B-170804, FEB 2, 1971

B-170804: Feb 2, 1971

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ARE ELIGIBLE TO RECEIVE INCENTIVE AWARDS PURSUANT TO THE GOVERNMENT EMPLOYEE'S INCENTIVE AWARDS ACT. DESPITE THE FACT THAT THE ABOVE CITED ACT DOES NOT APPLY TO MOST OF THE JUDICIAL BRANCH BECAUSE THE WORK FOR WHICH THEY ARE BEING REWARDED WAS DONE WHILE ON SPECIAL ASSIGNMENT ON BEHALF OF THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS WHICH OFFICE WAS SPECIFICALLY INCLUDED WITHIN THE OPERATION OF THE ACT. IT IS INDICATED THE CHIEF CLERK AND HER ASSISTANT HAVE DONE AN EXEMPLARY JOB IN REORGANIZING REFEREES' OFFICES ALL OVER THE COUNTRY AND IN PUERTO RICO. ESTABLISHING THE CURRENT PROGRAM WAS ENTITLED "AN ACT TO PROVIDE CERTAIN EMPLOYMENT BENEFITS FOR EMPLOYEES OF THE FEDERAL GOVERNMENT. IS PRIMARILY A PROGRAM FOR THE IMPROVEMENT OF GOVERNMENTAL FUNCTIONS.

B-170804, FEB 2, 1971

INCENTIVE AWARDS - ELIGIBILITY ADVISING THAT THE CHIEF CLERK AND HER ASSISTANT IN THE OFFICE OF THE REFEREE IN BANKRUPTCY IN LOUISVILLE, KY., ARE ELIGIBLE TO RECEIVE INCENTIVE AWARDS PURSUANT TO THE GOVERNMENT EMPLOYEE'S INCENTIVE AWARDS ACT, 5 U.S.C. 4501-4506 FOR WORK DONE IN REORGANIZING REFEREE'S OFFICES ALL OVER THE COUNTRY AND IN PUERTO RICO, DESPITE THE FACT THAT THE ABOVE CITED ACT DOES NOT APPLY TO MOST OF THE JUDICIAL BRANCH BECAUSE THE WORK FOR WHICH THEY ARE BEING REWARDED WAS DONE WHILE ON SPECIAL ASSIGNMENT ON BEHALF OF THE ADMINISTRATIVE OFFICE OF THE U.S. COURTS WHICH OFFICE WAS SPECIFICALLY INCLUDED WITHIN THE OPERATION OF THE ACT.

TO MR. KIRKS:

THE GENERAL COUNSEL OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS IN A LETTER OF SEPTEMBER 9, 1970, REQUESTED OUR OPINION WHETHER A CHIEF CLERK AND HER ASSISTANT IN THE OFFICE OF THE REFEREE IN BANKRUPTCY IN LOUISVILLE, KENTUCKY, MAY BE RECIPIENTS OF AN AWARD UNDER THE INCENTIVE AWARDS PROGRAM ESTABLISHED PURSUANT TO THE GOVERNMENT EMPLOYEES' INCENTIVE AWARDS ACT, PUBLIC LAW 763, 83D CONGRESS, SEPTEMBER 1, 1954, NOW CODIFIED IN 5 U.S.C. 4501-4506. IT IS INDICATED THE CHIEF CLERK AND HER ASSISTANT HAVE DONE AN EXEMPLARY JOB IN REORGANIZING REFEREES' OFFICES ALL OVER THE COUNTRY AND IN PUERTO RICO.

THE INCENTIVE AWARDS PROGRAM, ALTHOUGH VIEWED AS AN EMPLOYEE FRINGE BENEFIT (PUBLIC LAW 763, 83D CONGRESS, ESTABLISHING THE CURRENT PROGRAM WAS ENTITLED "AN ACT TO PROVIDE CERTAIN EMPLOYMENT BENEFITS FOR EMPLOYEES OF THE FEDERAL GOVERNMENT, AND FOR OTHER PURPOSES"), IS PRIMARILY A PROGRAM FOR THE IMPROVEMENT OF GOVERNMENTAL FUNCTIONS. "THE PRIMARY OBJECTIVE OF THE INCENTIVE AWARDS PROGRAM IS THE IMPROVEMENT OF GOVERNMENT OPERATIONS." HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, REPORT COVERING THE EFFECTIVENESS OF IMPLEMENTATION OF THE GOVERNMENT EMPLOYEES' INCENTIVE AWARDS ACT, H.REPT. NO. 885, 90TH CONG., 1ST SESS. 2 (1967). "THE INCENTIVE AWARDS PROGRAM IN THE FEDERAL GOVERNMENT IS DESIGNED TO PROVIDE EMPLOYEES OR GROUPS OF EMPLOYEES WITH MONETARY OR HONORARY AWARDS FOR SUGGESTIONS, SPECIAL ACTS OR SERVICES, OR WORK PERFORMANCES WHICH FURTHER ECONOMIES IN, OR IMPROVE, GOVERNMENTAL OPERATIONS." SENATE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, INCENTIVE AWARDS PROGRAM IN THE FEDERAL GOVERNMENT, S. REPT. NO. 2101, 82D CONG., 2D SESS. 1 (1952).

