B-102904, SEPTEMBER 5, 1951, 31 COMP. GEN. 69

B-102904: Sep 5, 1951

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LUMP-SUM LEAVE PAYMENTS - RATE PAYABLE - RETIRED PERSONNEL SEPARATED AFTER TEMPORARY REEMPLOYMENT A UNITED STATES MARSHALL WHO WAS RETIRED FROM A PERMANENT POSITION AND IMMEDIATELY REAPPOINTED BY THE COURT UNDER A TEMPORARY APPOINTMENT. IS TO BE REGARDED AS A PERMANENT EMPLOYEE FOR LEAVE PURPOSES UNDER SECTION 30.101 (B) OF THE FEDERAL PERSONNEL MANUAL AND THEREFORE. HIS LUMP-SUM PAYMENT FOR ANNUAL LEAVE IS TO BE COMPUTED AT THE RATE OF COMPENSATION RECEIVED UPON FINAL SEPARATION FROM THE TEMPORARY POSITION. 1951: REFERENCE IS MADE TO THE REQUEST OF AUGUST 20. IT IS STATED IN THE PRESENT SUBMISSION THAT WHILE THE VACANCIES IN THE OFFICE OF UNITED STATES MARSHAL ARE FILLED BY APPOINTMENTS MADE BY THE PRESIDENT OF THE UNITED STATES.

B-102904, SEPTEMBER 5, 1951, 31 COMP. GEN. 69

LUMP-SUM LEAVE PAYMENTS - RATE PAYABLE - RETIRED PERSONNEL SEPARATED AFTER TEMPORARY REEMPLOYMENT A UNITED STATES MARSHALL WHO WAS RETIRED FROM A PERMANENT POSITION AND IMMEDIATELY REAPPOINTED BY THE COURT UNDER A TEMPORARY APPOINTMENT, WHICH DID NOT LIMIT HIS SERVICE TO A PERIOD OF ONE YEAR OR LESS, IS TO BE REGARDED AS A PERMANENT EMPLOYEE FOR LEAVE PURPOSES UNDER SECTION 30.101 (B) OF THE FEDERAL PERSONNEL MANUAL AND THEREFORE, HIS LUMP-SUM PAYMENT FOR ANNUAL LEAVE IS TO BE COMPUTED AT THE RATE OF COMPENSATION RECEIVED UPON FINAL SEPARATION FROM THE TEMPORARY POSITION.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, SEPTEMBER 5, 1951:

REFERENCE IS MADE TO THE REQUEST OF AUGUST 20, 1951, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL WITH FURTHER REFERENCE TO THE DECISION TO YOU OF MAY 3, 1951, B-102904, REGARDING THE RATE OF PAYMENT TO BE MADE TO A FORMER UNITED STATES MARSHAL FOR THE ANNUAL LEAVE TO HIS CREDIT UPON HIS FINAL SEPARATION FROM THE SERVICE UNDER AN APPOINTMENT MADE AFTER HE HAD BEEN PREVIOUSLY RETIRED. IT IS STATED IN THE PRESENT SUBMISSION THAT WHILE THE VACANCIES IN THE OFFICE OF UNITED STATES MARSHAL ARE FILLED BY APPOINTMENTS MADE BY THE PRESIDENT OF THE UNITED STATES, THE COURT IS AUTHORIZED TO APPOINT A UNITED STATES MARSHAL TO SERVE UNTIL THE VACANCY IS FILLED BY THE PRESIDENT, 28 U.S.C. 545, THAT SUCH APPOINTMENTS ARE DESIGNATED AS TEMPORARY BUT DO NOT SPECIFY ANY FIXED TERM, THE APPOINTEES BEING RETAINED IN THE OFFICE FOR AN INDEFINITE PERIOD UNTIL THE PRESIDENTIAL APPOINTMENT IS EFFECTIVE.

SECTION 30.101 (B), PAGE ZI-353 OF THE FEDERAL PERSONNEL MANUAL, DEFINES PERMANENT EMPLOYEES AS THOSE APPOINTED "WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR WITH AN INDEFINITE LIMITATION OR FOR A DEFINITE PERIOD IN EXCESS OF ONE YEAR.' SUBSECTION (C) OF THE SAME SECTION DEFINES TEMPORARY EMPLOYEES AS THOSE "APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 1 YEAR.'

IN 27 COMP. GEN. 41, AT PAGE 42, IT IS STATED:

HENCE, WHILE A POSITION MAY BE "PERMANENT" FOR BUDGETARY PURPOSES YET, IF THE TERMS OF THE APPOINTMENT OF THE OCCUPANT OF SUCH POSITION ARE SUCH AS TO BRING HIM WITHIN THE DEFINITION OF " TEMPORARY EMPLOYEES" AS CONTAINED IN THE LEAVE REGULATIONS, THE POSITION IS A TEMPORARY ONE FOR LEAVE PURPOSES. CONVERSELY, EVEN THOUGH A POSITION ADMINISTRATIVELY BE CONSIDERED AS "TEMPORARY" IF THE TERMS OF THE APPOINTMENT OF THE PROPOSED INCUMBENT THEREOF BE SUCH AS TO BRING HIM WITHIN THE DEFINITION OF " PERMANENT EMPLOYEES" AS DEFINED IN THE LEAVE REGULATIONS, THE POSITION IS A ,PERMANENT" POSITION FOR LEAVE PURPOSES.

ACCORDINGLY, AS THE APPOINTMENT OF THE UNITED STATES MARSHAL IN QUESTION DID NOT LIMIT HIS SERVICE TO A PERIOD OF ONE YEAR OR LESS, THE APPOINTMENT MUST BE CONSIDERED AS A PERMANENT ONE. THUS, IT FOLLOWS THAT THE RATE OF COMPENSATION TO BE USED FOR HIS FINAL LUMP-SUM PAYMENT AT THE TIME OF HIS SEPARATION FROM HIS POSITION TO WHICH APPOINTED AFTER RETIREMENT WOULD BE HIS SALARY AT THAT TIME OR $5,412 PER ANNUM AS STATED IN THE DECISION TO YOU MAY 3, 1951.