B-171947, OCT 2, 1974, 54 COMP GEN 251

B-171947, OCT 2, 1974, 54 COMP GEN 251

COURTS - REPORTERS - ADDITIONAL COMPENSATION - MAXIMUM LIMITATION COURT REPORTER WHO SERVED IN DUAL CAPACITY AS COURT REPORTER SECRETARY UNDER AUTHORITY OF 28 U.S.C. 753(A) IS NOT ENTITLED TO ADDITIONAL PAY FOR PERFORMANCE OF SECRETARIAL DUTIES IN EXCESS OF MAXIMUM ESTABLISHED UNDER 28 U.S.C. 753(E) AS IN EFFECT PRIOR TO JUNE 2, 1970. WHILE LANGUAGE OF 753(A) DOES NOT CLEARLY SO LIMIT COMPENSATION FOR COMBINED POSITIONS, THE DERIVATIVE LANGUAGE OF PUBLIC LAW 78-222, WHICH WAS REVISED, CODIFIED AND ENACTED WITHOUT SUBSTANTIVE CHANGE BY PUBLIC LAW 80-773, EXPRESSLY PROVIDED THAT THE SALARY FOR SUCH A COMBINED POSITION WAS TO BE ESTABLISHED SUBJECT TO THE STATUTORILY PRESCRIBED MAXIMUM. FOREIGN DIFFERENTIALS AND OVERSEAS ALLOWANCES - TERRITORIAL COST OF LIVING ALLOWANCE - INCLUSION FOR AGGREGATE LIMITATION PURPOSES - JUDICIAL STAFF MEMBERS DETERMINATION BY JUDICIAL CONFERENCE THAT LIMITATION AT 28 U.S.C. 753(E) ON ANNUAL SALARY PAYABLE TO COURT REPORTERS PRECLUDES PAYMENT OF COST-OF- LIVING ALLOWANCE TO REPORTERS RECEIVING MAXIMUM SALARY IS REASONABLE EXERCISE OF PAYSETTING AUTHORITY GIVEN THE LACK OF ANY INDICATION THAT CONGRESS INTENDED REPORTERS TO RECEIVE COMPENSATION, OTHER THAN TRANSCRIPT FEES, IN EXCESS OF THAT MAXIMUM. DETERMINATION IS IN LINE WITH OUR HOLDING IN B-107827, NOVEMBER 9, 1973, THAT COST-OF LIVING ALLOWANCE PAYABLE TO JUDGES' SECRETARIES AND CLERKS UNDER 28 U.S.C. 604(A)(5) IS SUBJECT TO APPROPRIATIONS LIMITATIONS ON AGGREGATE SALARY. LEAVES OF ABSENCE - COURT REPORTERS - LEAVE ACCRUAL COURT REPORTERS PAID ANNUAL SALARY TO BE ON CALL AS NEEDED BY THE COURT AND FREE OTHERWISE TO AUGMENT INCOME WITH EARNINGS FROM TRANSCRIPT FEES DO NOT HAVE REGULAR TOURS OF DUTY CONSISTING OF A DEFINITE TIME, DAY AND/OR HOUR WHICH THEY ARE REQUIRED TO WORK DURING WORKWEEK AND ARE "PART-TIME" EMPLOYEES EXCLUDED FROM ANNUAL LEAVE ENTITLEMENT BY 5 U.S.C. 6301(2)(II). WHILE COURT REPORTER-SECRETARY MAY BE ENTITLED TO ANNUAL LEAVE FOR SECRETARIAL PORTION OF DUTIES PERFORMED DURING A REGULAR TOUR OF DUTY, RECORD CONTAINS NO CERTIFICATION OF LEAVE EARNINGS AND USE UPON WHICH TO BASE LUMP-SUM LEAVE PAYMENT.

IN THE MATTER OF ADDITIONAL COMPENSATION, ANNUAL LEAVE AND COST-OF LIVING ALLOWANCE, OCTOBER 2, 1974:

BY HIS LETTER OF OCTOBER 23, 1963, MR. JOHN E. BARNES, A FORMER COURT REPORTER EMPLOYED BY THE DISTRICT COURT OF GUAM, HAS APPEALED THE ADMINISTRATIVE DENIAL OF HIS CLAIM FOR ADDITIONAL COMPENSATION FOR PERFORMANCE OF SECRETARIAL DUTIES, FOR A COST-OF-LIVING ALLOWANCE AND FOR ANNUAL LEAVE. IN VIEW OF THE 10-YEAR STATUTE OF LIMITATIONS APPLICABLE TO CLAIMS AGAINST THE GOVERNMENT CONTAINED AT 31 U.S.C. 71A, OUR DETERMINATION AS TO MR. BARNES' ENTITLEMENT IS BASED UPON THE CIRCUMSTANCES OF HIS EMPLOYMENT AFTER NOVEMBER 2, 1962, THE POINT IN TIME 10 YEARS PRIOR TO THE DATE ON WHICH HIS CLAIM WAS RECEIVED BY OUR TRANSPORTATION AND CLAIMS DIVISION.

