Earl Warren: Number 17, United States, Petitioner, versus Alfred C. Bergh et al. Mr. Rosenthal.
Alan S. Rosenthal: May it please the Court. This case is hereon writ of certiorari to the United States Court of Claims. The single issue presented is whether a federal per diem employees and federal -- a per diem employee is one whose rate of compensation is fixed on a piece-work, daily or hourly basis, rather than on an annual basis, are entitled to an extra day's compensation as a gratuity for work on holidays during World War II which were regular workdays for all federal employees. The background of this litigation comes down to this, by two presidential directives during 1943, all normally observed peace-time holidays with the exemption of Christmas were designated as regular workdays for the balance of the war in the interest of obtaining maximum output in governmental activities. For the duration of the law, therefore, all federal employees, per annum workers and per diem workers alike, worked on these days just as on other days in the work week. For this work, per annum employees receive no additional compensation and per diem employees receive their regular rate of pay. Now, the respondent in this case, Mr. Bergh, was one of these per diem workers, an employee of the Department of the Navy at the shipyard at Portsmouth, Virginia. Pursuant to the previously mentioned directives, respondent and common with all federal employees worked on New Year's Day, Washington's Birthday, Memorial Day and July 4 in the year 1945 just as on other days in the work week. For this work, and we think it's important to note this, the respondent was paid his regular wages plus any overtime or night differential that he was entitled to. By this action, filed some seven years after his work was performed, the respondent seeks an additional day's pay as a gratuity for working on these days which we emphasized again were regular workdays for all federal employees. His claim is that while concededly the largest class of government employee, the per annum worker, was not entitled to the gratuity. The class of which he is a representative, the per diem worker, is entitled to this gratuity which the General Accounting Office estimates will aggregate somewhere perhaps in the neighborhood of $750 million.
William O. Douglas: Over what period?
Alan S. Rosenthal: Over the period of the war. They --
Speaker: (Inaudible)
Alan S. Rosenthal: That's correct. They do not know, of course, because claims of all have not been filed but they're upwards at 70,000 claims at this point.
Speaker: (Inaudible)
Alan S. Rosenthal: Well, Your Honor, the Congress -- there's a bill pending in Congress which will, should this Court affirm this judgment, suspend the statute of limitations or waive it and give this individual the opportunity to file in the Court of Claims. Now, this bill was not intended to connote any view of Congress on the merits but -- so that there is still -- potentially it is rather large liability.
Earl Warren: Was it -- was it passed, the bill?
Alan S. Rosenthal: No, it's being held in advance, if Your Honor pleases. Now, at the outset --
Stanley Reed: Well, was -- if this -- this suit, of course, was filed in time?
Alan S. Rosenthal: That's right because the respondent in this case was in the service from 1946 to 1948 and under the Soldiers and Sailors Civil Relief Act, the limitation period did not run while he was in service. There's no question about this suit being tardy. Now, at the very outset, we think it's important to note that the payment of a gratuity, and that's what this is, this claim, to a federal employee must have its roots in a federal statute which either expressly provides for the gratuity in the particular circumstances or in the alternative confers permissive discretion upon the employing agency to pay the gratuity. Now, here, we can, at the very outset, lay aside the matter of permissive discretion. It may be that under the Act of July 16, 1862, set forth in the Government's brief at page 3, conferring authority upon the Secretary of the Navy to promulgate rates of wages, it may be that under that Act, the Secretary of the Navy had the discretion to award gratuity pay to these employees for working on these days which at the time were normal wok days. But the plain fact is that if he had that discretion, he did not exercise it. This respondent's employment was governed by a schedule of wages. The schedule of wages is explicit on the matter of its compensation for holiday work. It provides that for that work, he is to receive his regular rate of pay, plus of course overtime or night differential allowances. The schedule of wages provides that he is to get gratuity pay only if he is unable to work on the particular holiday, relieved or prevented from working on the holiday and thus cannot earn his normal day's pay.
Harold Burton: Does it say that he can't get it then or that he can get the standard?
Alan S. Rosenthal: It says that he can't get it then but it says that with respect to the days upon which he -- he works, he is to be allowed his regular pay plus a premium of 50% if the holiday falls without his normal work week. Now, these holidays fell within this employee's normal work week.
Harold Burton: (Inaudible)
Alan S. Rosenthal: That's -- that's right but the -- but the -- the schedule of wages did not specifically authorize this and the respondent has not contended at any point in this case that the schedule of wages here conferred an entitlement upon the respondent to this gratuity for holiday work. So that the question comes down to whether in 1943 -- or in 1945 rather, there was a mandatory statutory requirement that per diem employees were to be given a gratuity above and beyond their normal compensation for working on days which were for all federal employees regular workdays as to this matter that we now turn. The history of legislation on the subject of holiday gratuity pay for per diem workers goes back to 1880. Prior to that time, the per diem worker was not paid on days in which no work was performed. As a consequence, when a holiday intervened and the employee was prevented from work, his paycheck was reduced accordingly. This was not so to the per annum worker, his salary has traditionally been regarded as payment for everyday of the year whether a workday or not. Consequently, when he was excused from work, this had no effect at all upon his paycheck.He received the same amount. Now, by a Resolution of 1880, limited in its application to the Government Printing Office and the Resolution of January 6, 1885, which had general applicability to per diem employees, Congress had vested itself to this situation. It allowed, by these Resolutions, certain specified days as holidays with the same pay as on other days. And as the legislative history of these Resolutions show, which is set forth in 18 and 19 of the Government's brief, the single purpose of these Resolutions was to equate the position of the per diem and per annum worker that, henceforth, the occurrence of a holiday with non-occasional reduction in the per diem workers paycheck anymore than did in the per annum worker's paycheck. Now, despite the fact that this was the sole purpose of this Resolution insofar as the legislative history reflects, the 1885 Resolution was administratively interpreted by the Comptroller of the of the Treasury and then by the Comptroller General as meaning that when the per diem worker worked on the holiday and thus was able to obtain his regular wages, he nevertheless was entitled to this gratuity. In short, under this interpretation, the per diem employee was placed in this preferential position, the per annum worker worked in the holiday, no additional compensation, the per diem worker worked on the holiday, he got his regular wages, he got his gratuity as well. Now, this situation, which as I say, resulted from his interpretation of the accounting officials of the Government lasted until the 1930s. On December 7, 1937, the President issued an Executive Order closing down the Government establishment from the day before Christmas, December 24th, and excusing all employees from work. Now, this Executive Order had no effect at all upon the per annum worker unless he's paid.But December 24th wasn't one of the days specified in the 1885 Resolution. Accordingly, the per diem worker was excused from work and couldn't work because his establishment was closed, received no additional compensation, received no compensation, as a matter of fact, at all. Accordingly, a resolution was introduced into the House of Representatives which would have had the effect of allowing compensation to those per diem workers by way of a gratuity, to those per diem workers who had been -- who had lost wages by the result of this Executive Order, in other words, who hadn't worked on December 24th. There was nothing in this Resolution to the effect that if the per diem worker had worked on December 24th and thus had been able to obtain his regular wages, he was to get additional day's pay as a gratuity. Now, this Resolution was referred --
Felix Frankfurter: So that he would not have been included in the practice established -- in the -- he would not have been included in the -- in the administrative construction placed by the Comptroller, the Comptroller General giving him overtime when he did work.
