B-4580, JULY 15, 1939, 19 COMP. GEN. 66

B-4580: Jul 15, 1939

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1939: I HAVE YOUR LETTER OF JUNE 26. WERE GRANTED 30 DAYS' ANNUAL LEAVE OF ABSENCE AND 30 DAYS' SICK LEAVE. YOUR OFFICE WAS ASKED WHETHER THE PROVISIONS OF THE NEW LEAVE ACTS COULD BE APPLIED TO EMPLOYEES ENJOYING DIFFERENTIALS UNDER OTHER ACTS. IS NOT ENTIRELY CLEAR. IT IS CONCLUDED THAT ALL EXISTING LEAVE LAWS APPLICABLE TO "EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. WILL BE APPLICABLE TO SUCH EMPLOYEES.'. IT CLEARLY IS THE INTENTION OF THE PRESIDENT. SINCE THE CURRENT LEAVE REGULATIONS WERE EFFECTIVE AS OF JANUARY 1. WAS RENDERED PRIOR TO THE ISSUANCE OF ANY LEAVE REGULATIONS. ON THE THEORY THAT THE ADDITIONAL PROVISION IN THE CURRENT LEAVE REGULATIONS WITH REGARD TO APPLYING SUCH REGULATIONS TO SUCH EMPLOYEES IS MERELY DECLARATORY OF THE RULE IMPLIED IN THE LEAVE ACTS.

B-4580, JULY 15, 1939, 19 COMP. GEN. 66

LEAVES OF ABSENCE - ANNUAL AND SICK - ACTS, MARCH 14, 1936, EXTENSION OF UNIFORM LEAVE REGULATIONS TO EMPLOYEES ENJOYING LEAVE DIFFERENTIALS SECTION 16 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, AND SECTION 21 OF THE UNIFORM SICK LEAVE REGULATIONS, BOTH PROMULGATED BY EXECUTIVE ORDER EFFECTIVE JANUARY 1, 1938, HAVING VESTED IN GOVERNMENT AGENCIES FOR THE FIRST TIME A DISCRETION TO EXTEND THE REGULATIONS TO EMPLOYEES "SUBJECT TO THE CONTINUANCE OF MARCH 14, 1936, 49 STAT. 1161, AND 1162, RESPECTIVELY, TO EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, THE SAID SECTIONS MAY NOT BE GIVEN RETROACTIVE EFFECT TO JANUARY 1, 1936, THE EFFECTIVE DATE OF THE FIRST UNIFORM ANNUAL AND SICK LEAVE REGULATIONS, FOR THE PURPOSE OF PERMITTING ACCUMULATIONS OF ANNUAL AND SICK LEAVE FROM THAT DATE TO EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE IN ALASKA, HAWAII, PUERTO RICO, GUAM AND THE VIRGIN ISLANDS ENJOYING SUCH LEAVE DIFFERENTIALS, BUT ACCUMULATIONS OF SUCH LEAVE HAVING BEEN PERMITTED BY ADMINISTRATIVE REGULATION PURSUANT TO STATUTE IN AMOUNTS IN EXCESS OF THAT AUTHORIZED BY THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS AND FOR A PERIOD WHICH WOULD EXTEND RETROACTIVELY TO JANUARY 1, 1936, UNUSED ANNUAL AND SICK LEAVE ACCRUING TO SUCH EMPLOYEES BETWEEN JANUARY 1, 1936, UNUSED ANNUAL AND SICK LEAVE ACCRUING TO SUCH EMPLOYEES BETWEEN JANUARY 1, 1936, AND JANUARY 1, 1938, UNDER THE REGULATIONS THEN IN FORCE MAY BE CREDITED TO THEIR ACCOUNT IN EXTENDING TO THEM THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF AGRICULTURE, JULY 15, 1939:

I HAVE YOUR LETTER OF JUNE 26, 1939, AS FOLLOWS:

A QUESTION HAS ARISEN WITH REFERENCE TO THE APPLICATION, TO CERTAIN EMPLOYEES OF THIS DEPARTMENT ASSIGNED TO DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, OF THE ACTS OF MARCH 14, 1936 (49 STAT. 1161 AND 49 STAT. 1162), AND THE PRESIDENTIAL REGULATIONS THEREUNDER, GRANTING ANNUAL AND SICK LEAVES OF ABSENCE TO FEDERAL EMPLOYEES.

EMPLOYEES OF THIS DEPARTMENT PERMANENTLY STATIONED IN ALASKA, HAWAII, PUERTO RICO, GUAM, AND THE VIRGIN ISLANDS, BY VIRTUE OF THE ACT OF JUNE 30, 1914 (38 STAT. 441, AS AMENDED; 5 U.S.C., 535, 536), WERE GRANTED 30 DAYS' ANNUAL LEAVE OF ABSENCE AND 30 DAYS' SICK LEAVE. SECTION 5 OF EACH OF THE ACTS OF MARCH 14, 1936 (49 STAT. 1161 AND 49 STAT. 1162), PROVIDES:

"NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT THE CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL NOW OBTAINING FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.'