IN REGARD TO HIS CLAIM FOR ADDITIONAL COMPENSATION, MR. BARNES POINTS OUT THAT FOR A SUBSTANTIAL PERIOD OF TIME HE FUNCTIONED IN THE DUAL CAPACITY OF COURT REPORTER-SECRETARY. THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS HAS CONFIRMED THAT FOR THE PERIODS OCTOBER 29, 1951, TO JANUARY 2, 1954; FEBRUARY 19, 1959, TO JUNE 24, 1961; AND SEPTEMBER 30, 1963, TO SEPTEMBER 23, 1968, MR. BARNES SERVED IN THAT DUAL CAPACITY UNDER THE AUTHORITY OF THE FOLLOWING PROVISION OF 28 U.S.C. 753(A) WHICH PROVIDES IN PART THAT:

IF ANY SUCH COURT AND THE JUDICIAL CONFERENCE ARE OF THE OPINION THAT IT IS IN THE PUBLIC INTEREST THAT THE DUTIES OF REPORTER SHOULD BE COMBINED WITH THOSE OF ANY OTHER EMPLOYEE OF THE COURT, THE JUDICIAL CONFERENCE MAY AUTHORIZE SUCH A COMBINATION AND FIX THE SALARY FOR THE PERFORMANCE OF THE DUTIES COMBINED.

MR. BARNES INDICATES THAT FOR THE FIRST FEW MONTHS OF THE TERM IN WHICH HE SERVED AS COURT REPORTER-SECRETARY HE WAS PAID ADDITIONAL COMPENSATION BASED ON HIS PERFORMANCE OF THOSE SECRETARIAL DUTIES, BUT THAT THEREAFTER HE RECEIVED NO ADDITIONAL COMPENSATION FOR THOSE RESPONSIBILITIES. THUS CLAIMS ENTITLEMENT TO ADDITIONAL COMPENSATION FOR HIS PERFORMANCE OF SECRETARIAL DUTIES THROUGHOUT THE PERIOD THAT HE SERVED IN THAT DUAL CAPACITY.

PRIOR TO OCTOBER 11, 1962, SUBSECTION 753(E) OF TITLE 28 OF THE U.S.C. HAD PROVIDED AS FOLLOWS:

(E) EACH REPORTER SHALL RECEIVE AN ANNUAL SALARY TO BE FIXED FROM TIME TO TIME BY THE JUDICIAL CONFERENCE OF THE UNITED STATES AT NOT LESS THAN $3,000 NOR MORE THAN $7,630 PER ANNUM. ***

PUBLIC LAW 87-793, OCTOBER 11, 1962, 76 STAT. 866, 28 U.S.C. 753 NOTE, AMENDED THAT SUBSECTION OF THE U.S.C. AS FOLLOWS:

(C) SECTION 753(E) OF TITLE 28 OF THE U.S.C. (RELATING TO THE COMPENSATION OF COURT REPORTERS FOR DISTRICT COURTS) IS AMENDED BY STRIKING OUT THE EXISTING SALARY LIMITATION CONTAINED THEREIN AND INSERTING A NEW LIMITATION TO BE EFFECTIVE FOR THE PERIOD BEGINNING AS OF THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER THE DATE OF ENACTMENT OF THIS ACT, AND ENDING IMMEDIATELY PRIOR TO THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER JANUARY 1, 1964, AND A SECOND NEW LIMITATION EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER JANUARY 1, 1964, AND THEREAFTER, WHICH REFLECT THE RESPECTIVE APPLICABLE INCREASES PROVIDED BY TITLE II OF THIS PART IN CORRESPONDING RATES OF COMPENSATION FOR OFFICERS AND EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED.

WE ARE ADVISED BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS THAT ON SEPTEMBER 30, 1963, WHEN MR. BARNES' POSITION WAS DESIGNATED COURT REPORTER-SECRETARY, HIS SALARY WAS INCREASED FROM $7,535 TO $8,310 PER ANNUM. PRIOR TO 1964 WE UNDERSTAND THAT ALL COURT REPORTERS WERE NOT PAID AT THE MAXIMUM RATE PROVIDED UNDER SUBSECTION 753(E) AS AMENDED, BUT THAT REPORTERS IN LESS BUSY DISTRICTS, INCLUDING GUAM, WERE PAID AT A LESSER RATE ESTABLISHED BY THE JUDICIAL CONFERENCE. THE INCREASE RECEIVED BY MR. BARNES IN 1963 THUS REPRESENTS THE DIFFERENCE IN PAY FOR THE POSITION OF COURT REPORTER TO THE DISTRICT COURT OF GUAM AND THE MAXIMUM AMOUNT PAYABLE UNDER SUBSECTION 753(E), AS AMENDED. WE ARE ADVISED THAT THROUGHOUT THE PERIOD PRIOR TO SEPTEMBER 23, 1968, DURING WHICH HE SERVED AS COURT REPORTER-SECRETARY, MR. BARNES RECEIVED COMPENSATION AT THE MAXIMUM RATE PAYABLE UNDER THAT SUBSECTION. THUS, MR. BARNES APPARENTLY IS OF THE OPINION THAT HE IS ENTITLED TO ADDITIONAL COMPENSATION BY REASON OF HIS PERFORMANCE OF SECRETARIAL DUTIES NOTWITHSTANDING THAT HE RECEIVED THE MAXIMUM COMPENSATION PAYABLE UNDER 28 U.S.C. 753(E).