Alan S. Rosenthal: You mean the gratuity pay. That's right, that he would not have obtained the -- the gratuity pay. Now, this --
Felix Frankfurter: Is that because -- is that because the days were enumerated in some general principles?
Alan S. Rosenthal: That's right. That's why this Resolution was necessary. It was that December 24th was not one of the days specified in the 1885 Resolution. So that when the employee didn't work on December 24th, he couldn't obtain his regular wages and he couldn't --
Felix Frankfurter: What was included? What dates were included?
Alan S. Rosenthal: Well, I think that --
Felix Frankfurter: Was there any -- did they represent a tribe or they -- were they picked on a special case?
Alan S. Rosenthal: Well, there was -- there was special -- the customary holidays, Your Honor, it was New Years Day, Washington's Birthday, Memorial Day, Independence Day, I think that Labor Day was added and may even the Armistice Day, and Christmas.
Felix Frankfurter: They -- the holidays or nonworking days designated by -- by the Congress --
Alan S. Rosenthal: Well, --
Felix Frankfurter: And they also include nonworking day so designated by the executive?
Alan S. Rosenthal: No, not by the Executive at this point. These were just certain specified days designated in particular legislation which is why this probably came up with respect to December 24th. Now, this Resolution was referred to the House Committee on the Civil Service which was advised by the Civil Service Commission that the problem of holiday pay for per diem workers raised broader issues which should be resolved by general legislation rather than on a piecemeal basis and attached to the committee report was a detailed decision of the Comptroller General comparing the effect of holidays upon the per diem and per annum worker. And this decision set forth the various preferences and discriminations which had resulted as a result of the administrative interpretation of the 1885 Resolution. And one of those, which was specifically referred to, was the matter of the per diem employee under this administrative construction obtaining double pay if he worked on the holiday while the per annum worker did not receive additional compensation.
Harold Burton: That was the -- it's on the nonworking day?
Alan S. Rosenthal: That's -- that's correct.
Hugo L. Black: That phrase in the first one, when they were talking about the nonworking day and you said that he was to get -- you'll get single pay ordinarily for the -- for the holiday but in nonworking day, he will get double pay?
Alan S. Rosenthal: No, I think, Your Honor, that the reference was broader than that. I think that the Comptroller reference was to the -- the broad problem of the per diem worker obtaining this double compensation if he worked on the holiday while the per annum worker did not. That's the way at any rate that we read the Committee Report. Now --
William O. Douglas: Well, is it true under your contention so that if a man works on a holiday, he gets no more than the man who doesn't work?
Alan S. Rosenthal: That's right and that's been true, Mr. Justice Douglas, of the per annum worker -- well, it's true up to 1945. That's correct.
Felix Frankfurter: And constantly, acquaint those two, can one acquaint those two?
Alan S. Rosenthal: We think that in this area, they can, Your Honor, be more or less acquainted. We do not --
Felix Frankfurter: But you're like telling me what -- is there any rational difference, is there any rational basis on which people are per diem workers rather per annum worker?
Alan S. Rosenthal: Well, this, Your Honor, I don't know whether it's a rational basis --
Felix Frankfurter: What I --
Alan S. Rosenthal: -- it certainly is a historical basis.
Felix Frankfurter: Then what is it? I'm not talking about this point, I want to know what general consideration can be governed, employee in the executive being made by the day rather than having an annual acquaint of salary (Inaudible)
Alan S. Rosenthal: Well, Your Honor, I -- I really don't know. As I say it's -- it's something --
Felix Frankfurter: So the per diem --
Alan S. Rosenthal: -- it's had a --
Felix Frankfurter: So the per diem worker, as this worker can be laid off easily.
Alan S. Rosenthal: It is my understanding that the per diem worker has safeguards against discharge in the same manner in which a per annum worker has safeguards.
Felix Frankfurter: I'm not talking about discharge. I mean which as a -- you don't need so many workers. If the per diem worker in the Government comparable at all in the conditions of employment to the per diem worker in a private industry?
Alan S. Rosenthal: Is the --
Felix Frankfurter: Probably speaking, yes.
Alan S. Rosenthal: Is the per diem worker in the Government comparable --
Felix Frankfurter: Yes.
Alan S. Rosenthal: Roughly speaking, yes. As a matter of fact, the per diem worker in the Government -- there is on page 34 of the record a comparison of the conditions of employment of Mr. Bergh and his private counterpart or private industry at the time. And if the Court will turn to that, it will note that the conditions of Mr. Bergh's employment and they compared very favorably indeed with those of his private counterpart, he got 26 --
Felix Frankfurter: And theirs must be not between him but between the annual workers.
Alan S. Rosenthal: Well, between the annual worker and the per diem worker?
Felix Frankfurter: Yes.
Alan S. Rosenthal: Well, I think that they're again on -- on balance, the per diem worker has done very well indeed. The per diem worker's salary after all is computed on the basis to what his counterpart in private industry obtains. Now, I think that this Court can --
Felix Frankfurter: They don't like on why -- why some employees of the Government have per diem rather than on a fixed wage.
Alan S. Rosenthal: Well, as I say, this has a historical basis. I don't -- I don't know why it was determined in one point.
Felix Frankfurter: (Voice Overlap) two categories of worker, what I wonder if they have any case that would shed some light, whether that's some general appeal case based under that or call -- call it what you will --
Alan S. Rosenthal: In -- in connection --
Felix Frankfurter: -- that bear on this specific problem.
