B-51244, AUGUST 14, 1945, 25 COMP. GEN. 185

B-51244: Aug 14, 1945

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ARE PERMITTED TO COLLECT FEES FROM BOTH PRIVATE PARTIES AND THE GOVERNMENT. HAVE NO REGULAR TOUR OF DUTY. THE INDIVIDUAL REPORTER BEING SUBJECT TO THE CALL OF THE COURT WHEN HIS SERVICES ARE NEEDED. ARE TO BE REGARDED AS PART TIME OR INTERMITTENT EMPLOYEES WITHIN THE MEANING OF SECTION 6.1 (E) OF THE ANNUAL AND SICK LEAVE REGULATIONS. WAS APPOINTED EFFECTIVE THE NEXT DAY AS A COURT REPORTER IN THE SAME COURT. IS ENTITLED UNDER THE ACT OF DECEMBER 21. 1945: I HAVE YOUR LETTER OF JULY 21. A COPY OF WHICH IS ENCLOSED. THE QUESTION TO BE DISPOSED OF IS WHETHER THE LEAVE SO ACCRUED SHOULD BE CARRIED OVER TO THE NEW POSITION OF OFFICIAL COURT REPORTER OR BE PAID IN A LUMP SUM. SUCH FEES THEREFOR AS ARE PRESCRIBED FROM TIME TO TIME BY THE COURT.

B-51244, AUGUST 14, 1945, 25 COMP. GEN. 185

LEAVES OF ABSENCE FOR COURT REPORTERS OF FEDERAL DISTRICT COURTS; LUMP SUM PAYMENTS FOR LEAVE COURT REPORTERS OF THE FEDERAL DISTRICT COURTS, WHO, ALTHOUGH EMPLOYED UNDER PERMANENT APPOINTMENTS PURSUANT TO THE ACT OF JANUARY 20, 1944, ON AN ANNUAL SALARY BASIS, ARE PERMITTED TO COLLECT FEES FROM BOTH PRIVATE PARTIES AND THE GOVERNMENT, AND HAVE NO REGULAR TOUR OF DUTY, THE INDIVIDUAL REPORTER BEING SUBJECT TO THE CALL OF THE COURT WHEN HIS SERVICES ARE NEEDED, ARE TO BE REGARDED AS PART TIME OR INTERMITTENT EMPLOYEES WITHIN THE MEANING OF SECTION 6.1 (E) OF THE ANNUAL AND SICK LEAVE REGULATIONS, AND, AS SUCH, EXCLUDED FROM THE ANNUAL LEAVE BENEFITS PROVIDED BY THE ACT OF MARCH 14, 1936, AND THE REGULATIONS. A FEDERAL DISTRICT COURT EMPLOYEE WHO RESIGNED AS DEPUTY CLERK, A POSITION UNDER A LEAVE SYSTEM, AND WAS APPOINTED EFFECTIVE THE NEXT DAY AS A COURT REPORTER IN THE SAME COURT, A POSITION NOT UNDER ANY LEAVE SYSTEM, IS ENTITLED UNDER THE ACT OF DECEMBER 21, 1944, TO A LUMP-SUM PAYMENT FOR THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO HER CREDIT ON THE DATE OF RESIGNATION. AN EMPLOYEE ENTITLED UNDER THE ACT OF DECEMBER 21, 1944, TO A LUMP SUM PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED LEAVE TO HER CREDIT AS OF JUNE 30, 1945--- THE EFFECTIVE DATE OF HER RESIGNATION--- SHOULD BE PAID IN ACCORDANCE WITH THE PAY LAWS AND REGULATIONS IN EFFECT ON JUNE 30, 1945, WITHOUT REGARD TO THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND REGULATIONS THEREUNDER WHICH BECAME EFFECTIVE JULY 1, 1945.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, AUGUST 14, 1945:

I HAVE YOUR LETTER OF JULY 21, 1945, AS FOLLOWS:

