United States v. Kelly, 342 U.S. 193 (1952). · Go Syfert
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United States v. Kelly, 342 U.S. 193 (1952). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 2004 · …while the hobbs act specifies the form of proceeding for judicial review of icc orders, see 5 u.s.c. 703 , it is the administrative procedure act (apa) that codifies the nature and attributes of judicial review ⚠ not in text
400 citation events (220 in the last 25 years) across 46 distinct courts.
Strongest positive: Kuang v. U.S. Dep't of Def.
Treatment trajectory · 1952 → 2026 · click a year to view as-of
1952 1989 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (quoted) Kuang v. U.S. Dep't of Def.
unknown court · 2018 · quote attribution · 1 verbatim quote · confidence low
e perceive that a similar tradition of nonreviewability exists with regard to refusals to reconsider for material error.
discussed Cited as authority (quoted) Chacoty v. Tillerson
D.C. Cir. · 2018 · quote attribution · 1 verbatim quote · confidence low
a party's pending request for agency reconsideration renders 'the underlying action nonfinal ....
discussed Cited as authority (quoted) Berry v. United States Department of Labor
6th Cir. · 2016 · signal: see · quote attribution · 1 verbatim quote · confidence high
hat is reviewable is merely the lawfulness of the refusal.
discussed Cited as authority (quoted) Guardian Angels Medical Service Dogs, Inc. v. United States
Fed. Cir. · 2016 · signal: see · quote attribution · 1 verbatim quote · confidence high
actions speak louder than words.... in 1251 the case of inconsistency, conduct controls.
discussed Cited as authority (quoted) United States v. Saena Tech Corporation
D.D.C. · 2015 · signal: see also · quote attribution · 1 verbatim quote · confidence low
it is entirely clear that the refusal to prosecute cannot be the subject of judicial review
discussed Cited as authority (quoted) Bayles v. Federal Aviation Administration
D.C. Cir. · 2012 · signal: see · quote attribution · 1 verbatim quote · confidence high
where the formal disposition is to deny reconsideration, and where it makes no alteration in the underlying order, we will not undertake an inquiry into whether reconsideration 'in fact' occurred
discussed Cited as authority (quoted) Kenneth B. Mason v. Eric K. Shinseki
Vet. App. · 2011 · signal: see also · quote attribution · 1 verbatim quote · confidence low
the orders under reconsideration nonfinal.
examined Cited as authority (quoted) Vizio, Inc. v. International Trade Commission (3×) also: Cited "see"
Fed. Cir. · 2010 · quote attribution · 1 verbatim quote · confidence low
the commission determined to review: (1) the finding that respondents directly infringe claim 23 of the '074 patent through testing activities in the united states and (2) the finding that respondents have induced infringement of claim 23 of the '074 patent.
discussed Cited as authority (quoted) Consolidated Fibers, Inc. v. United States
Ct. Intl. Trade · 2006 · quote attribution · 1 verbatim quote · confidence low
the basis for challenge must be that the refusal to reopen was 'arbitrary, capricious, an abuse of discretion.' 5 u.s.c. 706 (2)(a).
examined Cited as authority (quoted) Union Pacific Railroad v. Surface Transportation Board
D.C. Cir. · 2004 · quote attribution · 1 verbatim quote · confidence low
while the hobbs act specifies the form of proceeding for judicial review of icc orders, see 5 u.s.c. 703 , it is the administrative procedure act (apa) that codifies the nature and attributes of judicial review
examined Cited as authority (quoted) Un Pac RR Co v. STB
D.C. Cir. · 2004 · quote attribution · 1 verbatim quote · confidence low
while the hobbs act specifies the form of proceeding for judicial review of icc orders, see 5 u.s.c. 703 , it is the administrative procedure act (apa) that codifies the nature and attributes of judicial review
discussed Cited as authority (quoted) Clifton Power Corp. v. Federal Energy Regulatory Commission
D.C. Cir. · 2002 · signal: see · quote attribution · 1 verbatim quote · confidence high
timely petition for administrative reconsideration stay the running of the hobbs act's limitation period until the petition had been acted upon by the commission
discussed Cited as authority (quoted) Helen Cummings, Claimant-Appellant v. Togo D. West, Jr., Acting Secretary of Veterans Affairs
Fed. Cir. · 1998 · signal: see · quote attribution · 1 verbatim quote · confidence high
the decision of the section is final unless the chairman orders reconsideration of the case.
discussed Cited as authority (quoted) McCall v. Brown
Vet. App. · 1994 · quote attribution · 1 verbatim quote · confidence low
refusal to go back over ploughed ground is nonreviewable.
discussed Cited as authority (quoted) Railway Labor Executives' Association v. Southern Pacific Transportation Company
9th Cir. · 1993 · quote attribution · 1 verbatim quote · confidence low
