United States v. Bergh, 352 U.S. 40 (1956)

Author: Justice Clark

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United States v. Bergh, 352 U.S. 40 (1956)

MR. JUSTICE CLARK delivered the opinion of the Court.

This action was instituted in the United States Court of Claims by government per diem employees to recover holiday pay consisting of an extra day’s compensation for each holiday worked during the year 1945.

Each of the respondents was employed by the Navy under a Schedule of Wages which provided that, "whenever an employee is relieved or prevented from working solely because of the occurrence of any day declared a holiday," he was to receive the same pay for such days as for other days. This language was taken from a Joint Resolution of Congress of June 29, 1938, 52 Stat. 1246,{1} having to do with holiday pay. In 1945, the respondents were not relieved from working on certain holidays named in this Resolution, and were paid only the regular scheduled pay for the work performed on those days. They contend that, under a Joint Resolution of January 6, 1885, 23 Stat. 516,{2} they have a vested right to an additional full day’s wage as "gratuity pay" for each holiday worked. The Government urges that the 1885 Resolution was repealed in toto by the Joint Resolution of June 29, 1938, or, in the alternative, that the latter is inconsistent and in conflict with the provisions of the earlier Resolution upon which respondents rely.

The Court of Claims entered judgment for respondents, believing that the issue "was considered and disposed of by [its] majority opinion . . . in Kelly v. United States, 96 F.Supp. 611, 119 Ct.Cl. 197," holding that the employees concerned were entitled to gratuity pay under a Joint Resolution of 1895, not here involved, as well as under their wage agreement negotiated through collective bargaining in 1924. 132 F.Supp. 462, 464, 132 Ct.Cl. 564. While we affirmed the Kelly case, 342 U.S. 193, it was on the basis of the wage agreement present there. We left open the issue involved here. Subsequently, thousands of claims based on the 1885 Resolution, including those of respondents, were filed against the Government, necessitating a decision on the question now presented. We granted certiorari, 350 U.S. 953.

The legislative history of the 1938 Resolution is clear. Executive Order No. 7763 of December 6, 1937, 2 Fed.Reg. 2685, excused all government employees from work on December 24, 1937. Under the 1885 Resolution, per diem employees received no compensation for that day, since the holidays enumerated therein did not include December 24. A Joint Resolution was introduced in the House by Representative Ramspeck to allow holiday pay to per diem employees for that day. On referral to the House Committee on Civil Service, advice was sought from the Civil Service Commission, the Bureau of the Budget, and the Comptroller General. The Civil Service Commission advised by letter dated February 15, 1938, that the

accounting authorities, however, have held that, in the absence of specific legislation, the regular employees of the Federal Government whose compensation is fixed at a rate per day, per hour, or on a piece-work basis lose pay for that day. This has resulted in discrimination against these groups of Federal employees.

The Commission advised, further, that "there is the broader question involved of securing statutory authority for such payments as a general practice. . . ." H.R. Rep. No. 2683, 75th Cong., 3d Sess. 2. The Commission suggested the language that might be inserted in a Resolution that "would give permanent statutory authority" for holiday pay. In addition, the Commission’s reference to the "accounting authorities" revealed that the Comptroller General had advised the Secretary of the Navy on December 20, 1937, that, under existing law, (a) per annum employees suffered no loss of income as the result of holidays, whether declared by statute or executive order, whereas per diem employees received pay only for those holidays enumerated in the 1885 Resolution; (b) per diem employees received statutory holiday pay whether the holiday happened to fall on a nonwork day (Saturday or Sunday) or not, while per annum workers were allowed neither additional pay nor holiday time when the holiday happened to fall on a nonwork day; and (c) if a per diem employee worked on a statutory holiday falling on such a nonwork day, he received double pay.{3}

In its Report, supra, to the House, the Committee incorporated the letter from the Commission, the advisory opinion of the Comptroller General, and a letter dated February 14, 1938, from the Bureau of the Budget advising that the proposed legislation would not be "in conflict with the program of the President." The Committee drafted an entirely new Resolution, incorporating the language suggested by the Commission, intending for it to cover the "general practice" of the Government in regard to holiday pay. The only legislation then covering the general practice of the Government as to holiday pay was the 1885 Resolution, and, as to it, the Committee categorically declared in its Report:

Section 2 [of the Resolution] proposes to repeal the joint resolution of January 6, 1885 (U.S.C., title 5, sec. 86), which is as follows: . . .

