A-89535, OCTOBER 28, 1937, 17 COMP. GEN. 369

A-89535: Oct 28, 1937

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PROVIDED THE OTHER CONDITIONS NECESSARY TO MAKE THE APPOINTMENT EFFECTIVE HAVE BEEN FULFILLED ON SAID DATE. SINCE AUTHORITY TO REMOVE IS AN INCIDENT TO AUTHORITY TO APPOINT. THE SAME RULE IS APPLICABLE IN THE CASE OF REMOVAL. THAT IS. THERE IS NO AUTHORITY TO PAY EMPLOYEES AFTER SEPARATION FROM SERVICE FOR ACCRUED LEAVE NOT TAKEN BEFORE SEPARATION IN THE ABSENCE OF A STATUTE SPECIFICALLY PROVIDING FOR SUCH PAYMENT. THE RECORD SHOWS THAT YOU WERE DROPPED FROM THE ROLLS OF THE TREASURY DEPARTMENT EFFECTIVE AT THE CLOSE OF BUSINESS JULY 15. YOU WERE ADVISED BY LETTER OF THE RADIOGRAM'S CONTENTS. YOU WERE ALSO NOTIFIED ORALLY ON THAT DAY OF YOUR SEPARATION. THE ACTION OF THE COMMISSIONER OF INTERNAL REVENUE IN DROPPING YOU FROM THE ROLLS WAS NOT APPROVED BY THE SECRETARY OF THE TREASURY UNTIL JULY 23.

A-89535, OCTOBER 28, 1937, 17 COMP. GEN. 369

APPOINTMENTS AND REMOVALS - APPROVAL BY SUPERIOR OFFICER - EFFECTIVE DATES - ANNUAL LEAVE OF ABSENCE AFTER SEPARATION FROM SERVICE WHERE THE LAW PROVIDES FOR APPOINTMENT OF EMPLOYEES BY ONE OFFICER WITH THE APPROVAL OF ANOTHER OFFICER, THE APPROVAL WHEN GIVEN RELATES BACK TO THE DATE OF ACTION BY THE APPOINTING OFFICER AND MAKES THE APPOINTMENT EFFECTIVE FROM SAID DATE, PROVIDED THE OTHER CONDITIONS NECESSARY TO MAKE THE APPOINTMENT EFFECTIVE HAVE BEEN FULFILLED ON SAID DATE, AND SINCE AUTHORITY TO REMOVE IS AN INCIDENT TO AUTHORITY TO APPOINT, THE SAME RULE IS APPLICABLE IN THE CASE OF REMOVAL, THAT IS, THE APPROVAL OF THE SUPERIOR OFFICER RELATES BACK TO THE DATE OF ACTION BY THE SUBORDINATE OFFICER. THERE IS NO AUTHORITY TO PAY EMPLOYEES AFTER SEPARATION FROM SERVICE FOR ACCRUED LEAVE NOT TAKEN BEFORE SEPARATION IN THE ABSENCE OF A STATUTE SPECIFICALLY PROVIDING FOR SUCH PAYMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO ANDREW KENNY, OCTOBER 28, 1937:

YOUR LETTER OF AUGUST 24, 1937, REQUESTS REVIEW OF THAT PART OF SETTLEMENT NO. 0457240, DATED AUGUST 10, 1937, WHICH DISALLOWED YOUR CLAIM FOR $187.72 ALLEGED TO BE DUE FOR SERVICES RENDERED AS AN INVESTIGATOR, ALCOHOL TAX UNIT, BUREAU OF INTERNAL REVENUE, BALTIMORE, MD., DURING THE PERIOD FROM JULY 17 TO 31, 1935.

THE RECORD SHOWS THAT YOU WERE DROPPED FROM THE ROLLS OF THE TREASURY DEPARTMENT EFFECTIVE AT THE CLOSE OF BUSINESS JULY 15, 1935, IN ACCORDANCE WITH A RADIOGRAM OF JULY 16, 1935, TO THIS EFFECT FROM THE ACTING COMMISSIONER OF INTERNAL REVENUE TO YOUR DISTRICT SUPERVISOR. ON THE AFTERNOON OF JULY 16, 1935, YOU WERE ADVISED BY LETTER OF THE RADIOGRAM'S CONTENTS, AND YOU WERE ALSO NOTIFIED ORALLY ON THAT DAY OF YOUR SEPARATION. THE ACTION OF THE COMMISSIONER OF INTERNAL REVENUE IN DROPPING YOU FROM THE ROLLS WAS NOT APPROVED BY THE SECRETARY OF THE TREASURY UNTIL JULY 23, 1935, NOTICE OF WHICH YOU ALLEGE WAS NOT RECEIVED BY YOU UNTIL JULY 31, 1935. SINCE IT APPEARED THAT YOU ACTUALLY WORKED ON JULY 16, 1935, AND SINCE YOU WERE NOT NOTIFIED UNTIL THEN, YOU WERE ALLOWED IN THE AFORESAID SETTLEMENT SALARY FOR JULY 16, 1935, OR $7.22, BUT YOUR CLAIM FOR SALARY FOR THE REMAINDER OF THE MONTH OF JULY 1935 WAS DISALLOWED FOR THE REASON THAT THE APPROVAL BY THE SECRETARY OF THE TREASURY OF THE ACTION TAKEN BY THE COMMISSIONER OF INTERNAL REVENUE RELATED BACK TO THE TIME YOU RECEIVED ACTUAL NOTICE OF SEPARATION FROM THE SERVICE, NAMELY, JULY 16, 1935.

