, 41 Stat. 402, 19 U. S. C. 267, and of Sections 401, 450 and 451 of the Tariff Act of 1930, 46 Stat.
The plaintiffs in the Myers and companion cases were employed at the port of Detroit. The several means of entry into the United States at that port were toll and railroad ferries, toll tunnels, toll bridges, and a railway slip dock. The effect of the Myers decision was to award to customs employees at this international border port the same rights to extra compensation under the statutes cited above which customs employees were already enjoying at seaports where passengers and property arrived on ships.
The plaintiff claims, and the Government denies, that the effect of the Myers decision is to award to Customs employees such as the plaintiff O’Rourke, whose port of entry is on a free public highway, the same rights as those who work at Detroit or at a seaport. The Government’s denial of this right is based upon the idea that it was the intention and effect of the Act of 1911, as amended, that the customs employees should receive the extra compensation specified in that act only if the Government could reimburse itself for the extra expense by collecting the excess from the travelers or shippers who were benefited by the services rendered at unusual hours. At seaports, and where toll facilities must be used for entry, it is possible to require the ship or the bridge or railway or ferry or tunnel company to post a bond to secure the payment of the extra compensation, when the amount of it shall have been ascertained. But where the entry is over a free highway or bridge, the Government says it would be intolerable and hence impossible to require the casual traveler or carrier, by automobile or bus or truck or on foot, to post a bond to pay his share of the extra compensation of the customs employee who served him on a Sunday or holiday or after working a normal day.
It thus appears that the Government has not, in fact, been reimbursed by the toll facilities for the extra compensation awarded to the customs employees in the Myers and companion cases, supra. But that is probably without significance as to the Government’s claim that it was the intent and effect of the statutes involved in the Myers case that extra compensation should not be payable to the employees except at those customs stations where reimbursement could be obtained, whether or not it was in fact obtained, from those who used the services of the employees.
In one of the opinions in the Myers case in this court, 99 C. Cls., at page 176, the legislative history of the 1911 Act with regard to whether reimbursability was intended to be a prerequisite to a right to the extra compensation provided by the Act, is discussed. In the opinion of the Supreme Court in the Myers case it is said: “The legislative history shows that the proponents of extra compensation constantly made the point that the Government would not be out of pocket by the legislation.” 320 U. S. at p. 566. But the Supreme Court did not decide whether or not the possibility or practicability of reimbursement was a prerequisite to the
It should be said at the outset that this question has never been tested by trial. The Government has, throughout the period of this law, taken the position that these employees had no right to the extra compensation, and hence has made no effort to devise a method of reimbursing itself. We think that the collection of a fee from each user of these ports on days or at hours other than normal business days or hours, which fees could have been pooled so that the well patronized ports would carry the isolated ones, would have been permissible, and not so inconvenient as to be impracticable, if necessary to avoid a discriminatory application of the extra compensation law. If it be said that by this method one person would pay more than the extra expense actually attributable to him, and another less, the same is true, of course, of the methods of collection now or formerly in use at the seaports and at Detroit. When collection is made
In view of what is said above, the plaintiff has the right to the extra compensation provided in the Act of February 3, 1911 as amended, for night work and work on Sundays and holidays (other than wartime holidays), for the period covered by this suit. As to his services since June 3, 1944, his right is expressly given by Section 1 of the Act of that date which we set out in a footnote.
The Committee amended the bill to include employees stationed on highways at international border crossings. Without such an amendment these employees would not receive compensation for work performed on Sundays, holidays, or nights, * * *.
as evidence that Section 2 was intended to retroactively give the plaintiff compensation. We think this statement refers to Section 1 of the 1944 Act, which is not retroactive. Section 2 says nothing about work at night, which indicates that the Committee statement did not relate to Section 2. In view of our decision above that employees such as the plaintiff always were entitled to the benefits of the Act of February 8, 1911, as amended, it is not necessary to decide whether Section 2 of the Act of June 3,1944 was intended to have a retroactive effect.
We now proceed to the discussion of the plaintiff’s specific claims.