HISTORICALLY, AND WHILE CURRENTLY BROADENED AS TO SCOPE OF COVERAGE, THE STATUTORY INCENTIVE AWARD PROGRAM IS ESSENTIALLY A PROGRAM WITHIN THE EXECUTIVE BRANCH OF THE GOVERNMENT. BUT AS THE TERM "AGENCY" IS DEFINED IN 5 U.S.C. 4501 FOR THE PURPOSE OF THE STATUTORY PROGRAM TO INCLUDE THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, ALONG WITH SEVERAL ENUMERATED LEGISLATIVE BRANCH AGENCIES, THE SUGGESTION IS MADE THAT THE CONGRESS BY THE INCLUSION OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, WHICH IS THE DISBURSAL AGENCY FOR THE FEDERAL JUDICIARY, MEANT TO INCLUDE THE ENTIRE JUDICIAL BRANCH WITHIN THE PROGRAM.

THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS WAS CREATED AS A DISTINCT ENTITY, WITH ASSIGNED FUNCTIONS, BY AN ACT OF AUGUST 7, 1939, 53 STAT. 1223, 28 U.S.C. 601. WE FIND NO SUBSTANTIVE BASIS IN THE HISTORY OR THE LANGUAGE OF THE INCENTIVE AWARDS ACT TO WARRANT THE CONCLUSION THAT THE ENTIRE FEDERAL JUDICIAL BRANCH WAS BROUGHT WITHIN THE PURVIEW OF THE PROGRAM BY THE INCLUSION OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. NOR CAN WE CONCLUDE THAT AN INFERENCE TO THAT EFFECT IS WARRANTED BECAUSE OF THE DISBURSING OR ADMINISTRATIVE FUNCTIONS OF THE ADMINISTRATIVE OFFICE. ON THE CONTRARY, THE FACT THAT ITS EMPLOYEES UNLIKE OTHER JUDICIAL BRANCH EMPLOYEES ARE SUBJECT TO THE CIVIL SERVICE LAWS (28 U.S.C. 602) AND THEIR COMPENSATION IS FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1949 (28 U.S.C. 603), NEGATES SUCH AN INFERENCE.

OF THE JUDICIAL BRANCH OF GOVERNMENT ONLY THE ADMINISTRATIVE OFFICE IS WITHIN THE PURVIEW OF THE INCENTIVE AWARDS ACT. BUT THAT FACT IS NOT OF ITSELF DETERMINATIVE OF THE QUESTION OF THE GRANTING OF INCENTIVE AWARDS HEREIN. IT APPEARS THE EXEMPLARY JOB PERFORMED BY THE CHIEF CLERK AND HER ASSISTANT IN REORGANIZING REFEREES' OFFICES ALL OVER THE COUNTRY AND PUERTO RICO WAS PERFORMED WHILE ON SPECIAL ASSIGNMENTS ON BEHALF OF THE ADMINISTRATIVE OFFICE. A MEMORANDUM OF THE CHIEF OF THE BANKRUPTCY DIVISION, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, STATES:

"ON THE AVERAGE OF APPROXIMATELY ONCE A YEAR FOR THE PAST TEN YEARS, ONE OR BOTH OF THE SUBJECT EMPLOYEES HAVE WILLINGLY ACCEPTED SPECIAL ASSIGNMENTS OUTSIDE THEIR HEADQUARTERS AT LOUISVILLE, KENTUCKY, AND, IN EACH INSTANCE, THEY HAVE PERFORMED AN IMPORTANT, SPECIAL AND UNIQUE SERVICE FOR THE BANKRUPTCY DIVISION WHICH WE ARE NOT EQUIPPED AND DO NOT HAVE THE TIME TO PERFORM. *** "

AS STATUTORY FUNCTIONS OF THE ADMINISTRATIVE OFFICE WERE INVOLVED IN THE EMPLOYEES' ACHIEVEMENT (28 U.S.C. 604) AND THEIR TEMPORARY ASSIGNMENTS TO REFEREES' OFFICES ALL OVER THE COUNTRY AND PUERTO RICO WERE WITH THE AUTHORIZATION OF THE ADMINISTRATIVE OFFICE WHOSE STATUTORY FUNCTIONS WERE ADVANCED THEREBY, WE PERCEIVE NO IMPEDIMENT TO CONSIDERING THE CHIEF CLERK AND HER ASSISTANT WHILE ON THE TEMPORARY ASSIGNMENTS TO HAVE BEEN EMPLOYEES OF THE ADMINISTRATIVE OFFICE FOR THE PURPOSES OF THE INCENTIVE AWARDS PROGRAM. CF. 33 COMP. GEN. 577 (1954). THE AWARD SHOULD, OF COURSE, BE IN CONFORMITY WITH THE PRINCIPLES AND STANDARDS ESTABLISHED BY THE CIVIL SERVICE COMMISSION; AND THE FUNDS AVAILABLE FOR THE PURPOSE ARE THOSE APPROPRIATED TO THE ADMINISTRATIVE OFFICE FOR THE GENERAL ADMINISTRATIVE EXPENSES OF THE BANKRUPTCY SYSTEM (5 U.S.C. 4502(D)).

A COPY OF THIS DECISION IS BEING FORWARDED TO THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION.