B-29779, NOVEMBER 3, 1942, 22 COMP. GEN. 429

B-29779: Nov 3, 1942

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AN EMPLOYEE WHO TRANSFERRED FROM A PERMANENT POSITION IN ONE FEDERAL AGENCY TO A TEMPORARY POSITION IN ANOTHER SUCH AGENCY IS NOT ENTITLED. TO HAVE RECREDITED TO HIM THE LEAVE WHICH HE HAD TO HIS CREDIT. WHICH WAS NOT TRANSFERABLE WHEN HE TRANSFERRED TO THE TEMPORARY POSITION. 1942: I HAVE YOUR LETTER OF OCTOBER 21. TO ANOTHER POSITION OR EMPLOYMENT IN THE FEDERAL SERVICE WHICH IS NOT WITHIN THE PURVIEW OF THAT ACT. PROVIDED SUCH SUBSEQUENT TRANSFER OR REAPPOINTMENT IS ALSO WITHOUT BREAK IN RVICE.'. THE PERTINENT FACTS OF THE CASE IN WHICH YOUR DECISION IS REQUESTED ARE AS FOLLOWS: 1. LIMITATIONS WERE PLACED ON THEIR ORIGINAL APPOINTMENTS WITH OPA. THE APPOINTMENTS WERE MADE AS "TEMPORARY.

B-29779, NOVEMBER 3, 1942, 22 COMP. GEN. 429

ANNUAL LEAVE - TRANSFER - TEMPORARY APPOINTMENT INTERVENING BETWEEN PERMANENT AND INDEFINITE APPOINTMENTS UNDER SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, PRESCRIBING CONDITIONS FOR THE TRANSFER OF ACCUMULATED AND ACCRUED LEAVE OF EMPLOYEES WHO TRANSFER FROM ONE POSITION TO ANOTHER IN THE FEDERAL SERVICE, AN EMPLOYEE WHO TRANSFERRED FROM A PERMANENT POSITION IN ONE FEDERAL AGENCY TO A TEMPORARY POSITION IN ANOTHER SUCH AGENCY IS NOT ENTITLED, UPON BEING GIVEN AN INDEFINITE APPOINTMENT IN THE LATTER AGENCY, TO HAVE RECREDITED TO HIM THE LEAVE WHICH HE HAD TO HIS CREDIT, BUT WHICH WAS NOT TRANSFERABLE WHEN HE TRANSFERRED TO THE TEMPORARY POSITION.

COMPTROLLER GENERAL WARREN TO THE PRICE ADMINISTRATOR, OFFICE OF PRICE ADMINISTRATION, NOVEMBER 3, 1942:

I HAVE YOUR LETTER OF OCTOBER 21, 1942 (FILE 353: 13: JMF), AS FOLLOWS:

THE OFFICE OF PRICE ADMINISTRATION REQUESTS YOUR INTERPRETATION OF THE FOLLOWING PROVISION OF THE ANNUAL LEAVE REGULATIONS:

"AN EMPLOYEE TRANSFERRED OR APPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936, TO ANOTHER POSITION OR EMPLOYMENT IN THE FEDERAL SERVICE WHICH IS NOT WITHIN THE PURVIEW OF THAT ACT, SHALL BE CREDITED WITH ALL LEAVE ACCUMULATED AND ACCRUED ON THE DATE OF SUCH TRANSFER OR APPOINTMENT AT SUCH TIME AS HE MAY BE SUBSEQUENTLY RETRANSFERRED OR REAPPOINTED TO A POSITION WITHIN THE PURVIEW OF THAT ACT, PROVIDED SUCH SUBSEQUENT TRANSFER OR REAPPOINTMENT IS ALSO WITHOUT BREAK IN RVICE.'

THE PERTINENT FACTS OF THE CASE IN WHICH YOUR DECISION IS REQUESTED ARE AS FOLLOWS:

1. TWO EMPLOYEES TRANSFERRED FROM PERMANENT POSITIONS IN ANOTHER AGENCY TO OPA. IN THEIR PREVIOUS POSITIONS THEY HAD ACCUMULATED TO THEIR CREDIT VERY SUBSTANTIAL AMOUNTS OF ANNUAL AND SICK LEAVE.

2. FOR BUDGETARY REASONS, LIMITATIONS WERE PLACED ON THEIR ORIGINAL APPOINTMENTS WITH OPA. THE APPOINTMENTS WERE MADE AS "TEMPORARY, NOT TO EXCEED 60 DAYS; " AS STATED ABOVE, HOWEVER, THESE LIMITATIONS WERE DUE TO CONSIDERATIONS OF THE AVAILABILITY OF FUNDS, AND NOT TO ANY TEMPORARY CHARACTER OF THE POSITIONS THEMSELVES OR OF THE WORK TO BE PERFORMED.

