B-135431, APR. 21, 1958

B-135431, APR. 21, 1958

TO HONORABLE WARREN OLNEY III, DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

ON MARCH 5, 1958, THE ASSISTANT DIRECTOR ASKED US WHETHER YOUR OFFICE MAY, AT THIS TIME, ACCEPT FOR CREDIT TO AN EMPLOYEE'S LEAVE ACCOUNT A TRANSFER OF 30 DAYS ANNUAL LEAVE EARNED WHILE THE EMPLOYEE WAS WITH THE DEPARTMENT OF JUSTICE, BUT APPARENTLY NOT GRANTED PRIOR TO JULY 1, 1943, AND THE DATE SHE TRANSFERRED TO THE JURISDICTION OF THE JUDICIARY.

THE RECORD SHOWS THAT FOR THE PERIOD AUGUST 21, 1941, TO JUNE 30, 1943, WHILE EMPLOYED BY THE DEPARTMENT OF JUSTICE, LANDS DIVISION, TEXARKANA, ARKANSAS, THE EMPLOYEE COULD HAVE EARNED A TOTAL OF 48 DAYS AND 2 HOURS OF ANNUAL LEAVE. FURTHER, THE RECORD SHOWS THAT DURING SUCH PERIOD NO LEAVE RECORD OF ANY KIND WAS MAINTAINED BY ANYONE IN THE LANDS DIVISION. LETTER DATED JUNE 11, 1943, FROM J. ROBERT CROCKER, SPECIAL ATTORNEY, ADDRESSED TO THE ATTORNEY GENERAL, WRITTEN IN CONTEMPLATION OF THE TRANSFER, STATES THAT THE EMPLOYEE'S ACCRUED ANNUAL LEAVE WOULD BE TRANSFERRED UPON HER TRANSFER TO THE JUDICIARY ON JULY 1, 1943. A LETTER OF MARCH 5, 1958, STATES THAT A TRANSFER OF THE LEAVE WAS NOT MADE. ANOTHER LETTER DATED JUNE 4, 1943, FROM MR. CROCKER TO THE ATTORNEY GENERAL, SAYS THAT THE EMPLOYEE HAD TAKEN ONLY 10 DAYS ANNUAL LEAVE DURING HER SERVICE WITH THE LANDS DIVISION.

IN ADDITION TO THE FOREGOING, THE RECORD CONTAINS SWORN AFFIDAVITS EXECUTED BY MR. CROCKER AND MR. PHILIP G. ALSTON, ACKNOWLEDGING THEY ARE ACQUAINTED WITH THE EMPLOYEE, IN WHICH THEY AVER THAT THE EMPLOYEE HAD AT LEAST 30 DAYS ANNUAL LEAVE TO HER CREDIT AT THE TIME SHE TRANSFERRED. NOTE THAT ON JANUARY 1, 1950, THE EMPLOYEE CARRIED AN ACCUMULATED BALANCE OF 480 HOURS' ANNUAL LEAVE WHICH ALSO IS THE BALANCE AS OF JANUARY 13, 1958. ALL LEAVE RECORDS MAINTAINED FOR THE PERIOD BETWEEN JULY 1, 1943, THE DATE OF THE TRANSFER, AND PRIOR TO 1950, ARE SAID TO HAVE BEEN DESTROYED AFTER INSPECTION.

WE BELIEVE THE EVIDENCE ADEQUATELY ESTABLISHES THAT THE EMPLOYEE COULD HAVE BEEN CREDITED WITH AT LEAST 30 DAYS OF ANNUAL LEAVE AT THE TIME OF HER TRANSFER FROM THE DEPARTMENT OF JUSTICE TO THE JUDICIARY. HOWEVER, WE FEEL THAT IT WOULD BE PRACTICALLY IMPOSSIBLE TO RECONSTRUCT THE EMPLOYEE'S LEAVE RECORD DURING THE PERIOD JULY 1, 1943, TO 1950TO SHOW THAT IF THE 30 DAYS OF ANNUAL LEAVE HAD BEEN PROPERLY CREDITED HER ACCUMULATION OF ANNUAL LEAVE WOULD NOT HAVE EXCEEDED THE ANNUAL LEAVE CEILING AT SOME TIME DURING THAT PERIOD. FOR EXAMPLE, IT WOULD HAVE BEEN POSSIBLE FOR THE EMPLOYEE DURING THE PERIOD OF HER SERVICE WITH THE JUDICIARY ALONE TO HAVE ACCUMULATED 90 DAYS OF ANNUAL LEAVE UNDER THE EMERGENCY CEILING AUTHORIZED BY THE ACT OF DECEMBER 17, 1942, 56 STAT. 1052, BEFORE ITS REPEAL BY SECTION 3 OF THE ACT OF JULY 25, 1947, 61 STAT. 449. IF THAT HAPPENED THE EMPLOYEE WOULD HAVE LOST HER RIGHT TO BE CREDITED WITH THE ADDITIONAL 30 DAYS LEAVE BECAUSE OF THE 90 DAY ACCUMULATION CEILING. IN THE ABSENCE OF EVIDENCE SHOWING WHAT ACTUALLY TRANSPIRED DURING THE PERIOD JULY 1943 TO 1950, ANY ADMINISTRATIVE CONCLUSION CONCERNING THE CREDITING OF THE EMPLOYEE'S ACCOUNT WITH THE ADDITIONAL LEAVE WOULD APPEAR TO BE BASED SOLELY UPON SPECULATIVE GROUNDS. THE RECORD FAILS TO DISCLOSE ANY ACTION ON THE PART OF THE CLAIMANT TO OBTAIN THE CREDIT UNTIL 1954, MORE THAN 10 YEARS AFTER HER RIGHT AROSE AND SOME 5 YEARS AFTER THE RECORDS, FROM WHICH HER ENTITLEMENT TO THE LEAVE COULD HAVE BEEN DETERMINED, WERE DESTROYED. IT WOULD SEEM, THEREFORE, THAT ANY DOUBT IN THE MATTER SHOULD BE RESOLVED IN FAVOR OF THE GOVERNMENT.

IF THE CASE, UPON THE PRESENT RECORD, WAS BEFORE US FOR SETTLEMENT OF A CLAIM FOR A LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE, WE FEEL THAT WE WOULD HAVE TO DENY PAYMENT FOR THE 30 DAYS IN QUESTION.