B-119959, MARCH 9, 1970, 49 COMP. GEN. 545

B-119959, MARCH 9, 1970, 49 COMP. GEN. 545

COURTS -- JUDGES -- LEAVES OF ABSENCE -- EARNED IN EXECUTIVE BRANCH OF GOVERNMENT JUDGES OF THE TAX COURT WHO WERE REMOVED FROM THE EXECUTIVE BRANCH OF THE GOVERNMENT BY VIRTUE OF THE ENACTMENT OF SECTION 951, PUBLIC LAW 91 172, APPROVED DECEMBER 30, 1969, WHICH ESTABLISHED THE COURT AS A CONSTITUTIONAL COURT, MAY NOT BE REGARDED AS SEPARATED FROM THE SERVICE WITHIN THE CONTEMPLATION OF 5 U.S.C. 5551, IN THE ABSENCE OF SUCH AN INDICATION IN THE LEGISLATIVE HISTORY OF THE ACT, SO AS TO PERMIT LUMP SUM PAYMENTS FOR ACCRUED ANNUAL LEAVE PURSUANT TO THE ACT OF DECEMBER 21, 1944, AS AMENDED, FOR PUBLIC LAW 83-102, UNDER WHICH THE JUDGES WERE CREDITED WITH THE LEAVE WHEN APPOINTED TO THE COURT FROM A CLASSIFIED CIVIL SERVICE POSITION AUTHORIZES PAYMENT FOR THE CREDITED LEAVE ONLY UPON SEPARATION FROM THE SERVICE OR UPON RETURN TO A POSITION SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED. HOWEVER, THE ENTITLEMENT OF THE JUDGES TO PAYMENT FOR THE ACCRUED ANNUAL LEAVE TO THEIR CREDIT REMAINS UNDISTURBED.

TO WILLIAM F. HUFFMAN, TAX COURT OF THE UNITED STATES, MARCH 9, 1970:

YOUR LETTER OF JANUARY 21, 1970, ASKS WHETHER CERTAIN JUDGES OF THE TAX COURT WHO HAVE SUBSTANTIAL AMOUNTS OF ANNUAL LEAVE TO THEIR CREDIT ARE NOW ENTITLED BY VIRTUE OF THE ENACTMENT OF SECTION 951 OF PUBLIC LAW 91-172, TAX REFORM ACT, APPROVED DECEMBER 30, 1969, 83 STAT. 730, 26 U.S.C. 7441, TO LUMP-SUM PAYMENTS FOR SUCH ANNUAL LEAVE.

SECTION 1 OF PUBLIC LAW 83-102, 5 U.S.C. 2061(C)(1), TO WHICH YOU REFER, READS, IN PERTINENT PART, AS FOLLOWS:

(C)(1) THIS TITLE SHALL NOT APPLY TO THE FOLLOWING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT *** :

(A) PERSONS APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, OR BY THE PRESIDENT ALONE, WHOSE RATES OF BASIC COMPENSATION EXCEED THE MAXIMUM RATE PROVIDED IN THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT OF 1949, AS AMENDED ***

SECTION 2 THEREOF, 5 U.S.C. 2061A, READS AS FOLLOWS:

(A) THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH ANY OFFICER EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 AS A RESULT OF THE ENACTMENT OF THIS ACT IS ENTITLED IMMEDIATELY PRIOR TO THE DATE THIS ACT BECOMES APPLICABLE TO HIM SHALL BE LIQUIDATED BY A LUMP-SUM PAYMENT IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944 (5 U.S.C. 61B 61E) OR THE ACT OF AUGUST 3, 1950 (5 U.S.C. 61F-61K), EXCEPT THAT PAYMENT UNDER EITHER SUCH ACT (1) SHALL BE BASED UPON THE RATE OF COMPENSATION WHICH HE WAS RECEIVING IMMEDIATELY PRIOR TO THE DATE ON WHICH THIS ACT BECAME APPLICABLE TO HIM, AND (2) SHALL BE MADE WITHOUT REGARD TO THE LIMITATIONS IMPOSED BY THE AMENDMENTS MADE BY SECTIONS 4 AND 5 OF THIS ACT WITH RESPECT TO THE AMOUNTS OF LEAVE COMPENSABLE UNDER SUCH ACTS.

(B) IN THE EVENT ANY SUCH EXEMPTED OFFICER, WITHOUT ANY BREAK IN THE CONTINUITY OF HIS SERVICE, AGAIN BECOMES SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951 UPON THE COMPLETION OF HIS SERVICE AS AN EXEMPTED OFFICER, THE UNUSED ANNUAL AND SICK LEAVE STANDING TO HIS CREDIT AT THE TIME HE WAS EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 SHALL BE DEEMED TO HAVE REMAINED TO HIS CREDIT. THE FOREGOING PROVISIONS WERE THE BASIS OF THE ANNUAL LEAVE CREDIT FOR EACH OF THE JUDGES HERE INVOLVED AND SUCH PROVISIONS AUTHORIZE PAYMENT FOR SUCH LEAVE UPON SEPARATION FROM THE SERVICE OR RECREDIT THEREOF UPON AGAIN BECOMING SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED. THE ABOVE-QUOTED PROVISIONS ARE NOW CONTAINED IN 5 U.S.C. 6301 (2)(X)(XI), 5 U.S.C. 5551(B) AND 5 U.S.C. 6302(E), RESPECTIVELY.