IN 15 COMP. GEN. 1058 ( JUNE 5, 1936), THE DECISION BEING PRIOR TO THE PROMULGATION OF ANY REGULATIONS BY THE PRESIDENT UNDER THE LEAVE STATUTES, YOUR OFFICE WAS ASKED WHETHER THE PROVISIONS OF THE NEW LEAVE ACTS COULD BE APPLIED TO EMPLOYEES ENJOYING DIFFERENTIALS UNDER OTHER ACTS, ESPECIALLY WITH A VIEW TO THE EXTENSION OF THE ACCUMULATION FEATURE OF THE NEW LEAVE ACTS TO EMPLOYEES COMING WITHIN THE SCOPE OF EXISTING ACTS CREATING DIFFERENTIALS, BUT PROVIDING NO ACCUMULATION. THE COMPTROLLER GENERAL HELD AS FOLLOWS:

"REFERRING TO QUESTION 7, IT MAY BE STATED THAT THE LEGISLATIVE INTENT OF SECTION 5 OF THE LEAVE ACTS OF MARCH 14, 1936, IS NOT ENTIRELY CLEAR. WOULD SEEM, HOWEVER, THAT AS THERE COULD BE NO "CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL" WITHOUT CONTINUING ALSO THE TERMS AND CONDITIONS ON WHICH SUCH DIFFERENTIAL NOW OBTAINS, IT IS CONCLUDED THAT ALL EXISTING LEAVE LAWS APPLICABLE TO "EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES," WHICH ALLOW AN AMOUNT OF ANNUAL OR SICK LEAVE IN EXCESS OF THAT GRANTED BY THE LEAVE ACTS OF MARCH 14, 1936, REMAIN IN FULL FORCE AND EFFECT AND THAT NO PORTION OF THE RESPECTIVE ANNUAL OR SICK LEAVE ACTS OF MARCH 14, 1936, SO EXCEEDED, WILL BE APPLICABLE TO SUCH EMPLOYEES.'

THE FIRST PRESIDENTIAL LEAVE REGULATIONS ( EXECUTIVE ORDERS NOS. 7409 AND 7410, OF JULY 9, 1936) UNDER THESE ACTS REPEATED, WITHOUT SUBSTANTIAL CHANGE, THE PROVISIONS OF SECTION 5 OF THE LEAVE ACTS. HOWEVER, SECTION 16 OF EXECUTIVE ORDER NO. 7845 AND SECTION 21 OF EXECUTIVE ORDER NO. 7846, OF MARCH 21, 1938, BEING EFFECTIVE AS OF JANUARY 1, 1938, PROVIDE AS FOLLOWS:

"NOTHING IN THESE REGULATIONS SHALL BE CONSTRUED TO PREVENT THE CONTINUANCE OF ANY LEAVE DIFFERENTIAL EXISTING PRIOR TO JANUARY 1, 1936, FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES. HOWEVER, ANY DEPARTMENT MAY, IF IT SO DESIRES, APPLY THESE REGULATIONS TO EMPLOYEES STATIONED WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES, SUBJECT TO THE CONTINUANCE OF SUCH LEAVE DIFFERENTIAL.'

IT CLEARLY IS THE INTENTION OF THE PRESIDENT, IN THE LATEST OF THESE REGULATIONS, THAT EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY BE MADE SUBJECT TO BOTH THEIR EXISTING LEAVE DIFFERENTIALS AND THE PROVISIONS OF THE LEAVE REGULATIONS. HOWEVER, SINCE THE CURRENT LEAVE REGULATIONS WERE EFFECTIVE AS OF JANUARY 1, 1938, IT WOULD SEEM THAT THEREUNDER THOSE EMPLOYEES ENJOYING LEAVE DIFFERENTIALS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MIGHT NOT RECEIVE CREDIT FOR ANY LEAVE ACCUMULATED PRIOR TO JANUARY 1, 1938. HOWEVER, IN VIEW OF THE FACT THAT THE DECISION OF THE COMPTROLLER GENERAL, IN 15 COMP. GEN. 1058, WAS RENDERED PRIOR TO THE ISSUANCE OF ANY LEAVE REGULATIONS, AND ON THE THEORY THAT THE ADDITIONAL PROVISION IN THE CURRENT LEAVE REGULATIONS WITH REGARD TO APPLYING SUCH REGULATIONS TO SUCH EMPLOYEES IS MERELY DECLARATORY OF THE RULE IMPLIED IN THE LEAVE ACTS, IT HAS BEEN URGED THAT THIS ADDITIONAL PROVISION OF THE CURRENT LEAVE REGULATIONS DOES NOT MEAN THAT THE FIRST LEAVE REGULATIONS WERE NOT APPLICABLE TO THESE EMPLOYEES.

