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B-172557, MAY 24, 1971, 50 COMP GEN 820

B-172557 May 24, 1971
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HOWARD UNIVERSITY - EMPLOYEES - TRANSFERRED FROM FREEDMEN'S HOSPITAL - LEAVE STATUS AN EMPLOYEE WHO BY REASON OF TRANSFER FROM FREEDMEN'S HOSPITAL TO THE JURISDICTION OF HOWARD UNIVERSITY UNDER PUBLIC LAW 87-262 IS ENTITLED TO CREDIT FOR RETIREMENT PURPOSES FOR CONTINUOUS EMPLOYMENT WITH THE UNIVERSITY. UPON REEMPLOYMENT WITH THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENT MAY NOT HAVE THE SERVICE CREDITABLE FOR RETIREMENT CREDITED AS SERVICE TOWARD THE ANNUAL LEAVE ACCRUAL PROVIDED IN 5 U.S.C. 6303(A). AS THE UNIVERSITY IS NOT A GOVERNMENT INSTRUMENTALITY AND. SERVICE WITH THE UNIVERSITY IS NOT CONSIDERED FEDERAL CIVILIAN SERVICE. WHO CONSEQUENTLY IS ENTITLED TO CREDIT FOR RETIREMENT PURPOSES FOR HIS CONTINUOUS EMPLOYMENT WITH HOWARD UNIVERSITY.

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B-172557, MAY 24, 1971, 50 COMP GEN 820

HOWARD UNIVERSITY - EMPLOYEES - TRANSFERRED FROM FREEDMEN'S HOSPITAL - LEAVE STATUS AN EMPLOYEE WHO BY REASON OF TRANSFER FROM FREEDMEN'S HOSPITAL TO THE JURISDICTION OF HOWARD UNIVERSITY UNDER PUBLIC LAW 87-262 IS ENTITLED TO CREDIT FOR RETIREMENT PURPOSES FOR CONTINUOUS EMPLOYMENT WITH THE UNIVERSITY, UPON REEMPLOYMENT WITH THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENT MAY NOT HAVE THE SERVICE CREDITABLE FOR RETIREMENT CREDITED AS SERVICE TOWARD THE ANNUAL LEAVE ACCRUAL PROVIDED IN 5 U.S.C. 6303(A), AS THE UNIVERSITY IS NOT A GOVERNMENT INSTRUMENTALITY AND, THEREFORE, SERVICE WITH THE UNIVERSITY IS NOT CONSIDERED FEDERAL CIVILIAN SERVICE. SINCE THE FORMER FREEDMEN'S HOSPITAL EMPLOYEES RECEIVED A LUMP-SUM LEAVE PAYMENT UPON TRANSFER TO THE HOSPITAL, INDICATING SEPARATION, AND PUBLIC LAW 87- 262 MAKES NO PROVISION FOR CREDITING SERVICE FOR LEAVE ACCRUAL PURPOSES, CONTINUOUS SERVICE WITH HOWARD MAY NOT BE CONSIDERED AS NOT HAVING HAD A BREAK IN SERVICE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, MAY 24, 1971:

THIS REFERS TO YOUR LETTER OF APRIL 6, 1971, REQUESTING A DECISION FROM OUR OFFICE WHETHER AN EMPLOYEE WHO TRANSFERRED WITH FREEDMEN'S HOSPITAL TO HOWARD UNIVERSITY UNDER PUBLIC LAW 87-262, AND WHO CONSEQUENTLY IS ENTITLED TO CREDIT FOR RETIREMENT PURPOSES FOR HIS CONTINUOUS EMPLOYMENT WITH HOWARD UNIVERSITY, WOULD BE ENTITLED UPON REEMPLOYMENT WITH THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENT TO CREDIT FOR THE PURPOSE OF DETERMINING ANNUAL-LEAVE CATEGORY.

YOU ASK THE FOLLOWING QUESTIONS:

1. MAY SERVICE WITH HOWARD UNIVERSITY WHICH IS CREDITABLE FOR RETIREMENT UNDER SECTION 2(C) OF PUBLIC LAW 87-262 BE CREDITED AS SERVICE TOWARD ANNUAL-LEAVE ACCRUAL CATEGORY UNDER 5 U.S.C. 6363 (5 U.S.C. 6303)?

2. MAY CONTINUOUS SERVICE WITH HOWARD UNIVERSITY OF EMPLOYEES WHO WERE TRANSFERRED TO THE UNIVERSITY UNDER PUBLIC LAW 87-262 BE CONSIDERED AS NOT A "BREAK IN SERVICE" FOR LEAVE PURPOSES WITH RESPECT TO SUCH AN EMPLOYEE WHO IS REEMPLOYED IN THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENT?