THE CLERK OF THE UNITED STATES DISTRICT COURT IN THE NORTHERN DISTRICT OF WEST VIRGINIA HAS, IN A LETTER, A COPY OF WHICH IS ENCLOSED, REQUESTED ADVICE WITH RESPECT TO THE APPLICATION OF THE ACT OF DECEMBER 21, 1944 ( PUBLIC LAW 525, 78TH CONGRESS) WHICH PROVIDES FOR THE PAYMENT TO CERTAIN GOVERNMENT EMPLOYEES FOR ACCUMULATED AND ACCRUED LEAVE DUE UPON THEIR SEPARATION FROM SERVICE, TO THE CASE OF A DEPUTY CLERK EMPLOYED IN HIS OFFICE, WHO RESIGNED AT THE CLOSE OF BUSINESS JUNE 30, 1945, TO ACCEPT, EFFECTIVE THE FOLLOWING DAY, THE POSITION OF COURT REPORTER TO THE DISTRICT JUDGE. AS DEPUTY CLERK THE REPORTER ACCUMULATED SINCE 1937 A CONSIDERABLE AMOUNT OF ANNUAL AND SICK LEAVE. THE REGULATIONS MADE PURSUANT TO THE ANNUAL AND SICK LEAVE LAWS FOR GOVERNMENT EMPLOYEES (5 U.S.C. 30B) HAVING BEEN ADOPTED FOR THE FIELD SERVICE OF THE JUDICIARY, THE QUESTION TO BE DISPOSED OF IS WHETHER THE LEAVE SO ACCRUED SHOULD BE CARRIED OVER TO THE NEW POSITION OF OFFICIAL COURT REPORTER OR BE PAID IN A LUMP SUM.

UNDER THE ACT OF JANUARY 20, 1944 (28 U.S.C. 9A) AS IMPLEMENTED BY THE 1946 APPROPRIATION ACT, UNITED STATES DISTRICT COURTS COMMENCED JULY 1, 1945, APPOINTING COURT REPORTERS AT SALARIES FIXED BY THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES. ( REPORT OF THE JUDICIAL CONFERENCE, SPECIAL SESSION, 1944.) THE ACT AUTHORIZED REPORTERS SO APPOINTED TO CHARGE AND COLLECT FROM PARTIES, INCLUDING THE UNITED STATES, WHO REQUEST TRANSCRIPTS, SUCH FEES THEREFOR AS ARE PRESCRIBED FROM TIME TO TIME BY THE COURT, SUBJECT TO THE APPROVAL OF THE JUDICIAL CONFERENCE. THE CONFERENCE FIXED TRANSCRIPT RATES IN THE SEVERAL DISTRICT COURTS THROUGHOUT THE JUDICIAL SYSTEM, AS ANNOUNCED IN ITS REPORT OF THE SEPTEMBER SESSION, 1944.

OWING TO THE UNIQUE ARRANGEMENT WHICH COURT REPORTERS ENJOY OF AUGMENTING THEIR ANNUAL SALARY INCOME BY EARNINGS FROM THE SALE OF TRANSCRIPTS TO PRIVATE PARTIES--- AND THE STATUTE DOES NOT PROHIBIT THE PRACTICING OF THEIR PROFESSION PRIVATELY WHEN THE COURT DOES NOT REQUIRE THEIR SERVICES- -- AS WELL AS TO THE UNITED STATES, WE ARE IN DOUBT AS TO WHETHER THEY SHOULD BE CLASSED AS PERMANENT OR PART-TIME EMPLOYEES SO FAR AS THE ANNUAL AND SICK LEAVE REGULATIONS ARE CONCERNED.

IF THEY ARE TO BE CONSIDERED AS PART-TIME EMPLOYEES IT WOULD APPEAR THAT UNDER SECTION 6.1 (E) OF THE REGULATIONS THEY ARE EXCEPTED, AND THAT, THEREFORE, THE EMPLOYEE UNDER CONSIDERATION SHOULD BE PAID THE AMOUNT OF THE ACCRUED ANNUAL LEAVE IN A LUMP SUM. IF REPORTERS ARE TO BE CONSIDERED PERMANENT EMPLOYEES UNDER THE LEAVE REGULATIONS IT WOULD FOLLOW THAT THE LEAVE ACCRUED AS DEPUTY CLERK SHOULD BE TRANSFERRED TO THE NEW POSITION.

WE SHALL APPRECIATE YOUR ADVICE AND WILL NOTIFY THE CLERK WHO MADE THE INQUIRY AS SOON AS A REPLY IS RECEIVED.

THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, APPLY TO "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED" WITH CERTAIN EXPRESS EXCEPTIONS, NONE OF WHICH RELATES TO EMPLOYEES IN THE JUDICIAL BRANCH OF THE GOVERNMENT. SECTIONS 7 OF THOSE LEAVE STATUTES, 49 STAT. 1162, PROVIDE:

SEC. 7. THE LEAVE OF ABSENCE HEREIN PROVIDED FOR SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, SO AS TO OBTAIN, SO FAR AS PRACTICABLE, UNIFORMITY IN THE APPLICATION OF THIS ACT.