(It then sets out in full the 1885 Resolution.) Furthermore, there is no indication anywhere in its Report that any portion of the 1885 Resolution -- much less any administrative practice thereunder -- was to survive. In addition to this unequivocal statement that the purpose of the 1938 Resolution was to repeal the 1885 one, the Committee further revealed by its action under the Rules of the 75th Congress that it so intended. The Rules required a Committee reporting out a bill repealing an act or part thereof to include in its report the text of the act or part thereof proposed to be repealed. The Report here included the text of the 1885 Resolution in toto. On the other hand, if it was intended only that the 1885 Resolution be amended, the Rules required the Committee to insert in its report a comparative print of the part of the act which it proposed to be amended. Here, no such comparative print was inserted.

Moreover, the few brief statements on the floor of the House show nothing to the contrary. Representative Ramspeck declared that the Resolution "gives the same right to per diem employees as to the regular monthly employees." Representative Rogers stated, "This simply prevents an unintentional discrimination." Nothing was said as to the 1885 Resolution, nor did anyone contend, contrary to the Committee Report, that it was not the intention to repeal it in toto. See 83 Cong.Rec. 9466-9467.

It is contended that the purpose of the 1938 Resolution was to increase the number of holidays for per diem employees to include those allowed by executive order, but to leave intact the allowance of double pay for per diem employees who worked on the holidays specified in the 1885 Resolution. This cannot be correct, for no one contends that the 1938 Resolution did not repeal the 1885 Resolution, as interpreted, with reference to holiday pay on nonwork days. That being so, we cannot see why the 1885 Resolution should be regarded as having been left unrepealed with reference to holiday pay on work days.{4} Moreover, respondents’ contention is entirely untenable in light of the Committee Report. Confusion would be created, rather than eliminated, if the contention were accepted. The purpose, as shown by the letters, the advisory opinion, the Report, and the statements on the floor of the House, was to alleviate discriminations as to holiday pay and to treat employees alike insofar as possible. This the 1938 Resolution accomplished. Should the respondents’ interpretation prevail, it would result in a double standard of pay for per diem employees working on holidays. On those holidays included in the 1885 Resolution, the employees would receive double pay, while on holidays included in or created pursuant to the authority provided by the 1938 Resolution alone they would receive only single pay. This result is required because the 1938 Resolution permits no holiday pay when the employee is required to work. We cannot attribute such anomalous results to the Congress. It is urged that our interpretation would result in a per diem employee receiving the same pay for working on a holiday as is received by his fellow employee who is excused from so working. But this is no discrimination, as it likewise is visited upon the per annum employee.{5}

We now turn to other indications supporting the position that the 1885 Resolution was repealed. As we indicated earlier, the double payment for holiday work recognized prior to the 1938 Resolution came about in 1906 through an interpretation of the 1885 Resolution by the Assistant Comptroller of the Treasury. This ruling was recognized by all departments and agencies of the Government until August, 1938, when the Comptroller General held that the 1885 Resolution had been repealed by the 1938 Resolution and gratuity pay for holidays was no longer a right of per diem employees.{6} This opinion was followed consistently by all of the departments and agencies of the Government. In this regard, it is of importance to note that several efforts were made to repeal this interpretation by specific Act of Congress, but, in each instance, the bill failed to pass.{7} This contemporaneous interpretation of the 1938 Resolution by the agency charged with its supervision -- an interpretation followed by all agencies of the Government -- together with acquiescence of the Congress, must be given great weight.

Likewise it is noted that the House Committee on the Revision of Laws has similarly treated the 1938 Resolution. In the 1940 and 1946 recodifications of the United States Code, the 1885 Resolution is listed as being repealed by the later Resolution of 1938. Again, in the 1952 edition of the Code the 1885 Resolution is not only listed as repealed, but its entire text is omitted from the Code. An explanatory notation states that this Resolution was repealed and is now covered by § 86a which is the 1938 Resolution.

As we noted earlier, this case is not disposed of by United States v. Kelly, 342 U.S. 193, and nothing in Kelly lends support to the employees’ argument here. Kelly was a printer employed at the Government Printing Office. The wages of employees in Kelly’s office were fixed by a collective bargaining agreement pursuant to the Act of June 7, 1924, 43 Stat. 658. This Act, though amended, remained in effect as to the provisions involved here at the time of Kelly’s claim. The Contract Kelly sued on was entered into by the Government under this Act. We said the problem was "whether the [1938] Resolution somehow precludes the awarding of the gratuity pay which the agreement [so made] seems to grant." 342 U.S. at 194. We held that "since the agreement provided for gratuity pay for holidays worked, [Kelly] was entitled to such pay."{8} The award to Kelly, then, was solely on the basis of the collective bargaining agreement. Here, there is no such agreement. There is nothing on which the employees can rely which affirmatively grants the double pay they claim.