As to “wartime” holidays, i. e., days which are, in peacetime, observed as holidays by Government employees, our decision in the case of John di Benedetto v. The United States, 108 C. Cls. 18, decided January 6, 1947, shows that, in our view, the plaintiff is not entitled to holiday compensation for those days.
As to work in excess of eight hours in one day, for which the plaintiff claims the extra compensation provided for night work under the Act of February 3, 1911, as amended, the Government urges that, unless such work was done before eight o’clock a. m. or after five o’clock p. m., it is not night work within the meaning of the statute. We think that the Supreme Court’s decision in the Myers case, supra, that no night work extra compensation was due even though all or a part of one’s assigned tour of duty of eight hours was performed after five and before eight o’clock, was a determination that the legal meaning of the expression “work at night,” was work in excess of eight hours in any one twenty-four hour period, regardless of the time of day that it was done. We think, therefore, that whenever the
The Government contends that “lieu time” or time off given to the plaintiff on another day can be set off against work by the plaintiff in excess of eight hours in one day. In the Myers case, supra, the Supreme Court said, 320 U. S. at 576:
Finally the Government urges that in awarding compensation for “overtime” services credit should be allowed to it for that part of the base pay received for such services. We think the Congressional intention to give extra compensation precludes such a claim. The inspectors in addition to their regular salaries for week days are entitled to the statutory additional pay for overtime, Sundays and holidays.
We think that the Myers decision and the decision of this Court in Renner v. The United States, 106 C. Cls. 676, decided May 6, 1946, prevent the setting off of lieu time against the time for which extra compensation is granted in the Act of February 3, 1911.
The Government urges that the plaintiff, though required to be present at the customs office for more than eight hours, did not actually perform customs services except as those services were irregularly required when persons and goods passed the port. The evidence shows that the business of the port did not require the plaintiff to work continuously. We think this fact is immaterial. The plaintiff was required to be at his post, during specified hours, as the representative of the Government for customs services. We suppose that that is all that is required of customs employees in any port. The Government holds itself out as having customs services available during specified hours, and charges certain employees with being there to perform them. That is their work, and the specified hours are their working day. The Government contention is without merit.
The Government contends that the plaintiff is not entitled to recover for “night” or overtime pay when the services performed on behalf of any one party or vehicle or conveyance required less than one hour to perform. This con
The Government claims that any amounts otherwise recoverable by the plaintiff must be reduced by the amount of any additional pay already received by the plaintiff under the War Overtime Pay Acts of 1942
The provisions of this Act shall not operate to prevent payment for overtime services or extra pay for Sunday or holiday work in accordance with any of the following statutes,
listing, inter alia, the customs employees pay statute,
Provided that the overtime, Sunday or holiday services covered by such payment shall not also form a basis for overtime or extra pay under this Act.
The contrast between the two texts is striking. It may be that Congress was only making explicit what was implicit in the 1943 Act. It is more likely that it became aware, for the first time, of the problem of Sunday and holiday pay and was changing the law to provide for it. Since, as we have said in our discussion of the 1942 Act, the Sunday and holiday extra compensation were given by the Act of 1911 without regard to the length of the workweek and for a different reason, there was not any such obvious pyramiding of extra compensation in the 1943 Act as to justify us in imputing to Congress an intent not to give these employees both kinds of extra compensation. They had, for many years, been put by Congress in a highly preferred status over other Government employees and we cannot infer that, that preferred status was being withdrawn from them. We conclude, therefore, that plaintiff’s pay under the 1943 Act for overtime services should be set off against what he would
We have already quoted the pertinent provisions of the Federal Employees’ Pay Act of 1945. This Act made it plain that not only overtime pay under the Customs pay act, but Sunday and holiday pay should be set off. While this Act was in effect, the plaintiff worked six days of eight hours each, plus twelve hours on Sunday. He claims that he was paid his wartime overtime of eight hours above forty hours for his sixth weekday of work, and that, therefore, his Sunday pay, and his additional four hours of overtime on Sunday, are not for the same services for which he received his wartime overtime, and should not be set off. As to the four hours of overtime, the plaintiff is plainly right and would be even if those hours had occurred on other days than Sunday. As to his Sunday pay, perhaps the fact that his six weekdays were regular eight-hour days and his Sunday a twelve-hour day is some justification for regarding his forty-eight-hour wartime week as being used up during the weekdays, and thus treating Sunday as a special and
The plaintiff’s original petition was filed on October 22, 1945. It claims compensation for extra services rendered on various days during the whole month of October 1939. Since the days in October 1939 prior to the 22nd were more than six years before the filing of the petition, the question arises whether the right to recover for those days is barred by the statute of limitations. (Judicial Code sec. 156, 36 Stat. 1139, 28 U. S. C. 262.) In our finding 2 it appears that the Government’s practice was not to pay for extra services until on or after the first day of the month following that in which the services were rendered. There was, therefore, no failure or refusal to pay, and no cause of action accrued for services rendered in October 1939, until at least November 1, 1939. The plaintiff’s right to recover for them is not barred by the statute.
