B-54362, MAY 24, 1946, 25 COMP. GEN. 808

B-54362, MAY 24, 1946, 25 COMP. GEN. 808

LEAVES OF ABSENCE - ANNUAL - ENTITLEMENT GENERALLY; SECRETARIES AND LAW CLERKS OF FEDERAL JUDGES ENTITLEMENT OF A PARTICULAR EMPLOYEE OR CLASS OF EMPLOYEES TO THE BENEFITS OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, WHICH IS APPLICABLE TO "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES," IS NOT DEPENDENT UPON CONSIDERATIONS OF WHETHER EMPLOYED IN THE EXECUTIVE, LEGISLATIVE, OR JUDICIAL BRANCH OF THE GOVERNMENT, BUT, RATHER, IS DEPENDENT SOLELY UPON A DETERMINATION OF WHETHER THE NATURE OF THE EMPLOYMENT IS SUCH AS TO BE CONSISTENT WITH THE GRANT OF LEAVE WITH PAY UNDER SAID ACT. SECRETARIES AND LAW CLERKS OF FEDERAL CIRCUIT AND DISTRICT JUDGES, WHOSE HOURS OF DUTY ARE NOT SUBJECT TO ANY FIXED SCHEDULE APPLICABLE TO GOVERNMENT EMPLOYEES GENERALLY, BUT, RATHER, ARE GOVERNED BY THE ACTIVITIES OF THE JUDGE WHOM THEY SERVE, AND WHO, EITHER BECAUSE OF COURT RECESS, ABSENCE OF THE JUDGE, OR OTHER CIRCUMSTANCES, ARE IN A NON-WORK STATUS FOR EXTENDED PERIODS DURING WHICH THEY REMAIN IN A PAY STATUS, ARE NOT ENTITLED TO THE BENEFITS OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936.

ACTING COMPTROLLER GENERAL YATES TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, MAY 24, 1946:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5, 1945, AS FOLLOWS:

I WOULD RESPECTFULLY REQUEST YOUR OPINION WHETHER SECRETARIES AND LAW CLERKS TO CIRCUIT JUDGES AND DISTRICT JUDGES OF THE UNITED STATES ARE SUBJECT TO THE PROVISIONS OF PUBLIC LAW 525 OF THE 78TH CONGRESS (58 STAT. 845-846, 5. U.S.C. SUPP. IV. 61 B, 61 D) WITH RESPECT TO ANNUAL LEAVE FOR CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT. THIS PROVIDES THAT WHEN SUCH AN EMPLOYEE IS SEPARATED FROM THE SERVICE HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ACCUMULATED ANNUAL LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW, PROVIDED THAT IF HE IS REEMPLOYED IN THE FEDERAL SERVICE UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY THE LEAVE PAYMENT, HE SHALL REFUND AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF HIS REEMPLOYMENT AND THE EXPIRATION OF THE LEAVE PERIOD, AND THAT AMOUNT SHALL BE CREDITED TO HIM IN THE AGENCY BY WHICH HE IS REEMPLOYED.

THE QUESTION ARISES IN REFERENCE TO MRS. CECILIA J. SMITH, THE SECRETARY OF HONORABLE ALEXANDER HOLTZOFF, JUSTICE OF THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, WHO PRIOR TO HER EMPLOYMENT IN THIS CAPACITY WAS EMPLOYED IN THE DEPARTMENT OF JUSTICE. SHE RESIGNED FROM THAT DEPARTMENT EFFECTIVE AT THE CLOSE OF BUSINESS SEPTEMBER 30, 1945 AND ENTERED ON DUTY AS SECRETARY TO JUDGE HOLTZOFF ON THE FOLLOWING DAY, OCTOBER 1, 1945. UPON TERMINATION OF HER SERVICE IN THE DEPARTMENT OF JUSTICE, MRS. SMITH RECEIVED A LUMP SUM PAYMENT FOR 39 DAYS ACCRUED ANNUAL LEAVE THEN STANDING TO HER CREDIT. UPON THE ASSUMPTION THAT THE LEAVE ACT ABOVE CITED CONTINUED TO APPLY TO MRS. SMITH THIS OFFICE CONTEMPLATED ASKING HER TO REFUND THE ENTIRE AMOUNT OF THIS PAYMENT INASMUCH AS HER REEMPLOYMENT FOLLOWED IMMEDIATELY UPON THE TERMINATION OF HER PRIOR EMPLOYMENT. IT WAS INTENDED TO PLACE THE AMOUNT OF LEAVE REPRESENTED TO HER CREDIT IN HER NEW POSITION. JUDGE HOLTZOFF UPON BEING INFORMED TOOK THE VIEW THAT IN HER PRESENT POSITION SHE IS NOT UNDER THE SAME LEAVE SYSTEM THAT SHE WAS IN HER EMPLOYMENT IN THE DEPARTMENT OF JUSTICE AND CONSEQUENTLY TOOK THE PROVISION FOR THE REFUND OF LUMP SUM PAYMENTS ON ACCOUNT OF ACCRUED LEAVE DOES NOT APPLY AND SHE IS ENTITLED TO RETAIN IT. IN SUPPORT OF HIS VIEW JUDGE HOLTZOFF WROTE A LETTER TO MR. WHITEHURST DATED NOVEMBER 20, 1945, A COPY OF WHICH I ATTACH AND SHALL BE GLAD TO HAVE CONSIDERED IN CONNECTION WITH THIS LETTER.