Alan S. Rosenthal: Well, in connection with the matter of holiday pay, we submit that you can go right back to this 1880 legislation. It all -- it carried all the way through to the present time. And there's no indication that Congress in this area intended to treat the per diem worker and the per annum worker in a different fashion. Now, the 1938 Resolution which grew out at this initial Resolution, specifically provides that whenever an employee is relieved or prevented from working on a holiday, either one which it declared by statued or one provided for an Executive Order, he is to receive the same pay as on other day. And after this Resolution was in enacted, 1938, the Comptroller General, same official who's administrative interpretation of the 1885 Resolution is all that this respondent has as a basis for his claim. The Comptroller General rule on no less than four occasions that the effect of 1938 Resolution was to supersede the administrative practice that the 1938 Resolution by its provision to Section 1 which I've just related and the provisions of Section 2 which repealed the 1885 Resolution and all other inconsistent or conflicting laws -- to the extent of the inconsistency or conflict that the 1938 Resolution eliminated this practice which he had been following by reason of his reading of the 1885 Resolution. Now, between 1938, when the Comptroller General made this determination, and 1943, at least, the Comptroller General's interpretation of 1938 Resolution was accepted generally. This is shown by among other things to follow.Several bills were introduced in the subsequent Congresses which would have had the effect of restoring the old practice. These bills provided that the employee who worked on the holiday was to obtain double compensation. In a committee consideration of these bills, it was a -- specifically directed to the Committee's attention that the Comptroller General had interpreted the 1938 Resolution. As requiring gratuity pay, only worthy employee was relieved or prevented from working and thus couldn't draw his normal wages. The Bureau of the Budget, the very organization which had drafted the 1938 Resolution and by the Congress that it was not in sympathy with the aims of the subsequent bills to -- which would have restored this practice, that in the words of the Bureau of the Budget, double compensation for holiday work was not consistent with the program of the President. Now, not one of these bills even got out of the Committee. Second, the 1940 edition of the U.S. Code prepared under the direction of the House Committee on revision of the laws expressly reflects the view of the codifiers that the 1938 Resolution repealed the 1885 Resolution at least to the extent that -- that earlier Resolution required double compensation for work performed on holidays. It wasn't until 1943, at least, and maybe later, that this problem, this claim, the double compensation for holiday work arose, and then, of course, only because of this presidential directives declaring these days regular working days for all federal employees. And we must stress again that what the respondent has here is no more than this administrative interpretation of the 1885 Resolution by the Comptroller General and in placing total alliance upon that administrative interpretation, he, at the same time, says that the interpretation of the Comptroller General of the 1938 Resolution has eliminated this administrative practice is all wrong. And we can't pay any attention to it, whatsoever, and solely that the same interpretation which was given by the codifiers of the U.S. Code, we can't give any attention to that either. The only thing that we can look to is this administrative construction of this earlier Resolution.
Hugo L. Black: Did -- did the -- did the Government make this argument in the Kelly case?
Alan S. Rosenthal: In the Kelly case, Your Honor, that -- that is true. In the Kelly case, the -- of course, the issue was this as decided by this Court. The Court decided that the contract between the public printer and the -- these employees in the -- in the Government Printing Office, required -- by contract, required double compensation for holiday work. This Court did not decide and especially reserve judgment on the question as to whether there was a mandatory statutory requirement in the absence of contract. Now, of course, it is the Government Printing Office employees by this Court's decision between 2500 roughly were entitled as a matter of contract to -- to this double compensation. But that is all. It has rested exclusively on the basis of the contract that was entered into -- between the Government Printing Office, and public printer, and the employees of the -- the unions that represented those employees. Now, if the Court pleases, if the time does not permit me to go into in detail the considerations which motivated the Court of Claims to accept this position.
Stanley Reed: What -- what part is the presidential directive of the (Inaudible) play in this?
Alan S. Rosenthal: We think it has just this play, Your Honor. There is no question that if there is a clear statutory requirement that these employees obtain double play for this work, they are entitled to it even though these days were designated as regular workdays. So, we think that in this circumstances where -- because of the war all of these days were made regular workdays in which all employees worked and which the per annum worker concededly is entitled to no additional compensation for doing so that there must be a very clear statutory requirement before this class of workers for working on these regular workdays gets an additional compensation as a gratuity, not as compensation for work performed, but as a gratuity which may amount to some -- some $150 million.
Stanley Reed: Is the presidential order printed in your brief?
Alan S. Rosenthal: The -- the excerpts and the directives, I think, are set forth, if Your Honor pleases, in our brief at pages 4 and 5. If I may, I'd like to reserve the rest of my time for rebuttal.
Earl Warren: Mr. Thatcher.
Herbert S. Thatcher: If the Court please. The 1885 Resolution of Congress, which is the basis for the respondent's claim in this case, has as this Court observed in Kelly when the matter was first before it then applied and construe it for over 40 years prior to the 1938 Resolution on which the Government relies to require a holiday allowance for per diem governmental employees, the per diem employees, roughly, the blue collar employees of the Government. Now, this -- this holiday allowance has no relation to whether the individual actually worked or not. It's -- it is a gratuity, as the Government claim, payable on the occurrence of the holiday. If the individual happens to work on a holiday, he is to be paid at his regular compensation which was done here, straight time and of course no claim is being made for that. The reason for the allowance of a holiday gratuity by the Congress had been explained somewhat by counsel for the Government in the case of where the employee does not work on the holiday, for the per diem employee who does not work on a holiday, it was to equalize him with the per annum -- per annum employee who was paid even though he did not work. In the case where the employee did work on a holiday, it would to compensate him for the extra burden he was put to in giving up his -- a day usually devoted to either religious devotions or patriotic observance or recreation. Now, the sole question in -- in this case is whether that 1885 Resolution on which we rely entirely has been repealed by the 1938 Resolution insofar as the 1885 Resolution does allow the holiday gratuity and has about four years prior to the 1938 Resolution. The entire question has been submitted and argued twice before the Court of Claims and twice the issue has been resolved against the Government. It was here in Kelly, but in Kelly, this Court decided the case on a different basis, namely, the particular contract involved there between the Government employee, the Printing Office employee and the Government. Here, we have no such contract. We rely solely on the 1885 statute. Now, one would suppose that if Congress really intended to overturn or repeal so deeply embedded a -- in longstanding, a practice of holiday allowances, it would have done so in response to complaints or criticism of the practice or it was made of some study or consideration of the questions involved and certainly, that have -- would have used very clear and precise language in repealing that long -- low established practice. Yet, exactly, the opposite is true. The congressional history, as I will show shortly in little more detail, contains that solely with no complaints of criticism, no suggestions that the -- the holiday allowance to the per diem -- per diem employee was in anyway unjust or inequitable or too expensive or for any reason whatsoever should be abolished and there was no discussion of the problem in that entire history and there is no language of repeal. Let us look for a minute --
Stanley Reed: Does your interpretation leave the 1938 Resolution as meaning exactly the same thing as the 1885?
