B-244558, September 10, 1992, 71 Comp.Gen. 522 Judge Eugene R. Sullivan - -Annual Leave Payment--Appointment to U.S. Court of Military Appeals

B-244558, September 10, 1992, 71 Comp.Gen. 522 Judge Eugene R. Sullivan - -Annual Leave Payment--Appointment to U.S. Court of Military Appeals

Civilian Personnel Leaves Of Absence Annual leave Lump-sum payments Eligibility Legislative/judicial personnel Civilian Personnel Leaves Of Absence Statutory regulations Officers Definition An Air Force employee with annual leave to his credit received a presidential appointment as a judge of the United States Court of Military Appeals, incident to which the judge claimed payment for his annual leave. A judge of this court is an "officer" as that term is defined in 5 U.S.C. Sec. 2104(a) (1988), and therefore he is exempt from the leave act. Accordingly, his claim may not be paid because an employee with annual leave to his credit who receives an appointment to a position exempt from the leave act is not considered separated from the federal service for the purpose of receiving a lump-sum leave payment under 5 U.S.C. Sec. 5551 (1988). The leave remains credited to him until he either separates from the federal service or returns to a position covered by the leave act.

DECISION

This is in response to a request for our decision whether Chief Judge Eugene R. Sullivan of the United States Court of Military Appeals may receive, incident to his appointment to the court, a lump-sum payment for accumulated annual leave accrued in his prior federal employment. For the reasons discussed below, we conclude that Judge Sullivan is not entitled to a lump-sum payment for his annual leave incident to his appointment to the court.

BACKGROUND

Judge Sullivan left his Senior Executive Service (SES) position as General Counsel, Department of the Air Force, without a break in service upon his appointment by the President as a judge of the United States Court of Military Appeals. At the time of his appointment to the court, he had 428 hours of annual leave to his credit. He requests a lump-sum payment for that leave pursuant to 5 U.S.C. Sec. 5551(a) on the basis that he separated from the civil service when he became a judge on the Court of Military Appeals, a position which does not have a leave system to which his leave can be transferred.

Presidential appointees generally are exempted from the time and attendance statutes and do not accrue annual leave. 5 U.S.C. Sec. 6301(2)(x)-(xiii). Employees who have accrued annual leave and who are appointed to these exempted positions without a break in service are not considered to have separated from the federal service. Their accumulated leave remains to their credit to serve as the basis for a lump-sum payment when they separate from federal service, or it is recredited to them if they return to a position subject to the leave act. 5 U.S.C. Secs. 5551 and 6302(e); see also Joseph F. Friedkin, B-223225, July 29, 1986.

The agency questions whether Judge Sullivan occupies one of the positions exempted from the leave act. The agency also asks whether his resignation from his SES position upon appointment to the court constituted a "separation" from the government that would entitle Judge Sullivan to a lump-sum payment for his accumulated annual leave.

As explained below, we conclude that Judge Sullivan's position is a position exempted from the leave act and that his appointment to the court is not a separation. Therefore the leave should remain to his credit and the lump-sum payment should not be made at this time.

OPINION

Under the provisions of the leave act, 5 U.S.C. Secs. 6301-6312, an employee as defined by 5 U.S.C. Sec. 2105 is entitled to accrue annual leave. 5 U.S.C. Secs. 6301(2)(A) and 6303. While Judge Sullivan served in the SES position with the Air Force, he was an employee as defined by 5 U.S.C. Sec. 2105(a) and thus was covered by the leave act and entitled to accrue leave. Pursuant to 5 U.S.C. Sec. 5551(a), such an employee who is separated from the service is entitled to receive a lump-sum payment for his accrued annual leave. However, when an employee who is covered by the leave act is appointed without a break in service to a position exempted by 5 U.S.C. Sec. 6301(2)(x)-(xii) from coverage under the leave act, the employee is not considered to have been separated from service and is not entitled to a lump-sum payment for leave as a result of that change in position. Under 5 U.S.C. Sec. 6302(e), the leave the employee had to his credit from service in the covered position remains to his credit for use should he return to a position covered by the leave act, or it serves as a basis for a lump-sum payment pursuant to 5 U.S.C. Sec. 5551 upon his actual separation. Joseph F. Friedkin, B-223225, supra; 40 Comp.Gen. 164 (1960); 33 Comp.Gen. 177 (1953).

The question in this case is whether the position of judge on the Court of Military Appeals is a position exempted from the leave act by 5 U.S.C. Sec. 6301(2)(x)-(xiii), in which case Judge Sullivan's leave would remain to his credit and he would not be entitled to the lump-sum payment he seeks at this time.