3. THE TEMPORARY APPOINTMENTS WERE RENEWED AND EXTENDED UNTIL THE BUDGETARY SITUATION WAS CLEARED UP, AT WHICH TIME THEY WERE CONVERTED TO INDEFINITE APPOINTMENTS.

4. AT NO TIME WAS THERE A BREAK IN SERVICE FOR EITHER EMPLOYEE.

YOUR DECISION IS REQUESTED AS TO WHETHER WE MAY NOW ALLOW THESE EMPLOYEES THE ANNUAL AND SICK LEAVE ACCUMULATED TO THEIR CREDIT AT THE TIME OF THEIR ORIGINAL TRANSFER TO OPA.

THE GENERAL PRINCIPLE, OF COURSE, IS STATED IN THE REGULATIONS: LEAVE MAY ONLY BE TRANSFERRED TO A "PERMANENT, EMERGENCY OR INDEFINITE POSITION.' OUR QUESTION IS WHETHER OR NOT, IN THE ABSENCE OF BREAK IN SERVICE, LEAVE MAY BE TRANSFERRED TO SUCH POSITION THROUGH A PERIOD OF SERVICE IN A TEMPORARY POSITION. WE ARE FAMILIAR WITH YOUR DECISION OF SEPTEMBER 11, 1942 (B-28489), ADDRESSED TO THE ADMINISTRATOR OF FEDERAL WORKS, IN WHICH IT WAS HELD THAT LEAVE COULD NOT BE ALLOWED CERTAIN EMPLOYEES WHO WERE TRANSFERRED TO PROJECT EMPLOYMENT, AND SUBSEQUENTLY RETRANSFERRED WITHOUT BREAK IN SERVICE TO TEMPORARY POSITIONS ON THE ADMINISTRATIVE PAYROLLS.

THE FACTS IN THAT SITUATION, HOWEVER, DIFFER FROM OUR PROBLEM IN ONE RESPECT WHICH SEEMS TO US TO BAR THE CITED CASE AS A PRECEDENT IN THE PRESENT SITUATION. THE EMPLOYEES INVOLVED THERE WERE SEPARATED FROM THE SERVICE WHILE SERVING IN TEMPORARY POSITIONS. WE ASSUME THAT, HAD THE TWO EMPLOYEES IN OUR OWN CASE BEEN SEPARATED FROM THE SERVICE WHILE SERVING UNDER THEIR ORIGINAL TEMPORARY APPOINTMENTS, IT WOULD NOT HAVE BEEN POSSIBLE TO ALLOW THEM THEIR ACCUMULATED LEAVE FROM THE AGENCY OF THEIR PREVIOUS EMPLOYMENT. THEY WERE NOT SO SEPARATED, HOWEVER, BUT APPOINTED TO INDEFINITE POSITIONS WITHOUT BREAK IN SERVICE. IN THE CITED DECISION YOU SAY:

"IF THE EMPLOYEES INVOLVED HERE HAD BEEN RETRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE TO ADMINISTRATIVE POSITIONS OTHER THAN TEMPORARY, WITHIN THE PURVIEW OF THE LEAVE ACTS, THEY WOULD HAVE HAD THE LEAVE TO THEIR CREDIT AT THE TIME THEY WERE TRANSFERRED TO THE PROJECT RECREDITED TO THEM WHEN THEY WERE RETRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE TO ADMINISTRATIVE POSITIONS.'

THE SENTENCE QUOTED IN THE FIRST PARAGRAPH OF THIS LETTER PROVIDES THAT LEAVE MAY BE HELD IN ABEYANCE FOR AN EMPLOYEE WHO PASSES, WITHOUT BREAK IN SERVICE, THROUGH A PERIOD OF FEDERAL SERVICE WITHOUT THE PURVIEW OF THE ACT OF MARCH 14, 1936. THE QUESTION IN THE INSTANT CASE, THEREFORE, IS WHETHER OR NOT THAT PRINCIPLE MAY BE EXTENDED BY INTERPRETATION TO COVER AN INTERVENING PERIOD OF SERVICE IN A POSITION WHICH, WHILE IN ONE SENSE WITHIN THE PURVIEW OF THE ACT OF MARCH 14, 1936, IS NOT SUCH A POSITION FOR THE PURPOSE OF TRANSFER OF LEAVE CREDITS.

