B-113082, MARCH 4, 1953, 32 COMP. GEN. 389

B-113082, MARCH 4, 1953, 32 COMP. GEN. 389

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - CLERKS OF UNITED STATES DISTRICT COURTS CLERKS OF THE UNITED STATES DISTRICT COURTS SEPARATED FROM THE SERVICE MAY NOT BE PAID A LUMP SUM FOR UNUSED ANNUAL LEAVE UPON THEIR PERSONAL CERTIFICATION OF AMOUNT OF UNUSED LEAVE TO THEIR CREDIT, HOWEVER, THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, WHO IS REQUIRED BY 28 U.S.C. 604 TO SUPERVISE ALL ADMINISTRATIVE MATTERS RELATING TO THE OFFICES OF CLERKS AND ADMINISTRATIVE PERSONNEL OF THE COURTS, MAY CERTIFY THE FACTS REQUIRED TO SUPPORT SUCH PAYMENTS.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, MARCH 4, 1953:

REFERENCE IS MADE TO THE ASSISTANT DIRECTOR'S LETTER OF DECEMBER 5, 1952, REQUESTING A DECISION AS TO WHETHER THE RULE STATED IN OFFICE DECISION OF AUGUST 22, 1945, B-51571, 25 COMP. GEN. 212, WITH RESPECT TO THE ALLOWANCES OF LUMP-SUM PAYMENTS FOR LEAVE TO OFFICERS APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE UPON THE PERSONAL CERTIFICATES OF SUCH OFFICERS, MAY BE EXTENDED TO CASES INVOLVING CLERKS OF THE UNITED STATES DISTRICT COURTS.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE VIEWS EXPRESSED IN THE SAID LETTER AND TO THE ARGUMENTS URGED IN SUPPORT OF THE PROPOSITION THAT A CLERK OF A UNITED STATES DISTRICT COURT, APPOINTED BY THE COURT, IS AN INFERIOR OFFICER WITHIN THE PURVIEW OF ARTICLE 2, SECTION 2, CLAUSE 2 OF THE CONSTITUTION OF THE UNITED STATES. WITHOUT QUESTIONING THE CONCLUSION REACHED THEREIN THAT CLERKS OF THE UNITED STATES DISTRICT COURTS ARE INFERIOR OFFICERS, IT SHOULD BE POINTED OUT THAT THE RULE STATED IN 25 COMP. GEN. 212 WAS INTENDED TO APPLY ONLY TO THAT CLASS OF OFFICERS CONSIDERED IN OFFICE DECISION OF JULY 21, 1944, B 43261, 24 COMP. GEN. 45, WHICH WAS CONFINED TO THOSE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. EVEN IN SUCH CASES THE PERSONAL CERTIFICATE REFERRED TO IS CONSIDERED ONLY PRIMA FACIE EVIDENCE OF THE FACTS RECITED THEREIN AND IF, IN ANY CASE, OTHER KNOWN FACTS CAST DOUBT UPON THE ACCURACY OF SUCH CERTIFICATE, A PAYMENT THEREON WOULD BE SUBJECT TO QUESTION.

AS A MATTER OF LEAVE ADMINISTRATION IT WOULD BE IMPRACTICABLE TO EXTEND THE RULE STATED IN 25 COMP. GEN. 212 TO INFERIOR OFFICERS OF THE GOVERNMENT GENERALLY IN VIEW OF THE DIFFICULTY IN DISTINGUISHING BETWEEN SUCH OFFICERS AND EMPLOYEES, THE CRITERIA ESTABLISHED BY THE COURTS IN THAT REGARD BEING SUFFICIENTLY BROAD TO COVER ALMOST THE ENTIRE FIELD OF FEDERAL EMPLOYMENT. SEE KENNEDY V. UNITED STATES, 146 F.2D 26; BASKINS V. UNITED STATES, 32 F.1SUPP. 518.

IN VIEW OF THE FOREGOING, A LUMP-SUM LEAVE PAYMENT TO A CLERK OF A DISTRICT COURT OF THE UNITED STATES IS NOT AUTHORIZED UPON HIS PERSONAL CERTIFICATE.

HOWEVER, 28 U.S.C. 604 (1946 USED., SUPP. V) PROVIDES IN PART:

(A) THE DIRECTOR SHALL BE THE ADMINISTRATIVE OFFICER OF THE COURTS, AND UNDER THE SUPERVISION AND DIRECTION OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, SHALL:

(1) SUPERVISE ALL ADMINISTRATIVE MATTERS RELATING TO THE OFFICES OF CLERKS AND OTHER CLERICAL AND ADMINISTRATIVE PERSONNEL OF THE COURTS;

THERE IS SUGGESTED FOR YOUR CONSIDERATION THE ESTABLISHMENT OF PROCEDURES UNDER THE FOREGOING STATUTORY PROVISION TO ENABLE YOU OR THE ASSISTANT DIRECTOR TO CERTIFY TO THE FACTS REQUIRED TO SUPPORT LUMP-SUM PAYMENTS FOR LEAVE TO CLERKS OF THE DISTRICT COURTS OF THE UNITED STATES UPON THEIR SEPARATION.