B-121659, OCTOBER 29, 1954, 34 COMP. GEN. 204

B-121659: Oct 29, 1954

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TRAVELING AND TRANSPORTATION EXPENSES - TRANSFERS BETWEEN BRANCHES OF FEDERAL GOVERNMENT AN EMPLOYEE OF THE JUDICIAL BRANCH OF THE GOVERNMENT WHO TRAVELS TO A NEW PERMANENT DUTY STATION UPON THE ACCEPTANCE OF A PRESIDENTIAL APPOINTMENT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT MAY BE CONSIDERED TO HAVE PERFORMED TRAVEL INCIDENT TO A TRANSFER FROM ONE DEPARTMENT TO ANOTHER WITHIN THE CONTEMPLATION OF SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946. REFERENCE IS MADE TO LETTER OF SEPTEMBER 29. WHEN HE WAS APPOINTED BY THE PRESIDENT TO BE A MEMBER OF THE BOARD OF PAROLE (18 U.S.C. 4201). WAS CONFIRMED BY THE SENATE ON AUGUST 19. THE QUESTION FOR DETERMINATION IS WHETHER A CIVILIAN EMPLOYEE IN THE JUDICIAL BRANCH OF THE GOVERNMENT WHO.

B-121659, OCTOBER 29, 1954, 34 COMP. GEN. 204

TRAVELING AND TRANSPORTATION EXPENSES - TRANSFERS BETWEEN BRANCHES OF FEDERAL GOVERNMENT AN EMPLOYEE OF THE JUDICIAL BRANCH OF THE GOVERNMENT WHO TRAVELS TO A NEW PERMANENT DUTY STATION UPON THE ACCEPTANCE OF A PRESIDENTIAL APPOINTMENT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT MAY BE CONSIDERED TO HAVE PERFORMED TRAVEL INCIDENT TO A TRANSFER FROM ONE DEPARTMENT TO ANOTHER WITHIN THE CONTEMPLATION OF SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, SO AS TO BE ENTITLED TO REIMBURSEMENT FOR TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS.

ACTING COMPTROLLER GENERAL MORROW TO THE ATTORNEY GENERAL, OCTOBER 29, 1954.

REFERENCE IS MADE TO LETTER OF SEPTEMBER 29, 1954, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, FILE A3, REQUESTING A DECISION AS TO WHETHER MR. LEWIS J. GROUT, A NEWLY APPOINTED MEMBER OF THE BOARD OF PAROLE, DEPARTMENT OF JUSTICE, MAY BE REIMBURSED FOR EXPENSES OF HIS TRAVEL AND TRANSPORTATION OF HIS IMMEDIATE FAMILY AND HOUSEHOLD EFFECTS FROM KANSAS CITY, MISSOURI, HIS PREVIOUS POST OF DUTY, TO WASHINGTON, D.C., HIS NEW PERMANENT DUTY STATION.

THE RECORD SHOWS THAT MR. GROUT OCCUPIED THE POSITION OF CHIEF UNITED STATES PROBATION OFFICER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, ( KANSAS CITY), WHEN HE WAS APPOINTED BY THE PRESIDENT TO BE A MEMBER OF THE BOARD OF PAROLE (18 U.S.C. 4201). IT HAS BEEN ASCERTAINED INFORMALLY THAT MR. GROUT'S APPOINTMENT AS A MEMBER OF SAID BOARD FOR THE TERM EXPIRING SEPTEMBER 30, 1959, WAS CONFIRMED BY THE SENATE ON AUGUST 19, 1954. HE RESIGNED FROM HIS POSITION AS CHIEF PROBATION OFFICER AT THE CLOSE OF BUSINESS SEPTEMBER 27, AND TOOK THE OATH OF OFFICE AND ENTERED ON DUTY WITH THE BOARD OF PAROLE ON SEPTEMBER 28, 1954. THE QUESTION FOR DETERMINATION IS WHETHER A CIVILIAN EMPLOYEE IN THE JUDICIAL BRANCH OF THE GOVERNMENT WHO, WITHOUT ANY BREAK IN HIS FEDERAL SERVICE, ACCEPTS A POSITION IN THE EXECUTIVE BRANCH OF THE GOVERNMENT "TO" WHICH APPOINTMENT SHALL BE BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE" MAY BE CONSIDERED AS TRANSFERRING WITHIN THE MEANING OF SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, PUBLIC LAW 600, AS AMENDED (5 U.S.C. 73 (B1) ).