IN OUR OPINION SUCH AN INTERPRETATION IS REASONABLE AND CONSISTENT WITH FEDERAL LEAVE POLICY. THE PURPOSE OF THE QUOTED PROVISION OF THE REGULATIONS IS TO PRESERVE THE BENEFITS OF THE ACT FOR PERSONS WHO PASS THROUGH A TEMPORARY PERIOD OF INELIGIBILITY, WHILE REMAINING CONTINUOUSLY IN THE FEDERAL SERVICE. THE PRINCIPLE IS OBVIOUSLY SOUND AND EQUITABLE. THE PRESENT SITUATION OF OUR EMPLOYEES APPEARS STRICTLY ANALOGOUS, IN THAT THEY HAVE RETURNED WITHOUT BREAK IN SERVICE TO FULL ELIGIBILITY UNDER THE ACT, AFTER A PERIOD OF SERVICE IN TEMPORARY APPOINTMENTS. IT WOULD SEEM MOST HARSH AND UNFORTUNATE TO HAVE TO IMPOSE UPON THESE PERSONS PERSONAL PENALTIES OF SOME HUNDREDS OF DOLLARS BECAUSE OF CIRCUMSTANCES WHOLLY BEYOND THEIR CONTROL WHICH WERE, AT MOST, BUDGETARY TECHNICALITIES.

IT IS OUR UNDERSTANDING THAT THE QUOTED PROVISION WAS ADDED TO THE REGULATIONS CHIEFLY TO PRESERVE THE LEAVE RIGHTS OF EMPLOYEES, ASSIGNED TO TEMPORARY DUTY IN THE CANAL ZONE. IF WE ARE CORRECT IN THIS UNDERSTANDING, IT WOULD SEEM TO CREATE AN EVEN STRONGER PRESUMPTION IN FAVOR OF THE TWO OPA EMPLOYEES INVOLVED: FOR TO HOLD THE CONTRARY WOULD, IN EFFECT, DISCRIMINATE AGAINST EMPLOYEES WHOSE SERVICE HAS BEEN CONTINUOUSLY IN POSITIONS OF THE CLASS WHICH THE CONGRESS INTENDED SHOULD ENJOY THE PRIVILEGES OF ANNUAL AND SICK LEAVE, AND IN FAVOR OF THOSE WHO HAVE DEPARTED FROM SUCH SERVICE AND RETURNED TO IT AT A LATER DATE.

THE ACT OF MARCH 14, 1936, CREATED CERTAIN REAL AND SUBSTANTIAL BENEFITS FOR FEDERAL EMPLOYEES. BY PROVIDING THAT THESE BENEFITS SHALL ACCUMULATE FROM YEAR TO YEAR UP TO A MAXIMUM, CONGRESS SHOWED THAT IT WAS ITS INTENTION TO HAVE THESE BENEFITS FOLLOW EMPLOYEES IN THE PERMANENT SERVICE, FROM YEAR TO YEAR AND FROM POSITION TO POSITION. THE TWO OPA EMPLOYEES IN THE PRESENT CASE HAVE WORKED FOR YEARS TO ACCUMULATE THE LEAVE WHICH NOW EXISTS TO THEIR CREDIT; THEY ARE NOW AND NO DOUBT WILL CONTINUE TO BE PERMANENT EMPLOYEES OF THE FEDERAL SERVICE. WE DO NOT BELIEVE IT WOULD BE CONSISTENT WITH THE INTENT OF CONGRESS TO DEPRIVE THEM OF THAT LEAVE MERELY BY REASON OF THE FACT THAT FOR A TIME THEIR EMPLOYMENT, FOR BUDGETARY REASONS, WAS TECHNICALLY--- AND PERHAPS INACCURATELY--- TERMED "TEMPORARY.'

WE HAVE READ A NUMBER OF EARLIER DECISIONS OF YOUR OFFICE INDICATING A CONTRARY VIEW; THESE DECISIONS, HOWEVER, WERE MADE BEFORE THE QUOTED PROVISION WAS ADDED TO THE REGULATIONS, AND TO THE BEST OF OUR KNOWLEDGE THE AMENDED REGULATIONS HAVE NEVER BEEN INTERPRETED IN AN ANALOGOUS SITUATION. WE SHOULD APPRECIATE YOUR CONSIDERATION OF AND DECISION IN THE PREMISES STATED.

