B-113809, APRIL 13, 1953, 32 COMP. GEN. 445

B-113809, APRIL 13, 1953, 32 COMP. GEN. 445

LEAVES OF ABSENCE - ANNUAL - PUBLIC HEALTH SERVICE COMMISSION PERSONNEL "USE IT OR LOSE IT" LEAVE PROVISIONS OF INDEPENDENT OFFICES APPROPRIATION ACT, 1953 WHILE THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE HAS REVERTED TO A NON-MILITARY STATUS, THE LEAVE SYSTEM FOR THE COMMISSIONED OFFICERS OF THE CORPS PRESCRIBED BY THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, AND REGULATIONS ISSUED PURSUANT THERETO, IS STILL PATTERNED AFTER THE LEAVE SYSTEM APPLICABLE TO THE ARMED FORCES WHICH IS ADMINISTERED ON A FISCAL YEAR BASIS, AND THEREFORE, PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS ARE NOT WITHIN THE CONTEMPLATION OF THE "USE IT OR LOSE IT" LEAVE PROVISION OF SECTION 401 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1953.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, FEDERAL SECURITY AGENCY, APRIL 13, 1953:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 11, 1953, PRESENTING FOR DECISION THE QUESTION WHETHER COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ARE "CIVILIAN OFFICERS" WITHIN THE MEANING OF SECTION 401 OF THE INDEPENDENT OFFICE APPROPRIATION ACT, 1953, PUBLIC LAW 455, 66 STAT. 417, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

HEREAFTER NO PART OF THE FUND OF, OR AVAILABLE FOR EXPENDITURE BY ANY CORPORATION OR AGENCY INCLUDED IN THIS OR ANY OTHER ACT, INCLUDING THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, SHALL BE AVAILABLE TO PAY FOR ANNUAL LEAVE ACCUMULATED BY ANY CIVILIAN OFFICER OR EMPLOYEE DURING ANY CALENDAR YEAR AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30TH OF THE SUCCEEDING CALENDAR YEAR: PROVIDED, THAT THE HEAD OF ANY SUCH CORPORATION OR AGENCY SHALL AFFORD AN OPPORTUNITY FOR OFFICERS OR EMPLOYEES TO USE THE ANNUAL LEAVE ACCUMULATED UNDER THIS SECTION PRIOR TO JUNE 30TH OF SUCH SUCCEEDING CALENDAR YEAR * * *.

FOR SOME YEARS THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE WAS DECLARED TO BE A MILITARY SERVICE AND A BRANCH OF THE LAND AND NAVAL FORCES OF THE UNITED STATES. HOWEVER, ON JULY 4, 1952, THE CORPS REVERTED TO NON-MILITARY STATUS. EXECUTIVE ORDER NO. 9575, DATED JUNE 28, 1945; AND EXECUTIVE ORDER NO. 10349, APRIL 28, 1952, AS AMENDED.

THE LEAVE SYSTEM FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE IS PRESCRIBED BY SECTION 219 OF THE PUBLIC HEALTH SERVICE ACT, AS ADDED BY SECTION 2 OF THE ACT OF AUGUST 9, 1950, 64 STAT. 426, AND BY PRESIDENTIAL REGULATIONS ( EXECUTIVE ORDER NO. 9993, DATED AUGUST 31, 1948, 42 C.F.R. 21.81 ET SEQ.) ISSUED PURSUANT TO SECTION 208 (B) OF THE PUBLIC HEALTH SERVICE ACT, AS REDESIGNATED BY SECTION 5 OF THE ACT OF FEBRUARY 28, 1948, 62 STAT. 40--- THE REGULATIONS HAVING BEEN CONTINUED IN EFFECT BY SECTION 5 OF THE 1950 ACT, SUBJECT TO THE TERMS OF SUCH ACT. AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE 1950 ACT SHOWS THAT THE LEAVE SYSTEM IS MODELED AFTER THAT PRESCRIBED BY THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 31 U.S.C. 31A, ET SEQ., AND THAT THE 1950 ACT WAS INTENDED TO CONFER UPON PUBLIC HEALTH SERVICE OFFICERS, AND LIMIT THEM TO, SUBSTANTIALLY THE SAME LEAVE BENEFITS AS PROVIDED FOR PERSONNEL GOVERNED BY THE ARMED FORCES LEAVE ACT. THE EFFECT OF THE ENACTMENT WAS TO ESTABLISH SUBSTANTIALLY THE SAME LEAVE SYSTEM FOR ALL THE UNIFORMED SERVICES, INCLUDING THE PUBLIC HEALTH SERVICE, THE PAY AND ALLOWANCES FOR WHICH ARE COVERED BY THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802. PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS ARE EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951, APPLICABLE, IN GENERAL, TO CIVILIAN EMPLOYEES, BY SECTION 202 (B) (1) (E) THEREOF (65 STAT. 679).

