B-141091, DEC. 1, 1959

B-141091, DEC. 1, 1959

TO THE ATTORNEY GENERAL:

ON SEPTEMBER 17, 1959, FILE A7, YOUR ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, REPLIED TO THE REQUEST OF OUR CLAIMS DIVISION FOR A REPORT UPON THE CLAIM OF MR. FRANCIS J. WILSON FOR A LUMP-SUM PAYMENT FOR ANNUAL LEAVE TO HIS CREDIT ON NOVEMBER 20, 1957, THE DATE HE WAS SEPARATED FROM HIS POSITION AS A LAW CLERK WITH THE COURT OF CLAIMS TO ACCEPT EMPLOYMENT WITH YOUR DEPARTMENT ON NOVEMBER 21, 1957, WITHOUT A BREAK IN SERVICE.

THE DEPARTMENT OF JUSTICE HAS NOT CREDITED THE CLAIMANT WITH THE ANNUAL LEAVE ACCRUED AS AN EMPLOYEE OF THE COURT OF CLAIMS APPARENTLY BECAUSE THE COURT OF CLAIMS DOES NOT CONSIDER ITS EMPLOYEES SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, AS AMENDED, OR THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AS AMENDED. THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL POINTS OUT THAT IT APPEARS THE COURT OF CLAIMS ADMINISTERS LEAVE ON THE SAME BASIS AS IN THE EXECUTIVE AGENCIES, EXCEPT THAT IT WILL NOT ASSUME THE BURDEN OF ACCEPTING LEAVE FROM OTHER GOVERNMENT AGENCIES. ALSO, THAT IF MR. WILSON'S STATEMENT IS CORRECT, THE COURT, IN EFFECT, MAKES LUMP SUM PAYMENTS WHEN ONE OF ITS EMPLOYEES LEAVES FOR PRIVATE PRACTICE OR TO ACCEPT EMPLOYMENT OUTSIDE THE GOVERNMENT THROUGH THE DEVICE OF EXTENDING THE EMPLOYEE'S SEPARATION DATE TO USE UP HIS LEAVE. THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL SAYS THAT "IT SEEMS TO THIS DEPARTMENT THAT THE POLICY OF THE COURT OF CLAIMS IS NOT IN ACCORD WITH THE CONCLUSIONS REACHED BY THE GENERAL ACCOUNTING OFFICE IN 34 COMP. GEN. 478 AND THAT A REEXAMINATION OF THE COURT'S POSITION IN THIS RESPECT SEEMS TO BE IN ORDER.'

IN OUR DECISION 34 COMP. GEN. 478 (ANSWER TO QUESTION TWO), WE HELD THAT SINCE NO PORTION OF THE UNEXPIRED LEAVE FOR WHICH AN EMPLOYEE OF THE PUBLIC HOUSING ADMINISTRATION RECEIVED A LUMP-SUM PAYMENT CAN BE RESTORED TO HIS CREDIT WITH THE COURT OF CLAIMS BECAUSE THAT COURT DOES NOT CONSIDER ITS EMPLOYEES AS BEING SUBJECT TO THE ANNUAL LEAVE ACT OF 1951, 65 STAT. 679, OR THE LUMP SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AS AMENDED, HIS EMPLOYMENT WITH THE COURT OF CLAIMS REQUIRES NO REFUND OF ANY PORTION OF THE LUMP-SUM LEAVE PAYMENT TO HIM. OUR ANSWER TO THAT QUESTION WAS BASED UPON INFORMATION AVAILABLE TO OUR OFFICE AT THAT TIME WHICH WAS TO THE EFFECT THAT THE COURT OF CLAIMS DID NOT MAINTAIN LEAVE RECORDS FOR ITS EMPLOYEES AND THAT RECORDS WERE NOT KEPT OF ALL ABSENCES OF THE EMPLOYEES DURING THEIR EMPLOYMENT BY THE COURT. RELYING UPON THAT INFORMATION--- WHICH IS NOT IN ACCORD WITH THE FACTS AS WE KNOW THEM TODAY--- IT MAY BE THAT WE REACHED A CONCLUSION IN ANSWERING QUESTION 2 IN 34 COMP. GEN. 478 WHICH NO LONGER IS FULLY TENABLE.