SECTION 1.1 (B) OF THE CURRENT LEAVE REGULATIONS PROVIDES:

AS USED IN THESE REGULATIONS:

(B) "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 1 YEAR, OR FOR THE DURATION OF THE PRESENT WAR AND FOR 6 MONTHS THEREAFTER.

SECTION 6.1 OF THE SAME REGULATIONS CONTAINS THE FOLLOWING PROVISION, SO FAR AS HERE MATERIAL:

THESE REGULATIONS SHALL NOT APPLY TO:

(E) EMPLOYEES NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY, SUCH AS * * * (2) PART-TIME OR INTERMITTENT EMPLOYEES * * * AND (7) EMPLOYEES PAID ON A FEE BASIS * * * .

SECTION 5A OF THE JUDICIAL CODE, WHICH WAS ADDED BY THE ACT OF JANUARY 20, 1944 ( PUBLIC LAW 222), 58 STAT. 5, 6, PROVIDES, SO FAR AS HERE MATERIAL, AS FOLLOWS:

(A) APPOINTMENT.--- EACH DISTRICT COURT OF THE UNITED STATES, INCLUDING THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA AND THE DISTRICT COURTS IN THE TERRITORIES AND INSULAR POSSESSIONS, SHALL APPOINT ONE OR MORE COURT REPORTERS FOR THE DISTRICT COURT IN THE MANNER PROVIDED FOR THE APPOINTMENT OF THE CLERKS OF SAID COURTS. THE NUMBER OF REPORTERS TO BE SO APPOINTED SHALL BE DETERMINED BY THE JUDICIAL CONFERENCE OF SENIOR CIRCUIT JUDGES (HEREINAFTER REFERRED TO AS THE JUDICIAL CONFERENCE). * * *

(B) DUTIES.--- ONE OF THE REPORTERS SO APPOINTED FOR EACH DISTRICT COURT SHALL ATTEND AT EACH SESSION OF THE COURT AND AT EVERY OTHER PROCEEDING THAT MAY BE DESIGNATED BY RULE OF PROCEDURE OR ORDER OF COURT OR BY ONE OF THE JUDGES OF THE COURT, AND SHALL RECORD VERBATIM BY SHORTHAND OR BY MECHANICAL MEANS (1) ALL PROCEEDINGS IN CRIMINAL CASES HAD IN OPEN COURT, WHETHER IN CONNECTION WITH PLEA, TRIAL, OR SENTENCE; (2) ALL PROCEEDINGS IN ALL OTHER CASES HAD IN OPEN COURT UNLESS THE PARTIES WITH THE APPROVAL OF THE SITTING JUDGE SHALL SPECIFICALLY AGREE TO THE CONTRARY; AND (3) SUCH OTHER PROCEEDINGS AS A JUDGE OF THE COURT MAY DIRECT OR AS MAY BE REQUIRED BY RULE OF PROCEDURE OR ORDER OF THE COURT OR AS MAY BE REQUESTED BY ANY PARTY TO THE PROCEEDING.

(D) COMPENSATION.--- EACH REPORTER SO APPOINTED SHALL RECEIVE AN ANNUAL SALARY, TO BE FIXED FROM TIME TO TIME BY THE JUDICIAL CONFERENCE AND TO BE PAID IN THE SAME MANNER AND AT THE SAME TIME THAT THE SALARY OF THE CLERK OF THE COURT IS PAID. IN FIXING SUCH SALARY THE JUDICIAL CONFERENCE SHALL TAKE INTO ACCOUNT IN EACH INSTANCE THE AMOUNT OF TIME THE REPORTER IS REQUIRED TO BE IN ATTENDANCE UPON THE COURT ENGAGED IN THE PERFORMANCE OF HIS DUTIES. SUCH SALARY SHALL NOT BE LESS THAN $3,000 NOR MORE THAN $6,000 PER ANNUM. THE REPORTER SHALL ALSO RECEIVE HIS TRAVELING EXPENSES AND EXPENSES INCURRED FOR SUBSISTENCE WITHIN THE LIMITATIONS PRESCRIBED BY LAW FOR CLERKS OF DISTRICT COURTS WHILE NECESSARILY ABSENT ON OFFICIAL BUSINESS FROM THE PLACE OF HIS REGULAR EMPLOYMENT. ALL SUPPLIES SHALL BE FURNISHED BY THE REPORTER AT HIS OWN EXPENSE. THE REPORTER MAY CHARGE AND COLLECT FROM PARTIES, INCLUDING THE UNITED STATES, WHO REQUEST TRANSCRIPTS, SUCH FEES THEREFOR AND NO OTHER, AS MAY BE PRESCRIBED FROM TIME TO TIME BY THE COURT SUBJECT TO THE APPROVAL OF THE JUDICIAL CONFERENCE. * * * (ITALICS SUPPLIED.)