Herbert S. Thatcher: No, it deals -- with an entirely different subject. The 1938 Resolution deals with the subject of what to do when a -- when a per diem employee is called -- loses his holiday -- is -- is not paid -- is not employed because the holiday occurs on a nonworking day, on a -- ordinarily it wouldn't work anyway like -- like a Saturday or a Sunday. The 1885 Resolution has application only to various calls of work on a regular workday, which is a holiday -- which is also a holiday. You see, the two statutes don't deal with those -- deal with two separate things.
Hugo L. Black: Where is the Resolution?
Herbert S. Thatcher: It's set forth on page 2 of the Government's brief, page 2 in --
Stanley Reed: Well, the 1885 Resolution allowed certain holidays then 2 also says I shall receive the same pay as on other days.
Herbert S. Thatcher: Yes, Your Honor. And that was construed by the Comptroller General for over 40 years.
Stanley Reed: Now, to add to Resolution to 1938 shall receive the same pay for such days as for other days which in ordinary days works more. I don't catch yet just what's the difference between what you -- seem to be the difference between.
Herbert S. Thatcher: The 1938 Resolution states that the -- the Government per diem employee shall receive his holiday allowance only when -- or not only, but on the -- when working -- when he is relieved or prevented from working solely because of the occurrence of a holiday.
Stanley Reed: And shall receive the same pay for such days?
Herbert S. Thatcher: That is correct, Your Honor. It does not deal and as this Court noted in -- in Kelly, it is entirely silent as to what happened when he is called to work on a regular working day, which is a holiday.
Stanley Reed: Yes.
Herbert S. Thatcher: The 1938 Resolution does not touch that subject at all.
Stanley Reed: But the 1885 Resolution does.
Herbert S. Thatcher: It does, Your Honor. And -- and that Resolution requires the holiday allowance in addition to the regular pay for that --
Stanley Reed: And the 1885 --
Herbert S. Thatcher: -- day.
Stanley Reed: -- Resolution was repealed?
Herbert S. Thatcher: That is the question in this case. Is it repealed? There's a higher question in this case. Is the 1885 statute repealed?
Stanley Reed: (Voice Overlap) Resolution, January 6, 1885, are here -- is hereby repealed.
Herbert S. Thatcher: To the extent of --
Stanley Reed: Extent of such inconsistency or conflict.
Herbert S. Thatcher: That -- that is correct, Your Honor.
Stanley Reed: You have to show a conflict between you.
Felix Frankfurter: Not you.
Herbert S. Thatcher: The Government has to show a conflict between them. We say there is no conflict between them that they can be applied and construed together with no conflict except as to the matter of paying a -- of paying a per diem worker his holiday allowance when he wouldn't been called to work in any event. That is what the 1938 statute deals with as we'll see by the congressional history, that is all that Congress was concerned with.
Harold Burton: As I understand that you -- you claimed the 1938 is partially inconsistent with the 1885? It's inconsistent --
Herbert S. Thatcher: Yes.
Harold Burton: -- on two specific points and not on the risk?
Herbert S. Thatcher: That is right, Your Honor.
Harold Burton: And the one at issue is one of the risk?
Herbert S. Thatcher: That is right, Your Honor.
Speaker: Would you -- would you agree that if the conclusion is reached that the 1885 Act was repealed in toto that your claim involves?
Herbert S. Thatcher: There is no question that the claim involved.
Speaker: The claim involved.
Herbert S. Thatcher: The claim involved.
Speaker: So it all depends on how you read Section 2 of the 1938 Act.
Herbert S. Thatcher: That is one part of it. We have to go to congressional history to see exactly what it meant.
Speaker: Right.
Herbert S. Thatcher: But I think if we apply the bare language even of Section 2, it is obvious that there's no outright repeal that there is a repeal only to the extent of such -- of any inconsistency, only to that extent.
Felix Frankfurter: Why do you have to go -- why do you have to go to legislative history to -- to read that statute in the same manner.
Herbert S. Thatcher: We claim you don't. We claim that on its face, there is no inconsistency in the matter --
Felix Frankfurter: I don't -- I don't --
Herbert S. Thatcher: -- of the claim that we make.
Felix Frankfurter: I don't know about -- don't know what the -- whether there is or isn't but the repeal is restricted if the questions got caught up with your answer, but if you restrict it to the extent of such inconsistency or conflict and therefore I have to practically consider that there is no inconsistency or conflict (Inaudible) 1885 extent and you say not on the extent of work but of the administrative -- of the administrative allowance could apply.
Herbert S. Thatcher: That is correct, Your Honor. That is our contention here.
Speaker: Well, would you go this far that you say that there is possibly an ambiguity and that the statue can be read as saying the Joint Resolution of 1885 is repealed and all other laws to the extent inconsistent therewith are repealed.
Herbert S. Thatcher: I don't see how we can by the bare language or the punctuation or -- or any other tenant of -- of statutory construction that I'm aware of. If it says read literally, it certainly doesn't. The phrase “to the extent” must apply to both the Joint Resolution and all other laws, it must as a matter of plain English.
Felix Frankfurter: It must (Inaudible)
Stanley Reed: It's probably the problem, isn't it?
Herbert S. Thatcher: It's -- there would -- there would have to be other punctuation then and if you wanted to limit the -- the phrase to the extent of such inconsistency to the latter part of this -- of Section 2, I should think.
Speaker: Do you say that that reading that I suggested would have to have a comma after act?
Herbert S. Thatcher: Yes, or after act.
Felix Frankfurter: You say --
Herbert S. Thatcher: Or -- pardon?
Felix Frankfurter: Go on.