THIS OFFICE HAS HERETOFORE CONSIDERED AND HAS ACTED UPON THE VIEW THAT THE SECRETARIES AND LAW CLERKS OF CIRCUIT AND DISTRICT JUDGES OF THE UNITED STATES WERE BOTH ENTITLED TO THE BENEFITS AND SUBJECT TO THE OBLIGATIONS OF THE LEAVE STATUTE. UNDER THAT VIEW UPON THE TERMINATION OF THEIR SERVICE AS SECRETARIES OR LAW CLERKS THEY MAY BE COMPENSATED IN A LUMP SUM FOR ANY ANNUAL LEAVE TO WHICH THEY ARE ENTITLED, AND CORRESPONDINGLY IF AT THE TIME OF THEIR APPOINTMENT THERE IS TO THEIR CREDIT LEAVE EARNED IN ANOTHER FEDERAL POSITION, THEY ARE ENTITLED TO BE CREDITED WITH IT BUT NOT TO RECEIVE PAYMENT FOR THE PART OF SUCH LEAVE OVERLAPPING THEIR NEW EMPLOYMENT, AND IF SUCH PAYMENT HAS BEEN MADE THEY ARE REQUIRED TO REFUND IT. UNDER THIS VIEW THE REFUND HERE INVOLVED IS DUE FROM MRS. SMITH. IF SHE IS NOT SUBJECT TO THE LEAVE LAW SHE IS ENTITLED TO RETAIN THE LUMP SUM PAYMENT RECEIVED FROM THE DEPARTMENT OF JUSTICE, BUT SHE WILL NOT BE ENTITLED TO COMPENSATION FOR ANY ANNUAL LEAVE ACCRUED UPON THE TERMINATION OF HER PRESENT EMPLOYMENT AS SECRETARY TO JUDGE HOLTZOFF. IT IS OBVIOUS THAT THE ISSUE IN REFERENCE TO THE SECRETARY TO JUDGE HOLTZOFF APPLIES GENERALLY TO SECRETARIES TO CIRCUIT AND DISTRICT JUDGES. FURTHERMORE INASMUCH AS THE CONDITIONS OF THEIR EMPLOYMENT ARE SIMILAR IT WOULD SEEM TO APPLY EQUALLY TO THEIR LAW CLERKS. HENCE I PUT THE QUESTION IN THIS LETTER IN REFERENCE TO BOTH SECRETARIES AND LAW CLERKS OF CIRCUIT AND DISTRICT JUDGES.

AUTHORITY FOR THE APPOINTMENT OF LAW CLERKS FOR CIRCUIT JUDGES IS CONTAINED IN SECTION 118 (A) OF THE JUDICIAL CODE (27 U.S.C. 222 (A/), AND AUTHORITY FOR THE APPOINTMENT OF LAW CLERKS FOR DISTRICT JUDGES IN SECTION 118 (B) OF THE JUDICIAL CODE (28 U.S.C. 128). AUTHORIZATION FOR THE APPOINTMENT OF SECRETARIES FOR CIRCUIT AND DISTRICT JUDGES HAS BEEN GIVEN IN THE ANNUAL APPROPRIATION ACTS FOR THE COURTS FOR MANY YEARS AND THE PROVISIONS OF THESE ACTS WITH REFERENCE TO SALARIES HAVE SUPERSEDED THE SALARIES PRESCRIBED FOR LAW CLERKS IN THE SECTIONS CITED. THE PROVISION OF THE PRESENT JUDICIARY APPROPRIATION ACT (FOR 1946) FOR MISCELLANEOUS SALARIES FOR THE COMPENSATION OF SECRETARIES AND LAW CLERKS OF CIRCUIT AND DISTRICT JUDGES IS AS FOLLOWS:

"FOR SALARIES OF ALL OFFICIALS AND EMPLOYEES OF THE FEDERAL JUDICIARY, NOT OTHERWISE SPECIFICALLY PROVIDED FOR $1,400,000: PROVIDED, THAT THE COMPENSATION OF SECRETARIES AND LAW CLERKS OF CIRCUIT AND DISTRICT JUDGES (EXCLUSIVE OF ANY TEMPORARY ADDITIONAL COMPENSATION) SHALL BE FIXED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, EXCEPT THAT THE SALARY OF A SECRETARY SHALL CONFORM WITH THAT OF THE MAIN (CAF-4), SENIOR (CAF-5), OR PRINCIPAL (CAF- 6) CLERICAL GRADE, OR ASSISTANT (CAF-7), OR ASSOCIATE (CAF-8) ADMINISTRATIVE GRADE, AS THE APPOINTING JUDGE SHALL DETERMINE, AND THE SALARY OF A LAW CLERK SHALL CONFORM WITH THAT OF THE JUNIOR (P-1), ASSISTANT (P-2), ASSOCIATE (P 3), FULL (P-4) OR SENIOR (P-5) PROFESSIONAL GRADE, AS THE APPOINTING JUDGE SHALL DETERMINE, SUBJECT TO REVIEW BY THE JUDICIAL COUNCIL OF THE CIRCUIT IF REQUESTED BY THE DIRECTOR, SUCH DETERMINATION BY THE JUDGE OTHERWISE TO BE FINAL: PROVIDED FURTHER, THAT (EXCLUSIVE OF ANY TEMPORARY ADDITIONAL COMPENSATION) THE AGGREGATE SALARIES PAID TO SECRETARIES AND LAW CLERKS APPOINTED BY ONE JUDGE SHALL NOT EXCEED $6,500 PER ANNUM, EXCEPT IN THE CASE OF THE SENIOR CIRCUIT JUDGE OF EACH CIRCUIT AND SENIOR DISTRICT JUDGE OF EACH DISTRICT HAVING FIVE OR MORE DISTRICT JUDGES, IN WHICH CASE THE AGGREGATE SALARIES SHALL NOT EXCEED $7,500.'

IT IS A FACT AS JUDGE HOLTZOFF STATED IN HIS LETTER TO MR. WHITEHURST THAT THE SECRETARIES AND LAW CLERKS OF JUDGES ARE NOT SUBJECT TO REGULAR HOURS OF DUTY AND WORK ACCORDING TO THE NECESSITIES OF THE JUDGES WHOM THEY SERVE. THEY ARE, HOWEVER, REGARDED AS FULL TIME EMPLOYEES AND THE AMOUNTS OF THEIR SALARIES ARE DETERMINED (SUBJECT TO AN OCCASIONAL AND RARE EXCEPTION FOR A TEMPORARY PERIOD) UPON THAT BASIS.

I SHALL BE OBLIGED IF YOU WILL GIVE ME YOUR OPINION WHETHER THE LEAVE LAW REFERRED TO APPLIES TO THE SECRETARIES AND LAW CLERKS TO CIRCUIT AND DISTRICT JUDGES OR NOT.

THE ACT OF DECEMBER 21, 1944, PUBLIC LAW 525, 58 STAT. 845, 846, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS SEPARATED FROM THE SERVICE OR ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, OR SECTION 4 OF THE ACT OF JUNE 23, 1943, HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE: PROVIDED, THAT IF SUCH EMPLOYEE IS REEMPLOYED IN THE FEDERAL SERVICE OR IN OR UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY SUCH LEAVE PAYMENT, HE SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF SUCH LEAVE PERIOD, AND THE AMOUNT OF LEAVE REPRESENTED BY SUCH REFUND SHALL BE CREDITED TO HIM IN THE EMPLOYING AGENCY. IN THE CASE OF REEMPLOYMENT IN THE FEDERAL SERVICE THE SUM SO REFUNDED SHALL BE COVERED INTO THE TREASURY AS "1MISCELLANEOUS RECEIPTS," AND IN CASE OF REEMPLOYMENT IN OR UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA THE SUM SO REFUNDED SHALL BE COVERED INTO THE TREASURY TO THE CREDIT OF THE DISTRICT OF COLUMBIA: PROVIDED FURTHER, THAT THE LUMP-SUM PAYMENT HEREIN AUTHORIZED SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION AS SALARY OR COMPENSATION AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS.

SEC. 3. THAT ALL ACCUMULATED AND CURRENT ACCRUED LEAVE BE LIQUIDATED BY A LUMP-SUM PAYMENT TO ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IN CASES INVOLVING TRANSFER TO AGENCIES UNDER DIFFERENT LEAVE SYSTEMS. SUCH LUMP- SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE NOT BEEN TRANSFERRED UNTIL THE EXPIRATION OF THE PERIOD OF SUCH LEAVE: PROVIDED, THAT THE LUMP SUM PAYMENT HEREIN AUTHORIZED SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS.

IT WILL BE NOTED THAT SECTION 1 OF THE QUOTED STATUTE EXPRESSLY PROVIDES, INTER ALIA, THAT UPON REEMPLOYMENT IN THE FEDERAL SERVICE "UNDER THE SAME LEAVE SYSTEM," PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY THE LUMP- SUM PAYMENT THEREIN AUTHORIZED, PERSONS WITHIN THE PURVIEW OF THE ACT SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE UNEXPIRED PORTION OF SUCH LEAVE PERIOD. HENCE, THE LEGAL OBLIGATION OF MRS. SMITH TO REFUND THE LUMP SUM PAYMENT RECEIVED BY HER FOR UNUSED ACCRUED ANNUAL LEAVE TO HER CREDIT AT THE TIME OF HER RESIGNATION FROM THE DEPARTMENT OF JUSTICE RESTS UPON A DETERMINATION WHETHER HER SUBSEQUENT EMPLOYMENT AS SECRETARY TO MR. JUSTICE HOLTZOFF--- A POSITION IN THE JUDICIAL BRANCH OF THE FEDERAL GOVERNMENT--- CONSTITUTES REEMPLOYMENT IN THE FEDERAL SERVICE "UNDER THE SAME LEAVE SYSTEM" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 1, SUPRA.

THE ACT OF MARCH 4, 1936, PUBLIC LAW 471, 49 STAT. 1161, 1162, ENTITLED,"TO PROVIDE FOR VACATIONS TO GOVERNMENT EMPLOYEES, AND FOR OTHER PURPOSES," PROVIDES, IN PART, AS FOLLOWS:

THAT WITH THE EXCEPTION OF TEACHERS AND LIBRARIANS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA AND OFFICERS AND EMPLOYEES OF THE PANAMA CANAL AND PANAMA RAILROAD ON THE ISTHMUS OF PANAMA, AND EXCEPT AS PROVIDED IN SECTION 4 HEREOF, ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, REGARDLESS OF THEIR TENURE, IN ADDITION TO ANY ACCRUED LEAVE SHALL BE ENTITLED TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS: PROVIDED, THAT THE PART UNUSED IN ANY YEAR SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING SIXTY DAYS. THIS ACT SHALL NOT AFFECT ANY SICK LEAVE TO WHICH EMPLOYEES ARE NOW OR HEREAFTER BE ENTITLED. TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO TWO AND ONE HALF DAYS LEAVE FOR EACH MONTH OF SERVICE. THE ANNUAL LEAVE HEREIN AUTHORIZED SHALL BE GRANTED AT SUCH TIMES AS THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY PRESCRIBE. THIS ACT BECOMES EFFECTIVE JANUARY 1, 1936.

SEC. 4. NOTHING IN THIS ACT SHALL AFFECT THE POSTMASTER GENERAL AND OFFICERS AND EMPLOYEES IN OR UNDER THE POST OFFICE DEPARTMENT: PROVIDED, THAT OFFICERS AND EMPLOYEES IN THE DEPARTMENTAL SERVICE AND IN THE MAIL EQUIPMENT SHOPS OF THE POST OFFICE DEPARTMENT SHALL BE INCLUDED WITHIN THE PROVISIONS OF THIS ACT.

SEC. 5. NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT THE CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL NOW OBTAINING FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

SEC. 6. THE EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS, SHALL BE INCLUDED WITHIN THE PROVISIONS OF THIS ACT.

SEC. 7. THE LEAVE OF ABSENCE HEREIN PROVIDED FOR SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, SO AS TO OBTAIN, SO FAR AS PRACTICABLE, UNIFORMITY IN THE APPLICATION OF THIS ACT.

IT WILL BE NOTED THAT THE QUOTED STATUTE SPECIFICALLY REFERS TO "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL. HENCE, IN VIEW OF THE ALL-INCLUSIVE LANGUAGE OF THE ACT THERE IS PERCEIVED NO BASIS UPON WHICH THE INCLUSION OR EXCLUSION OF ANY EMPLOYEE OR CLASS OF EMPLOYEES FROM THE BENEFITS OF THAT ACT PROPERLY MAY BE CONSIDERED AS DEPENDENT SOLELY UPON THE PARTICULAR BRANCH OF THE FEDERAL GOVERNMENT IN WHICH EMPLOYED, WHETHER IT BE THE EXECUTIVE, LEGISLATIVE, OR JUDICIAL BRANCH. IN FACT, NUMEROUS PRIOR DECISIONS OF THIS OFFICE HAVE RECOGNIZED THAT OFFICERS AND EMPLOYEES IN OR UNDER THE JUDICIAL BRANCH OF THE GOVERNMENT, GENERALLY, ARE COVERED BY THE PROVISIONS OF THE 1936 LEAVE LAW. SEE 20 COMP. GEN. 140; 23 ID. 603; 25 ID. 185. CONSEQUENTLY, THE MERE FACT THAT MRS. SMITH TRANSFERRED TO A POSITION IN THE JUDICIAL BRANCH OF THE FEDERAL GOVERNMENT, IN ITSELF WOULD NOT BE SUFFICIENT TO EXCLUDE HER FROM THE PROVISIONS OF THE 1936 LEAVE STATUTE. WHILE, AS ABOVE STATED, THE LANGUAGE OF THE ACT IS SUFFICIENTLY BROAD TO INCLUDE OFFICERS AND EMPLOYEES IN THE LEGISLATIVE AND JUDICIAL BRANCHES OF THE GOVERNMENT AS WELL AS OFFICERS AND EMPLOYEES IN THE EXECUTIVE BRANCH, IT LONG HAS BEEN RECOGNIZED--- IN CONSONANCE WITH SETTLED CANONS OF STATUTORY CONSTRUCTION--- THAT, NOTWITHSTANDING THE BROAD GENERAL LANGUAGE OF THE STATUTE, IT WAS NOT THE INTENT OF THE CONGRESS THAT IT SHOULD BE VIEWED AS AUTHORIZING ANNUAL OR VACATION LEAVE, ON THE BASIS THEREIN PROVIDED, FOR EVERY PERSON WHO MIGHT COME WITHIN THE TERM,"CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES.' IN DECISION OF THIS OFFICE DATED JUNE 4, 1936, 15 COMP. GEN. 1058, TO THE PRESIDENT UNITED STATES CIVIL SERVICE COMMISSION, THERE WAS CONSIDERED THE APPLICABILITY OF THE 1936 LEAVE LAW TO CIVILIAN EMPLOYEES OF THE GOVERNMENT SERVING UNDER VARIOUS TYPES OF APPOINTMENTS, SET OUT IN THE COMMISSION'S LETTER DATED MAY 25, 1936, AS FOLLOWS:

QUESTION 5. UNDER THE PROVISIONS OF LAW SPECIFYING "ALL CIVILIAN OFFICERS AND EMPLOYEES" AND ,REGARDLESS OF TENURE" ARE EMPLOYEES WHOSE WORK IS NOT CONTINUOUS, SUCH AS VARIOUS TYPES OF INTERMITTENT AND OTHER NONREGULAR EMPLOYEES, ENTITLED TO SICK LEAVE OR TO ANNUAL LEAVE?