WHILE THE ABOVE-QUOTED LANGUAGE OF SUBPARAGRAPH 753(A), AUTHORIZING THE JUDICIAL CONFERENCE TO COMBINE THE DUTIES OF COURT REPORTER WITH THOSE OF ANY OTHER EMPLOYEE OF THE COURT, DOES NOT CLEARLY LIMIT THE COMPENSATION FOR COMBINED POSITIONS TO THE AMOUNT ALLOWABLE UNDER SUBPARAGRAPH 753(E) AS AMENDED, OUR REVIEW OF THE DERIVATION OF THE LANGUAGE OF THAT SUBSECTION REVEALS THAT THAT LIMITATION ON COMPENSATION IS IN FACT APPLICABLE TO COMBINED POSITIONS. THE LANGUAGE OF THE APPLICABLE PORTION OF SUBSECTION 753(A) IS DERIVED FROM THE FOLLOWING LANGUAGE OF PUBLIC LAW 78-222, JANUARY 20, 1944, 58 STAT. 5:

*** IF THE COURT AND THE JUDICIAL CONFERENCE ARE OF THE OPINION THAT IN ANY DISTRICT IT IS IN THE PUBLIC INTEREST THAT THE DUTIES OF REPORTERS SHOULD BE COMBINED WITH THOSE OF ANY OTHER EMPLOYEE OF THE COURT, THE JUDICIAL CONFERENCE MAY AUTHORIZE SUCH A COMBINATION OF POSITIONS AND FIX THE SALARY THEREFOR, AS PROVIDED BY SUBSECTION (C) HEREOF, ANY PROVISION OF LAW TO THE CONTRARY NOTWITHSTANDING.

SUBSECTION (C), REFERENCED IN THE QUOTATION IMMEDIATELY ABOVE, CONTAINS A $6,000 MAXIMUM UPON THE AMOUNT OF COMPENSATION PAYABLE TO COURT REPORTERS AND IS THE SOURCE OF THE LANGUAGE OF SUBSECTION 753(E), QUOTED ABOVE, WHICH, AS AMENDED, REMAINED IN EFFECT UNTIL SUPERSEDED BY PUBLIC LAW 91- 272, JUNE 2, 1970, 84 STAT. 298, 28 U.S.C. 133 NOTE. THAT LANGUAGE APPEARED IN SUBSTANTIALLY IDENTICAL FORM AT SUBSECTIONS 9AA) AND 9AC) OF TITLE 28 OF THE U.S.C. UNTIL THAT TITLE WAS REVISED, CODIFIED AND ENACTED INTO LAW BY PUBLIC LAW 80-773, JUNE 25, 1948, 62 STAT. 869. BY THAT ENACTMENT, SUBSECTION 9AA) WAS REDESIGNATED SUBSECTION 753(A) AND THE WORDS "FOR THE PERFORMANCE OF THE DUTIES COMBINED" WERE SUBSTITUTED FOR "THEREOF, AS PROVIDED BY SUBSECTION (C) HEREOF, ANY PROVISION OF LAW TO THE CONTRARY NOTWITHSTANDING." SINCE IT IS WELL ESTABLISHED THAT THE EFFECT OF A CODIFICATION STATUTE IS TO LEAVE THE EFFECTED STATUTE SUBSTANTIVELY UNCHANGED, THE LANGUAGE OF SUBPARAGRAPH 753(E) AS IN EFFECT PRIOR TO JUNE 2, 1970, IS TO BE CONSTRUED IN LIGHT OF THE PARTICULAR LANGUAGE OF THE STATUTE FROM WHICH IT IS DERIVED. FOURCO GLASS CO. V. TRANSMIRRA PRODUCTS CORP., 353 U.S. 222, 227 (1957).

IN LIGHT OF THE LEGISLATIVE HISTORY OF SECTION 753 IT APPEARS THAT PRIOR TO JUNE 2, 1970, A COURT REPORTER WHOSE POSITION WAS COMBINED WITH THAT OF ANOTHER EMPLOYEE OF THE COURT COULD HAVE BEEN PAID NO MORE THAN THE MAXIMUM COMPENSATION PAYABLE UNDER SUBSECTION 753(E). SINCE MR. BARNES RECEIVED COMPENSATION AT THE MAXIMUM ALLOWABLE RATE AFTER 1964, WE FIND NO BASIS FOR PAYMENT TO HIM OF ANY ADDITIONAL AMOUNT AS CONSIDERATION FOR HIS PERFORMANCE OF SECRETARIAL FUNCTIONS.

AS A BASIS FOR HIS CLAIM FOR A COST-OF-LIVING ALLOWANCE IN CONNECTION WITH HIS POSITION WITH THE DISTRICT COURT OF GUAM, MR. BARNES STATES THAT IT IS HIS UNDERSTANDING THAT, WITH THE EXCEPTION OF COURT REPORTERS, ALL COURT EMPLOYEES IN HAWAII, ALASKA, THE VIRGIN ISLANDS AND AMERICAN SAMOA RECEIVE A COST-OF-LIVING ALLOWANCE. HE URGES THAT THE NONPAYMENT OF SUCH AN ALLOWANCE TO REPORTERS IN GUAM WHO SERVE IN A DUAL CAPACITY IS DISCRIMINATORY.

THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS HAS REPORTED THAT THE JUDICIAL CONFERENCE VIEWED THE MAXIMUM LIMITATION ON SALARY CONTAINED AT 28 U.S.C. 753(E) PRIOR TO JUNE 2, 1970, DISCUSSED ABOVE, AS PRECLUDING PAYMENT OF A COST-OF-LIVING ALLOWANCE WHICH WOULD RESULT IN A COURT REPORTER'S RECEIVING COMPENSATION IN EXCESS OF THAT LIMITATION. WE ARE ADVISED THAT SINCE THAT DATE, WITH THE ENACTMENT OF PUBLIC LAW 91-272, WHICH REMOVED THE MAXIMUM SALARY LIMITATION, THE JUDICIAL CONFERENCE HAS RECOMMENDED THAT COURT REPORTERS OVERSEAS BE ALLOWED THE USUAL COST-OF- LIVING ALLOWANCE. THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, IN CONFORMANCE WITH THIS RECOMMENDATION, REQUESTED THE NECESSARY FUNDS FROM CONGRESS BUT THEY HAVE NOT YET BEEN APPROPRIATED. WE ALSO NOTE THAT S. 2791, 93D CONGRESS, IF ENACTED, WOULD EXPRESSLY PROVIDE FOR PAYMENT OF A COST-OF-LIVING ALLOWANCE TO OFFICERS AND EMPLOYEES OF THE JUDICIAL BRANCH OF THE GOVERNMENT, INCLUDING COURT REPORTERS STATIONED OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA.