Herbert S. Thatcher: Or I should think that time was actually -- did intent an actual repeal it could -- there would -- very normally that said the Joint Resolution of January 6, 1885 is repealed and all other laws inconsistent or in conflict with the provision of this Act I repeal to the extent of any inconsistency. I could think that would have been the normal thing to do. Yet, Congress did not do that and as we will see for a very good reason because it was not concerned with repealing anything that's filed in its entirety at all.
Harold Burton: Well, --
Herbert S. Thatcher: There's no evidence in the entire legislative history that there was any intent to repeal that 1885 Act in its entirety at all. I'll come to that in a -- in a minute.
Harold Burton: The -- the clause certainly says without punctuation, all other laws is inconsistent and therefore the other laws must -- must have any other of the 1885 law as being also in the same classification.
Herbert S. Thatcher: Yes, the 1885 to the extent of any inconsistency is of course repealed.
Harold Burton: And that's one or the other.
Herbert S. Thatcher: As was well as any other law.
Harold Burton: Yes.
Felix Frankfurter: Has the -- has the -- if all other laws inconsistent, is that just a large reservation or are there specific clause -- are there specific clause who could be in conflict with the two, either the Government -- either the Government or you.
Herbert S. Thatcher: We haven't found any or made any contention in -- in respect of any --
Felix Frankfurter: Well, this is one of the army entitled clauses.
Herbert S. Thatcher: That is right, Your Honor. As -- as I -- as I started to say a minute ago, going on beyond the language of the -- of the repeal or clause which I don't think in any normal construction can be read as an absolute repeal of the 1885 Act. Certainly, Congress would have given much more perfect language so that's been intended.
Felix Frankfurter: Does the legislative history about, which I was skeptical a minute ago, now I'm curious, would that shed any light whether the first clause said -- suggested to the construction of Justice Harlan that any light --
Herbert S. Thatcher: A great --
Felix Frankfurter: -- which they meant by the first clause of the Joint Resolution of January 6, 1885 is repealed (Inaudible)
Herbert S. Thatcher: I think -- I think there was a great deal of light in the legislative history to show that Congress did not intend an absolute repeal. And I'll come to that right now, if I may. As counsel for the government stated, this whole matter of the 1938 Resolution was precipitated by a -- a very harmless thing -- the President had declared December 24th, 1937 as a holiday. December 24th, 1937, is a holiday which put the per diem employee out of work for that day with no compensation whereas the per annum employee did receive compensation for that day. The remedy that -- that one -- that one oversight, a Resolution was introduced by Congressman Ramspeck to give the per diem holiday to pay for that day, that day only. When it got to Civil Service Commission, the Civil Service Commission send a letter over to the House Committee which is considering this particular Ramspeck Bill and suggested well it might as well appear to this whole problem of the presidentially or administratively the three holidays at one -- in one piece of legislation and therefore suggested that the -- the legislation instead of just making the one pay on a power -- for -- for purpose of per diem pay on a power of grant of pay that all presidentially declared holidays be accorded the same weight and respect to per diem holiday allowances as in respect to the per anum and that was done.
Speaker: But what happens with respect to the working on a holiday that's not one of the six holidays included after the 1885 Act?
Herbert S. Thatcher: There is no pay for time of it. No, there' no pay for coming to that.
Speaker: So that a fellow who --
Herbert S. Thatcher: Except the regular pay.
Speaker: So that a fellow who works on a holiday included in the six days covered by the --
Herbert S. Thatcher: No.
Speaker: -- 1885 Act, he gets double pay but if he works on another --
Herbert S. Thatcher: No.
Speaker: -- he doesn't.
Herbert S. Thatcher: No -- no, the -- the 1938 Resolution did add two extra holidays, I forgot which, I think -- or one extra holiday to the list of previously prescribed holidays, so that the per annum or per diem employee would receive his holiday allowance on that day as well, to being a statutory declared holiday. In addition -- in addition the state of that any presidentially declared holidays shall upraise the per diem allowance day for -- holiday for the per diem employee.
Speaker: As to what -- I was thinking about was the 1885 Act had been construed, had it not, to be limited to the specific six holidays mentioned in the --
Herbert S. Thatcher: That is right, Your Honor.
Speaker: Now, the 1938 Act comes along and that's executive order holidays et cetera. Since you have to go -- and that is -- that is not inconsistent, that additional --
Herbert S. Thatcher: No, it's an additional.
Speaker: It's an additional. Now, therefore to get your double pay, you have to go back to the 1885 Act which you say is unaffected by the 1938 Act in -- in that --
Herbert S. Thatcher: Except --
Speaker: -- respect.
Herbert S. Thatcher: Except -- it's unaffected -- except in the case of a -- of an inconsistency. That is not any of inconsistency. That's an additional. The addition of the presidentially declared holiday is an addition, a benefit -- an additional benefit to the per diem. The addition, I think, of one extra statutorily declared holiday. It's an addition, not of any inconsistencies.
William O. Douglas: Well if -- but if you have take -- take to the Thanksgiving Day, that's not covered by 1885 Act.
Herbert S. Thatcher: It is not.
William O. Douglas: What would be your position in case you work for the Thanksgiving Day?
Herbert S. Thatcher: Since under the 1938 Act that that was presidentially declared or --
William O. Douglas: Does he get a double pay?
Herbert S. Thatcher: He will get double pay for that day. That was one of the purposes of the 1938 Resolution specifically to expand the holidays in which a per diem employee got the additional holiday allowance. That was one of the very specific purposes, that was the initial reason for the Resolution to begin with.
Speaker: (Voice Overlap) --
Stanley Reed: Would you discuss what are the inconsistencies in --
Herbert S. Thatcher: The only -- the only inconsistency is in relation to the previous practice of paying a per diem holiday for -- for a holiday where he would not work in any event because it was on a Saturday -- declared on a Saturday or a Sunday of some day like that where he wouldn't work anyway. Previously, the Congress -- previously the practice had been to pay the per diem employee his regular day's wages even though he didn't come to work.
Harold Burton: And in that particular, deliberately cutout a benefit for the per diem.
Herbert S. Thatcher: In that particular, deliberately cutout that particular benefit for the per diem employee.
Harold Burton: That was inconsistent.
Herbert S. Thatcher: Pardon me.
Harold Burton: And that was inconsistent with the previous --
Herbert S. Thatcher: That is inconsistent, that to that extent, the 1885 Act was, in effect, repealed when there's no contrary contention for that.
Hugo L. Black: Mr. Thatcher, give me a concrete illustration, if you will, according to your contention, what does an employee get if he works on one of these holidays.
