
    WILLIAM T. BUTLER v. THE UNITED STATES
    [No. 45173.
    Decided May 1, 1944]
    
      
      Mr. S. W. Greenwald for the plaintiff.
    
      Mr. Joseph M. Friedman, with whom was Mr. Assistant Attorney General Francis M. Shea, for defendant.
   Whitaker, Judge,

delivered the opinion of the court:

This is* a suit by a former employee of the Federal Theatre Project of the Works Progress Administration to collect an amount alleged to be due him as compensation for the annual leave to which he was entitled and which he never received.

He sues under the Act of March 14, 1936 (49 Stat. 1161), which reads in pertinent part as follows:

* * * 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 may hereafter be entitled. Temporary employees, except tem-
E or ary employees engaged on construction work at ourly 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.

Plaintiff was employed on January 15, 1936 in a supervisory capacity, first as senior supervisor, and later as chief foreman. The Emergency Relief Appropriation Act of 1939 (53 Stat. 927,936) provided for the closing down on June 30, 1939 of projects such as the one on which plaintiff was employed. Section 25 (a) thereof prohibited the use of funds made available by it for the operation of any theatre project after June 30,1939, except that it permitted the payment of the salary for the month of July of a person working in a supervisory capacity “with or without assignment of duty incidental to the closing down of such project.” Plaintiff was working in a supervisory capacity and he was paid his salary for this month. Just before the end of the month, on or after July 28, plaintiff made application for the annual leave to which he was entitled under the Act of March 14,1936. This was 70 days and 5 hours. Since, under the above-mentioned act, it was necessary that his services be discontinued on July 31, 1939, and since thereafter he could not be carried as an employee, no annual leave was given to him, and none could have been given him except for a day or two.

He sues for the amount of pay he would have received during his leave if he had been granted it.

As this court held more than 50 years ago, annual leave is not a congressional device to increase an employee’s pay, but is granted in the nature of a refresher, to afford surcease from an employee’s labors for the common weal and to enable him to come back with fresh zeal to carry on in his country’s service. As Judge Nott expressed it in Harrison v. United States, 26 C. Cls. 259, 269, annual leave was intended “to secure to the individual employe a vacation for refreshment and recuperation.” It was never designed as a bonus upon separation from the service. Only an employee is entitled to it. After he ceases to be an employee, his right to it ceases. An employee may or may not receive it. He may not apply for it, but continue to work; if so, his right to it is lost, except to the extent he is permitted to accumulate it. If he resigns before taking it, he loses his right to it. If he dies before receiving it, his estate is not entitled to collect the money value of it.

These statements are . amply supported by authorities. See Harrison v. United States, supra; Field v. Giegengack, 73 F. (2d) 945 (C. C. A. for D. C.); 6 Dec. Comp. of Treas. 544; 8 Comp. Gen. 471; 12 Comp. Gen. 602; 13 Comp. Gen. 179; 17 Comp. Gen. 48.

It is true that when an employee is to be separated from the service, the date of his separation is often fixed far enough off to permit him to take the leave to which he is entitled before he is dropped from the pay roll, but the employee is not entitled to this as of right. Harrison v. United States, supra; Field v. Giegengack, supra.

If an employee is separated from the service before he has taken his leave, Congress did not intend that he should be paid the money equivalent thereof. Congress on June 28, 1940 (54 Stat. 676, 679), amended the Act of March 14,1936 by adding a new section to read as follows:

Sec. 8. Employees of the Navy Department and the Naval Establishment and of the Coast Guard may, during the period of the national emergency declared by the President on September 8, 1939, to exist, be employed during the time they would otherwise be on vacation without deprivation of their vacation pay for the time so worked. Employees who forego their vacations in accordance with the provisions of this section may be paid, in addition to their regular pay, the equivalent of the pay they would have drawn during the period of such vacation. The provisions of this section shall be applicable only to employees whose services at the time cannot, in the judgment of the Secretary of the Navy or the Secretary of the Treasury, as the case may be, be spared without detriment to the national defense.

The provision for a money equivalent for annual leave was made applicable only to the employees mentioned and not to employees generally.