WHILE THOSE STATUTORY PROVISIONS PROVIDE FOR PERMANENT APPOINTMENT OF COURT REPORTERS WITH AN ANNUAL SALARY AND WITH THE PRIVILEGE OF COLLECTING FEES FROM PRIVATE PARTIES AND FROM THE GOVERNMENT--- CONSTITUTING COURT REPORTERS "PERMANENT EMPLOYEES" AS THAT TERM ORDINARILY IS USED--- NEVERTHELESS, THEIR DUTIES AS PRESCRIBED BY THE STATUTE DO NOT REQUIRE THEM TO BE "CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY" WITHIN THE MEANING OF THESE WORDS AS USED IN SECTION 6.1 (E) OF THE LEAVE REGULATION WHICH HAS BEEN ISSUED PURSUANT TO LAW AND THEREFORE HAS THE FORCE AND EFFECT OF LAW. THAT IS, THE 1944 STATUTE DOES NOT AUTHORIZE OR REQUIRE THAT A REGULAR TOUR OF DUTY FOR ALL COURT REPORTERS BE ESTABLISHED, BUT MAKES EACH INDIVIDUAL COURT REPORTER SUBJECT TO THE CALL OF THE COURT WHEN HIS SERVICES ARE NEEDED. IT IS BELIEVED THE STATUTE HAS RECOGNIZED THAT THE NATURE OF THE DUTIES OF COURT REPORTERS IS SUCH AS TO BE INCONSISTENT WITH THE GRANTING OF LEAVE OF ABSENCE WITH PAY. IT IS CONCLUDED, THEREFORE, THAT COURT REPORTERS EMPLOYED UNDER THE 1944 STATUTE ARE NOT FULL-TIME EMPLOYEES, BUT RATHER, PART-TIME OR INTERMITTENT EMPLOYEES, WITHIN THE MEANING OF THE LEAVE REGULATION AND, AS SUCH, ARE EXCLUDED FROM THE BENEFIT OF RECEIVING LEAVE OF ABSENCE WITH PAY UNDER THE ANNUAL LEAVE STATUTE AND REGULATIONS THEREUNDER.

IN DECISION OF JANUARY 13, 1945, 24 COMP. GEN. 522, IT WAS HELD (QUOTING FROM THE SYLLABUS):

UPON TRANSFER OR REAPPOINTMENT OF EMPLOYEES FROM POSITIONS OR EMPLOYMENT SUBJECT TO THE ANNUAL LEAVE ACT OF MARCH 14, 1936, TO OTHER FEDERAL POSITIONS OR EMPLOYMENT WITH SALARY ATTACHED AND NOT UNDER ANY LEAVE SYSTEM (SEE SECTION 6.1, SUBSECTIONS (C) AND (E), OF THE ANNUAL AND SICK LEAVE REGULATION), SUCH EMPLOYEE MAY BE PAID A LUMP SUM FOR ALL NON- TRANSFERABLE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE, PURSUANT TO THE ACT OF DECEMBER 21, 1944; AND SUCH PAYMENTS ARE NOT TO BE REGARDED AS SALARY OR COMPENSATION WITHIN THE MEANING OF THE DUAL COMPENSATION STATUTES.

AS THE FORMER CLERK OF COURT IN THE CASE HERE PRESENTED LEFT HER POSITION AS CLERK OF COURT UNDER A LEAVE SYSTEM JUNE 30, 1945, AND WAS APPOINTED A COURT REPORTER EFFECTIVE JULY 1, 1945, WHICH POSITION IS NOT UNDER ANY LEAVE SYSTEM, SHE IS, IN LINE WITH THE DECISION, SUPRA, ENTITLED TO A LUMP -SUM PAYMENT FOR THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO HER CREDIT AS OF JUNE 30, 1945, AND PAYMENT THEREFOR SHOULD BE MADE IN ACCORDANCE WITH THE PAY LAWS AND REGULATIONS IN EFFECT ON JUNE 30, 1945, WITHOUT REGARD TO THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, AND THE REGULATIONS THEREUNDER.