Herbert S. Thatcher: If an employee works for -- for per diem employee, if he's called to work on, say, Thanksgiving Day and that's --
Hugo L. Black: What do these holidays should include?
Herbert S. Thatcher: Any -- any of these holidays, he has paid a straight time. His regular time, whatever that might be then he is paid a holiday allowance. As a holiday allowance --
Hugo L. Black: Of what?
Herbert S. Thatcher: Of a sum equivalent -- equivalent to a straight time pay.
Hugo L. Black: It's double pay.
Herbert S. Thatcher: So, it would be double pay.
Hugo L. Black: All right. Now, suppose he doesn't work but he did.
Herbert S. Thatcher: He doesn't work. He receives his straight time pay.
Hugo L. Black: Now, suppose he has a contract like they had in Kelly case, what does he get?
Herbert S. Thatcher: Whatever the contract calls but in this case, we have no contract.
Hugo L. Black: Well that was a time and a half for holidays.
Herbert S. Thatcher: He will get time and a half.
Hugo L. Black: Would he get double pay and -- and a half pay in addition to it?
Herbert S. Thatcher: I -- I don't know what the employees actually got --
William J. Brennan, Jr.: In the Kelly case, he got 250%.
Herbert S. Thatcher: In the Kelly case, he got 250% by virtue of the statue and the --
Harold Burton: By the agreement.
Herbert S. Thatcher: By the agreement, well, that's all they got in Kelly. He didn't -- he didn't get his -- his regular per diem or his holiday allowance. He got the contract allowance.
Hugo L. Black: Justice Brennan said he got 250%.
Herbert S. Thatcher: Which was by a contract.
Hugo L. Black: Yes.
Herbert S. Thatcher: By contract. That's correct.
Hugo L. Black: Well, if the statute governs as to without a -- with a contract, why shouldn't it be governed without a contract?
Herbert S. Thatcher: Well, this Court in the Kelly held that the statute made no difference that the contract governs. And that's why this Court in Kelly passed over the construction of Kelly because it said without this, what the statute does and does not hold, we hold that the contract governs and therefore he's entitled to the 250% if that's what it were.
Felix Frankfurter: In the Kelly case, it's -- there's been no contract, he would have said he got --
Herbert S. Thatcher: Double pay. In the Kelly case, that was one of the thing.
Hugo L. Black: Well, the Kelly case then did recognize the gratuity at least by contract.
Herbert S. Thatcher: It recognized the gratuity of that contract. It had a gratuity by contract --
Hugo L. Black: And if the --
Herbert S. Thatcher: -- it was two-and-a-half.
Hugo L. Black: If the 1938 Act had been intended to do away with gratuity as with this Kelly case did.
Herbert S. Thatcher: I shouldn't think so. This Court so held -- the Court held that we don't have to consider whether the Act did or did not so intend in any event the contract governs.
Felix Frankfurter: No, but that --
Herbert S. Thatcher: That's what the Kelly holds.
Felix Frankfurter: -- that was against the answer you gave to Justice Black. Now, on constant that the Government can't do by contract or as Congress says it can't be done by its own authority.
Herbert S. Thatcher: Yes, so -- so Congress had actually -- had actually purposely repealed all this whole idea of gratuity holiday allowances, I shouldn't think the contract with -- the Court wouldn't be able to hold as it did in --
Felix Frankfurter: Well, all --
Herbert S. Thatcher: -- Kelly.
Felix Frankfurter: -- you can say is -- all you can say -- can you say more than that if 1938 meant to cutout gratuity allowances, it would be behind of such a public policy that this Court wouldn't have construed the contract better --
Herbert S. Thatcher: That's all.
Felix Frankfurter: -- and go beyond that.
Herbert S. Thatcher: That's all.
Hugo L. Black: The Court will object to decline the whole that the 1938 Amendment had that question, isn't it?
Herbert S. Thatcher: The --
Hugo L. Black: Although the two of us don't care.
Felix Frankfurter: Three.
Hugo L. Black: Three.
Herbert S. Thatcher: Three. The Court and the clients ought to hold.
Hugo L. Black: And in doing so, they left -- they -- they left in effect a gratuity, thereby a policy -- I don't' know, thereby a policy indicating that they rejected the idea that the 1938 Act made gratuities illegal.
Herbert S. Thatcher: It must be the reason, otherwise that the holding couldn't have been as it was. Now, returning to the --
Felix Frankfurter: I think --
Tom C. Clark: Are the effects (Voice Overlap) --
Felix Frankfurter: -- Judge Whittaker did -- did an imaginative thing in suggesting that he dissents on the -- on the Kelly case, that seems to me to be an interesting mode of reasoning.
Tom C. Clark: Mr. Thatcher, on your 1938 Resolution, in order a client to get any pay or (Inaudible) he has to be relieved of presenting (Inaudible)
Herbert S. Thatcher: Because -- solely because of the occurrence --
Tom C. Clark: Holiday.
Herbert S. Thatcher: -- of the holiday.
Tom C. Clark: Now, the persons without relief --
Herbert S. Thatcher: Solely.
Tom C. Clark: -- are prevented from working on Thanksgiving Day, you told him he had to work on Thanksgiving yet why would he get double pay?
Herbert S. Thatcher: Well --
Tom C. Clark: In fact, under the 1938 Resolution, he'd only get a single pay.
Herbert S. Thatcher: Well, we say -- we say that --
Tom C. Clark: And that was created by the 1938 Resolution.
Herbert S. Thatcher: Well, we say that the 1938 Resolution applies only to the situation of where he is relieved or -- or prevented or not called to work because of the occurrence of a holiday. It doesn't treat at all and by its terms it does now buying the face of the 1938 Resolution itself, it does not treat at all with the subject of what happens when a person is called to work. And this Court, in the Kelly case, expressly so pointed out -- so held. It pointed out that the 1938 Resolution is entirely silent on the question of what happens when a per diem employee is called to work on a holiday, entirely silent on that subject. We claim that when he's called to work on a holiday which occurs on a regular working day as the things from a non-working day where he wouldn't work anyway that he's entitled to his holiday allowance in addition to his regular pay -- his double pay.
Tom C. Clark: I understand you contention, but I thought since 1938 Resolution created the Thanksgiving Day, looks like to me that unless you prevented him from working that day he would (Inaudible)
Herbert S. Thatcher: Well, unless the 1885 is repealed. If it's not repealed, the 1885 gave them the right to the gratuity.
