B-16032, APRIL 12, 1941, 20 COMP. GEN. 631

B-16032, APRIL 12, 1941, 20 COMP. GEN. 631

APPROPRIATIONS - EFFECT OF ADMINISTRATIVE ALLOTMENT; APPOINTMENTS - TEMPORARY SUBSTITUTES AN UNOBLIGATED AMOUNT OF A LUMP-SUM APPROPRIATION FOR SALARIES OF THE OFFICERS AND EMPLOYEES OF THE COURT OF CLAIMS MAY BE USED TO PAY THE SALARY OF AN EMPLOYEE OF THE CUSTODIAL FORCE OF THE COURT EVEN THOUGH ORIGINALLY SUCH AMOUNT HAD BEEN ADMINISTRATIVELY ALLOTTED FOR JUDGES' SALARIES. THE COURT OF CLAIMS MAY EMPLOY A TEMPORARY FIREMAN DURING THE ANNUAL LEAVE OF A REGULAR FIREMAN WHO HAS BEEN CALLED FOR MILITARY DUTY UNDER THE TERMS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, APRIL 12, 1941:

I HAVE YOUR LETTER OF APRIL 4, 1941, AS FOLLOWS:

THIS OFFICE HAS BEEN ADVISED BY MR. WILLARD L. HART, CHIEF CLERK OF THE UNITED STATES COURT OF CLAIMS, THAT A FIREMAN IN THE EMPLOY OF THAT COURT WITH SALARY AT THE RATE OF $1,440 PER ANNUM, PAYABLE FROM THE APPROPRIATION " SALARIES, COURT OF CLAIMS," HAS BEEN CALLED FOR MILITARY DUTY UNDER THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.

MR. HART FURTHER STATES THAT THIS EMPLOYEE HAS ACCRUED ANNUAL LEAVE OF 23 3/4 DAYS AND SINCE HIS REGULAR COMPENSATION WHILE ON ANNUAL LEAVE PLUS HIS COMPENSATION FOR MILITARY DUTY WILL NOT EXCEED THE RATE OF $2,000 PER ANNUM (TITLE 5, U.S.C. SECTION 58), THE ACCRUED ANNUAL LEAVE MAY BE GRANTED AFTER INDUCTION INTO MILITARY SERVICE.

IN VIEW OF THE FACT THAT THERE ARE NO SAVINGS AVAILABLE IN THE FUNDS ALLOTTED FOR THE SALARIES OF THE CUSTODIAL FORCE OF THE COURT OF CLAIMS, AND THE SERVICES OF THIS PARTICULAR POSITION CANNOT BE DISPENSED WITH AT THIS TIME, YOUR OPINION IS DESIRED AS TO WHETHER OR NOT LAPSE MONEY AVAILABLE FOR THE CURRENT FISCAL YEAR IN THE ALLOTMENT FOR THE SALARIES OF THE JUDGES OF THE COURT OF CLAIMS MAY BE USED FOR THE EMPLOYMENT OF A TEMPORARY FIREMAN DURING THE PERIOD OF THE ANNUAL LEAVE OF THE PRESENT ENCUMBENT OF THIS POSITION.

THE JUDICIARY APPROPRIATION ACT, 1941, APPROVED MAY 14, 1940, PUBLIC NO. 508, 54 STAT. 208, CONTAINS THE FOLLOWING ITEM UNDER THE HEADING " COURT OF CLAIMS: "

SALARIES: CHIEF JUSTICE AND FOUR JUDGES; CHIEF CLERK AT NOT EXCEEDING $6,500; AUDITOR AT NOT EXCEEDING $5,000; AND ALL OTHER OFFICERS AND EMPLOYEES OF THE COURT, $131,000.

IN DECISION OF THIS OFFICE DATED AUGUST 18, 1937, 17 COMP. GEN. 147, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

AMOUNTS OF INDIVIDUAL ITEMS IN THE ESTIMATES PRESENTED TO THE CONGRESS ON THE BASIS OF WHICH A LUMP SUM APPROPRIATION IS ENACTED, ARE NOT BINDING ON ADMINISTRATIVE OFFICERS UNLESS CARRIED INTO THE APPROPRIATION ACT.

THE ABOVE APPROPRIATION IS A LUMP SUM APPROPRIATION FOR SALARIES OF THE OFFICERS AND EMPLOYEES OF THE COURT. IT DOES NOT SET ASIDE A DEFINITE AMOUNT TO BE USED ONLY FOR THE SALARIES OF JUDGES. HENCE, THERE IS NO LEGAL OBJECTION TO THE USE OF AN UNOBLIGATED AMOUNT HERETOFORE ADMINISTRATIVELY ALLOTTED FOR JUDGES' SALARIES TO PAY THE SALARY OF AN EMPLOYEE OF THE CUSTODIAL FORCE OF THE COURT OF CLAIMS.

IN DECISION OF SEPTEMBER 18, 1940, 20 COMP. GEN. 158, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHERE A CIVILIAN EMPLOYEE MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY HAS BEEN ORDERED TO ACTIVE DUTY WITH THE ARMY IN ACCORDANCE WITH PUBLIC RES. NO. 96, AUGUST 27, 1940, AND HIS CIVILIAN POSITION IS NOT A STATUTORY OFFICE BUT ONE ADMINISTRATIVELY CREATED UNDER A LUMP SUM APPROPRIATION, THERE MAY BE ADMINISTRATIVELY CREATED AN ADDITIONAL IDENTICAL POSITION WHICH MAY BE FILLED EITHER BY A TEMPORARY OR PROBATIONAL INDEFINITE APPOINTMENT DURING HIS ABSENCE.

SEE, ALSO, DECISION OF SEPTEMBER 20, 1940, 20 COMP. GEN. 167, 169, WHEREIN IT WAS STATED:

* * * OF COURSE, IF THE COMBINED RATE OF COMPENSATION IN A CIVILIAN POSITION AND PAY FOR SERVICE IN THE LAND OR NAVAL FORCES DOES NOT EXCEED $2,000 PER ANNUM, EMPLOYEES MAY BE PAID THE COMPENSATION OF THEIR CIVILIAN POSITIONS DURING ANNUAL LEAVE TO THEIR CREDIT IF ADMINISTRATIVELY GRANTED EVEN THOUGH SUCH PERIOD EXTENDS BEYOND THE DATE OF ENTRY IN THE MILITARY OR NAVAL SERVICE.

THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.