BOTH THE ANNUAL LEAVE AND THE SICK LEAVE ACTS CONTAIN CERTAIN SPECIAL EXCEPTIONS, BUT ARE THE SAME IN AUTHORIZING THE GRANTING OF ANNUAL LEAVE AND SICK LEAVE TO ALL CIVILIAN OFFICERS AND EMPLOYEES "REGARDLESS OF THEIR TENURE.'

THE IN VARIOUS BRANCHES OF THE GOVERNMENT SERVICE GROUPS OF EMPLOYEES WHO ARE EMPLOYED ON AN INTERMITTENT, SEASONAL, EMERGENCY, INDEFINITE AND OTHER NONREGULAR BASIS, WHO ARE FREQUENTLY PAID ON A PER DIEM BASIS, BUT ARE ALSO PAID OTHERWISE. THE LANGUAGE OF BOTH ACTS,"ALL CIVILIAN OFFICERS AND EMPLOYEES" AND "REGARDLESS OF THEIR TENURE" MAKES NO SPECIFIC EXCEPTION OF THESE GROUPS OF EMPLOYEES.

HOWEVER, SINCE THE TERMS OF THE EMPLOYMENT OF THESE PERSONS PROVIDE FOR PAYMENT ONLY WHEN ACTUALLY EMPLOYED, THERE WOULD APPEAR TO BE A QUESTION AS TO WHETHER THEY SHOULD BE PAID WHEN NOT ON DUTY STATUS, WHETHER THE ABSENCE IS BECAUSE OF ILLNESS OR OTHER CAUSES. AMONG THE GROUPS OF EMPLOYEES AFFECTED AND CONCERNING WHOM DECISION IS REQUESTED ARE:

(A) PER DIEM EMPLOYEES WHO ARE PAID ONLY WHEN ACTUALLY EMPLOYED.

(B) PER DIEM OR PER HOUR EMPLOYEES ENGAGED IN AN EMERGENCY WHO MAY BE EMPLOYED FOR MORE THAN ONE 7- OR 8-HOUR SHIFT IN 24 HOURS DURING SAID EMERGENCY, FIRE, FLOOD, ETC.

(C) PART-TIME EMPLOYEES, SUCH AS THOSE CONSIDERED IN YOUR DECISION A- 36473, MAY 9, 1931, TO THE SECRETARY OF COMMERCE, AND DECISION A 69423, MARCH 16, 1936, TO THE SECRETARY OF AGRICULTURE.

(D) PERSONS ENGAGED UNDER CONTRACT TO FURNISH USUALLY A SPECIFIED NUMBER OF REPORTS IN A YEAR, BUT NOT CONTINUOUSLY EMPLOYED.

(E) EMPLOYEES ENGAGED TEMPORARILY FOR A MONTH OR MORE ON A PIECE PRICE BASIS.

(F) EMPLOYEES WHO ARE PAID AT HOURLY RATES, BUT WHO ARE NOT ENGAGED ON CONSTRUCTION WORK, AS, FOR EXAMPLE, MECHANICS, SKILLED LABORERS, AND OTHER ENGAGED IN IN MANY SERVICES ON MAINTENANCE, REPAIR, CLEAN-UP WORK, AND THE LIKE, WHERE EMPLOYMENT IS MORE OR LESS INTERMITTENT AND NOT ON A REGULAR BASIS.

(G) EMPLOYEES PAID ON A FEE BASIS, SUCH AS PHYSICIANS AND SURGEONS AND OTHER CONSULTANTS. IN ANSWER THERETO, IT WAS STATED:

REFERRING TO QUESTION 5, THE CLASSES OF EMPLOYEES MENTIONED IN PARAGRAPH (A), (B), (C), (D), (F), AND (G) ARE NOT ENTITLED TO SICK OR ANNUAL LEAVE OF ABSENCE WITH PAY. AN APPOINTMENT OR CONTRACT OF EMPLOYMENT PROVIDING FOR PAYMENT OF COMPENSATION ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" OR ON A FEE BASIS FOR THE PARTICULAR SERVICE RENDERED, IS INCONSISTENT WITH THE GRANTING OF LEAVE OF ABSENCE WITH PAY. REFERRING TO PARAGRAPH (E) UNDER QUESTION 5, PIECE WORKERS TEMPORARILY BUT CONTINUOUSLY EMPLOYED FOR 1 MONTH OR MORE ARE ENTITLED TO SICK AND ANNUAL LEAVE OF ABSENCE WITH PAY UNDER THE TERMS AND SUBJECT TO THE CONDITIONS OF THE LEAVE ACTS OF MARCH 14, 1936, APPLICABLE TO TEMPORARY EMPLOYEES. THOSE NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING THE REGULAR TOUR OF DUTY ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY.