I CANNOT AGREE WITH YOUR SUGGESTION THAT BECAUSE THE HOUSE APPROPRIATIONS COMMITTEE REPORT ( REPORT NO. 1517, 82D CONGRESS) AND CERTAIN FLOOR DISCUSSIONS (THE COMMENT OF MR. REES, 98 CONG. REC. 2730, AND OF SENATOR BYRD, ID. 9161) MENTIONED ONLY THE LEAVE ACCUMULATION PROVISIONS OF THE 1951 LEAVE ACT AS BEING AFFECTED BY THE RESTRICTION PROPOSED IN SECTION 401 OF THE INDEPENDENT OFFICES APPROPRIATION BILL ( H.R. 7072), SUCH RESTRICTION IS APPLICABLE ONLY TO LEAVE ACCUMULATIONS UNDER THE 1951 ACT. NOR WOULD THE FACT THAT THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE WAS A MILITARY SERVICE WHEN THE PROPOSED LEGISLATION WHICH BECAME SECTION 401 WAS BEING CONSIDERED BE CONCLUSIVE OF THE MATTER IF A SUBSEQUENT CHANGE IN THE STATUS OF MEMBERS OF THE CORPS HAS BROUGHT THEM WITHIN THE SCOPE OF THE SECTION ( DE LIMA V. BIDWELL, 182 U.S. 1, 197). NEVERTHELESS, I AM NOT REQUIRED TO HOLD THAT PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS ARE SUBJECT TO THE RESTRICTION.

AN EXAMINATION OF THE LAWS PRESCRIBING THE EMOLUMENTS AND PERQUISITES (INCLUDING LEAVE) OF COMMISSIONED MEMBERS OF THE PUBLIC HEALTH SERVICE AND THE OTHER UNIFORMED SERVICES, SHOWS A CAREFULLY INTEGRATED PLAN TO ESTABLISH SUBSTANTIAL PARITY FOR SUCH MEMBERS. MOREOVER, EVEN WHEN THE PUBLIC HEALTH SERVICE IS NOT REGARDED AS A PART OF THE MILITARY FORCES, THE COMMISSIONED OFFICERS OF SUCH SERVICE ARE ENTITLED TO FULL MILITARY BENEFITS WITH RESPECT TO ACTIVE SERVICE PERFORMED WHILE DETAILED TO THE ARMY, NAVY, OR COAST GUARD. 42 U.S.C. 213. THERE APPEARS NOTHING TO INDICATE A LEGISLATIVE INTENTION TO DISTURB--- BY THE ENACTMENT OF SECTION 401--- THE EXISTING BALANCE BETWEEN THE SERVICES. FURTHERMORE, ANNUAL LEAVE ACCRUALS AND ACCUMULATIONS FOR PUBLIC HEALTH SERVICE OFFICERS ARE ADMINISTERED UPON A FISCAL-YEAR BASIS (42 C.F.R. 21.81 (A); ID. 21.84). SECTION 401 PROHIBITS PAYMENT FOR ANNUAL LEAVE ACCUMULATED "DURING ANY CALENDAR YEAR AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30TH OF THE SUCCEEDING CALENDAR YEAR" (ITALICS SUPPLIED), AND IT PROVIDES THAT THE HEADS OF AGENCIES SHALL AFFORD AN OPPORTUNITY FOR OFFICERS AND EMPLOYEES TO USE ANNUAL LEAVE ACCUMULATED THEREUNDER PRIOR TO JUNE 30TH OF SUCH SUCCEEDING CALENDAR YEAR. CONSEQUENTLY, THE TERMS OF SECTION 401, BEING INCONGRUOUS WITH THE LEAVE SYSTEM PRESCRIBED BY OR PURSUANT TO LAW FOR PUBLIC HEALTH SERVICE OFFICERS MAY NOT BE CONSTRUED AS REPEALING OR MODIFYING BY IMPLICATION THE PROVISIONS OF LAW AND STATUTORY REGULATIONS REGARDING THE ACCUMULATION OF ANNUAL LEAVE BY SUCH OFFICERS.

IN VIEW OF THE FOREGOING, IT IS CONCLUDED THAT PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS ARE NOT WITHIN THE CONTEMPLATION OF SECTION 401, OF SAID ACT.