The judgment of the Court of Claims is, therefore,


MR. JUSTICE BRENNAN took no part in the consideration or decision of this case.

1. Joint Resolution of June 29, 1938, c. 818, 52 Stat. 1246, 5 U.S.C. § 86a:

. . . [W]henever regular employees of the Federal Government whose compensation is fixed at a rate per day, per hour, or on a piece-work basis are relieved or prevented from working solely because of the occurrence of a holiday such as New Year’s Day, Washington’s Birthday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day, or any other day declared a holiday by Federal statute or Executive order, or any day on which the departments and establishments of the Government are closed by Executive order, they shall receive the same pay for such days as for other days on which an ordinary day’s work is performed.

SEC. 2. The joint resolution of January 6, 1885 (U.S.C., title 5, sec. 86), and all other laws inconsistent or in conflict with the provisions of this Act are hereby repealed to the extent of such inconsistency or conflict.

2. 23 Stat. 516 (1885), as amended, 24 Stat. 644 (1887), 5 U.S.C. (1934 ed.) § 86, which provides:

. . . The employees of the Navy Yard, Government Printing Office, Bureau of Printing and Engraving, and all other per diem employees of the Government on duty at Washington, or elsewhere in the United States, shall be allowed the following holidays, to-wit: The 1st day of January, the 22d day of February, the day of each year which is celebrated as "Memorial" or "Decoration Day," the 4th day of July, the 25th day of December, and such days as may be designated by the President as days for national thanksgiving, and shall receive the same pay as on other days.

3. This double pay resulted from interpretation of the 1885 Resolution by the office of the Comptroller of the Treasury. 13 Comp.Dec. 40. See also 13 Comp.Gen. 295, 297.

4. It is true that the Comptroller General’s 1937 letter pointed up the discrimination between per annum and per diem employees on nonwork days. But, even though not specifically adverted to, it would seem that a similar discrimination was also apparent as to work days in that per annum employees would receive no extra pay, while per diem employees would receive not only their regular wage, but an equal amount as holiday pay.

5. Moreover, the Schedule of Wages here provided for 50% additional pay for work required on holidays not included in the regular tour of duty and 125% additional for work in excess of eight hours on such days.

6. 18 Comp.Gen. 10, 13; 18 Comp.Gen. 186.

7. H.J.Res. 303, 76th Cong., 1st Sess.; H.R. 1386, 77th Cong., 1st Sess.; S. 1930, 77th Cong., 1st Sess.; H.R. 6222, 77th Cong., 1st Sess.; S. 1679, 79th Cong., 2d Sess.

The policy of allowing gratuity pay for holidays worked in peacetime and of prohibiting it in wartime is reflected in a section of the Federal Employees Pay Act of 1945, 59 Stat. 298, 5 U.S.C. § 922. This section provided for gratuity pay for holidays worked, but was not to go into effect until the cessation of hostilities in World War II. By implication then, there was no gratuity pay allowed by statute for holidays worked during wartime.

8. Kelly also claimed under a Joint Resolution. The Resolution of 1885 provided for "gratuity pay" for holidays for all government per diem employees. An Act of 1895 referring specifically to Government Printing Office employees is substantially identical in regard to holiday pay with the 1885 Resolution. The Kelly case was considered on the basis of the 1895 Act, but the Court was not required to determine whether Kelly was entitled to any pay under that Resolution.


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Chicago: Clark, "Clark, J., Lead Opinion," United States v. Bergh, 352 U.S. 40 (1956) in 352 U.S. 40 352 U.S. 41–352 U.S. 48. Original Sources, accessed January 30, 2023, http://www.originalsources.com/Document.aspx?DocID=94E9V23XZJ974PI.

MLA: Clark. "Clark, J., Lead Opinion." United States v. Bergh, 352 U.S. 40 (1956), in 352 U.S. 40, pp. 352 U.S. 41–352 U.S. 48. Original Sources. 30 Jan. 2023. http://www.originalsources.com/Document.aspx?DocID=94E9V23XZJ974PI.

Harvard: Clark, 'Clark, J., Lead Opinion' in United States v. Bergh, 352 U.S. 40 (1956). cited in 1956, 352 U.S. 40, pp.352 U.S. 41–352 U.S. 48. Original Sources, retrieved 30 January 2023, from http://www.originalsources.com/Document.aspx?DocID=94E9V23XZJ974PI.