THE FIRST SENTENCE OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384 OF MARCH 29, 1940), HERE APPLICABLE, PROVIDES:

AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF HIS TRANSFER OR REAPPOINTMENT BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED, PROVIDED SUCH LATTER POSITION IS ALSO WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936. * * *

IT HAS BEEN HELD CONSISTENTLY BY THIS OFFICE--- BOTH BEFORE AND AFTER THE AMENDMENT IN SECTION 6 OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384 OF MARCH 29, 1940) ADDING THE SECOND SENTENCE QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER--- THAT THERE IS NO AUTHORITY UNDER THAT SECTION OF THE REGULATIONS TO TRANSFER ANNUAL LEAVE CREDIT FROM OR TO A PERMANENT POSITION TO OR FROM A TEMPORARY POSITION BETWEEN DIFFERENT DEPARTMENTS OR ESTABLISHMENTS OF THE GOVERNMENT. 16 COMP. GEN. 403; 17 ID. 414; ID. 830; 18 ID. 317; DECISION OF SEPTEMBER 11, 1942, B-28489 TO THE FEDERAL WORKS ADMINISTRATOR, AND DECISION OF SEPTEMBER 18 1942, B-28756, 22 COMP. GEN. 246. COMPARE 20 COMP. GEN. 661; 21 ID. 101 QUESTION AND ANSWER (C). APPLYING THAT RULE THE TEMPORARY OR PERMANENT CHARACTER OF A POSITION IS PROPERLY FOR DETERMINATION UPON THE BASIS OF THE TENURE OF THE APPOINTMENT TO THE POSITION FROM OR TO WHICH AN EMPLOYEE TRANSFERRED. IN THAT CONNECTION, SEE THE DECISION OF APRIL 9, 193 COMP. GEN. 830, 831, WHEREIN, AFTER QUOTING THE DEFINITIONS OF ,PERMANENT EMPLOYEES" AND "TEMPORARY EMPLOYEES" APPEARING IN SECTION 1 ANNUAL LEAVE REGULATIONS, AND, ALSO, AFTER QUOTING THE FIRST SENTENCE OF SECTION 6 OF THE SAME REGULATIONS, IT WAS STATED:

WHILE THIS SECTION OF THE REGULATIONS, UNLIKE OTHER SECTIONS, USES THE WORD "PERMANENT" AS DESCRIPTIVE OF "POSITION," FROM AND TO WHICH AN EMPLOYEE IS TRANSFERRED OR REAPPOINTED, RATHER THAN AS DESCRIPTIVE OF THE "EMPLOYEE," NEVERTHELESS THE PERMANENT OR TEMPORARY CHARACTER OF A POSITION FOR LEAVE PURPOSES IS DETERMINED BY THE TERM OF THE APPOINTMENT OF THE EMPLOYEE TO OCCUPY THE SAME, AND THE TERM OF THE APPOINTMENT DETERMINES THE STATUS OF THE EMPLOYEE UNDER THE DEFINITION APPEARING IN THE REGULATIONS ABOVE QUOTED. SEE, GENERALLY, 16 COMP. GEN. 264; 16 ID. 403.

REGARDLESS OF THE REASON FOR SO LIMITING THE APPOINTMENT, THE FACT IS THAT THE APPOINTMENT FIRST GIVEN MISS NELIS BY THE SOCIAL SECURITY BOARD WAS AN APPOINTMENT "NOT TO EXCEED 30 DAYS; " HENCE, THE POSITION WITH THE BOARD TO WHICH SHE WAS "TRANSFERRED OR REAPPOINTED" WAS A TEMPORARY, NOT A PERMANENT, POSITION. CONSEQUENTLY, THERE IS NO ALTERNATIVE BUT TO CONCLUDE THAT THE LEAVE TO HER CREDIT AT THE TIME OF HER RESIGNATION FROM THE HOME OWNERS' LOAN CORPORATION MAY NOT BE TRANSFERRED TO HER CREDIT UNDER SERVICE WITH THE SOCIAL SECURITY BOARD. COMPARE 21 COMP. GEN. 550; ID. 924; ID. 1067, WHEREIN SUBSTANTIALLY THE SAME RULE IS USED AS A BASIS FOR APPLYING THE TERMS ,PERMANENT" AND "TEMPORARY" POSITIONS APPEARING IN THE WITHIN-GRADE PROMOTION LAW AND REGULATIONS. ACCORDINGLY, THIS OFFICE IS UNABLE TO ACCEPT THE SUGGESTION MADE IN YOUR LETTER THAT APPOINTMENTS DESIGNATED FOR BUDGETARY REASONS AS "TEMPORARY, NOT TO EXCEED 60 DAYS" DID NOT CONSTITUTE TEMPORARY POSITIONS WITHIN THE MEANING OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS-- LACK OF FUNDS OR WORK ALWAYS HAVING BEEN REGARDED AS A PROPER CREATING TEMPORARY POSITIONS BY MAKING TEMPORARY APPOINTMENTS OF EMPLOYEES.

