B-134346, DECEMBER 20, 1957, 37 COMP. GEN. 422

CIVILIAN EMPLOYEES - EMPLOYMENT BY INTERNATIONAL AGENCY - LUMP-SUM LEAVE PAYMENTS AN EMPLOYEE WHO LEAVES HIS GOVERNMENT POSITION TO ENTER THE EMPLOY OF THE INTERNATIONAL ATOMIC ENERGY AGENCY IS REGARDED AS HAVING BEEN SEPARATED FROM THE SERVICE WITHIN THE MEANING OF THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 5 U.S.C. 61B, WHICH REQUIRES PAYMENT FOR ACCUMULATED AND CURRENT ANNUAL OR VACATION LEAVE, AND THERE IS NO AUTHOR UNDER THE INTERNATIONAL ATOMIC ENERGY AGENCY PARTICIPATION ACT OF 1957 FOR THE PROMULGATION OF A REGULATION WHICH WOULD PERMIT SUCH EMPLOY TO RETAIN THEIR ACCUMULATED AND CURRENT ANNUAL LEAVE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, DECEMBER 20, 1957:

ON DECEMBER 6, 1957, YOU REQUESTED OUR DECISION CONSTRUING SECTION 6 (C) OF THE INTERNATIONAL ATOMIC ENERGY AGENCY PARTICIPATION ACT OF 1957, 71 STAT. 455, 22 U.S.C. 2025 (C). THE SPECIFIC QUESTION PRESENTED IS QUOTED FROM YOUR LETTER AS FOLLOWS:

DOES SECTION 6 (C) OF THE INTERNATIONAL ATOMIC ENERGY AGENCY PARTICIPATION ACT AUTHORIZE A REGULATION PERMITTING THE RETENTION OF ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE BY OFFICERS AND EMPLOYEES WHO LEAVE THE FEDERAL SERVICE TO ENTER THE EMPLOY OF THE INTERNATIONAL ATOMIC ENERGY AGENCY UNDER SECTION 6 OF THAT ACT?

SECTION 6 (C) IS AS FOLLOWS:

THE PRESIDENT IS AUTHORIZED TO PRESCRIBE SUCH REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SECTION AND TO PROTECT THE RETIREMENT, INSURANCE AND SUCH OTHER CIVIL SERVICE RIGHTS AND PRIVILEGES AS THE PRESIDENT MAY FIND APPROPRIATE.

SECTION 6 (C) AUTHORIZES THE PRESIDENT TO PRESCRIBE REGULATIONS NECESSARY TO CARRY OUT THE PROVISIONS OF SECTION 6, 22 U.S.C. 2025. IT DOES NOT, HOWEVER, AUTHORIZE THE PROMULGATION OF REGULATIONS WHICH WOULD MODIFY OR OTHERWISE BE INCONSISTENT WITH THE OTHER PROVISIONS OF SECTION 6. PERTINENT PART SECTION 6 READS AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EXECUTIVE ORDER OR REGULATION, A FEDERAL EMPLOYEE WHO, WITH THE APPROVAL OF THE FEDERAL AGENCY OR THE HEAD OF THE DEPARTMENT BY WHICH HE IS EMPLOYED, LEAVES HIS POSITION TO ENTER THE EMPLOY OF THE AGENCY SHALL NOT BE CONSIDERED FOR THE PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, AND THE FEDERAL EMPLOYEES' GROUP LIFE INSURANCE ACT OF 1954, AS AMENDED, AS SEPARATED FROM HIS FEDERAL POSITION DURING SUCH EMPLOYMENT WITH THE AGENCY BUT NOT TO EXTEND BEYOND THE FIRST THREE CONSECUTIVE YEARS OF HIS ENTERING THE EMPLOY OF THE AGENCY: * * *

THE BASIC QUESTION INVOLVED IS WHETHER AN EMPLOYEE WHO LEAVES HIS GOVERNMENT POSITION TO ENTER THE EMPLOY OF THE INTERNATIONAL ATOMIC ENERGY AGENCY IN ACCORDANCE WITH SECTION 6 IS SEPARATED FROM HIS FEDERAL POSITION WITHIN CONTEMPLATION OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, 5 U.S.C. 61B. THAT ACT PROVIDES THAT WHEN ANY CIVILIAN OFFICER OR EMPLOYEE IS SEPARATED FROM THE SERVICE ,HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW.'