IN CAIN V. UNITED STATES, 77 F.SUPP. 505, THE COURT HELD THAT THE WORDS "ALL CIVILIAN EMPLOYEES OF THE UNITED STATES ," AS USED IN A SIMILAR LEAVE STATUTE, INCLUDES JUDICIAL EMPLOYEES. OUR VIEW IS THAT ONLY IN THE CASES OF THOSE EMPLOYEES WHO TRANSFER TO THE JUDICIAL BRANCH OF THE GOVERNMENT TO ACCEPT POSITIONS WITH JUDGES--- SUCH AS LAW CLERKS AND SECRETARIES--- WHERE NO LEAVE RECORDS ARE TO BE ESTABLISHED AND MAINTAINED FOR SUCH EMPLOYEES, THAT THE TRANSFERRED EMPLOYEES SHOULD BE PAID FOR ACCUMULATED ANNUAL LEAVE IN LIEU OF THEIR HAVING SUCH LEAVE TRANSFERRED TO THEIR CREDIT IN POSITIONS IN THE JUDICIAL BRANCH OF THE GOVERNMENT. SEE 29 COMP. GEN. 478.

IN THE PRESENT CASE THE CHIEF JUDGE OF THE UNITED STATES COURT OF CLAIMS HAS CERTIFIED THAT ,DURING MR. WILSON'S ENTIRE EMPLOYMENT WITH THE COURT HE WORKED A REGULAR TOUR OF DUTY OF FORTY HOURS EACH WEEK AND HE WAS PROPERLY CHARGED FOR ALL ABSENCES DURING HIS EMPLOYMENT. I FURTHERMORE CERTIFY THAT AT THE TIME OF HIS RESIGNATION HE HAD 17 1/2 DAYS OF UNUSED ACCUMULATED ANNUAL LEAVE TO HIS CREDIT.' THE CLERK OF THE COURT OF CLAIMS ALSO HAS ADVISED THE DEPARTMENT OF JUSTICE THAT THE ANNUAL AND SICK LEAVE ACT OF 1951 FOLLOWED BY THE COURT IN THAT EACH EMPLOYEE IS PUT INTO HIS PROPER CATEGORY AND GIVEN THE SAME ANNUAL LEAVE AND SICK LEAVE AS IS REQUIRED UNDER THE ACT. UNDER THOSE CIRCUMSTANCES AND THE RULING IN CAIN V. UNITED STATES, OUR VIEW IS THAT EMPLOYEES OF THE COURT OF CLAIMS SHOULD BE TREATED ON THE SAME BASIS AS EMPLOYEES OF THE EXECUTIVE BRANCH REGARDING THE TRANSFER AND PAYMENT OF ACCRUED LEAVE. ONLY THOSE AGENCIES OF GOVERNMENT EXPRESSLY EXCEPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 ARE EXEMPT FROM ITS APPLICATION. THE UNITED STATES COURT OF CLAIMS IS NOT AMONG THE EXCEPTED AGENCIES. WE ARE, HOWEVER, WITHOUT AUTHORITY TO REQUIRE ANY DEPARTMENT OR AGENCY TO CREDIT LEAVE UPON TRANSFER AND UNLESS AN AGENCY COMPLIES WITH THE LAW, IT WOULD SEEM THAT THE ONLY RECOURSE OF AN EMPLOYEE WOULD BE TO THE COURTS.

IN THE INSTANT CASE WE RECOMMEND THAT THE LEAVE ACCRUED BY MR. WILSON IN HIS EMPLOYMENT BY THE COURT OF CLAIMS BE TRANSFERRED TO HIS CREDIT WITH YOUR DEPARTMENT. IN THE FUTURE, IF THE COURT OF CLAIMS REFUSES TO ACCEPT TRANSFERS OF LEAVE CREDITS FROM YOUR DEPARTMENT IN ANY CASES WHEN THE EMPLOYEES ARE TRANSFERRING TO POSITIONS IN THAT COURT WE SHOULD APPRECIATE REFERENCE OF THE CASES HERE BEFORE LUMP SUM PAYMENTS ARE MADE.