NEITHER CAN THIS OFFICE ACCEPT THE VIEW THAT A DISTINCTION MAY BE MADE IN APPLYING THE RULE BETWEEN EMPLOYEES WHO ARE SEPARATED FROM THE SERVICE WHILE OCCUPYING A TEMPORARY POSITION TO WHICH THEY WERE TRANSFERRED FROM A PERMANENT POSITION, AND EMPLOYEES WHO ARE LATER RETRANSFERRED TO A PERMANENT POSITION, ON THE BASIS OF THE SECOND SENTENCE OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS ADDED BY EXECUTIVE ORDER NO. 8384 OF MARCH 29, 1940, QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER. AS TEMPORARY EMPLOYEES HOLDING TEMPORARY POSITIONS ARE EXPRESSLY WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND THE REGULATIONS ISSUED THEREUNDER, PURSUANT TO WHICH TEMPORARY EMPLOYEES RECEIVE ANNUAL LEAVE AT THE RATE OF 2 1/2 DAYS PER MONTH, THE SECOND SENTENCE OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS WHICH HAS RELATION TO EMPLOYEES WHO HAVE BEEN TRANSFERRED TO EMPLOYMENTS OR POSITIONS IN THE FEDERAL SERVICE NOT WITHIN THE PURVIEW OF THE LEAVE ACT OF MARCH 14, 1936, NOT INTENDED TO, AND DOES NOT, APPLY TO SUCH CASES AS HERE PRESENTED. THE TERMS OF THE REGULATION ISSUED BY THE PRESIDENT UNDER AUTHORITY OF SECTION 5 OF THE ANNUAL LEAVE ACT ARE SO CLEAR AND UNAMBIGUOUS AS TO LEAVE NO ROOM FOR REASONABLE DOUBT THAT THEY DO NOT AUTHORIZE THE TRANSFER OF ANNUAL LEAVE CREDIT FROM A PERMANENT TO A TEMPORARY POSITION; AND THIS OFFICE CANNOT BY ANY STRAINED INTERPRETATION OR CONSTRUCTION OF THE LAW AND REGULATIONS EXTEND THE LEAVE TRANSFER PRIVILEGE TO SUCH CASES.

ALSO, WHEN CONSIDERING THE QUESTION PRESENTED IN THE LIGHT OF THE HISTORY OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, THERE CAN BE NO DOUBT BUT THAT THE PRESIDENT DID NOT INTEND TO PERMIT THE TRANSFER OF LEAVE CREDIT FROM A PERMANENT TO A TEMPORARY POSITION. SECTION 6 OF EXECUTIVE ORDER NO. 7845 OF MARCH 21, 1938, AUTHORIZED TRANSFER OF ANNUAL LEAVE CREDIT ONLY FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION. SAID REGULATION WAS AMENDED BY EXECUTIVE ORDER NO. 7879 OF MAY 9, 1938, SO AS TO EXTEND THE BENEFIT TO TRANSFERS BETWEEN EMERGENCY AND INDEFINITE POSITIONS AS WELL AS TO TRANSFERS BETWEEN PERMANENT POSITIONS, BUT THE BENEFIT WAS NOT THEN OR THEREAFTER EXTENDED TO TRANSFERS INVOLVING TEMPORARY POSITIONS AS DEFINED BY THE LEAVE REGULATIONS. IT WOULD APPEAR, THEREFORE, THAT THE OMISSION OF TRANSFERS FROM AND TO TEMPORARY POSITIONS WAS NOT AN OVERSIGHT BUT WAS INTENTIONAL AND FOR THE PURPOSE OF EXCLUDING TEMPORARY EMPLOYEES FROM SUCH BENEFIT. ACCORDINGLY, I HAVE TO ADVISE THAT THE TWO EMPLOYEES REFERRED TO IN THE SECOND PARAGRAPH OF YOUR LETTER MAY NOT BE CREDITED WITH THE ANNUAL LEAVE THEY EARNED IN PERMANENT POSITIONS IN ANOTHER FEDERAL AGENCY PRIOR TO TRANSFER TO TEMPORARY POSITIONS UNDER THE OFFICE OF PRICE ADMINISTRATION.