William O. Douglas: But not on Thanksgiving.
Herbert S. Thatcher: That being --
Tom C. Clark: (Voice Overlap) --
Herbert S. Thatcher: Yes. Well, look -- look the 1938 added Thanksgiving to the list of holidays which -- on which to prevent employees entitled to his holiday allowance because of that.
Tom C. Clark: In fact it could be an inconsistency in which the 1938 Act control under your interpretation.
Herbert S. Thatcher: Yes.
Tom C. Clark: So he would not be entitled a payment?
Herbert S. Thatcher: Well --
Tom C. Clark: Of course that's (Voice Overlap) --
Herbert S. Thatcher: No. Yes, but he is not -- the 1938 Resolution didn't deal with what happens when he's called to work.
Tom C. Clark: So it dealt with prevention to work --
Herbert S. Thatcher: Prevention is when he doesn't return to work.
Tom C. Clark: If he wasn't prevented so he only get the regular pay?
Herbert S. Thatcher: That is right. That is right, sir.
Harold Burton: Well, under the Government's theory is -- is this your understanding of it, that a per diem worker who has a holiday and he's not called to work, he gets his gratuity. And then if he is called to work, he doesn't get any extra at all, he just works.
Herbert S. Thatcher: That's right. That's the Government's --
Harold Burton: And the man who stays home who would -- who was not called out, he gets the same amount of pay but doesn't work.
Herbert S. Thatcher: That is one of the anomalies created by the Government's contention about their construction of this Act. That a man who stays home gets exactly the same pay as the man who goes to work which isn't -- wouldn't --
Stanley Reed: The Government says it's anomalous that --
Herbert S. Thatcher: We say that --
Stanley Reed: -- the salary man gets paid whether he works or not, but he gets more when he does work.
Herbert S. Thatcher: For over -- for -- for over 40 years prior to 1938, that was the fact in the case and there was no word raised in Congress or anywhere else that that created any particular inequity. The per annum employee has other benefits. Many of the benefits, we set forth some of them in our brief which the per diem employee does not. He doesn't have the hazards of employment principle that the per diem blue collar worker does. He doesn't work when it rains. He -- he works half day sometimes. His job stopped when the work is ended, when the picker's job is unresolved, sort of differences between the two classes testifying a difference in that particular respect. And as I said, no complaint ever was made or no objection raised because of that differential between per annum and governmental. But getting back to this legislative history for just a minute, as I said before there is no mention of whatsoever in that legislative history in the report or in any discussion on the floor that anyone was complaining on the side that they're making any objection to this practice of paying a per diem employee a holiday allowance in addition to his regular work when he did work on -- actually work on a holiday. There is not a word of complaint about that practice which the Government claims has been repealed and which Congress intended to repeal in 1938, not a word on it. The only word that -- a complaint that we do find is in respect to this business of calling or -- or paying a per diem employee for a holiday -- on a holiday when he wasn't called to work, when he wouldn't been -- been called to work in any event because that was a Saturday or a Sunday or some other day of nonworking day. There was a complaint about that in the -- in a letter written by the Comptroller or in a -- in a letter written by the Comptroller which was given to the House Committee. But that is the only practice of which there was any complaint at all. Now, it doesn't seem -- it doesn't seem reasonable that Congress would actually had intended -- actually had or was intending to repeal all aspects of holiday pay as contended for by the Government except the single situation of where an employee is prevented from working solely because of the occurrence of the holiday without some discussions in Congress or complaints being made or -- or objection was being made for the other practices without a little more of studies and was given to that problem and certainly without very express and explicit language to that effect but the manner on which -- which the Government reads the 1938 Resolution would incorporate the word "only" into that Resolution. In other words, that a holiday allowance is payable only in as one situation covered by the 1938 Resolution, yet the word "only" that it nowhere -- does not anywhere appear in the 1938 Resolution. In other words, if Congress actually intended to repeal that 40 years practice of paying a per diem employee, a holiday allowance and a holiday work, it could very easily have done so by expressed clear language yet such language is utterly liking in -- in the 1938 Resolution and even repeal or cause doesn't repeal the 1885 law in so many words. I've mentioned the analogies that would -- results where the -- where the Government's contentions followed here. One final point, the Government argues that the 1938 Resolution should be considered -- considered in the light of the fact that in 1943, the President had said that federal employees work on all of the holidays except Christmas. Well, I don't -- I don't see what possible relevance -- what the President did in 1943, five years after the 1938 Resolution was before Congress, can have in throwing light of the -- the intent of Congress was five years earlier. It has, to my mind, absolutely nothing to do with this case which -- to which we're trying to file what the intent of Congress was in 1938.In the wartime, policies in 1943 or 1945, in six or seven years later, have no relevance or give us no help at all on that question. As a matter of fact, the -- the wartime policy resolution of the President did not say the employee should not be paid whatever he was actually should be given. I merely said that the holidays was to be considered a working day. And as stated by the court below, if the Government required the assistance of the per diem employees, it should pay up the rate set forth by the statutes, just as in private industry, employees were paid premium pays or paid for work on holidays even during the wartime.
Stanley Reed: Mr. Thatcher, what you -- as I understand that you give considerable weight to the interpretation -- administrative interpretation of the 1885.
Herbert S. Thatcher: That's right, Your Honor.
Stanley Reed: Now, what -- how much weight do you give to the administrative interpretation of the 1938 Resolution.
Herbert S. Thatcher: None, for the reason that, if you will read it, it's based solely on the assumption that the 1938 Resolution operated to repeal the 1885 in its entirety. And we say that that subject construction simply cannot hold out. In other words, the Comptroller General's interpretation -- there's just one interpretation on it, it was predicated on that assumption that the 1885 was repealed.
Stanley Reed: (Voice Overlap) was not to pay anything.
Herbert S. Thatcher: Pardon me?
Stanley Reed: Am I wrong in that?
Herbert S. Thatcher: Pardon me?
Stanley Reed: I understand the practice was to pay, not to pay double.
Herbert S. Thatcher: The practice was --
Stanley Reed: Was not to pay double from the time the 1938 Resolution was adopted.
Herbert S. Thatcher: No, that is right, Your Honor. It was not to pay double under the -- under the assumption that the 1885 Act has been entirely repealed. Thank you.