THE PAYMENT OF A COST-OF-LIVING ALLOWANCE TO SECRETARIES AND LAW CLERKS OF DISTRICT AND CIRCUIT COURT JUDGES IS THE SUBJECT OF OUR RECENT DECISION, B-107827, NOVEMBER 9, 1973, AFFIRMING OUR PRIOR HOLDING IN 31 COMP. GEN. 466 (1952) THAT THE COST-OF-LIVING ALLOWANCE PAYABLE TO THOSE EMPLOYEES UNDER 28 U.S.C. 604(A)(5) IS TO BE REGARDED AS "ADDITIONAL COMPENSATION." THAT DETERMINATION TURNED ON THE FACT THAT THE COST-OF- LIVING ALLOWANCE PAID TO COURT EMPLOYEES UNDER 28 U.S.C. 604(A)(5) IS PAID IN ACCORDANCE WITH THE AUTHORITY PROVIDED BY SECTION 207 OF THE ACT OF APRIL 20, 1948, AS AMENDED BY SECTION 104 OF THE ACT OF JUNE 30, 1948, 62 STAT. 1205, NOW CODIFIED IN 5 U.S.C. 5941 FOR PAYMENT TO CIVILIAN EMPLOYEES OF THE EXECUTIVE DEPARTMENTS OF ADDITIONAL COMPENSATION BASED ON LIVING COSTS SUBSTANTIALLY HIGHER THAN IN THE DISTRICT OF COLUMBIA. THERE HELD THAT BY VIRTUE OF THE LANGUAGE OF JUDICIAL APPROPRIATION ACTS THROUGH AND INCLUDING THAT OF OCTOBER 25, 1972, PUBLIC LAW 92-544, 86 STAT. 1109, WHICH HAD CONSISTENTLY PRESCRIBED LIMITATIONS ON THE "AGGREGATE SALARIES" PAYABLE TO SECRETARIES AND LAW CLERKS, THE COST-OF- LIVING ALLOWANCE IS TO BE CONSIDERED IN COMPUTING THAT AGGREGATE AMOUNT. THUS, PRIOR TO JUNE 2, 1970, A SECRETARY OR LAW CLERK WHOSE BASE PAY EQUALED THAT AGGREGATE LIMITATION COULD NOT RECEIVE A COST-OF-LIVING ALLOWANCE SINCE HIS RECEIPT OF ANY ADDITIONAL COMPENSATION WOULD RESULT IN PAYMENT OF AN AGGREGATE SALARY IN EXCESS OF THE LIMITATION AMOUNT SET BY STATUTE.

IN THE CASE OF COURT REPORTERS, A COST-OF-LIVING ALLOWANCE IS PAYABLE UNDER THE PAY-SETTING AUTHORITY OF 28 U.S.C. 753(E), QUOTED ABOVE. PREVIOUSLY DISCUSSED, THAT SUBSECTION, PRIOR TO OCTOBER 11, 1962, PROVIDED FOR AN ANNUAL SALARY OF NOT MORE THAN $7,630 PER ANNUM. UNTIL JUNE 2, 1970, AMENDMENTS TO THAT SUBSECTION PROVIDED FOR A MAXIMUM ANNUAL SALARY TO BE ESTABLISHED BY ADMINISTRATIVE ACTION. THE JUDICIAL CONFERENCE HAS CONSTRUED THAT LIMITATION ON PAYMENT OF ANNUAL SALARY FOR COURT REPORTERS AS THE EQUIVALENT OF THE AGGREGATE SALARY LIMITATION APPLICABLE TO SECRETARIES AND LAW CLERKS.

WHILE THE LIMITING STATUTORY LANGUAGE APPLICABLE TO COURT REPORTERS IS LESS DEFINITIVE THAN THE LANGUAGE REGARDING AGGREGATE SALARY PAYABLE TO SECRETARIES AND LAW CLERKS, OUR REVIEW OF THE LEGISLATIVE HISTORY OF 28 U.S.C. 753(E) SHOWS THE JUDICIAL CONFERENCE'S PARALLEL CONSTRUCTION OF THAT LANGUAGE TO BE REASONABLE. WITH THE SINGLE EXCEPTION OF TRANSCRIPT FEES WHICH ARE SPECIFICALLY PROVIDED FOR BY STATUTE, WE FIND NO INDICATION THAT IT WAS CONTEMPLATED THAT COURT REPORTERS WOULD RECEIVE ANY COMPENSATION IN EXCESS OF THE STATUTORILY PRESCRIBED MAXIMUM. THUS, THE CONSTRUCTION PLACED ON THAT LIMITING LANGUAGE BY THE JUDICIAL CONFERENCE APPEARS TO BE REASONABLE AND CONSISTENT WITH THE ADMINISTRATION OF PAY PROVISIONS APPLICABLE TO OTHER COURT EMPLOYEES. IN VIEW OF THE WELL- ESTABLISHED RULE THAT GREAT DEFERENCE IS TO BE PAID THE CONTEMPORANEOUS CONSTRUCTION OF A STATUTE BY THE AGENCY VESTED WITH THE PRINCIPAL AUTHORITY FOR ITS ADMINISTRATION, WE FIND NO BASIS FOR PAYMENT OF A COST- OF-LIVING ALLOWANCE TO COURT REPORTERS WHO RECEIVED COMPENSATION AT THE MAXIMUM RATE PRESCRIBED IN ACCORDANCE WITH 28 U.S.C. 753(E) PRIOR TO JUNE 2, 1970.

