B-147203, JAN. 7, 1963

B-147203, JAN. 7, 1963

TO MR. EUGENE C. SAUER:

ON AUGUST 25, 1961, YOU SUBMITTED A CLAIM FOR A LUMP SUM LEAVE PAYMENT WHICH YOU BELIEVE IS DUE YOU UNDER THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AS AMENDED, 5 U.S.C. 61B, INCIDENT TO YOUR SEPARATION BY RETIREMENT FROM EMPLOYMENT WITH THE UNITED STATES COURT OF CLAIMS ON MAY 31, 1961. FURTHER ARGUMENTS IN SUPPORT OF YOUR CLAIM WERE SET FORTH IN YOUR LETTERS OF MARCH 28, MAY 17, AUGUST 25, AND DECEMBER 13. 1962.

YOUR CLAIM IS BASED UPON THE REFUSAL OF THE COURT OF CLAIMS TO CREDIT YOU WITH THE 89 DAYS AND 2 HOURS OF ANNUAL LEAVE TO YOUR CREDIT WHEN YOU TRANSFERRED TO THE COURT FROM THE DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, IN OCTOBER 1944. YOU HAVE SUBMITTED CLAIMS FOR PAYMENT IN LIEU OF THAT LEAVE ON TWO OCCASIONS. YOUR FIRST CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF APRIL 25, 1945, BECAUSE THE TRANSFER IN QUESTION HAD OCCURRED BEFORE THE ENACTMENT OF THE LUMP SUM LEAVE ACT, THE ACT OF DECEMBER 21, 1944, SUPRA, AND THE PROVISION IN THAT ACT AUTHORIZING A LUMP SUM PAYMENT TO EMPLOYEES UPON TRANSFER BETWEEN AGENCIES HAVING DIFFERENT LEAVE SYSTEMS COULD NOT BE APPLIED RETROACTIVELY. YOUR SECOND CLAIM WAS SUBMITTED AFTER YOU HAD BEEN DETAILED TO WORK WITH THE DEPARTMENT OF JUSTICE FOR A SHORT PERIOD OF TIME. THAT CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF JANUARY 15, 1948, BECAUSE YOU HAD REMAINED AN EMPLOYEE OF THE COURT OF CLAIMS DURING THE DETAIL AND, THEREFORE, COULD NOT CLAIM THE BENEFITS OF THE 1944 ACT ON THE BASIS OF A TRANSFER BETWEEN THE DEPARTMENT OF JUSTICE AND THE COURT OF CLAIMS INCIDENT TO THAT DETAIL.

YOUR PRESENT CLAIM IS BASED UPON THE ACT OF MARCH 14, 1936, 49 STAT. 1146 --- THE 1936 LEAVE ACT--- AND UPON EXECUTIVE ORDER NO. 9414, WHICH WAS PROMULGATED THEREUNDER. SECTION 4.9A OF THAT EXECUTIVE ORDER REQUIRES THE TRANSFER OF AN EMPLOYEE'S ACCUMULATED ANNUAL LEAVE WHEN SUCH EMPLOYEE TRANSFERS BETWEEN AGENCIES SUBJECT TO THE 1936 LEAVE ACT. YOU HAVE COMPUTED THE AMOUNT OF YOUR CLAIM UNDER THE 1944 LUMP SUM LEAVE ACT USING THE NUMBER OF DAYS OF ANNUAL LEAVE THAT WOULD HAVE REMAINED TO YOUR CREDIT AT THE TIME OF RETIREMENT HAD THE COURT OF CLAIMS CREDITED YOU WITH THE LEAVE YOU ACCUMULATED AS AN EMPLOYEE OF THE FEDERAL BUREAU OF INVESTIGATION.

THE 1936 ANNUAL LEAVE ACT IS SILENT WITH RESPECT TO THE QUESTION OF TRANSFER OF LEAVE. THE COURT OF CLAIMS THROUGH THE YEARS HAS NEVER ACCEPTED FOR CREDIT ANNUAL LEAVE WHICH EMPLOYEES MAY HAVE ACCUMULATED WITH AN EXECUTIVE DEPARTMENT, AND WE UNDERSTAND THIS POLICY WAS MADE KNOWN TO YOU AT THE TIME YOU COMMENCED EMPLOYMENT WITH THE COURT. THE REPORT OF THE CLERK OF THE COURT INFORMS US THAT NO ACTION WAS EVER TAKEN BY THE JUDICIAL CONFERENCE WITH RESPECT TO EXECUTIVE ORDER NO. 9414 AUTHORIZING SUCH TRANSFERS. MOREOVER, THE CLERK REPORTS TO US THAT PERSONS TRANSFERRING TO THE COURT FROM THE EXECUTIVE DEPARTMENTS SINCE THE LUMP SUM LEAVE ACT HAVE BEEN RECEIVING LUMP SUM PAYMENTS FOR THEIR ACCRUED LEAVE. ALSO, THE REPORT SAYS THERE IS NO RECORD OF LEAVE EARNED AND USED BY YOU FOR THE YEARS 1944 TO 1952.

THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE NOT REQUIRED OR AUTHORIZED TO CERTIFY FOR PAYMENT CLAIMS WHICH THEY CONSIDER TO BE OF DOUBTFUL VALIDITY. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288; CHARLES V. UNITED STATES, 19 ID. 316. THE CLAIMANT IN SUCH CASE PROPERLY IS LEFT TO HIS REMEDY BY LEGAL ACTION AGAINST THE UNITED STATES. GENERALLY, WE WOULD NOT VIEW SUCH A CASE AS COMING WITHIN THE PURVIEW OF THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.

SINCE THERE IS DOUBT REGARDING THE LEGAL VALIDITY OF YOUR CLAIM AND SINCE, ALSO, IT APPEARS THAT THOSE DOUBTS SHOULD BE RESOLVED BY REGULAR JUDICIAL PROCEEDING RATHER THAN BY THE DETERMINATION OF OUR OFFICE, WE FEEL COMPELLED TO DISALLOW YOUR CLAIM UNDER THE PRINCIPLE OF THE LONGWILL AND CHARLES CASES.