SECTION 2(C) OF PUBLIC LAW 87-262, 75 STAT. 543, PROVIDES IN PART AS FOLLOWS:

EACH INDIVIDUAL WHO IS AN EMPLOYEE OF FREEDMEN'S HOSPITAL ON THE DATE OF ENACTMENT OF THIS ACT AND WHO TRANSFERS TO HOWARD UNIVERSITY SHALL, SO LONG AS HE IS CONTINUOUSLY IN THE EMPLOY OF HOWARD UNIVERSITY, BE REGARDED AS CONTINUING IN THE EMPLOY OF THE UNITED STATES FOR THE PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT, THE FEDERAL EMPLOYEES' GROUP LIFE INSURANCE ACT OF 1954. ***

5 U.S.C. 6303(A) PERTAINING TO ANNUAL LEAVE ACCRUALS BASED ON YEARS OF SERVICE ALSO REFERRED TO IN YOUR LETTER IS IN PART AS FOLLOWS:

IN DETERMINING YEARS OF SERVICE, AN EMPLOYEE IS ENTITLED TO CREDIT FOR ALL SERVICE CREDITABLE UNDER SECTION 8332 OF THIS TITLE FOR THE PURPOSE OF AN ANNUITY UNDER SUBCHAPTER III OF CHAPTER 83 OF THIS TITLE. ***

HOWARD UNIVERSITY WAS INCORPORATED BY ACT OF CONGRESS DATED MARCH 2, 1867, 14 STAT. 438. THE UNIVERSITY HAS BEEN HELD TO HAVE BEEN A PRIVATE CORPORATION AS DISTINGUISHED FROM A GOVERNMENT INSTRUMENTALITY. SEE MAIATICO CONSTRUCTION COMPANY V UNITED STATES, 79 F. 2D 418 (1935) AND COBB V HOWARD UNIVERSITY, 106 F. 2D 860 (1939). WHILE THE ACT OF INCORPORATION WAS AMENDED ON MAY 13, 1938, 52 STAT. 351, NOTHING IN THE AMENDING STATUTE CHANGED THE PRIVATE CHARACTER OF THE CORPORATION (HOWARD UNIVERSITY).

IN OUR DECISION OF JANUARY 11, 1961, 40 COMP. GEN. 412, WE INDICATED THAT BASED UPON THE LEGISLATIVE HISTORY, THE TERM "YEARS OF SERVICE" AS USED IN 5 U.S.C. 6303(A), SUPRA, WAS LIMITED TO MILITARY SERVICE AND FEDERAL CIVILIAN SERVICE. THUS, IT FOLLOWS THAT SINCE SERVICE WITH HOWARD UNIVERSITY IS NOT GENERALLY REGARDED AS FEDERAL CIVILIAN SERVICE IT WOULD NOT BE CREDITABLE FOR LEAVE ACCRUAL PURPOSE UNLESS SUCH A RIGHT CAN BE VIEWED AS HAVING BEEN GRANTED BY PUBLIC LAW 87-262. AS PREVIOUSLY INDICATED THE LANGUAGE OF THAT STATUTE SPECIFICALLY REQUIRES THAT SERVICES WITH HOWARD UNIVERSITY OF EMPLOYEES TRANSFERRED FROM FREEDMEN'S HOSPITAL BE REGARDED AS SERVICE WITH THE UNITED STATES FOR RETIREMENT AND CERTAIN OTHER PURPOSES. HOWEVER, SUCH STATUTE IS SILENT AS TO CREDIT FOR LEAVE ACCRUAL PURPOSES WHEN AN EMPLOYEE RETURNS TO FEDERAL EMPLOYMENT. MOREOVER, WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE ENACTMENT TO SUGGEST AN INTENT TO THAT EFFECT. THEREFORE, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE. IN LINE WITH THE FOREGOING YOUR SECOND QUESTION IS LIKEWISE ANSWERED IN THE NEGATIVE. IN THAT CONNECTION WE UNDERSTAND THAT THE EMPLOYEES TRANSFERRING FROM FREEDMEN'S HOSPITAL TO THE JURISDICTION OF HOWARD UNIVERSITY RECEIVED LUMP-SUM PAYMENTS FOR THEIR ANNUAL LEAVE WHICH PRESUMABLY WERE BASED ON THE TRANSFERS BEING SEPARATIONS FOR THAT PURPOSE.

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