B-143494, APR. 27, 1966

B-143494: Apr 27, 1966

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WHICH DENIED YOUR CLAIM FOR ANNUAL LEAVE CREDIT OR A LUMP-SUM PAYMENT ON THE GROUND THAT ITS CONSIDERATION WAS BARRED BY THE ACT OF OCTOBER 9. RECONSIDERATION IS URGED UPON THE BASIS OF THE RULING OF THE COURT OF CLAIMS IN SAUER V. REFUSED TO CREDIT THAT LEAVE TO PLAINTIFF'S LEAVE ACCOUNT UPON HIS TRANSFER AND AS A CONSEQUENCE HE WAS DENIED A LUMP-SUM PAYMENT FOR THE REMAINDER OF THAT CREDIT UPON HIS RETIREMENT FROM THE SERVICE OF THE COURT IN 1961. THE BASIC LEGAL ISSUE IN THE CASE WAS WHETHER THE POSITION OF AUDITOR OF THE COURT OF CLAIMS WAS SUBJECT TO THE ANNUAL LEAVE ACT OF 1936 AND THE ANNUAL AND SICK LEAVE ACT OF 1951. THAT HIS RIGHT TO THE LEAVE PAYMENT ACCRUED WHEN HE WAS SEPARATED FROM THE FEDERAL SERVICE.

B-143494, APR. 27, 1966

TO MR. STEPHEN S. JACKSON:

YOUR LETTER OF MARCH 18, 1966, ASKS OUR REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 19, 1960, WHICH DENIED YOUR CLAIM FOR ANNUAL LEAVE CREDIT OR A LUMP-SUM PAYMENT ON THE GROUND THAT ITS CONSIDERATION WAS BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.

RECONSIDERATION IS URGED UPON THE BASIS OF THE RULING OF THE COURT OF CLAIMS IN SAUER V. UNITED STATES, CT.CL. NO. 180-64, DECIDED DECEMBER 17, 1965. IN THAT CASE THE PLAINTIFF, A PERMANENT EMPLOYEE OF THE DEPARTMENT OF JUSTICE, TRANSFERRED WITHOUT A BREAK IN SERVICE UNDER A PERMANENT APPOINTMENT TO THE POSITION OF AUDITOR OF THE COURT OF CLAIMS IN 1944. THE TIME OF TRANSFER, THE PLAINTIFF HAD ACCUMULATED SOME 89 DAYS OF LEAVE UNDER THE ANNUAL LEAVE ACT OF 1936, 49 STAT. 1161. THE COURT, ACTING AS AN ADMINISTRATIVE BODY, REFUSED TO CREDIT THAT LEAVE TO PLAINTIFF'S LEAVE ACCOUNT UPON HIS TRANSFER AND AS A CONSEQUENCE HE WAS DENIED A LUMP-SUM PAYMENT FOR THE REMAINDER OF THAT CREDIT UPON HIS RETIREMENT FROM THE SERVICE OF THE COURT IN 1961. THE BASIC LEGAL ISSUE IN THE CASE WAS WHETHER THE POSITION OF AUDITOR OF THE COURT OF CLAIMS WAS SUBJECT TO THE ANNUAL LEAVE ACT OF 1936 AND THE ANNUAL AND SICK LEAVE ACT OF 1951. DECIDING FOR THE PLAINTIFF THE COURT, HOWEVER, DIDSTATE, AS YOU SAY, THAT HIS RIGHT TO THE LEAVE PAYMENT ACCRUED WHEN HE WAS SEPARATED FROM THE FEDERAL SERVICE.