On August 1,1941 (55 Stat. 616), Congress gave the money equivalent to persons ordered into the armed forces. When passing this Act Congress had before it the House Committee Report which quoted a letter from the Civil Service Commission, reading in part as follows:

* * * There is no authority in law, however, to pay an employee in money for such leave as may be due him upon separation from the service (17 Comp. Gen. 48, July 16, 1937). In order that an employee may receive the benefits of accumulated and accrued leave prior to separation, therefore, the date of separation must be fixed at the expiration of such leave. Employees who are to be separated from the service, therefore, must be carried on the pay rolls of their respective departments or agencies as nominal employees until they have received salary for the period covered by the accumulated and accrued leave. The Comptroller General has held that once the effective date of an employee’s resignation has passed there is no authority for restoring him to the pay roll for the purpose of granting him accumulated and accrued leave, even in cases where the failure to grant such leave was caused by administrative error or oversight.

Congress, then, having the established administrative practice before it, amended it only so far as were concerned employees entering the armed forces.

Plaintiff comes within neither of the above Acts.

In this case Congress by the Act of June 30, 1939, supra, fixed the amount of leave with pay to which a theatre project employee working in a supervisory capacity is entitled. This leave was for not more than the month of July. The Act permits payment of his salary for July “with or without assignment of duty,” but prohibits its payment thereafter.

The last paragraph of this section (section 25 of the Act of June 30,1939, supra) does not permit the payment of his salary for a longer time. It provides:

This section shall not prohibit the payment of wages or salaries accrued, or of nonlabor obligations incurred, in connection with any such project if the wages or salaries accrued or the obligation was incurred prior to August 1, 1939, October 1, 1939, or September 1,1939, as the case may be.

Under it only those salaries which accrued prior to August 1, 1939 are payable. The salary accrued to plaintiff prior to that time has been paid.

Salary during a leave accrues at the same time it would have accrued had the employee been working. It accrues and is payable at fifteen-day intervals. It is not payable in advance. If the employee dies before all the leave is taken, the salary stops eo inatante. Therefore, the salary which would have accrued during any leave that had been granted plaintiff would have accrued after August 1,1939.

It seems clear to us that Congress intended that this employee’s salary should stop after July 31, 1939, and we also think it is clear that Congress had a right to do this. An employee has no vested right to his office. He may be discharged at any time at the will of the sovereign whether he is working at the time or is on leave. Even though appointed for a definite term, he may be discharged before that term is over. Myers v. United States, 272 U. S. 52. It would seem to follow from this that he has no vested right to the leave to which he was entitled under the law in force at the time of his discharge. We think that Congress may take away from him the leave formerly granted him and which had accrued at the time of his discharge. This was so decided by the Court of Appeals for the District of Columbia in Field v. Giegengack, supra, where there was involved the constitutionality of the Economy Act reducing the amount of an employee’s annual leave.

The plaintiff has received all of the salary to which he was entitled under the Emergency Relief Appropriation Act of 1939, supra. He is entitled to no more. His petition will be dismissed. It is so ordered.

Whaley, Chief Justine, and Booth, Chief Justice (retired), recalled, concur.

Madden, Judge,

dissenting:

This case presents a problem of construing certain statutes and executive orders. I am unable to agree with the solution at which the majority opinion has arrived.

The statute upon which plaintiff bases his right to have annual leave with pay is the Act of March 14, 1936, which is quoted in the opinion of the Court. That act provided that persons such as plaintiff “shall be entitled to twenty-six days’ annual leave with pay for each calendar year,” and that if such leave was not fully used in any year the unused part could be accumulated until it totaled not to exceed 60 days.

The Act of 1936 seems to me to have intended to confer upon Government employees a right frequently accorded by private employers to their employees, and which had, indeed, been granted by the Government to its employees for many years, except for the period from July 1, 1932, to April 1, 1933, when annual leave benefits were suspended under the Economy Act of 1932. The words of the 1936 Act, “shall be entitled to,” seem to me to be apt only to express the idea that the employee is to have his pay, without working, for the specified period. I do not see how the Government could have more explicitly promised its employees this benefit than by saying what it did in this statute.

The opinion of the Court seems to take the view that this intention of the Government is qualified by the idea that one, to have his promised leave, must be an “employee,” and that when he ceases to be an employee he forfeits his right, already earned, to be paid for a period without working. There is not a word in the statute indicating that the right is so qualified. Since the supposed qualification amounts, in effect, to a forfeiture of a valuable right already earned, I think it should not be read into the statute by implication. One would not think of reading an act fixing the salaries of employees to mean that one who ceases to be an employee, by resignation or discharge, disables himself from drawing pay earned while he was an employee.