IN YOUR LETTER OF AUGUST 24, 1937, REQUESTING REVIEW, YOU STATE:

UNDER THE ABOVE REFERENCES, I HAVE RECEIVED AND ACCEPTED CHECK FOR $7.22 FOR ONE DAY'S PAY FOR JULY 16, 1935, AS INVESTIGATOR, ALCOHOL TAX UNIT.

I CLAIM THE BALANCE OF $187.72 THAT YOU HAVE DISALLOWED FOR THE REASON THAT I WAS AN EMPLOYEE OF THE UNITED STATES, READY, WILLING, AND ABLE TO DISCHARGE THE DUTIES OF MY OFFICE, LEGALLY ON THE PAY ROLL UNTIL REMOVED THEREFROM ACCORDING TO LAW. SUCH REMOVAL, ALTHOUGH ATTEMPTED BY INFERIOR OFFICIALS, WAS NOT EFFECTIVE UNTIL COMMUNICATED TO ME BY THE DEPARTMENT HEAD, THE SECRETARY OF THE TREASURY. THIS NOTICE WAS PLACED IN THE MAILS JULY 30, 1935, AND RECEIVED BY ME THE FOLLOWING DAY, JULY 31, 1935. THAT TIME THERE WAS DUE ME FROM THE UNITED STATES APPROXIMATELY TWELVE DAYS EARNED AND UNUSED LEAVE THAT HAD BEEN GRANTED BY CONGRESS AND HAD NOT BEEN REVOKED BY THAT BODY AND COULD NOT BE REVOKED BY ANY OTHER PERSON.

OBVIOUSLY, NO LEGAL FORCE CAN BE ATTACHED TO THE "NOTICES" FROM SUBORDINATES OF THE ALCOHOL TAX UNIT THAT I HAD BEEN DISMISSED FROM THE SERVICE. GREAT CONFUSION WOULD RESULT IF SUBORDINATES HAD THE POWER TO REMOVE OTHER SUBORDINATES. IN THE TREASURY DEPARTMENT THE CONSTITUTION AND CONGRESS HAS RESTRICTED THAT POWER TO THE SECRETARY.

IN MY LETTER TO YOU OF APRIL 10 I CITED THE CASE OF BEUHRING, 45CT.CLS. 404, WHICH WOULD SEEM TO SUSTAIN MY POSITION. THE CASE OF U.S. VS. WICKERSHAM, 201 U.S. 390, AND OTHER CASES ALSO ARE AUTHORITY FOR MY CLAIM.

A SIMPLE WAY TO DISPOSE OF THIS MATTER WOULD BE, THAT THE TREASURY DEPARTMENT ADJUST ITS RECORDS TO SHOW MY REMOVAL AS OF AUGUST 12, 1935. COULD THEN BE PAID UP TO THE EXPIRATION OF THE EARNED LEAVE THAT WAS DUE ME AND OF WHICH I WAS ILLEGALLY DEPRIVED. THIS WOULD BE A FAIR AND EQUITABLE DISPOSITION OF THE MATTER AND SAVE THE LITIGATION THAT OTHERWISE MAY ENSUE.

WILL YOU PLEASE RECONSIDER YOUR ACTION IN THIS MATTER, ALONG WITH THE CASES I HAVE CITED AND OTHERS WHICH MUST BE WITHIN YOUR OFFICIAL KNOWLEDGE, AND ADVISE ME OF YOUR FINAL DECISION?

IT IS A WELL ESTABLISHED RULE IN CONNECTION WITH THE APPOINTMENT OF FEDERAL OFFICERS, THAT THE POWER OF REMOVAL IS INCIDENTAL TO THE POWER OF APPOINTMENT, IN THE ABSENCE OF A STATUTORY PROVISION TO THE CONTRARY. BLAKE V. UNITED STATES, 103 U.S. 227; KEIM V. UNITED STATES, 177 U.S. 290; BURNAP V. UNITED STATES, 252 U.S. 512; MYERS V. UNITED STATES, 272 U.S. 52.