locomotive engineers
discussed Cited as authority (quoted) Railway Labor Executives' Ass'n v. Southern Pacific Transportation Co.
9th Cir. · 1993 · quote attribution · 1 verbatim quote · confidence low
locomotive engineers
discussed Cited as authority (quoted) John D. Copanos and Sons, Inc. And Kanasco, Ltd. v. Food and Drug Administration and Frank E. Young, M.D., ph.d., Commissioner of Food and Drugs
D.C. Cir. · 1988 · signal: see · quote attribution · 1 verbatim quote · confidence high
order is not itself reviewable.
examined Cited as authority (rule) Reppy v. Department of the Interior of the United States (3×) also: Cited "see"
10th Cir. · 1989 · confidence medium
Nevertheless, the Supreme Court found that such language merely “relieve[s] parties from the requirement of petitioning for rehearing before seeking judicial review ... but [does] not ... prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal.” 482 U.S. at 285 , 107 S.Ct. at 2369 , 96 L.Ed.2d at 237 (emphasis in original).
examined Cited as authority (rule) Reppy v. Department of Interior of United States (3×) also: Cited "see"
10th Cir. · 1989 · confidence medium
Nevertheless, the Supreme Court found that such language merely "relieve[s] parties from the requirement of petitioning for rehearing before seeking judicial review ... but [does] not ... prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal." 482 U.S. at 285 , 107 S.Ct. at 2369 , 96 L.Ed.2d at 237 (emphasis in original).
discussed Cited "see" National Labor Relations Board v. New Vista Nursing & Rehabilitation
3rd Cir. · 2017 · signal: see · confidence high
See ICC v. Bhd. of Locomotive Eng'rs, 482 U.S. 270, 283 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) ("[A] coúrt ... may not affirm on a basis containing any element of discretion—including discretion to ... interpret statutory ambiguities—that is riot the basis the agency used, since that would remove the discretionary judgment from the agency to the court.”).
cited Cited "see" Maria Garcia v. Gina McCarthy
9th Cir. · 2016 · signal: see · confidence high
See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987).
discussed Cited "see" United States v. Fokker Services B.V.
D.C. Cir. · 2016 · signal: see · confidence high
Pierce, 786 F.2d at 1201 ; see ICC v. Bhd. of Locomotive Eng’rs, 482 U.S, 270, 283, 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987); The decision whether to prosecute turns on factors such as “the strength of -the case, the prosecution’s general deterrence value, the [gjovernment’s enforcement priorities, and the case’s relationship to the [government's overall enforcement plan.” Wayte v. United States, 470 U.S. 598 ; 607, 105 S.Ct. 1524 , 84 L.Ed.2d 547 (1985).
discussed Cited "see" Boston Redevelopment Authority v. National Park Service
D. Mass. · 2015 · signal: see · confidence high
See I.C.C. v. Bhd. of Locomotive Eng’rs., 482 U.S. 270, 278 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (explaining that an agency’s refusal to reopen a proceeding can be arbitrary, capricious, and an abuse of discretion); Kreis v. Sec’y of Air Force, 406 F.3d 684, 688 (D.C.Cir.2005) (“[T]he Board’s conclusion that reconsideration was not authorized' on the basis of newly discovered relevant' evidence was arbitrary and capricious.”).
cited Cited "see" Rail-Term Corp. v. Surface Transportation Board
D.C. Cir. · 2015 · signal: see · confidence high
See ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 278 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987).
cited Cited "see" United States v. Fokker Services B.V.
D.D.C. · 2015 · signal: see · confidence high
See I.C.C. v. Bhd. of Locomotive Engineers, 482 U.S. 270, 283 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987).
discussed Cited "see" Village of Barrington v. Surface Transportation Board
D.C. Cir. · 2014 · signal: see · confidence high
See id. at 287 , 107 S.Ct. 2360 (dismissing, for lack of jurisdiction, petition challenging the ICC’s refusal to reconsider a prior order); Town of Springfield, N.J. v. STB, 412 F.3d 187, 189 (D.C.Cir.2005) (holding that, “when a reopening petition rested on ‘material error,’ the court has no jurisdiction to review a denial of the petition”); Scho-enbohm v. FCC, 204 F.3d 243, 250 (D.C.Cir.2000) (holding that the court lacks jurisdiction to review an agency’s denial of a petition for reconsideration “unless the request for reconsideration was based on new evidence or changed circu…
discussed Cited "see" Target Training International, Ltd. v. Lee
N.D. Iowa · 2014 · signal: see · confidence high
See Interstate Commerce Comm’n v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 282 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987); South Dakota v. Ubbelohde, 330 F.3d 1014, 1027 (8th Cir.2003) (stating that the “committed to agency discretion” exception applies only where statutes do not “provide even minimal guidance to limit agency discretion”).