IN REGARD TO THE FINAL PORTION OF HIS CLAIM - THAT FOR ANNUAL LEAVE - MR. BARNES STATES THAT COURT REPORTERS HAVE NOT BEEN AFFORDED THE BENEFITS OF ANNUAL LEAVE BECAUSE OF A DECISION OF THIS OFFICE HOLDING THAT THEY ARE PART-TIME OR INTERMITTENT EMPLOYEES. MR. BARNES TAKES EXCEPTION TO ANY FINDING THAT COURT REPORTERS ARE OTHER THAN FULL-TIME EMPLOYEES. POINTS OUT THAT THEY ARE PAID AN ANNUAL SALARY TO BE AVAILABLE TO REPORT ALL COURT PROCEEDINGS AND THAT THEY ARE ENTITLED TO BE AWAY FROM DUTY ONLY WHEN THE JUDGE FOR WHOM THEY ARE WORKING IS ON LEAVE OR ATTENDING A JUDICIAL CONFERENCE. WHILE MR. BARNES DOES NOT STATE THAT HE WAS NOT ALLOWED ANY LEAVE, HE DOES INDICATE THAT HE WAS UNABLE TO TAKE LEAVE ON AT LEAST THOSE OCCASIONS WHEN THE JUDGE FOR WHOM HE WORKED WAS ATTENDING CONFERENCES SINCE DURING SUCH PERIODS HE WAS ASSIGNED TO WORK FOR A VISITING JUDGE.

MR. BARNES' REFERENCE TO A DECISION BY THIS OFFICE IN REGARD TO LEAVE ENTITLEMENTS OF COURT REPORTERS IS APPARENTLY TO OUR DECISION 25 COMP. GEN. 185 (1945) CONCERNING, IN PART, THE APPLICATION OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161. REGULATIONS IN EFFECT AT THE TIME OF THAT DECISION, ISSUED PURSUANT TO THE AUTHORITY CONTAINED AT SECTION 7 OF THAT ACT, EXCLUDED "PART-TIME OR INTERMITTENT EMPLOYEES." CONSIDERING THE APPLICABILITY OF THAT EXCLUSION TO COURT REPORTERS, WE EXAMINED THE STATUTORY PROVISIONS FOR EMPLOYMENT OF COURT REPORTERS AS ADDED BY PUBLIC LAW 78-222, REFERENCED ABOVE, AND CONCLUDED AS FOLLOWS: WHILE THOSE STATUTORY PROVISIONS PROVIDE FOR PERMANENT APPOINTMENT OF COURT REPORTERS WITH AN ANNUAL SALARY AND WITH THE PRIVILEGE OF COLLECTING FEES FROM PRIVATE PARTIES AND FROM THE GOVERNMENT - CONSTITUTING COURT REPORTERS "PERMANENT EMPLOYEES" AS THAT TERM ORDINARILY IS USED - NEVERTHELESS, THEIR DUTIES AS PRESCRIBED BY THE STATUTE DO NOT REQUIRE THEM TO BE "CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY" WITHIN THE MEANING OF THESE WORDS AS USED IN SECTION 6.1(E) OF THE LEAVE REGULATION WHICH HAS BEEN ISSUED PURSUANT TO LAW AND THEREFORE HAS THE FORCE AND EFFECT OF LAW. THAT IS, THE 1944 STATUTE DOES NOT AUTHORIZE OR REQUIRE THAT A REGULAR TOUR OF DUTY FOR ALL COURT REPORTERS BE ESTABLISHED, BUT MAKES EACH INDIVIDUAL COURT REPORTER SUBJECT TO THE CALL OF THE COURT WHEN HIS SERVICES ARE NEEDED. IT IS BELIEVED THE STATUTE HAS RECOGNIZED THAT THE NATURE OF THE DUTIES OF COURT REPORTERS IS SUCH AS TO BE INCONSISTENT WITH THE GRANTING OF LEAVE OF ABSENCE WITH PAY. IT IS CONCLUDED, THEREFORE, THAT COURT REPORTERS EMPLOYED UNDER THE 1944 STATUTE ARE NOT FULL-TIME EMPLOYEES, BUT RATHER, PART-TIME OR INTERMITTENT EMPLOYEES, WITHIN THE MEANING OF THE LEAVE REGULATION AND, AS SUCH, ARE EXCLUDED FROM THE BENEFIT OF RECEIVING LEAVE OF ABSENCE WITH PAY UNDER THE ANNUAL LEAVE STATUTE AND REGULATIONS THEREUNDER.

OUR DECISION IN THAT CASE RELIED UPON THE LANGUAGE OF THE REGULATIONS IMPLEMENTING THE 1936 LEAVE ACT. THAT ACT WAS SUPERSEDED BY THE ANNUAL AND SICK LEAVE ACT OF 1951, TITLE II OF PUBLIC LAW 82-233, OCTOBER 30, 1951, 65 STAT. 679, WHICH EXPRESSLY EXCLUDES FROM COVERAGE "PART-TIME OFFICERS AND EMPLOYEES *** FOR WHOM THERE HAS NOT BEEN ESTABLISHED A REGULAR TOUR OF DUTY DURING EACH ADMINISTRATIVE WORKWEEK." SUBSTANTIALLY THE IDENTICAL EXCLUSIONARY LANGUAGE HAS APPEARED IN TITLE 5 OF THE U.S.C. SINCE 1951 AND NOW APPEARS AT 5 U.S.C. 6301 (2)(II) AMONG THE DEFINITIONS APPLICABLE TO THE ANNUAL AND SICK LEAVE PROVISIONS OF SUBCHAPTER I OF CHAPTER 63.

