B-148034, JAN. 31, 1962

B-148034: Jan 31, 1962

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YOU SUBMITTED FOR OUR DECISION THE MATTER OF CREDITING LEAVE IN THE CASE OF AN EMPLOYEE WHO WAS SUSPENDED AND REMOVED FROM DUTY WITH THE SECURITIES AND EXCHANGE COMMISSION. WHO LATER WAS RESTORED TO DUTY. IT APPEARS FROM THE RECORD PRESENTED THAT THE EMPLOYEE WAS SUSPENDED ON JUNE 29. THE EMPLOYEE WAS RESTORED TO DUTY. WHILE THE RECORD IS NOT EXPLICIT ON THE POINT. WE INFER THAT THE RESTORATION WAS EFFECTED AS A RESULT OF THE DECISION OF THE UNITED STATES SUPREME COURT IN COLE V. THE ULTIMATE AUTHORITY CITED FOR PAYMENT OF BACK PAY WAS SECTION 6 OF THE ACT OF AUGUST 24. LEAVE ACCRUAL WAS DENIED IN ACCORDANCE WITH THE PROHIBITION IN THE 1912 ACT. WERE FOR DETERMINATION UNDER PUBLIC LAW 733.

B-148034, JAN. 31, 1962

TO MR. ARTHUR A. KICSAR, AUTHORIZED CERTIFYING OFFICER, SECURITIES AND EXCHANGE COMMISSION:

ON JANUARY 23, 1962, YOU SUBMITTED FOR OUR DECISION THE MATTER OF CREDITING LEAVE IN THE CASE OF AN EMPLOYEE WHO WAS SUSPENDED AND REMOVED FROM DUTY WITH THE SECURITIES AND EXCHANGE COMMISSION, PURPORTEDLY UNDER AUTHORITY OF THE ACT OF AUGUST 26, 1950 (PUBLIC LAW 733), 5 U.S.C. 22-1, AND WHO LATER WAS RESTORED TO DUTY.

IT APPEARS FROM THE RECORD PRESENTED THAT THE EMPLOYEE WAS SUSPENDED ON JUNE 29, 1954, AND REMOVED ON MARCH 11, 1955, THE AUTHORITY CITED FOR SUCH ACTION BEING PUBLIC LAW 733 AND EXECUTIVE ORDER NO. 10450. THEREAFTER, ON AUGUST 29, 1956, THE EMPLOYEE WAS RESTORED TO DUTY. WHILE THE RECORD IS NOT EXPLICIT ON THE POINT, WE INFER THAT THE RESTORATION WAS EFFECTED AS A RESULT OF THE DECISION OF THE UNITED STATES SUPREME COURT IN COLE V. YOUNG, 351 U.S. 536, CONCERNING THE INAPPLICABILITY OF THE SUSPENSION AND REMOVAL PROCEDURES OF PUBLIC LAW 733 IN THE CASE OF EMPLOYEES OCCUPYING NONSENSITIVE POSITIONS. THE ULTIMATE AUTHORITY CITED FOR PAYMENT OF BACK PAY WAS SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED (5 U.S.C. 652 (B) (, AND OUR DECISION OF SEPTEMBER 20, 1956 (B-129169), 36 COMP. GEN. 225. LEAVE ACCRUAL WAS DENIED IN ACCORDANCE WITH THE PROHIBITION IN THE 1912 ACT, AS AMENDED, AGAINST THE ACCUMULATION OF LEAVE.

IN LEINER V. UNITED STATES, 143 CT.CL. 806, DECIDED OCTOBER 8, 1958, THE COURT OF CLAIMS HELD THAT THE BACK PAY RIGHTS OF EMPLOYEES RESTORED TO DUTY IN ACCORDANCE WITH COLE V. YOUNG, SUPRA, WERE FOR DETERMINATION UNDER PUBLIC LAW 733. WE HELD IN OUR DECISION OF JULY 22, 1959, 39 COMP. GEN. 52, TO THE POSTMASTER GENERAL THAT, IN VIEW OF THE COURT'S DECISION, WE WOULD NOT INSIST UPON THE POSITION WE TOOK IN THE DECISION OF SEPTEMBER 20, 1956; AND, CONCERNING THE ACCRUAL OF LEAVE, WE SAID THAT---

"AS DISTINGUISHED FROM SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, SUPRA, THE 1950 ACT PERMITS THE CREDITING OF ANNUAL AND SICK LEAVE, UP TO STATUTORY CEILINGS, FOR PERIODS OF SUSPENSION OR TERMINATION FOR WHICH BACK PAY IS ALLOWABLE. 31 COMP. GEN. 58 AND 35 ID. 121, SUPRA; 38 ID. 249. CONSEQUENTLY, YOUR PAYMENT MAY CREDIT ANNUAL AND SICK LEAVE TO THE AFFECTED EMPLOYEES IN CONFORMITY WITH THOSE DECISIONS.'

WHAT WAS THERE SAID IN EQUALLY APPLICABLE HERE AND WE WOULD HAVE NO OBJECTION TO READJUSTMENT OF THE EMPLOYEE'S LEAVE ACCOUNT ACCORDINGLY.

THE CASE OF ISIDORE ZEIGER V. UNITED STATES, CT.CL.NO. 389-60, DECIDED NOVEMBER 1, 1961, 295 F.2D 915, REFERRED TO BY YOU, IS IN CONSONANCE WITH OUR DECISIONS CITED IN THE ABOVE-QUOTED MATTER CONCERNING THE APPLICABILITY OF ANNUAL LEAVE CEILINGS.

THE EMPLOYEE'S REQUEST TO YOUR COMMISSION FOR READJUSTMENT OF HER LEAVE ACCOUNT IS HEREWITH RETURNED. THE OTHER ENCLOSURES WHICH ACCOMPANIED YOUR LETTER ARE BEING RETAINED.