discussed Cited "see" Council Tree Investors, Inc. v. Federal Communications Commission
10th Cir. · 2014 · signal: see · confidence high
See id. at 280 , 107 S.Ct. 2360 (concluding that “an order which merely denies rehearing of ... [the prior] order is not itself renewable” (alteration in original) (quoting Microwave Commc’ns, Inc. v. FCC, 515 F.2d 385 , 387 n. 7 (D.C.Cir.1974)) (internal quotation marks omitted)).
cited Cited "see" Novartis Ag v. Kappos
D.D.C. · 2012 · signal: see · confidence high
See Clifton Power Corp. v. FERC, 294 F.3d 108, 110 (D.C.Cir.2002) (citing Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 284 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987)).
discussed Cited "see" Sears Holdings Management Corp. v. United States (2×)
Ct. Intl. Trade · 2012 · signal: see · confidence high
See generally, Stone v. I.N.S., 514 U.S. 386, 392 , 115 S.Ct. 1537 , 131 L.Ed.2d 465 (1995) (“As construed in [I.C.C. v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 284 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) ] both the APA and the Hobbs Act embrace a tolling rule: The timely filing of a motion to reconsider renders the underlying order nonfinal for purposes of judicial review.
discussed Cited "see" Cohen v. United States (2×)
D.C. Cir. · 2011 · signal: see · confidence high
See ICC v. Brotherhood, of Locomotive Engineers, 482 U.S. 270, 282 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) ("Hobbs Act specifies the form of proceeding for judicial review of ICC orders,” citing § 703); Whitney Nat’l Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 420 , 85 S.Ct. 551 , 13 L.Ed.2d 386 (1965) ("where Congress has provided statutory review procedures designed to permit agency expertise to be brought to bear on particular problems, those procedures are to be exclusive”); Garcia v. Vilsack, 563 F.3d 519, 523-25 (D.C.Cir. 2009) (discrimination suit …
discussed Cited "see" Carpenter Family Invs., LLC v. Comm'r (2×)
Tax Ct. · 2011 · signal: see · confidence high
See Interstate Commerce Commn. v. Bhd. of Locomotive Engrs ., 482 U.S. 270 , 283 , 107 S. Ct. 2360 , 96 L.
discussed Cited "see" Kessler v. Surface Transportation Board
D.C. Cir. · 2011 · signal: see · confidence high
See Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 278 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (where agency “refuses to reopen a proceeding, what is reviewable is merely the lawfulness of the refusal”); Sinclair Broad.
discussed Cited "see" City of South Bend v. Surface Transportation Board
D.C. Cir. · 2009 · signal: see · confidence high
See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 278 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (denial of petition to reopen based upon new evidence reviewed under arbitrary-and-capricious standard); Jost v. STB, 194 F.3d 79, 85 (D.C.Cir.1999) (same).
discussed Cited "see" Deseado International, Ltd. v. United States
Ct. Intl. Trade · 2009 · signal: see · confidence high
See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 282 , 107 S.Ct. 2860 , 96 L.Ed.2d 222 (1987) (noting that there is a tradition of nonreviewability associated with refusals to reconsider unless they involve new evidence or changed circumstances); see also Consolidated Fibers, Inc. v. United States, 32 CIT -, 535 F.Supp.2d 1345 (2008).
discussed Cited "see" Herre Bros. v. Peake
Fed. Cir. · 2008 · signal: see · confidence high
See Interstate Commerce Comm’n v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 284 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (timely request for reconsideration extends time for appealing until agency rules on reconsideration request).
discussed Cited "see" Herre Bros. v. Peake
Fed. Cir. · 2008 · signal: see · confidence high
See Interstate Commerce Comm’n v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 284 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (timely request for reconsideration extends time for appealing until agency rules on reconsideration request).
discussed Cited "see" Liadov v. Mukasey (2×)
8th Cir. · 2008 · signal: see · confidence high
See ICC v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 282 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (describing 5 U.S.C. § 701 (a)(2) as a "limitation to the general grant of jurisdiction contained in 28 U.S.C. § 1331 ").
discussed Cited "see" Tamenut v. Mukasey (2×)
8th Cir. · 2008 · signal: see · confidence high
See Interstate Commerce Comm’n v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 282 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987); South Dakota v. Ubbelohde, 330 F.3d 1014, 1027 (8th Cir.2003) (stating that the “committed to agency discretion” exception applies only where statutes do not “provide even minimal guidance to limit agency discretion”).
discussed Cited "see" Trustees in Bankruptcy of North American Rubber Thread Co. v. United States