TO REITERATE, IT IS ARGUED THAT IF THE BENEFITS OF THE EXISTING LEAVE LAWS, SUBJECT TO THE EXISTING DIFFERENTIALS, CAN BE EXTENDED TO THE EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES BY THE CURRENT LEAVE REGULATIONS, THEN SUCH RIGHTS WERE INITIALLY GUARANTEED BY THE LEAVE ACTS, WHICH ARE APPLICABLE TO OFFICERS AND EMPLOYEES "WHEREVER STATIONED.'

AN EARLY RULING WITH REGARD TO THIS MATTER IS RESPECTFULLY REQUESTED.

SECTION 535 AND 536 OF TITLE 5, U.S. CODE, CITED IN YOUR LETTER PROVIDE AS FOLLOWS:

SEC. 535. LEAVES OF ABSENCE; EMPLOYEES IN ALASKA, HAWAII, PORTO RICO, AND GUAM.--- EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE ASSIGNED TO PERMANENT DUTY IN ALASKA, HAWAII, PORTO RICO, AND GUAM MAY, IN THE DISCRETION OF THE SECRETARY OF AGRICULTURE, WITHOUT ADDITIONAL EXPENSE TO THE GOVERNMENT, BE GRANTED LEAVE OF ABSENCE NOT TO EXCEED THIRTY DAYS IN ANY ONE YEAR, WHICH LEAVE MAY, IN EXCEPTIONAL AND MERITORIOUS CASES WHERE AN EMPLOYEE IS ILL, BE EXTENDED, IN THE DISCRETION OF THE SECRETARY OF AGRICULTURE, NOT TO EXCEED THIRTY DAYS ADDITIONAL IN ANY ONE YEAR. ( JUNE 30, 1914, C.131, 38 STAT. 441.)

SEC. 536. LEAVES OF ABSENCE; EMPLOYEES ASSIGNED TO DUTY IN VIRGIN ISLANDS.--- EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE ASSIGNED TO PERMANENT DUTY IN THE VIRGIN ISLANDS SHALL BE ENTITLED TO THE SAME PRIVILEGES AS TO LEAVE OF ABSENCE AS ARE CONFERRED UPON EMPLOYEES ASSIGNED TO ALASKA, HAWAII, PORTO RICO, AND GUAM BY SECTION 535 OF THIS TITLE, AND IF ANY EMPLOYEE OF THE AGRICULTURAL EXPERIMENT STATIONS OF THE UNITED STATES IN ALASKA, HAWAII, PORTO RICO, GUAM OR THE VIRGIN ISLANDS SHALL ELECT TO POSTPONE THE TAKING OF ANY OR ALL OF THE ANNUAL LEAVE TO WHICH HE MAY BE ENTITLED UNDER SAID SECTION 535, HE MAY, IN THE DISCRETION OF THE SECRETARY OF AGRICULTURE, SUBJECT TO THE INTERESTS OF THE PUBLIC SERVICE, BE ALLOWED TO TAKE AT ONE TIME UNUSED ANNUAL LEAVE WHICH MAY HAVE ACCUMULATED WITHIN NOT TO EXCEED FOUR YEARS, AND BE PAID AT THE RATE PREVAILING DURING THE YEAR SUCH LEAVE OF ABSENCE HAS ACCUMULATED. ( JULY 24, 1919, C. 26, 41 STAT. 262.)

THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS IN FORCE FROM JULY 1, 1936, TO JANUARY 1, 1938, DID NOT AUTHORIZE YOU TO EXTEND SAID REGULATIONS TO EMPLOYEES OF THE CLASSES HERE INVOLVED. SEE SECTION 16 OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 7409, DATED JULY 9, 1936) AND SECTION 20 OF THE SICK LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 7410, DATED JULY 9, 1936) WHICH MERELY INCORPORATED SECTION 5 OF EACH OF THE ANNUAL AND SICK LEAVE ACTS, SAVING TO THE EMPLOYEES ANY "EXISTING LEAVE DIFFERENTIAL.' HOWEVER, SECTION 16 OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938) AND SECTION 20 OF THE SICK LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 7846, DATED MARCH 21, 1938), BOTH EFFECTIVE ON AND AFTER THE REGULATIONS TO THESE EMPLOYEES "SUBJECT TO THE CONTINUANCE OF SUCH LEAVE DIFFERENTIAL.'

