
    DANIEL M. PARMENTER v. THE UNITED STATES
    [No. 48567.
    Decided April 7, 1953.
    Defendant’s motion for reconsideration overruled June 2, 1953]
    
      
      Mr. Bay B. Murdoch for tlie plaintiff.
    
      Mr. Kendall M. Barnes, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant.
   MaddeN, Judge,

delivered the opinion of the court:

The plaintiff, during the period here involved, was a non-operating employee of the Alaska Railroad, an agency of the Government of the United States. He began to work for the railroad on April 21, 1937. His claim is for overtime pay under Section 23 of the Act of March 28, 1934. In Poggas v. United States, 118 C. Cls. 385, we held that that Act was applicable to non-operating employees of the Alaska Railroad., The Government urges that that decision was wrong, but we adhere to it.

The Government also seeks to distinguish the plaintiff’s case from the Poggas case, in that the plaintiff accepted employment with the railroad in 1937, at which time the Comptroller General’s ruling of July 13, 1934, to the effect that Section 23 was not applicable to employees of the railroad, was being followed and the employees were not receiving the benefits of Section 23. In the Poggas case we reviewed the history of the administration of Section 23, and the litigation concerning it in this court and the Supreme Court of the United States. If Section 23 applied to the employees of the railroad, as we held in the Poggas case that it did, an employee could not contract away the benefits of the statute, nor estop himself from claiming them by accepting employment at a time when it was assumed that the statute did not apply to him.

The plaintiff is entitled to recover. Entry of judgment will be suspended to await the filing of a stipulation of the parties showing the amount due the plaintiff. If the parties cannot, with reasonable expedition, agree upon a stipulation, that fact should be reported to the court.

It is so ordered.

Howell, Judge; Whitakek, Judge; Littleton, Judge; and Jones, Chief Judge, concur.

In accordance with the above opinion, on a stipulation by the parties judgment for the plaintiff was entered on June 2, 1953, for $3,283.44.  