YOUR CASE FACTUALLY IS DISTINGUISHABLE FROM THAT OF MR. SAUER. SECTION 1 OF THE ANNUAL LEAVE ACT OF 1936 PROVIDED IN EFFECT THAT PERMANENT EMPLOYEES SHOULD BE ENTITLED TO 26 DAYS ANNUAL LEAVE EACH CALENDAR YEAR AND THAT TEMPORARY EMPLOYEES SHOULD BE ENTITLED TO 2 1/2 DAYS LEAVE FOR EACH MONTH OF SERVICE. SECTION 3 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AUTHORIZING PAYMENT FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE TO CERTAIN EMPLOYEES UPON THEIR SEPARATION FROM SERVICE, EXPRESSLY DIRECTED A LUMP-SUM PAYMENT IN CASES INVOLVING TRANSFERS TO AGENCIES UNDER DIFFERENT LEAVE SYSTEMS.

IN OUR DECISION 26 COMP. GEN. 604, WE RULED, QUOTING FROM THE SYLLABUS AS FOLLOWS:

"AN EMPLOYEE WHO WAS TRANSFERRED FROM A TEMPORARY TO A PERMANENT POSITION IN THE SAME AGENCY WITH OUT A BREAK IN SERVICE IS ENTITLED UNDER THE ACT OF DECEMBER 21, 1944, AS FOR A TRANSFER BETWEEN DIFFERENT LEAVE SYSTEMS (26 COMP. GEN 259), TO A LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE TO HIS CREDIT ON THE LAST DAY OF SERVICE IN THE TEMPORARY POSITION.'

ALSO, SEE 27 COMP. GEN. 41.

THE RECORD IN YOUR CASE SHOWS THAT YOU RECEIVED A TEMPORARY APPOINTMENT, W.A.E., ON OR ABOUT APRIL 27, 1949, WITH THE FEDERAL SECURITY AGENCY AND THAT UNDER A SERIES OF EXTENSIONS THAT APPOINTMENT WAS CONTINUED UNTIL DECEMBER 28, 1949, WHEN YOU WERE GIVEN AN APPOINTMENT PENDING THE ESTABLISHMENT OF A CIVIL SERVICE REGISTER. FOR PURPOSES OF THE LEAVE ACT THE LATTER APPOINTMENT IS REGARDED AS PERMANENT. SEE 26 COMP. GEN. 786.

SINCE IT APPEARS THAT YOU WERE EMPLOYED SUBSTANTIALLY FULL-TIME DURING YOUR TEMPORARY EMPLOYMENT, ANNUAL LEAVE HAD ACCRUED TO YOUR CREDIT AND YOU SHOULD HAVE BEEN PAID A LUMP SUM FOR LEAVE TO YOUR CREDIT ON DECEMBER 27, 1949.

THEREFORE, IN CONTRADISTINCTION TO THE SAUER CASE YOU WERE LEGALLY ENTITLED TO A LUMP-SUM PAYMENT IMMEDIATELY EFFECTIVE WITH THE DATE OF YOUR TRANSFER RATHER THAN UPON THE DATE OF SEPARATION FROM THE SERVICE.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 237, READS IN PART AS FOLLOWS:

"* * * THAT EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED * * *.'

YOUR CLAIM WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MARCH 21, 1960, WHICH WAS MORE THAN 10 YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. CONSEQUENTLY, CONSIDERATION OF THE CLAIM ON ITS MERITS IS PRECLUDED BY THE ABOVE-QUOTED ACT.

UNDER THE CIRCUMSTANCES OUR OFFICE SETTLEMENT OF AUGUST 19, 1960, WAS CORRECT AND UPON REVIEW MUST BE SUSTAINED.

IN REPLY TO YOUR REQUEST FOR OUR VIEWS AS TO THE PROPRIETY OF COUNTING THE PERIOD FROM APRIL 28, 1949, THROUGH DECEMBER 27, 1949, IN COMPUTING YOUR RETIREMENT BENEFITS, YOU ARE INFORMED THAT DETERMINATION AS TO CREDITABLE SERVICE UNDER THE CIVIL SERVICE RETIREMENT ACT IS A MATTER WITHIN THE JURISDICTION OF THE UNITED STATES CIVIL SERVICE COMMISSION.