Ct. Intl. Trade · 2006 · signal: see · confidence high
See Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 278 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) ("[A]ll of our cases entertaining review of a refusal to reopen appear to have involved petitions alleging 'new evidence' or 'changed circumstances’ that rendered the agency's original order inappropriate.”).
discussed Cited "see" Fry v. Drug Enforcement Administration
9th Cir. · 2006 · signal: see · confidence high
See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 278 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (“overtiming the refusal to reopen requires a showing of the clearest abuse of discretion” (internal quotation omitted)).
discussed Cited "see" IMS Engineers—Architects, P.C. v. Harvey
Fed. Cir. · 2006 · signal: see · confidence high
See Interstate Commerce Comm’n v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 284 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (timely request for reconsideration extends time for appealing until agency rules on reconsideration request).
discussed Cited "see" Terminal Warehouse, Inc. v. CSX Transportation, Inc.
6th Cir. · 2006 · signal: see · confidence high
See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 279-80 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (holding that, where a petition for reconsideration is brought only for “material error” and not for new evidence, an order denying reconsideration is unreviewable, and it is “irrelevant that the ... order ... discussed the merits of the ... claims at length”).
discussed Cited "see" Madilu v. Gonzales
6th Cir. · 2005 · signal: see · confidence high
See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 280 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (holding that “where a party petitions an agency for reconsideration on the ground of ‘material error,’ i.e., on the same record that was before the agency when it rendered its original decision, an order which merely denies rehearing of ... [the prior] order is not itself reviewable”); see also Kacaj v. Gonzales, 132 Fed.Appx. 584 (6th Cir.2005) (discussing circuit split on issue).
discussed Cited "see" Celaj v. Gonzales
6th Cir. · 2005 · signal: see · confidence high
See ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 280 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (holding that “where a party petitions an agency for reconsideration on the ground of ‘material error,’ i.e., on the same record that was before the agency when it rendered its original decision, ‘an order which merely denies rehearing of ... [the prior] order is not itself reviewable’ ”); Kacaj v. Gonzales, 132 Fed.Appx. 584, 589 (6th Cir.2005) (discussing circuit split on issue).
cited Cited "see" Boston and Maine Cor v. Town of Ayer
1st Cir. · 2003 · signal: see · confidence high
See ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 284 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987).
cited Cited "see" Puget Sound Energy, Inc., a Washington Corporation v. United States of America Administration, Bonneville Power Administration
9th Cir. · 2002 · signal: see · confidence high
See I.C.C. v. Bhd, of Locomotive Engineers, 482 U.S. 270, 284-85 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987); Acura v. Reich, 90 F.3d 1403 , 1408-9 (9th Cir.1996).
discussed Cited "see" Dominion Resources, Inc. v. Federal Energy Regulatory Commission
D.C. Cir. · 2002 · signal: see · confidence high
See ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 286 , 107 S.Ct. 2360, 2369-70 , 96 L.Ed.2d 222 (1987) (stating that “the remedy for ... ambiguity is to petition ... for reconsideration,” otherwise time limits “would be held hostage to ever-present ambiguities”).
discussed Cited "see" Sinclair Broadcast Group, Inc. v. Federal Communications Commission (2×)
D.C. Cir. · 2002 · signal: see · confidence high
See 482 U.S. 270, 278-280 , 107 S.Ct. 2360, 2365-67 , 96 L.Ed.2d 222 (1987).
cited Cited "see" Chameleon Radio Corp. v. Federal Communications Commission
D.C. Cir. · 2002 · signal: see · confidence high
See ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 280 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987); Southwestern Bell Tel.
Retrieving the full opinion text from the archive…
UNITED STATES
v.
KELLY Et Al.
209.
Supreme Court of the United States.
Jan 2, 1952.
342 U.S. 193
Saul R. Gamer argued the cause for thé United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baldridge, Paul A.' Sweeney and Herman Marcuse., Henry J. Fox argued the cause and filed a brief for respondents.
Minton, Reed.
Cited by 11 opinions  |  Published
15 passages pin-cited by 17 cases
Pinpoint authority: #7,025 of 633,719
Citer courts: D.C. Circuit (6) · Federal Circuit (3) · Ninth Circuit (2) · Veterans Claims (2) · Sixth Circuit (1) · Court of International Trade (1) · District of Columbia (1)