The opinion of the Court suggests the view that the purpose of leave with pay is to provide for the employee a period of rest and refreshment, so that he may return and better serve the Government after his leave. No doubt this is one of the purposes of any employer who encourages his employees to take vacations without losing their pay, by giving them paid vacations. But to make this better service' the quid fro quo for the employer’s agreement to give leave with pay, so that the employee would not be really entitled to the pay for his leave period until he had returned and given the employer the benefit of his re-created energy for a sufficient period, would be a difficult bargain to spell out in a labor agreement or a statute and, so far as I know, it has never before been read into such, an arrangement by implication. The long-continued practice of the Government refutes the implication. The Departments have habitually given resigned employees or those discharged without prejudice their accumulated leave with pay, though they knew perfectly well that the refreshed employee was not going to give the Government the benefit of his vacation. I do not believe that the thousands of instances in which this has been knowingly done represent so many instances of maladministration by the agencies of the Government. To be sure, a certain formula has been followed. The employee has been advised to write his resignation to take effect, or he has been discharged, the discharge to take effect, at the end of his accrued leave. This has become the recognized custom of the Government offices. But this customary procedure has not been in the least inconsistent with the recognition that the employee had, during the time of his actual employment, earned something of value beyond the pay which he had already drawn, and which it would be wholly unfair to deny him just because he was ceasing to be an employee.

Section 7 of the Act of 1936 authorized the President to make regulations for the administration of the Act. Sections 6 and 7 of the President’s regulations were as follows:

Section 6. An employee voluntarily separated from the service without prejudice during any calendar year shall be entitled to accumulated leave plus current accrued leave up to the date of separation.
Section 7. The date of a discharge of an employee who is involuntarily separated from the service other than for cause due to his own misconduct shall be fixed to permit the allowance of all accumulated leave and current accrued leave.

Section 6 was a complete recognition of the right of the employee to his pay for accrued leave though he was in fact separated from the service. It, like the customary department practice, was a negation of the idea expressed in the opinion of the Court that one earns his leave by his work after his vacation, rather than before. Section 7 was a direction as to the routine which should be followed in the case of the discharge of an employee without prejudice. It did not affect the substantial right of the employee, and was in ■accord with the existing custom of the departments. It may be noted that the regulations give no direction as to how to handle the case of a resigned employee. Apparently the President did not regard the customary practice of having employees date their resignations to take effect at the end of their accrued leaves as being of any importance, one way or the other.

Against this background, we look at Section 25 of the Emergency Belief Appropriations Act of 1939, 53 Stat. 927, 936. This act forbade the use of the funds appropriated in it for the operation of any theater project after June 30,1939, but provided that any supervisory employee on such a project could be paid his salary for July. Plaintiff was such a supervisory employee. Section 25 then provided:

This section shall not prohibit the payment of wages or salaries accrued, or of nonlabor obligations incurred, in connection with any such project if the wages or salaries accrued or the obligation was incurred prior to August 1,1939, October 1,1939, or September 1,1939, as the case may be.

The date August 1, 1939, given in this paragraph, is the one applicable to plaintiff, if the paragraph is applicable to his accrued leave.

I think this paragraph of Section 25 will easily bear the construction that Congress did not intend to forfeit plaintiff’s accrued right to be paid for the period of his accrued leave. The right to be paid an additional amount for a period in which one does not work, is really a right to an additional wage or salary. I feel sure that for the purpose of a tax upon wages or salaries, it would be so interpreted. Otherwise there would be a period in each year for all Government employees and millions of other employees, when the employee would get his pay but no tax would be collectible on it. The very word “accrued,” which is used in the leave Statute and Eegulations is used in Section 25.

But if what plaintiff was “entitled to” under the leave statute was not “wages or salaries accrued,” then it was a “non-labor obligation incurred.” I feel sure that Congress did not intend to wind up the federal theater projects by a repudiation of some of the debts of the projects. I do not see how it could have expressed that honorable intention any more pointedly than by saying that both “wages or salaries accrued” and “nonlabor obligations incurred” should be paid. I think it left no opening for the forfeiture of any valuable right which another statute said plaintiff should “be entitled to.”

By this easy construction I would avoid the more difficult task of determining whether Congress may, after one has worked for some two years under a statute which says he shall “be entitled to” certain pay, forfeit his right to the stipulated pay, not for the future, but for the period that he has already worked. See Lynch v. United States, 292 U. S. 571.

Littleton, Judge, concurs in the foregoing opinion.  