IN INTERPRETING THE PARTICULAR LANGUAGE HERE IN QUESTION AS ADDED BY THE 1951 ACT, WE HELD AT 31 COMP. GEN. 581, 584 (1952) THAT FOR THE PURPOSE OF DETERMINING THE RIGHT OF A PART-TIME EMPLOYEE TO EARN LEAVE THE REQUIREMENT THAT HE HAVE A "REGULAR TOUR OF DUTY DURING EACH ADMINISTRATIVE WORKWEEK" CONTEMPLATES A DEFINITE AND CERTAIN TIME, DAY AND/OR HOUR OF ANY DAY DURING THE WORKWEEK WHEN THE EMPLOYEE WILL REGULARLY BE REQUIRED TO PERFORM DUTY. CF. 32 COMP. GEN. 206 (1952). EMPLOYEE WHO IS EMPLOYED ON A PART-TIME BASIS BUT WHO HAS A REGULAR TOUR OF DUTY, AS EXPLAINED ABOVE, IS ENTITLED TO ANNUAL LEAVE BENEFITS ON A PRO RATA BASIS IN ACCORDANCE WITH THE PROVISION THEREFOR AT 5 U.S.C. 6302(C), 32 COMP. GEN. 490 (1952). CONSISTENT WITH THIS SECTION 630.303 OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS PROVIDES:

A PART-TIME EMPLOYEE FOR WHOM THERE HAS BEEN ESTABLISHED IN ADVANCE A REGULAR TOUR OF DUTY ON 1 OR MORE DAYS DURING EACH ADMINISTRATIVE WORKWEEK, AND AN HOURLY EMPLOYEE IN THE FIELD SERVICE OF THE U.S. POSTAL SERVICE EARN ANNUAL LEAVE AS FOLLOWS:

(A) AN EMPLOYEE WITH LESS THAN 3 YEARS OF SERVICE EARNS 1 HOUR OF ANNUAL LEAVE FOR EACH 20 HOURS IN A PAY STATUS.

(B) AN EMPLOYEE WITH 3 BUT LESS THAN 15 YEARS OF SERVICE EARNS 1 HOUR OF ANNUAL LEAVE FOR EACH 13 HOURS IN A PAY STATUS.

(C) AN EMPLOYEE WITH 15 YEARS OR MORE OF SERVICE EARNS 1 HOUR OF ANNUAL LEAVE FOR EACH 10 HOURS IN A PAY STATUS.

OUR INTERPRETATION OF THE APPLICABILITY OF THE LEAVE PROVISIONS OF THE 1951 ACT, AS AMENDED, TO PART-TIME EMPLOYEES HAS BEEN AFFIRMED BY THE COURT OF CLAIMS IN JOHN T. LEMILY V. UNITED STATES, 190 CT. CL. 57 (1969). THERE, IN GREAT DETAIL, THE COURT EXAMINED THE EVOLUTION OF THE LANGUAGE OF THE 1951 ACT PERTAINING TO PART-TIME EMPLOYEES AND THEIR PRO RATA ENTITLEMENT TO ANNUAL LEAVE BENEFITS. FINDING THAT THE LANGUAGE OF THE PARTICULAR PROVISIONS OF THE 1951 ACT HAD SUCCEEDED PUBLIC LAW 81-316, OCTOBER 5, 1949, 63 STAT. 703, EXTENDING PRO RATA ANNUAL AND SICK LEAVE BENEFITS UNDER THE 1936 ACT TO PART-TIME OFFICERS OR EMPLOYEES WITH ESTABLISHED REGULAR TOURS OF DUTY COVERING NOT LESS THAN 5 DAYS IN ANY ADMINISTRATIVE WORKWEEK, THE COURT STATED AS FOLLOWS:

THUS, IT IS SEEN THAT ON ITS FACE THE PART-TIME EMPLOYEE LEAVE EXCLUSION PROVISION OF THE ANNUAL AND SICK LEAVE ACT OF 1951 REPRESENTS A REENACTMENT OF PRIOR LAW EXCEPT FOR THE ELIMINATION, FOR REASONS UNDISCLOSED, OF THE 5-DAY INGREDIENT IN THE DEFINITION OF A TOUR OF DUTY. THERE IS NO EVIDENCE OF A LEGISLATIVE INTENT TO OTHERWISE ALTER OR RELAX THE BASIC CONCEPT OF A TOUR OF DUTY AS REPRESENTING A SPECIFIC PERIOD OF TIME, REGULARLY ESTABLISHED IN ADVANCE, DURING WHICH AN EMPLOYEE IS UNEQUIVOCALLY REQUIRED TO WORK. IN SHORT, EXCEPT FOR THE DIRECT EFFECT OF ELIMINATING THE 5-DAY FEATURE, THERE IS NO LEGITIMATE BASIS TO IMPUTE TO CONGRESS A MORE LIBERAL LEAVE POLICY TOWARDS PART TIME EMPLOYEES UNDER THE 1951 ACT THAN IT SPECIFICALLY ANNOUNCED IN 1949 WHEN IT FIRST ACCORDED LEAVE TO THAT GROUP BY AMENDING THE LEAVE ACT OF MARCH 14, 1936, SUPRA. THIS IS ESPECIALLY SO WHEN IT IS RECOGNIZED THAT, AS PREVIOUSLY NOTED, THE 1951 ACT WAS REGARDED AS AN ECONOMY MEASURE WHOSE STATED PURPOSE WAS TO NARROW, NOT LIBERALIZE, LEAVE PRIVILEGES GENERALLY.