IT IS APPARENT THAT THE EXCLUSION OF CERTAIN OF THE ABOVE-ENUMERATED EMPLOYEES, OTHERWISE WITHIN THE PURVIEW OF THE 1936 ACT, FROM THE PROVISIONS THEREOF ON THE BASIS THAT THE NATURE OF THEIR EMPLOYMENT WAS INCONSISTENT WITH THE GRANTING OF LEAVE OF ABSENCE WITH PAY WAS GROUNDED UPON THE FAMILIAR RULE THAT WHILE CERTAIN PERSONS OR THINGS MIGHT BE WITHIN THE LETTER OF A STATUTE, THEY ARE NOT COVERED BY THE PROVISIONS THEREOF BECAUSE THEY ARE NOT WITHIN ITS SPIRIT NOR THE INTENT OF THE LEGISLATURE. CHURCH OF THE HOLY TRINITY V. UNITED STATES, 143 U.S. 457.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE 1936 LEAVE STATUTE DISCLOSES THAT THE PRIMARY PURPOSE OF THAT ENACTMENT WAS TO INCREASE THE NUMBER OF DAYS OF LEAVE OF ABSENCE WITH PAY THEN AUTHORIZED FOR FEDERAL EMPLOYEES TO AN AMOUNT SUFFICIENT TO COVER NOT ONLY THE NORMAL ABSENCE FROM WORK FOR PERSONAL REASONS BUT ALSO TO ENABLE SUCH EMPLOYEES TO AVAIL THEMSELVES OF ANNUAL VACATIONS WITH PAY SO THAT, BY SUCH RESPITE FROM OFFICIAL DUTIES FOR EXTENDED PERIODS, THEY MIGHT BE BETTER FITTED TO DISCHARGE THE DUTIES OF THEIR PARTICULAR OFFICE. IN THAT CONNECTION, IT WAS STATED IN REPORT NO. 1252, JUNE 17, 1935, OF THE COMMITTEE ON THE CIVIL SERVICE, HOUSE OF REPRESENTATIVES, ACCOMPANYING H.R. 8458, WHICH BECAME PUBLIC LAW 471, AS FOLLOWS:

THE COMMITTEE FEELS THAT THE TIME HAS COME FOR A RESTORATION OF ANNUAL LEAVE TO THE EMPLOYEES OF THE GOVERNMENT, AND FEEL THAT THIS IS JUSTIFIED BECAUSE MOST OF THE EMPLOYEES IN WASHINGTON, AND MANY OF THOSE IN THE FIELD, COME FROM PLACES AWAY FROM WHERE THEY ARE AT WORK AND WISH TO USE THEIR VACATIONS FOR VISITS HOME. ANY ABSENCE FROM THE OFFICE EVEN FOR A FEW MINUTES IS CHARGED TO ANNUAL LEAVE GRANTED TO THE EMPLOYEES. IF THEY WANT TO HAVE A CHECK CASHED AT THE BANK, IT IS CHARGED TO ANNUAL LEAVE; IF THEY MUST GO TO THE DENTIST, OR SHOULD THEY WISH TO ATTEND A FUNERAL, THE TIME OCCUPIED IN SUCH ACTIVITIES IS CHARGED TO ANNUAL LEAVE. THE RESULT IS THAT WITH ONLY 15 DAYS ANNUAL, WHEN VACATION TIME COMES, THE AVERAGE EMPLOYEE HAS ONLY A FEW DAYS LEFT.

FROM THE FOREGOING, IT IS APPARENT THAT IT WAS THE INTENT OF THE CONGRESS TO GRANT LEAVE OF ABSENCE WITH PAY ONLY TO THOSE CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE OFFICIAL DUTIES REQUIRE SUBSTANTIALLY THEIR FULL TIME AND ATTENTION OVER EXTENDED PERIODS. THE SAME CONSIDERATIONS WHICH PROMPTED THE GRANTING OF VACATION LEAVE TO SUCH EMPLOYEES ARE NOT PRESENT WITH RESPECT TO EMPLOYEES WHOSE OFFICIAL DUTIES ARE SUCH AS TO CONSUME ONLY A PORTION OF THEIR TIME THROUGHOUT THE YEAR--- LEAVING THEM EXTENDED NON-WORK PERIODS FOR VACATION AND RECREATIONAL PURPOSES. THE VERY NATURE OF SUCH EMPLOYMENT PRECLUDES ANY NECESSITY FOR A STATUTORY GRANT OF VACATIONS SINCE THE NON-WORK PERIODS NORMALLY OCCURRING UNDER SUCH CONDITIONS OF EMPLOYMENT SERVE THE SAME PURPOSES AS VACATIONS FOR FULL- TIME EMPLOYEES. ACCORDINGLY, IT MAY BE STATED AS A GENERAL PROPOSITION THAT THE ENTITLEMENT OF A PARTICULAR EMPLOYEE OR CLASS OF EMPLOYEES TO THE BENEFITS OF THE 1936 LEAVE ACT IS NOT DEPENDENT UPON THE CONSIDERATIONS OF THE PARTICULAR BRANCH OF THE FEDERAL GOVERNMENT IN WHICH EMPLOYED, BUT, RATHER, IS DEPENDENT SOLELY UPON A DETERMINATION WHETHER THE NATURE OF THE EMPLOYMENT IS SUCH AS TO BE CONSISTENT WITH THE GRANT OF LEAVE WITH PAY THEREIN PROVIDED. COMPARE 22 COMP. GEN. 864.