Section 6301(2)(x)-(xiii) excludes officers in the executive, legislative, and judicial branches who are appointed by the President. The leave act provisions do not define the term "officer," so the definition generally applicable to title 5 of the United States Code applies. That definition, found at 5 U.S.C. Sec. 2104(a), is as follows:

"(a) For the purposes of this title, `officer', except as otherwise provided by this section or when specifically modified, means a justice or judge of the United States and an individual who is--

"(1) required by law to be appointed in the civil service by one of the following acting in an official capacity--

"(A) the President;

"(B) a court of the United States;

"(C) the head of an Executive agency; or

"(D) the Secretary of a military department;

"(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

"(3) subject to the supervision of an authority named by paragraph (1) of this section, or the Judicial Conference of the United States, while engaged in the performance of the duties of his office."

Whether Judge Sullivan is exempted from the leave act then depends upon whether the position of judge of the United States Court of Military Appeals falls within the 5 U.S.C. Sec. 2104(a) definition of "officer."

The Court of Military Appeals is a court of record established under article I of the Constitution, and is located for administrative purposes only in the Department of Defense. Art. 141, Uniformed Code of Military Justice (UCMJ), 10 U.S.C. Sec. 941. The court consists of five judges appointed by the President, by and with the advice and consent of the Senate, for terms of 15 years. Art. 142(a) and (b), UCMJ, 10 U.S.C. Sec. 942(a) and (b). The judges may be removed from office by the President, upon notice and hearing, for (1) neglect of duty, (2) misconduct, or (3) mental or physical disability, but for no other cause. Art. 142(c), UCMJ, 10 U.S.C. Sec. 942(c).

As the agency notes, since the Court of Military Appeals is an article I (legislative) court, whose judges are appointed to limited terms, rather than an article III (constitutional) court, it is uncertain whether a judge of this court is a "judge of the United States" as that term is used in 5 U.S.C. Sec. 2104(a), supra. While that term is not further defined in title 5 of the United States Code, it and the related term "court of the United States" are defined in U.S. Code, title 28, Part 1, "Organization of Courts." There "judge of the United States" is defined to apply only to judges who hold office during good behavior, rather than to judges with limited terms, and a "court of the United States" is defined to include only the Supreme Court and courts constituted of judges who hold office during good behavior. 28 U.S.C. Sec. 451. That is, these terms appear to apply only to article III courts and judges.

While this matter is not entirely clear, even if Judge Sullivan is not considered a "judge of the United States" as that term is used in defining "officer" in 5 U.S.C. Sec. 2104(a), it is our view that he would be an "officer" within the meaning of that provision since he would be considered as covered by the provisions of paragraphs (1), (2), and (3) thereof. Clearly, he meets the requirements of paragraphs (1) and (2) in that to assume his position he was required by law to be appointed in the civil service by the President (10 U.S.C. Sec. 942, supra), and he performs a federal function under authority of law (UCMJ art. 67, 10 U.S.C. Sec. 867).

As to paragraph (3), the agency notes that there is some question as to whether a judge of the Court of Military Appeals is covered since that paragraph requires that, while engaged in the performance of his duties, he be subject to the supervision of an authority named by paragraph (1) or the Judicial Conference of the United States.

As the agency indicates, Court of Military Appeals judges do not appear to be under the supervision of the Judicial Conference of the United States. Thus, to be covered by paragraph (3) a judge of the Court of Military Appeals must be "subject to the supervision of an authority named by paragraph (1)." It appears that the only "authority" named therein that could be deemed to have supervisory authority over such a judge is the President.

We recognize as the agency points out, that Judge Sullivan has a great deal of independence in how he carries out his duties, and the President does not supervise him in the traditional employer-employee manner. However, as is noted previously, the President is the appointing official and his is the power of removal, although only for the statutorily stated reasons (neglect of duty, misconduct, or mental or physical disability). 10 U.S.C. Sec. 942(b) and (c), supra. Considering the type of position Judge Sullivan occupies, we think that this limited supervision in relation to the enumerated causes for removal is sufficient for the purposes of 5 U.S.C. Sec. 2104(a)(3).

Therefore, it is our view that Judge Sullivan is an "officer" within the meaning of 5 U.S.C. Sec. 2104(a) and as such is one of those exempted from the leave act by 5 U.S.C. Sec. 6301(2)(x)-(xiii). We believe this view is consistent with the legislative purpose of 5 U.S.C. Sec. 6301(2)(x)- (xiii), which is to except all presidentially appointed officers in the executive, legislative, and judicial branches of the government from the leave act. We see no reason why Congress would have intended an exception for judges of the Court of Military Appeals, and we do not think the statutes so provide.

Accordingly, payment for Judge Sullivan's annual leave should not be made at this time. His leave should remain to his credit until he separates from service, at which time payment may be made, or he again becomes subject to the leave act, at which time he should be recredited with the leave.