AS THE ASSISTANT ATTORNEY GENERAL'S LETTER POINTS OUT THIS OFFICE HERETOFORE HAS HELD THAT THE PROVISIONS OF SECTION 7 OF THE AFORESAID STATUTE, 60 STAT. 808, ARE APPLICABLE TO A PRESIDENTIAL APPOINTEE IN THE JUDICIAL BRANCH OF THE GOVERNMENT. 27 COMP. GEN. 313. THE LETTER REFERS ALSO TO OFFICE DECISION DATED JUNE 15, 1948 (27 COMP. GEN. 757), WHEREIN IT WAS HELD THAT THE BENEFITS OF SECTION 1 OF THE AFORESAID STATUTE, 60 STAT. 806, ARE NOT CONFINED TO PERSONS HAVING A COMPETITIVE CIVIL SERVICE STATUS BUT ARE AVAILABLE TO ALL BONA FIDE CHANGES OF OFFICIAL STATION WITHIN THE SAME AGENCY AND TO ALL CHANGES OF EMPLOYMENT BETWEEN DEPARTMENTS AS DEFINED IN SECTION 18 OF SAID ACT, 60 STAT. 811, BREAK OF ONE DAY--- AND ALL STATUTORY REQUIREMENTS AND THE REGULATIONS ARE COMPLIED WITH.

PARAGRAPH 3 OF THE LETTER READS IN PART AS FOLLOWS:

* * * THIS OFFICE IS OF THE VIEW THAT CONTINUITY OF SERVICE IS THE TEST OF THE MEANING OF TRANSFER IN THIS STATUTE. A TRANSFER CAN BE ACCOMPLISHED WITHIN THE MEANING OF THE LAW AS BETWEEN TWO DIFFERENT LINES OF ACTIVITY IN TWO BRANCHES OF THE FEDERAL GOVERNMENT. THE APPOINTING POWERS AND THE METHODS OF APPOINTMENT SEEM IMMATERIAL IF, AS YOU HAVE HELD, A TRANSFER CAN BE ACCOMPLISHED BETWEEN THE EXECUTIVE AND THE JUDICIAL BRANCHES OF THE GOVERNMENT. IT WOULD SEEM THAT THE APPOINTMENT BY THE PRESIDENT OF AN INDIVIDUAL WHO WAS PREVIOUSLY APPOINTED BY A COURT OF LAW WOULD NOT MILITATE AGAINST OUR CONCEPTION OF A TRANSFER, NOTE THE LATTER PART OF CLAUSE 2, SECTION 2, ARTICLE 2, CONSTITUTION. * * * ACCORDINGLY, IT IS OUR VIEW THAT IF IT IS ACCEPTABLE TO TREAT AS A "TRANSFER" A CHANGE OF OFFICIAL DUTY AND STATION BETWEEN THE JUDICIAL AND EXECUTIVE BRANCHES IT IS LIKEWISE PROPER SO TO CONSIDER A CHANGE OF DUTY AND STATION FROM THE JUDICIAL TO THE EXECUTIVE BY PRESIDENTIAL APPOINTMENT, AS DISTINGUISHED FROM APPOINTMENT BY THE HEAD OF A DEPARTMENT.

I CONCUR WITH THE VIEWS EXPRESSED IN SAID PARAGRAPH. ACCORDINGLY, AND IN LINE WITH THE CONCLUSIONS REACHED IN THE FOREGOING DECISIONS, I AM OF THE OPINION THAT MR. GROUT MAY BE AFFORDED THE BENEFITS OF SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, SUBJECT TO THE CONDITIONS SPECIFIED THEREIN.