SECTION 951, PUBLIC LAW 91-172, APPROVED DECEMBER 30, 1969, SUBTITLE D, AMENDS 26 U.S.C. 7441 OF THE INTERNAL REVENUE CODE TO READ AS FOLLOWS:

THERE IS HEREBY ESTABLISHED, UNDER ARTICLE 1 OF THE CONSTITUTION OF THE UNITED STATES, A COURT OF RECORD TO BE KNOWN AS THE UNITED STATES TAX COURT. THE MEMBERS OF THE TAX COURT SHALL BE THE CHIEF JUDGE AND THE JUDGES OF THE TAX COURT.

AS OF DECEMBER 30, 1969, THE COURT BY THE FOREGOING AMENDMENT WAS REMOVED FROM THE EXECUTIVE BRANCH. THUS, AS REFERRED TO ABOVE, THE QUESTION IS WHETHER BY SUCH LEGISLATION A SITUATION HAS BEEN CREATED WHEREBY THE JUDGES WHO HAVE SUCH ANNUAL LEAVE TO THEIR CREDIT WOULD NOW BE ENTITLED TO RECEIVE LUMP-SUM PAYMENTS THEREFOR UNDER THE PROVISIONS OF 5 U.S.C. 5551(A). THAT SECTION READS AS FOLLOWS:

AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, WHO IS SEPARATED FROM THE SERVICE OR ELECTS TO RECEIVE A LUMP-SUM PAYMENT FOR LEAVE UNDER SECTION 5552 OF THIS TITLE, IS ENTITLED TO RECEIVE A LUMP SUM PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED BY STATUTE. THE LUMP-SUM PAYMENT SHALL EQUAL THE PAY THE EMPLOYEE OR INDIVIDUAL WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL EXPIRATION OF THE PERIOD OF THE ANNUAL OR VACATION LEAVE, EXCEPT THAT IT MAY NOT EXCEED PAY FOR A PERIOD OF ANNUAL OR VACATION LEAVE IN EXCESS OF 30 DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS GREATER. THE LUMP-SUM PAYMENT IS CONSIDERED PAY FOR TAXATION PURPOSES ONLY.

YOU CITE OUR DECISION IN 33 COMP. GEN. 622 (1954) AS PARALLELING THE SITUATION HERE INVOLVED. IN THAT DECISION WE HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

AN EMPLOYEE OF THE JUSTICE DEPARTMENT WHO TRANSFERRED TO THE OFFICE OF A FEDERAL JUDGE WHERE NOT STATUTORY LEAVE SYSTEM IS APPLICABLE AND LEAVE RECORDS ARE NOT MAINTAINED MAY NOT, UNDER SECTION 205(E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, TRANSFER UNUSED LEAVE AS A CREDIT IN THE NEW POSITION, AND THEREFORE THE EMPLOYEE MAY BE REGARDED AS SEPARATED FROM THE SERVICE, WITHIN THE MEANING OF THE ACT OF DECEMBER 21, 1944, AS AMENDED, SO AS TO BE ENTITLED TO A LUMP-SUM PAYMENT FOR ANNUAL LEAVE TO HER CREDIT. THE BASIS OF THAT HOLDING WAS TO AVOID A FORFEITURE OF THE ANNUAL LEAVE INVOLVED. IN OUR DECISION 33 COMP. GEN. 85 (1953), QUESTION AND ANSWER NO. 3, WE ALSO HELD TO THE SAME EFFECT. THE QUESTION OF FORFEITURE IS NOT INVOLVED IN THE MATTER YOU PRESENT BECAUSE THE ANNUAL LEAVE HAS BEEN CREDITED TO THE JUDGES FOR SUBSEQUENT PAYMENT UPON SEPARATION FROM THE SERVICE OR RECREDIT UPON RETURN TO A POSITION SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED.

IN OUR DECISION 33 COMP. GEN. 209 (1953), QUESTION AND ANSWER NO. 3(B), WE POINTED OUT THAT "THE ONLY BASIS FOR A LUMP-SUM PAYMENT FOR ANNUAL LEAVE UNDER THE ACT OF DECEMBER 21, 1944, AS AMENDED BY PUBLIC LAW 102, APPROVED JULY 2, 1953, 67 STAT. 138, IS THE FACT THAT THE EMPLOYEE HAS 'SEPARATED FROM THE SERVICE'." WHILE THE JUDGES HAVE BEEN REMOVED FROM THE "EXECUTIVE BRANCH" BY THE ENACTMENT OF SECTION 951 OF PUBLIC LAW 91- 172, QUOTED ABOVE, WE DO NOT BELIEVE, IN THE ABSENCE OF ANY INDICATION IN THE LEGISLATIVE HISTORY THEREOF TO THE CONTRARY, AND WE FIND NONE, THAT IT WAS INTENDED SUCH JUDGES SHOULD BE REGARDED AS SEPARATED FROM THE SERVICE WITHIN THE CONTEMPLATION OF 5 U.S.C. 5551 SO AS TO PERMIT CURRENT LUMP-SUM PAYMENTS FOR ACCRUED ANNUAL LEAVE. RATHER OUR VIEW IS THAT IT WAS INTENDED THAT THE SITUATION OF THE JUDGES AS TO THEIR ENTITLEMENT TO PAYMENTS FOR ANNUAL LEAVE WOULD REMAIN UNDISTURBED. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.