B-158596, MAR. 18, 1966, 45 COMP. GEN. 587

B-158596, MAR. 18, 1966, 45 COMP. GEN. 587

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - TRANSFERS - POSITIONS EXEMPT FROM LEAVE ACT A FORMER EMPLOYEE OF THE COURT OF CLAIMS WHO TRANSFERRED TO THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS TO SERVE UNDER A JUDGE WHO DID NOT MAINTAIN A LEAVE SYSTEM FOR HIS EMPLOYEES MAY BE PAID A LUMP- SUM PURSUANT TO THE ACT OF DECEMBER 21, 1944, FOR THE ANNUAL LEAVE STANDING TO HIS CREDIT AT TIME OF TRANSFER, IN VIEW OF THE FACT THAT THE ORIGINAL JUDICIAL CONSTRUCTION BY THE COURT OF CLAIMS IN SAUER V. UNITED STATES CT.CL. NO. 180-64, DECIDED DECEMBER 17, 1965, THAT THE 1936 AND 1951 LEAVE STATUTES APPLY TO EMPLOYEES OF THE COURT OF CLAIMS AND THAT UPON SEPARATION FROM A POSITION UNDER THE COURT, AN EMPLOYEE IS ENTITLED TO A LUMP-SUM PAYMENT FOR THE UNEXPIRED PORTION OF HIS ANNUAL LEAVE BALANCE, DOES NOT HAVE PROSPECTIVE APPLICATION ONLY, THEREFORE, THE FORMER EMPLOYEE TRANSFERRING TO A POSITION THAT IS NOT COVERED BY A LEAVE SYSTEM IS ENTITLED TO PAYMENT FOR THE ANNUAL LEAVE STANDING TO HIS CREDIT AT THE TIME OF SEPARATION FROM THE ROLLS OF THE COURT OF CLAIMS.

TO THE CHIEF CLERK, UNITED STATES COURT OF CLAIMS, MARCH 18, 1966:

ON FEBRUARY 23, 1966, YOU REQUESTED OUR DECISION CONCERNING THE ENTITLEMENT OF A FORMER EMPLOYEE OF THE COURT OF CLAIMS TO A LUMP-SUM PAYMENT FOR SOME 29 DAYS ANNUAL LEAVE TO THE CREDIT OF SUCH FORMER EMPLOYEE ON JULY 31, 1964, THE DATE OF HIS SEPARATION FROM THE ROLLS OF THE COURT. YOU SAY THAT:

MR. GASKINS SERVED HERE AT THE COURT FROM OCTOBER 11, 1930, UNTIL JULY 31, 1962, AS A REGULAR EMPLOYEE, AND FROM AUGUST 1, 1962, TO JULY 31, 1964, AS A RE-EMPLOYED ANNUITANT, AT WHICH TIME HE WAS SEPARATED FROM THE PAY ROLL OF THIS COURT AND TRANSFERRED TO THE PAY ROLL OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. THIS TRANSFER COINCIDED WITH THE RETIREMENT OF JUDGE SAMUEL E. WHITAKER OF THIS COURT FROM ACTIVE SERVICE. MR. GASKINS CONTINUED IN FEDERAL SERVICE AS THE MESSENGER FOR JUDGE WHITAKER, WHO UPON HIS RETIREMENT, HAS CONTINUED TO PERFORM SUBSTANTIAL JUDICIAL DUTIES AS A SENIOR JUDGE ON BOTH THIS COURT AND OTHER FEDERAL COURTS.

YOU SAY ALSO THAT PURSUANT TO A RESOLUTION OF THE JUDICIAL CONFERENCE ADOPTED IN SEPTEMBER 1949, AS IMPLEMENTED BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, BULLETIN 382 OF DECEMBER 29, 1949, IT IS WITHIN THE DISCRETION OF EACH JUDGE TO DETERMINE WHETHER A LEAVE SYSTEM SHOULD BE ESTABLISHED FOR EMPLOYEES OF HIS IMMEDIATE STAFF. JUDGE WHITAKER DECIDED NOT TO MAINTAIN A LEAVE SYSTEM FOR HIS IMMEDIATE STAFF. THUS, WHEN THE EMPLOYEE IN QUESTION WAS SEPARATED FROM THE ROLLS OF THE COURT OF CLAIMS AND TRANSFERRED TO THE POSITION UNDER THE SENIOR JUDGE (JUDGE WHITAKER) HIS TRANSFER WAS TO A POSITION THAT WAS NOT COVERED BY ANY LEAVE SYSTEM.

PRIOR TO THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF SAUER V. UNITED STATES, CT.CL. NO. 180-64, DECIDED DECEMBER 17, 1965, THE COURT OF CLAIMS HAD ADMINISTRATIVELY ADOPTED THE VIEW THAT THE LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, 5 U.S.C. 30B (1946 ED.); THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, 5 U.S.C. 61B (1958 ED.); RELATING TO LUMP-SUM PAYMENTS FOR ANNUAL LEAVE; AND THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, AS AMENDED, 5 U.S.C. 2061, DID NOT APPLY TO EMPLOYEES OF THE COURT OF CLAIMS. HOWEVER, WE UNDERSTAND THAT IT WAS THE PRACTICE OF THE COURT PRIOR TO THE SAUER CASE TO RETAIN AN EMPLOYEE ON THE ROLLS AFTER THE TERMINATION OF HIS WORK STATUS UNTIL HIS ANNUAL LEAVE WAS EXHAUSTED, BUT THIS PRACTICE COULD NOT BE FOLLOWED WHEN THE EMPLOYEE TRANSFERRED IMMEDIATELY TO ANOTHER AGENCY. IN THE SAUER CASE, WHICH CONSTITUTES AN ORIGINAL JUDICIAL CONSTRUCTION BY THE COURT OF CLAIMS OF THE CITED LEAVE LAWS, IT WAS HELD THAT THE 1936 AND 1951 LEAVE STATUTES DO APPLY TO EMPLOYEES OF THE COURT AND THAT AN EMPLOYEE TRANSFERRING FROM A POSITION IN THE DEPARTMENT OF JUSTICE TO A REGULAR POSITION IN THE COURT OF CLAIMS WAS ENTITLED TO TRANSFER HIS ANNUAL LEAVE BALANCE FOR CREDIT TO HIS LEAVE ACCOUNT UNDER THE COURT, AND FURTHER THAT THE UNEXPIRED PORTION OF SUCH ANNUAL LEAVE BALANCE AS OF THE DATE OF THE EMPLOYEE'S SUBSEQUENT SEPARATION FROM HIS POSITION UNDER THE COURT IS COMPENSABLE IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944.

WE ARE AWARE OF NOTHING IN THE SAUER CASE OR OTHERWISE THAT WOULD WARRANT OUR CONSTRUING THAT CASE AS HAVING PROSPECTIVE APPLICATION ONLY. ACCORDINGLY, AND IN LINE WITH PRIOR DECISIONS OF THIS OFFICE AUTHORIZING A LUMP-SUM PAYMENT FOR LEAVE INCIDENT TO THE TRANSFER OF AN EMPLOYEE TO A POSITION NOT COVERED BY A LEAVE SYSTEM--- 33 COMP. GEN. 85 (QUESTION AND ANSWER "3"); AND 33 ID. 622--- THE CLAIM OF THE EMPLOYEE IN QUESTION FOR PAYMENT FOR THE ANNUAL LEAVE STANDING TO HIS CREDIT ON JULY 31, 1964, IN THE COURT OF CLAIMS MAY BE ALLOWED.