THE GENERAL QUESTION WHETHER THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS IN EFFECT PRIOR TO JANUARY 1, 1938, MAY BE REGARDED AS APPLICABLE TO THESE EMPLOYEES, MUST BE ANSWERED IN THE NEGATIVE FOR THE REASON THAT PRIOR TO JANUARY 1, 1938, THERE WAS NO AUTHORITY GRANTED BY THE PRESIDENT TO EXTEND THOSE REGULATIONS TO EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, AND THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES RULED BOTH PRIOR AND SUBSEQUENT TO THE EFFECTIVE DATE OF THOSE REGULATIONS THAT ADMINISTRATIVE REGULATIONS PROMULGATED UNDER OTHER LEAVE STATUTES APPLICABLE TO SUCH EMPLOYEES WOULD REMAIN IN FULL FORCE AND EFFECT. (SEE 15 COMP. GEN. 1058, WHICH YOU HAVE CITED, AND, ALSO, 16 ID. 400.) THE SUBSEQUENT UNIFORM ANNUAL AND SICK LEAVE REGULATIONS MAY NOT BE REGARDED AS EFFECTIVE PRIOR TO JANUARY 1, 1938, THE DATE THEY WERE MADE EFFECTIVE BY THE PRESIDENT UNDER AUTHORITY VESTED IN HIM BY SECTION 7 OF THE ANNUAL AND SICK LEAVE ACTS. (SEE DECISION OF JUNE 30, 1939, B-4489, 18 COMP. GEN. 1014, TO THE SECRETARY OF THE INTERIOR.)

SECTIONS 535 AND 536 OF TITLE 5, U.S. CODE, SUPRA, AUTHORIZE THE GRANTING OF A MAXIMUM OF 30 DAYS ANNUAL AND AN EXTENSION FOR ANOTHER 30 DAYS ON ACCOUNT OF ILLNESS (SICK LEAVE) TO THESE EMPLOYEES IN ANY 1 YEAR. UNDER THE STATUTES, IT IS WITHIN YOUR DISCRETION TO ALLOW THE ACCUMULATION OF ANNUAL AND SICK LEAVE THROUGH A PERIOD OF 4 YEARS. IT IS UNDERSTOOD THAT ACCUMULATION OF ANNUAL AND SICK LEAVE WITHIN THE LIMITATIONS OF THE STATUTES WAS ALLOWED THESE EMPLOYEES PRIOR TO JANUARY 1, 1938. PARAGRAPHS 484, 952, AND 987, FISCAL REGULATIONS OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, 1933. SUCH ACCUMULATION IS MORE THAN THE ACCUMULATION AUTHORIZED UNDER SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND SECTION 2 OF THE SICK LEAVE ACT OF THE SAME DATE, 49 STAT. 1162. UNDER ADMINISTRATIVE REGULATIONS EFFECTIVE JANUARY 1, 1938, ANNUAL LEAVE OF THESE EMPLOYEES AT THE RATE OF 30 DAYS PER ANNUM MAY ACCUMULATE FOR 3 YEARS INCLUDING THE CURRENT LEAVE YEAR, OR A TOTAL OF 90 DAYS, AND SICK LEAVE AT THE RATE OF 1 1/4 DAYS PER MONTH MAY ACCUMULATE FOR 90 DAYS. SECTIONS 2512 AND 2521. AS THE ACCUMULATION OF ANNUAL AND SICK LEAVE OF THESE EMPLOYEES IS A MATTER OF ADMINISTRATIVE DISCRETION WITHIN THE LIMITATIONS OF THE STATUTES IN FORCE PRIOR TO JANUARY 1, 1938, DURING A PERIOD OF 4 YEARS, WHICH, INCLUDING THE CURRENT CALENDAR OR LEAVE YEAR, WILL EXTEND RETROACTIVELY TO JANUARY 1, 1936, AND AS THE UNIFORM ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, AUTHORIZED THE EXTENSION OF THE REGULATIONS EFFECTIVE JANUARY 1, 1938, AUTHORIZED THE EXTENSION OF THE REGULATIONS TO SUCH EMPLOYEES, AND AS THE LEAVE ACTS OF MARCH 14, 1936, SAVE TO THEM ANY GREATER LEAVE BENEFITS ACCRUED UNDER PRIOR LAWS AND ADMINISTRATIVE REGULATIONS, IT MAY BE CONCLUDED THAT IN EXTENDING THE PRESENT ANNUAL- AND SICK-LEAVE REGULATIONS TO THESE EMPLOYEES THEY MAY BE GIVEN CREDIT FOR UNUSED ANNUAL AND SICK LEAVE WHICH HAD ACCRUED BETWEEN JANUARY 1, 1936, AND JANUARY 1, 1938, UNDER THE REGULATIONS THEN IN FORCE.