Lead Opinion

Mr. Justice Minton

delivered the opinion of the Court.

The Court of Claims awarded judgment to respondent, a per diem employee of the Government Printing Office,[*194] for premium pay and gratuity pay for work performed by him on certain holidays during World War II. 119 Ct. Cl. 197, 96 F. Supp. 611. Thus, respondent was held entitled to the aggregate of:

1. His regular compensation for the days worked;
2. Fifty per cent of his regular compensation as premium pay;
3. A full day’s compensation as gratuity pay.

The.Government sought review of that part of the judgment which awarded gratuity pay to respondent and others like him,[1] and we granted certiorari, 342 U. S. 808.

Respondent’s compensation was fixed by a wage agreement which provides in pertinent part:

“Holiday Rate. Employees required to work on a legal holiday or a special holiday declared by Executive Order shall be paid at the day rate plus 50 per cent for all the time actually employed in addition to their gratuity pay for the holiday as provided by ' law . . . .”

By a 1938 Resolution, the applicable law during the period in question, Congress provided that whenever per diem employees were “relieved or prevented from working solely because of the occurrence of” holidays declared by statute or executive order, “they shall receive the same pay for such days as for other days on which an ordinary day’s work is performed.” [2] The question thus presented is whether the Resolution somehow precludes the awarding of the gratuity pay which the agreement seems to grant.

[*195] The 1938 Resolution amended the Act of 1895[3] which had been consistently administered ag providing for gratuity pay in addition to regular compensation'if.tibe employee worked on a holiday.[4] The Government contends that Congress intended to repeal the earlier statute in this respect, and that the Resolution provided gratuity pay only for holidays on which an employee is “relieved' or prevented from working.”

We think this argument misses the point. The 1938 Resolution established the holidays for which gratuity pay v/as to be allowed. It was silent on the subject of gratuity pay for holidays on which work was performed, and we may even assume that it did not provide gratuity pay for those days. But the wage agreement is not silent on the subject. It provides that when an employee works on a holiday he is to receive regular compensation, premium pay, and gratuity pay “for the holiday a# provided by law.” The holidays “as provided by law” are the days provided for in the 1938 Resolution. Nothing in the Resolution prohibits such a wage agreement, and, indeed, the Government concedes this fact. Merely because the'Resolution itself may not award gratuity pay for holidays worked is no ground for vitiating a wage agreement which does.

The Government points to the 1943 Presidential Directive to federal agencies, under which all holidays except Christmas were to be considered as regular workdays for the duration of the war,[5] and urges that the Directive[*196] indicated a policy against the payment of gratuity pay for holidays worked. Clearly, the Presidential Directive was not intended to abrogate the wage agreement.

We need not stop to consider the anomalous results which would stem from the Government’s position.[6] Since the agreement provided for gratuity pay for holidays worked, respondent was entitled to such pay. Accordingly, the judgment below is

Affirmed.

1

The parties have stipulated that - the' disposition of the claim of -respondent K.elly will be determinative of claims filed by 613 other employees of the Printing Office.

2

52 Stat. 1246, 5 U. S. C. § 86a.

3

28 Stat. 601, 607, § 46.

4

8 Comp. Dec. 322 (1901); 13 Comp. Dec. 40 (1906); 3 Comp. Gen. 411 (1924).

5

See Digest of Provisions of Law Fixing Pay for Employees in the Executive Branch of die Federal Government (U. S. Civil Service Commission, 1945), at p. 94, note 2; H. R. Rep. No. 514, 79th Cong., 1st Sess., Appendix, p. 94, note 2.

6

Thus, under the Government’s view an employee who worked five hours on a- holiday would receive his regular compensation plus premium pay, or seven and one-half hours’ pay; if he stayed home all day, he would receive eight hours’ pay.

Dissent

Mr. Justice Reed,

with whom The Chief Justice and

Mr. Justice Black join, dissenting.

The 1938 Resolution refers only to holidays that “relieved or prevented” work. It requires a gratuity payment to them equal to the regular daily wage. Where work is done, as by these per diem employees, no gratuity is “provided by law;.” Under the wage agreement, however, an employee working should be paid time and a half for holiday work — a premium of fifty per cent more than the gratuity paid to an employee who does not work.

The Government concedes that the wage agreement entitles the employees to this premium pay for work on holidays. In our opinion respondents are not entitled to any gratuity pay, and this has been the consistent administrative interpretation of the Comptroller General. 18 Comp. Gen. 191. It is significant that the journeymen printers acquiesced in this interpretation for eight years after 1938.

We would reverse.