THE PART-TIME EMPLOYEE LEAVE REGULATIONS OF THE CIVIL SERVICE COMMISSION, IN PRESCRIBING THAT A TOUR OF DUTY MAY CONSIST OF AS LITTLE AS A SPECIFIED WORK PERIOD DURING ONLY ONE DAY OF A WORKWEEK, HAVE INTERPRETED SECTION 202(B)(1)(B) OF THE 1951 ACT IN THE MOST LIBERAL LIGHT PERMISSIBLE. C.F.R. SEC. 30.501 (REV. AS OF JAN. 1961), 5 C.F.R. SEC. 630.303 (REV. AS OF JAN. 1964).

WE ARE ADVISED BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS THAT COURT REPORTERS' DUTIES CONTINUE TO BE PERFORMED IN ACCORDANCE WITH THE AUTHORITY OF PUBLIC LAW 78-222 CONSIDERED IN OUR DECISION AT 25 COMP. GEN. 185 (1945), DISCUSSED ABOVE, AND IN THE SAME MANNER DISCUSSED IN THAT DECISION, AND THAT THE DAY-TO-DAY VARIANCE IN COURTS' SCHEDULES PRECLUDE ESTABLISHING A DEFINITE DAY OR HOUR OF ANY DAY OF PRESCRIBED WORK FOR REPORTERS. WHILE MR. BARNES HAS INDICATED THAT HE WAS REQUIRED TO BE AVAILABLE TO REPORT ALL COURT PROCEEDINGS, HE AFFIRMS THAT THE SITUATION WITH RESPECT TO HIS TOUR OF DUTY AS A COURT REPORTER WAS VIRTUALLY IDENTICAL TO THAT CONSIDERED IN OUR PRIOR DECISION. SPECIFICALLY, MR. BARNES WAS FREE WHEN THE COURT DID NOT REQUIRE HIS SERVICES TO PRACTICE HIS PROFESSION PRIVATELY AND AUGMENT HIS ANNUAL SALARY INCOME BY EARNINGS FROM THE SALE OF TRANSCRIPTS TO PRIVATE PARTIES. NEITHER THE PARTICULAR HOURS THAT HE WAS FREE TO PURSUE HIS PRIVATE PROFESSION NOR THE HOURS HE WAS REQUIRED TO PROVIDE SERVICES FOR THE COURT COULD BE DETERMINED OR DESIGNATED IN ADVANCE. WE THEREFORE FIND NO BASIS FOR CONCLUDING THE HOLDING AT 25 COMP. GEN. 185 (1945) IS NO LONGER APPLICABLE TO COURT REPORTERS.

IN REGARD TO MR. BARNES' CLAIM FOR ANNUAL LEAVE BENEFITS, WE POINT OUT, HOWEVER, THAT OUR HOLDING AT 25 COMP. GEN. 185 (1945) IS NOT STRICTLY CONTROLLING IN THE CASE OF A COURT REPORTER WHOSE DUTIES, LIKE MR. BARNES' FOR THE PERIOD FROM SEPTEMBER 30, 1963, TO SEPTEMBER 23, 1968, ARE COMBINED WITH SECRETARIAL DUTIES. IN CAIN V. UNITED STATES, 77 F. SUPP. 505 (1948), THE COURT HELD THAT SECRETARIES AND LAW CLERKS TO JUDGES WHO ARE OBLIGED TO OBSERVE FIXED SCHEDULES OF ATTENDANCE ARE ENTITLED TO ANNUAL LEAVE WHERE THE EMPLOYING JUDGE CERTIFIES THAT SUCH LEAVE HAS IN FACT ACCRUED. ON THE BASIS OF THAT DECISION WE RECOGNIZED IN B-86699, JUNE 14, 1949, AND JULY 20, 1949, THAT A COURT REPORTER SECRETARY MIGHT BE ENTITLED TO LEAVE BENEFITS IF IN FACT THAT EMPLOYEE WORKED A REGULAR TOUR OF DUTY EACH WEEK. THAT DECISION WAS RENDERED PRIOR TO THE REVISION OF THE LEAVE LAWS BY THE 1951 ACT AUTHORIZING PRO RATA LEAVE ENTITLEMENTS TO PART-TIME EMPLOYEES WITH REGULAR TOURS OF DUTY. UNDER THAT LAW AS PRESENTLY IN EFFECT A COURT REPORTER WHO SERVES IN ADDITION AS A SECRETARY ON A REGULAR TOUR OF DUTY AS DEFINED AT 5 CFR 630.303 WOULD BE TECHNICALLY ENTITLED TO PRO RATA LEAVE BENEFITS ON THE BASIS OF THOSE SECRETARIAL DUTIES. HOWEVER, BECAUSE THE LEAVE HE EARNED IN CONNECTION WITH THOSE SECRETARIAL DUTIES COULD BE USED ONLY FOR THE PURPOSE OF ABSENTING HIM FROM THOSE REGULARLY SCHEDULED SECRETARIAL DUTIES AND NOT FOR THE PURPOSE OF EXCUSING HIM FROM THE REQUIREMENT THAT HE BE AVAILABLE WHEN THE COURT REQUIRES HIS SERVICES AS A REPORTER, THE TECHNICAL LEAVE ENTITLEMENTS OF REPORTERS HOLDING SUCH DUAL POSITIONS ARE MORE A MATTER OF FORM THAN SUBSTANCE AS WELL AS BEING EXTREMELY DIFFICULT TO ADMINISTER. IN GENERAL, IT APPEARS THAT A COURT REPORTER-SECRETARY WOULD BENEFIT MORE BY HAVING HIS COMBINED POSITION ADMINISTERED FOR LEAVE PURPOSES IN THE SAME MANNER AS INDIVIDUALS SERVING SOLELY AS REPORTERS.