WITH RESPECT TO THE LUMP-SUM PAYMENT TO MRS. SMITH UPON HER SEPARATION FROM THE DEPARTMENT OF JUSTICE, THE HONORABLE ALEXANDER HOLTZOFF, ASSOCIATE JUSTICE, DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, IN HIS LETTER OF NOVEMBER 20, 1945, TO YOU, WHICH ACCOMPANIED YOUR SUBMISSION, STATES AS FOLLOWS:

THIS REFERS TO OUR TELEPHONE CONVERSATION CONCERNING THE LUMP-SUM PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE MADE TO MY SECRETARY, MRS. CECILIA J. SMITH WHEN SHE WAS SEPARATED FROM THE SERVICE OF THE DEPARTMENT OF JUSTICE IN ORDER TO ACCEPT HER PRESENT POSITION AS MY SECRETARY. AT THAT TIME SHE RECEIVED A LUMP-SUM PAYMENT FOR HER ACCUMULATED AND ACCRUED LEAVE IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944 ( PUBLIC LAW NO. 525, 78TH CONGRESS) SOMETIMES KNOWN AS THE LANE ACT.

IN MY OPINION SHE WAS PROPERLY PAID THE FOREGOING SUM AND IS ENTITLED TO RETAIN IT. THE LANE ACT PROVIDES THAT IF THE EMPLOYEE WHO RECEIVES THE COMPENSATION REFERRED TO IS RE-EMPLOYED IN THE FEDERAL SERVICE, OR UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY SUCH LEAVE PAYMENT HE SHALL MAKE AN APPROPRIATE REFUND TO THE EMPLOYING AGENCY.

IT IS MY VIEW THAT SECRETARIES TO FEDERAL JUDGES ARE NOT UNDER THE SAME LEAVE SYSTEM AS EMPLOYEES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT. SECRETARIES TO FEDERAL JUDGES ARE IN A DIFFERENT SITUATION FROM OTHER ADMINISTRATIVE AND CLERICAL PERSONNEL OF THE FEDERAL COURTS, SUCH AS EMPLOYEES OF THE CLERK'S OFFICE, PROBATION OFFICE, ETC. THE SECRETARY TO A JUDGE IS ALWAYS ON DUTY WHENEVER THE JUDGE TO WHOM THE SECRETARY IS ATTACHED IS HOLDING COURT, OR WORKING IN CHAMBERS, OR IS OTHERWISE TRANSACTING OFFICIAL BUSINESS. THE SECRETARY IS SUBJECT TO CALL AT ALL OTHER TIMES. FOR EXAMPLE, WHENEVER THE JUDGE HOLDS COURT, OR IS SITTING IN CHAMBERS, ON SATURDAY, HIS SECRETARY MUST BE ON DUTY WITHOUT ANY ADDITIONAL PAYMENT, SUCH AS IS PROVIDED BY THE OVERTIME PAY ACT. ON THE OTHER HAND, IF, AS IS TRUE IN MANY COURTS, THERE ARE LONG INTERVALS BETWEEN SESSIONS OF THE COURT, SUCH INTERVALS AGGREGATING MORE THAN 26 DAYS IN ANY ONE YEAR, THE SECRETARY IS NOT CHARGED FOR THE EXTRA TIME. OTHER WORDS, INSOFAR, AS LEAVE IS CONCERNED, THE SECRETARY TO A FEDERAL JUDGE IS PRACTICALLY IN THE SAME STATUS AS THE JUDGE HIMSELF.

I AM, THEREFORE, STRONGLY OF THE OPINION THAT THE LUMP-SUM PAYMENT ABOVE MENTIONED WAS PROPERLY MADE TO MRS. SMITH, AND THAT SHE IS UNDER NO OBLIGATION TO MAKE ANY REFUND.

IT IS MY UNDERSTANDING THAT YOU ARE PLANNING TO REQUEST A COMPTROLLER GENERAL'S RULING ON THIS POINT. IN THAT EVENT, I SHALL APPRECIATE IT IF YOU WILL BE GOOD ENOUGH TO HAVE MY VIEWS ACCOMPANY YOUR SUBMISSION. WHILE NOT STATED IN THAT LETTER, IT IS ASSUMED THAT THE CONDITIONS OF EMPLOYMENT MENTIONED THEREIN FOR SECRETARIES TO FEDERAL JUDGES LIKEWISE APPLY TO LAW CLERKS OF SUCH JUDGES.