Alan S. Rosenthal: May it please the Court. First of all, with respect to the manner of the legislative history and it's bearing upon whether Congress intended to repeal in its entirety the 1885 Resolution, it's interesting to note that immediately following the text of the Resolution in the legislative history in the Committee Report, it has stated that Section 2 proposes to repeal the Joint Resolution of 1885, not in part just opposes to repeal. Now, with respect to the terms --
Felix Frankfurter: Just what is the -- is that part of a sentence or something?
Alan S. Rosenthal: The -- the sentences that Section 2 proposes and it's explanatory in Section 2 that it proposes to repeal the Joint Resolution of January 6, 1885.
Felix Frankfurter: Period.
Alan S. Rosenthal: Pardon?
Felix Frankfurter: Period after that that you've just said?
Alan S. Rosenthal: It's -- I think -- yes, Your Honor, just had the -- then the only thing that was after that was the identification by U.S. Code section.
Felix Frankfurter: And it says nothing about your -- the other law?
Alan S. Rosenthal: That's -- I think there was no reference if I recall correctly.
Speaker: (Inaudible)
Alan S. Rosenthal: That was just the reference -- it was the citation of the -- the Joint Resolution of 1885.
Felix Frankfurter: Well, that can't be an act -- like a statement to what your inspection suggests.
Alan S. Rosenthal: We think, Your Honor, in this area --
Felix Frankfurter: I mean, if it makes -- if it makes no -- I mean, to believe that that is not the descriptive of Section 2, what you've read, isn't it?
Alan S. Rosenthal: Your Honor, we think that it is descriptive of Section 2.
Felix Frankfurter: But it leaves out the second half of it authentically.
Alan S. Rosenthal: Well, because we think that the Congress intended to bar Section 2 to its references to the -- to the extent of such conflict or inconsistency actually related to all other laws inconsistency -- inconsistent or in conflict. Now, certainly, there is at least an inconsistency between these two statutes. The 1885 Resolution, as interpreted administratively, required double compensation that the employee worked on a holiday. The 1938 Resolution, in terms, requires gratuity pay, only if the employee is relieved or prevented from working on the holiday. Now, with respect to the -- the matter of the Kelly case, we see absolutely no inconsistency between our position here and the course holding in Kelly. We have never suggested that the 1938 Resolution constituted an absolute bar against contracts providing for gratuity pay. Indeed, at the very outset of my argument, I attempted to make it clear that our position is, that there must be either a statute creating a permissive discretion upon the agency which there was in the -- in the Kelly case. It was the statute of 1924 which gave authority to the public printer to enter into these contracts, or else, there must be a statute which actually requires it. Now, in this case, there's no aspect to permissive discretion at all, but this claim is based upon as a must-be upon our being a statute granting absolute entitlement to it. Now, we again call this Court's attention to the fact that after the 1938 Resolution was enacted, it was uniformly construed until this wartime situation arose as eliminating this practice. It was construed by the same official, the Comptroller General, who had set out this administrative practice which forms the sole basis for the respondents' claim. Now, with respect to the absurdity of paying a man the same amount whether he works or whether he doesn't work, as was pointed out by the Court, this is a situation as pertained with the per annum worker and until 1945 Congress did not see that to make any change. Additionally, all of these special statutes, which was set forth in our brief, which related to a date not included in the 1885 Resolution, these were statutes which were enacted before 1938, each of them provided in terms that the employee who was relieved from working was to get gratuity pay. None of them applied to the employee who had worked on that specific day. So, there, the Congress itself, apparently recognized the -- that there was no inherent absurdity in paying a man the same amount whether he worked or whether he doesn't -- he didn't. Now, since -- of course, 1945, both per annum and the -- the per diem worker obtained additional compensation for holidays. But if you will trace the -- this legislation, in its subject of holiday pay from its very beginning to carry it through to today, there has -- there isn't a shred of evidence in any of the legislative history or in the terms of these bills to indicate that Congress intended to create this preference for the per diem worker, the preference arose by virtue of this administrative construction of the 1885 Resolution. The Congress in 1938 has its attention called to that Resolution and to these preferences and discriminations that arose thereunder. And then, they came forth with this 1938 Resolution which provides that gratuity pay when the employee is relieved or prevented from working on that day. And then in Section 2 they say to the extent, inconsistent or in conflict, the 1885 Resolution rather and all other resolutions are hereby repealed. And we think that the -- if the Court pleases, that for these reasons that the judgment below should be reversed.
Felix Frankfurter: Did I understand you to say that under Kelly case here is an explicit statutory authorization to make such an agreement?
Alan S. Rosenthal: No there was a -- there's a contract of -- the Government in the Kelly case took the -- did not contest that the Act of 1924 which is in, I think, 44 U.S.C. 40, that's the statute relating to the setting of wages for employees of the Government Printing Office that that statute conferred upon the public printer, the authority, if he felt it necessary.
Felix Frankfurter: But isn't there a similar statute right in every executive ordinance?
Alan S. Rosenthal: Well, the Navy, of course, has a similar statute, the Act of 1862. Now, the Secretary of the Navy, in setting forth the terms and conditions of this response employment did not see fit to make provisions in the exercise of his discretion for gratuity pay.
Felix Frankfurter: And even when you haven't got any -- that kind of a little statue practically every executive agency of the Government as by practice follow the fixed -- fixed rate.
Alan S. Rosenthal: That's right, but that's quite true.
Felix Frankfurter: And if that's true -- if that is true, then, it is open to every executive press to get from under the Act the Resolution of 1938 by what we call "contract."
Alan S. Rosenthal: No. Well, the Resolution (Voice Overlap) -- it's the -- yes, the Resolution isn't a -- a prohibition. It's just that the Resolution moved the requirement of paying this double pay. Now, very few agencies have seen the necessity and again if you compare the terms of this respondent's employment with those of his private counterparts, you'll find that in the absence of this gratuity pay, that pay compares very favorably and of course that's the object of the -- the Department of the Navy to see what that -- there was a moral -- like rough equivalent between the pay of these employees, per diem employees and those -- the pay of his private counterparts.
Stanley Reed: What was the report of Congress which you referred to?
Alan S. Rosenthal: Pardon?
Stanley Reed: What was the report on this 1938 Act which you referred to?
Alan S. Rosenthal: The report number, Your Honor? It's Report Number 2683 in the 75th Congress, Third Session. And it's cited in the Government's brief.