IN MR. BARNES' PARTICULAR CASE, THE JUDGE FOR WHOM HE WORKED WAS ADVISED THAT HIS DUAL POSITION COULD BE ADMINISTERED UNDER THE LEAVE LAWS. LETTER OF FEBRUARY 12, 1959, THE CHIEF, DIVISION OF PERSONNEL, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, ADVISED THE CLERK FOR THE DISTRICT COURT OF GUAM AS FOLLOWS:

IT HAS NOT BEEN THE PRACTICE TO ALLOW CREDIT UNDER THE LEAVE LAWS TO A COURT REPORTER WHO ALSO SERVES AS SECRETARY TO A JUDGE FOR THAT PORTION OF HIS TIME THAT IS DEVOTED TO SECRETARIAL DUTIES. IN OUR OPINION SUCH A PROCEDURE WOULD BE IMPRACTICAL BECAUSE IN ORDER TO BECOME ENTITLED TO THE BENEFITS OF THE LEAVE LAWS, IT IS NECESSARY THAT LEAVE RECORDS BE KEPT SO THAT LEAVE IN EXCESS OF THE AMOUNT PERMITTED WILL NOT BE TAKEN AND SO THAT THERE MAY BE AN ACCURATE BASIS FOR THE COMPUTATION OF THE SUMS DUE FOR UNUSED LEAVE WHEN THE EMPLOYEE LEAVES THE GOVERNMENT SERVICE. WE FEEL THAT IT WOULD BE EXTREMELY DIFFICULT FOR JUDGES TO KEEP SUCH A RECORD FOR A SINGLE EMPLOYEE ON THE BASIS OF AN ALLOCATION OF ONLY PART OF HIS DUTIES TO THE LEAVE LAW REQUIREMENTS. IT WOULD BE IMPOSSIBLE TO MAINTAIN SUCH A RECORD WITHOUT CONSTANT REGARD FOR SUCH CONSIDERATIONS AS THE DETERMINATION OF THE PROPER ALLOCATION OF TIME IN CONNECTION WITH THE FOLLOWING: (A) TIME WHEN TRANSCRIPTS WERE BEING PREPARED; (B) TIME WHILE SERVING AS SECRETARY TO THE JUDGE; AND (C) TIME SPENT ANSWERING HIS TELEPHONE.

HOWEVER, IF JUDGE GILMARTIN WISHES MR. BARNES TO ABIDE BY THE LEAVE REGULATIONS AND TO KEEP LEAVE RECORDS IN ACCORDANCE WITH THE ENCLOSED MEMORANDUM REGARDING LEAVE FOR SECRETARIES AND LAW CLERKS TO JUDGES, DATED SEPTEMBER 29, 1958, MR. BARNES SHOULD NOT ENGAGE IN PRIVATE WORK DURING REGULAR OFFICE HOURS. FURTHER, MR. BARNES SHOULD BE ON OFFICIAL DUTY, EITHER FOR THE PERFORMANCE OF WORK AS OFFICIAL COURT REPORTER OR AS THE JUDGE'S SECRETARY AT ALL TIMES DURING REGULAR OFFICE HOURS ON A FORTY-HOUR A WEEK BASIS, JUST AS A SECRETARY WHO HAS NO OTHER DUTIES WOULD BE.

SINCE THE CIRCUMSTANCES OF MR. BARNES' PARTICULAR SITUATION WILL DETERMINE WHETHER OR NOT HE FALLS IN THE CATEGORY OF A REPORTER ALONE OR IN THAT OF A SECRETARY SO FAR AS LEAVE REGULATIONS ARE CONCERNED, IT WOULD BE APPRECIATED IF YOU WOULD ADVISE US OF JUDGE GILMARTIN'S VIEWS OF THE PROPOSED STATUS OF MR. BARNES.

MR. BARNES' POSITION AS COURT REPORTER-SECRETARY WAS NOT IN FACT ADMINISTERED UNDER THE LEAVE ACT AND HE APPARENTLY WAS AFFORDED LEAVE WHEN THE JUDGE FOR WHOM HE WORKED WAS ON VACATION AND AS THE COURT'S SCHEDULE OTHERWISE PERMITTED WHEN HE DID NOT CHOOSE TO PRIVATELY PURSUE HIS PROFESSION. SINCE MR. BARNES HAS NOT PRESENTED EVIDENCE THAT HE WORKED A REGULAR TOUR OF DUTY EITHER AS SECRETARY OR IN HIS DUAL CAPACITY AS COURT REPORTER-SECRETARY AND HAS NOT PROVIDED A CERTIFICATION FROM EITHER THE JUDGE FOR WHOM HE WORKED OR THE CLERK OF THE COURT AS TO THE AMOUNT OF ACCRUED ANNUAL LEAVE TO HIS CREDIT AT THE TIME OF HIS SEPARATION FROM HIS POSITION AS COURT REPORTER WITH THE DISTRICT COURT OF GUAM ON JUNE 29, 1973, THERE IS NO BASIS FOR PAYMENT TO HIM OF A LUMP-SUM PAYMENT FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE UNDER 5 U.S.C. 5551.