BY STATUTE, EACH FEDERAL CIRCUIT AND DISTRICT JUDGE HAS BEEN VESTED WITH THE AUTHORITY TO APPOINT A SECRETARY AND A LAW CLERK, THE SALARY OF EACH POSITION TO BE FIXED BY SAID JUDGE NOT TO EXCEED THE AGGREGATE AMOUNT PRESCRIBED BY LAW. BY REASON OF THE NATURE OF THEIR DUTIES IT IS APPARENT THAT SUCH EMPLOYEES OCCUPY A STATUS DIFFERENT FROM THAT OCCUPIED BY FEDERAL CIVILIAN EMPLOYEES GENERALLY. THEIR APPOINTMENTS, QUALIFICATIONS, TENURE, AND SALARY ARE MATTERS EXCLUSIVELY WITH THE DISCRETION OF THE JUDGES. AND IT UNQUESTIONABLY IS TRUE THAT THEIR HOURS OF DUTY ARE NOT SUBJECT TO ANY FIXED SCHEDULE APPLICABLE TO ALL SUCH EMPLOYEES, BUT, RATHER, ARE GOVERNED BY THE ACTIVITIES OF THE JUDGE WHOM THEY SERVE. POINTED OUT BY MR. JUSTICE HOLTZOFF IN HIS LETTER, SUPRA, THERE DOUBTLESS ARE MANY OCCASIONS WHEN SUCH EMPLOYEES, EITHER BECAUSE OF COURT RECESS, ABSENCE OF THE JUDGE, OR OTHER CIRCUMSTANCES, ARE IN A NON-WORK STATUS FOR EXTENDED PERIODS DURING WHICH THEY REMAIN IN A PAY STATUS. HENCE, AN AUTHORIZATION FOR LEAVE WITH PAY AS CONTAINED IN THE 1936 LEAVE STATUTE TO LAW CLERKS AND SECRETARIES TO FEDERAL JUDGES WOULD OPERATE MERELY TO SUPERIMPOSE 26 DAYS' VACATION LEAVE WITH PAY UPON THE NON-WORK DAYS NORMALLY OCCURRING IN SUCH EMPLOYMENT AND WOULD RESULT, IN MOST CASES, IN ABSENCE FROM DUTY WITH PAY FOR PERIODS FAR IN EXCESS OF THAT AUTHORIZED FOR FEDERAL EMPLOYEES GENERALLY. FURTHER, THE LEAVE OF ABSENCE GRANTED BY THE 1936 LAW IS A RIGHT RATHER THAN A PRIVILEGE AND IT IS NOT DIFFICULT TO PERCEIVE HOW, IF SUCH EMPLOYEES BE DEEMED TO BE ENTITLED TO SUCH BENEFITS, ANY ASSERTION OF THAT RIGHT ON THEIR PART SERIOUSLY MIGHT HAMPER THE JURISTS IN THE EXERCISE OF THEIR OFFICIAL DUTIES.

IN THE LIGHT OF THE FOREGOING, IT REASONABLY APPEARS THAT, WHILE SECRETARIES AND LAW CLERKS TO FEDERAL JUDGES ARE WITHIN THE LETTER OF THE 1936 LAW, THEY ARE NOT WITHIN THE SPIRIT THEREOF NOR WITHIN THE INTENT OF THE CONGRESS IN ENACTING SUCH LEGISLATION. HENCE, THERE APPEARS JUSTIFIED THE CONCLUSION THAT THEY ARE NOT ENTITLED TO THE BENEFITS OF THAT ACT.

WHILE NOT SPECIFICALLY SO STATED IN YOUR LETTER, IT IS ASSUMED THAT THE POSITION FORMERLY HELD BY MRS. SMITH IN THE DEPARTMENT OF JUSTICE WAS SUCH AS TO BRING HER WITHIN THE PURVIEW OF THE 1936 LEAVE STATUTE. IF SUCH WAS THE CASE, THEN HER SUBSEQUENT EMPLOYMENT AS SECRETARY TO MR. JUSTICE HOLTZOFF WAS NOT REEMPLOYMENT IN THE FEDERAL SERVICE "UNDER THE SAME LEAVE SYSTEM" WITHIN THE MEANING OF THAT PHRASE AS USED IN THE SAID ACT OF DECEMBER 21, 1944, AND, CONSEQUENTLY, SHE IS ENTITLED TO RETAIN THE LUMP- SUM LEAVE PAYMENT RECEIVED UPON HER SEPARATION FROM THE DEPARTMENT OF JUSTICE. IT IS NOTED THAT, CONTRARY TO THE CONCLUSION HEREIN REACHED, LAW CLERKS AND SECRETARIES TO FEDERAL JUDGES HAVE BEEN CONSIDERED BY YOUR OFFICE AS SUBJECT TO THE PROVISIONS OF THE 1936 LEAVE LAW. SINCE THE PRECISE QUESTION HERE CONSIDERED HERETOFORE HAS NOT BEEN BEFORE THIS OFFICE FOR DECISION AND IN VIEW OF THE GENERAL DOUBT IN THE MATTER, YOU ARE ADVISED THAT NOTHING STATED HEREIN NEED BE VIEWED AS AFFECTING PAYMENTS HERETOFORE MADE RESPECTING THE LEAVE OF EMPLOYEES OF THE CLASSES HERE INVOLVED, BUT THE CONCLUSION REACHED HEREIN WILL BE FOR APPLICATION FROM AND AFTER THE DATE OF THIS DECISION AND NO FURTHER PAYMENTS ARE AUTHORIZED.