THE ACT OF MARCH 3, 1927, 44 STAT. 1381, CREATING A BUREAU OF PROHIBITION IN THE TREASURY DEPARTMENT, PROVIDED IN SECTION 5 (B) THAT- -

THE COMMISSIONER OF PROHIBITION, WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY, IS AUTHORIZED TO APPOINT IN THE BUREAU OF PROHIBITION SUCH EMPLOYEES IN THE FIELD SERVICE AS HE MAY DEEM NECESSARY. * * *

THE PROHIBITION REORGANIZATION ACT OF 1930, 46 STAT. 427, PROVIDED IN SECTION 8 THEREOF THAT---

THE BUREAU OF PROHIBITION IN THE TREASURY DEPARTMENT SHALL HEREAFTER BE KNOWN AS THE BUREAU OF INDUSTRIAL ALCOHOL, AND THE COMMISSIONER OF PROHIBITION IN THE TREASURY DEPARTMENT SHALL HEREAFTER HAVE THE TITLE OF COMMISSIONER OF INDUSTRIAL ALCOHOL.

EXECUTIVE ORDER NO. 6639 PROMULGATED MARCH 10, 1934, PROVIDED THAT--

THE BUREAU OF INDUSTRIAL ALCOHOL AND THE OFFICE OF COMMISSIONER OF INDUSTRIAL ALCOHOL ARE ABOLISHED, AND THE AUTHORITY, RIGHTS, PRIVILEGES, POWERS, AND DUTIES CONFERRED AND IMPOSED BY LAW UPON THE COMMISSIONER OF INDUSTRIAL ALCOHOL ARE TRANSFERRED TO AND SHALL BE HELD, EXERCISED, AND PERFORMED BY THE COMMISSIONER OF INTERNAL REVENUE, AND HIS ASSISTANTS, AGENTS, AND INSPECTORS, UNDER THE DIRECTION OF THE SECRETARY OF THE TREASURY.

IN DECISION OF AUGUST 29, 1928, A-24132, IT WAS SAID:

WHEN THE LAW PROVIDES FOR APPOINTMENT BY AN OFFICER WITH THE APPROVAL OF ANOTHER OFFICER, THE APPROVAL WHEN GIVEN WILL RELATE BACK TO THE DATE OF ACTION BY THE APPOINTING OFFICER AND MAKE THE APPOINTMENT EFFECTIVE FROM SAID DATE, IF THE OTHER CONDITIONS NECESSARY TO MAKE THE APPOINTMENT EFFECTIVE HAVE BEEN FULFILLED ON SAID DATE. SEE 3 COMP. GEN. 559. SINCE AUTHORITY TO REMOVE IS AN INCIDENT TO THE AUTHORITY TO APPOINT, THE SAME RULE WOULD APPLY IN THE CASE OF REMOVAL, THAT IS, THE APPROVAL OF THE SUPERIOR OFFICER WOULD RELATE BACK TO THE DATE OF ACTION BY THE SUBORDINATE OFFICER.

IT APPEARS THAT THE LAW PROVIDED FOR YOUR APPOINTMENT BY THE COMMISSIONER OF INTERNAL REVENUE, WITH THE APPROVAL OF THE SECRETARY OF TREASURY AND IN LIKE MANNER YOUR REMOVAL COULD BE MADE BY THE COMMISSIONER OF INTERNAL REVENUE ONLY, WITH THE APPROVAL OF THE SECRETARY, WHICH APPROVAL WHEN GIVEN, RELATED BACK TO THE COMMUNICATION OF NOTICE TO YOU OF THE COMMISSIONER'S ACTION.

WITH RESPECT TO YOUR CLAIM FOR PAY FOR ANNUAL LEAVE NOT TAKEN UPON YOUR SEPARATION FROM THE SERVICE, IT HAS BEEN THE SETTLED RULE THAT IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING THERE IS NO AUTHORITY TO PAY EMPLOYEES AFTER SEPARATION FROM THE SERVICE FOR ACCRUED LEAVE NOT TAKEN. 16 COMP. GEN. 28; ID. 899; 17 ID. 48.

IN VIEW OF THE FACTS AND LAW APPLICABLE THERETO, THE SETTLEMENT OF AUGUST 10, 1937, DENYING YOUR CLAIM FOR SALARY SUBSEQUENT TO JULY 16, 1935, MUST BE AND IS SUSTAINED.