B-128026, JUL. 20, 1956

B-128026: Jul 20, 1956

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REQUESTED OUR DECISION AS TO WHAT DISPOSITION IS TO BE MADE OF THE LEAVE TO THE CREDIT OF A FORMER EMPLOYEE OF THE MARITIME COMMISSION WHO RESIGNED ON FEBRUARY 14. WAS APPOINTED WITHOUT A BREAK IN SERVICE TO A POSITION WITH THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS. FOR WHICH COURT WE UNDERSTAND THERE IS NO STATUTORY ANNUAL LEAVE SYSTEM. NO ADMINISTRATIVE ACTION WAS TAKEN TO MAKE A LUMP-SUM LEAVE PAYMENT BECAUSE OF SECTION 30.701 (D) OF THE ANNUAL AND SICK LEAVE REGULATIONS. THE QUESTION IS NOW RAISED WHETHER SUCH ACTION WAS PROPER IN THE LIGHT OF OUR MORE RECENT DECISION. THE QUESTIONS SPECIFICALLY RAISED ARE STATED AS FOLLOWS: "/1) MAY A LUMP-SUM PAYMENT BE MADE TO THE FORMER EMPLOYEE WHO RESIGNED A POSITION IN THE MARITIME ADMINISTRATION AND WITHOUT A BREAK IN SERVICE WAS APPOINTED TO A POSITION WITH THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS? "/2) IF THE ABOVE ANSWER IS IN THE AFFIRMATIVE.

B-128026, JUL. 20, 1956

TO THE SECRETARY OF COMMERCE:

ON MAY 21, 1956, THE ASSISTANT SECRETARY OF COMMERCE FOR ADMINISTRATION, REQUESTED OUR DECISION AS TO WHAT DISPOSITION IS TO BE MADE OF THE LEAVE TO THE CREDIT OF A FORMER EMPLOYEE OF THE MARITIME COMMISSION WHO RESIGNED ON FEBRUARY 14, 1954, AND WAS APPOINTED WITHOUT A BREAK IN SERVICE TO A POSITION WITH THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS, FOR WHICH COURT WE UNDERSTAND THERE IS NO STATUTORY ANNUAL LEAVE SYSTEM.

AT THE TIME OF THE EMPLOYEE'S RESIGNATION ON FEBRUARY 14, 1954, NO ADMINISTRATIVE ACTION WAS TAKEN TO MAKE A LUMP-SUM LEAVE PAYMENT BECAUSE OF SECTION 30.701 (D) OF THE ANNUAL AND SICK LEAVE REGULATIONS, FEDERAL PERSONNEL MANUAL, AND OUR DECISION OF NOVEMBER 9, 1953,B 117272, 33 COMP. GEN. 209. THE QUESTION IS NOW RAISED WHETHER SUCH ACTION WAS PROPER IN THE LIGHT OF OUR MORE RECENT DECISION, 33 COMP. GEN. 622, WHICH ALLOWED A LUMP-SUM LEAVE PAYMENT UNDER CIRCUMSTANCES BELIEVED BY YOUR DEPARTMENT TO BE SIMILAR TO THOSE HERE INVOLVED.

THE QUESTIONS SPECIFICALLY RAISED ARE STATED AS FOLLOWS:

"/1) MAY A LUMP-SUM PAYMENT BE MADE TO THE FORMER EMPLOYEE WHO RESIGNED A POSITION IN THE MARITIME ADMINISTRATION AND WITHOUT A BREAK IN SERVICE WAS APPOINTED TO A POSITION WITH THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS?

"/2) IF THE ABOVE ANSWER IS IN THE AFFIRMATIVE, MAY A LUMP-SUM PAYMENT BE MADE TO ANY OTHER EMPLOYEE WHO TRANSFERS OR RESIGNS FROM A POSITION IN THE MARITIME ADMINISTRATION WHICH WAS SUBJECT TO THE ANNUAL AND SICK LEAVE ACT, AND WHO, WITHOUT A BREAK IN SERVICE, ACCEPTS A POSITION IN ANOTHER AGENCY TO WHICH HIS LEAVE CANNOT BE TRANSFERRED BECAUSE THE POSITION IS NOT UNDER AN ANNUAL OR A SICK LEAVE SYSTEM?

IF IT BE A FACT THAT THE EMPLOYEE'S ANNUAL LEAVE HERE LEGALLY CANNOT BE TRANSFERRED TO HIS CREDIT IN THE EMPLOYING AGENCY, NAMELY, THE U.S. COURT OF CUSTOMS AND PATENT APPEALS, UPON AN ADJUSTED BASIS PURSUANT TO SECTION 205/E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 AS AMENDED BY PUBLIC LAW 102, APPROVED JULY 2, 1953, THE RESIGNATION OF THE EMPLOYEE FROM YOUR DEPARTMENT PROPERLY MAY BE REGARDED FOR THE PURPOSE OF THIS CASE AS A SEPARATION FROM THE SERVICE WITHIN THE MEANING OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AS AMENDED, SO AS TO AUTHORIZE A LUMP-SUM PAYMENT FOR THE LEAVE. TO HOLD OTHERWISE WOULD LIKELY RESULT IN A FORFEITURE OF THE LEAVE WHICH COULD NOT BE USED IN THE EMPLOYING AGENCY--- A RESULT OBVIOUSLY NOT INTENDED BY THE ENACTMENT OF SECTION 205/E). WE FEEL, THEREFORE, THAT THE HOLDING IN 33 COMP. GEN. 622 IS FOR APPLICATION HERE AS WELL AS TO OTHER CASES OF LIKE NATURE.