OUR VIEW IS THAT A SEPARATION WITHIN CONTEMPLATION OF THE ACT OF DECEMBER 21, 1944, OCCURS WHEN AN EMPLOYEE LEAVES HIS GOVERNMENT POSITION FOR THE PURPOSES SPECIFIED IN SECTION 6 OF THE INTERNATIONAL ATOMIC ENERGY AGENCY PARTICIPATION ACT OF 1957. AT THAT TIME THERE IS A SEPARATION IN FACT. NO LONGER IS THE EMPLOYEE WORKING FOR THE UNITED STATES GOVERNMENT BUT RATHER FOR THE INTERNATIONAL ATOMIC ENERGY AGENCY. A NEW EMPLOYER- EMPLOYEE RELATIONSHIP IS ESTABLISHED. THE FACT THAT SUCH AN EMPLOYEE IS GIVEN REEMPLOYMENT RIGHTS IF HE APPLIES FOR RESTORATION TO HIS FORMER GOVERNMENT POSITION WITHIN THE PERIOD OF TIME SPECIFIED IN SECTION 6 FURTHER SUPPORTS THE VIEW THAT A SEPARATION IN FACT OCCURS.

IT IS TRUE THAT THE SECTION PROVIDES THAT FOR PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, 5 U.S.C. 2251 ET SEQ., AND THE FEDERAL EMPLOYEES' GROUP LIFE INSURANCE ACT OF 1954, AS AMENDED, 5 U.S.C. 2091 ET SEQ., SUCH AN EMPLOYEE SHALL NOT BE REGARDED AS SEPARATED FROM HIS GOVERNMENT POSITION FOR A PERIOD NOT TO EXTEND BEYOND THE FIRST 3 CONSECUTIVE YEARS OF HIS ENTERING THE EMPLOY OF THE AGENCY. HOWEVER, SECTION 6 CONTAINS NO SIMILAR PROVISION CONCERNING THE ACT OF DECEMBER 21, 1944, AND WE CANNOT PRESUME THAT A SEPARATION DOES NOT OCCUR FOR PURPOSES OF THAT ACT. WE HAVE EXAMINED THE LEGISLATIVE HISTORY OF SECTION 6 AND NOWHERE HAVE WE FOUND ANY CLEAR INDICATION OF A LEGISLATIVE INTENT THAT AN EMPLOYEE LEAVING HIS GOVERNMENT POSITION TO ENTER THE EMPLOY OF THE INTERNATIONAL ATOMIC ENERGY AGENCY, AS PROVIDED IN THAT SECTION, SHOULD BE REGARDED AS CONTINUING IN HIS GOVERNMENT POSITION FOR PURPOSES OF THE ACT OF DECEMBER 21, 1944. THE SIGNIFICANCE OF THE OMISSION OF ANY REFERENCE TO ANNUAL LEAVE IN THE LEGISLATIVE HISTORY IS POINTED UP BY THE EXPRESS REFERENCE, ON PAGE 4 OF THE HOUSE REPORT, TO THE PRESIDENT'S AUTHORITY TO REGULATE REGARDING THE RECREDITING OF SICK LEAVE. WE THEREFORE HOLD THAT THE MANDATORY PROVISIONS OF THE ACT OF DECEMBER 21, 1944, REQUIRE A LUMP- SUM LEAVE PAYMENT IN THE CASE OF AN EMPLOYEE LEAVING HIS GOVERNMENT POSITION TO ENTER THE EMPLOY OF THE INTERNATIONAL ATOMIC ENERGY AGENCY IN ACCORDANCE WITH SECTION 6, AND THAT A REGULATION PERMITTING AN EMPLOYEE TO RETAIN HIS ANNUAL LEAVE UPON SUCH A SEPARATION WOULD CONTRAVENE THE PROVISIONS OF THE DECEMBER 21, 1944, ACT.