As shown by our findings, the plaintiff is entitled to a judgment of $3,786.50.
It is so ordered.
Before any such special license to nnlade shall be granted, the master, owner, or agent, of such vessel or vehicle shall be required to give a bond in the penal sum to be fixed by the collector conditioned to indemnify the united States for any loss or liability which might occur or be occasioned by reason of the granting of such special license and to pay the compensation and expenses of the customs officers and employees assigned to duty in connection with such unlading at night or on Sunday or a holiday, in accordance with the provisions of section 261 and 267 of this title. In lieu of such bond the owner, or agent, of any vessel or vehicle or line of vessels or vehicles may execute a bond in a penal sum to be fixed by the Secretary of the Treasury to cover and include the issuance of special licenses for the unlading of vessels or vehicles belonging to such line for a period of one year from the date thereof, upon- a request made by the owner, master, or person in charge of a vessel or vehicle, or by or on behalf of a common carrier or by. or on behalf of the owner or consignee of any merchandise or baggage, for overtime services of customs officers or employees at night or on a Sunday or holiday, the collector shall assign sufficient customs officers or employees if available to perform any such services which may lawfully be performed by them during regular hours of business, but only if the person requesting such services gives a bond in a penal sum to be fixed by the collector, conditioned to pay the compensation and expenses of such customs officers and employees, who shall be entitled to rates of compensation fixed on the same basis and payable in the same manner and upon the same terms and conditions as in the case of customs officers and employees assigned to duty in connection with lading or unlading at night or on Sunday or a holiday. Nothing in this section shall be construed to impair the existing authority of the Treasury Department to assign customs officers or employees to regular tours of duty at nights or on Sundays or holidays when such assignments are in the public interest: Provided, That the provisions of this section, sections 1450 and 1452 of this title, and the provisions
Notwithstanding any provision of law to the contrary, the extra compensation of customs officers and employees heretofore assigned to the performance of inspectional services in connection with traffic over highways or toll bridges, through toll tunnels, or on ferries within the definition of the term “ferry” in section 1451 of this title on Sundays or holidays prior to June 3, 1944, which is payable on the basis prescribed by section 267 of this title, shall be payable by the United States without reimbursement by the applicants for such services or any other person. Any reimbursement of compensation made payable without reimbursement by this section which has accrued and been collected since-January 6, 1941, shall be refunded. The necessary moneys to carry out the provisions of this section and section 1451 of this title are hereby authorized to be appropriated from the general fund of the Treasury. June 3, 1944, 58 Stat. 270.
Joint Resolution of December 22, 1942, Public Law 821, 56 Stat. 1068.
Act of May 7, 1943, 57 Stat. 77; 50 U. S. C. App. Sec. 1407.
59 Stat. 298, 5 U. S. C. 941.
Public Law 390, 79th Congress, May 24, 1946, Section 601.
Concurrence Opinion
concurs in the result:
I concur in the result, except that part of the opinion which reaffirms the holding of the majority in the case of John Di Benedetto v. United States, No. 46806, decided January 6, 1947, referred to in the opinion of the court.