B-119962, JUNE 20, 1955, 34 COMP. GEN. 685

B-119962, JUNE 20, 1955, 34 COMP. GEN. 685

LUMP-SUM LEAVE PAYMENTS - RATE PAYABLE - RETIRED PERSONNEL SEPARATION AFTER TEMPORARY REEMPLOYMENT AN EMPLOYEE WHO WAS RETIRED AT THE MANDATORY RETIREMENT AGE AND IMMEDIATELY REEMPLOYED PURSUANT TO SECTION 2 (B) OF THE ACT OF FEBRUARY 28, 1948, IS ENTITLED TO A LUMP-SUM LEAVE PAYMENT COMPUTED ON THE RATE OF COMPENSATION HE WAS RECEIVING AT TERMINATION OF HIS SECOND EMPLOYMENT, LESS DEDUCTION FOR HIS RETIREMENT ANNUITY, AS REQUIRED BY SAID ACT.

COMPTROLLER GENERAL CAMPBELL TO THE CHAIRMAN, NATIONAL MEDIATION BOARD, JUNE 20, 1955:

WE HAVE RECEIVED AND FULLY CONSIDERED YOUR LETTER OF FEBRUARY 9, 1955, REQUESTING RECONSIDERATION OF OUR DECISION OF JUNE 9, 1954 (33 COMP. GEN. 591), RELATIVE TO THE PROPER SALARY RATE TO BE USED IN COMPUTING THE LUMP- SUM PAYMENT MADE TO MR. ROBERT F. COLE, A FORMER EMPLOYEE OF THE NATIONAL MEDIATION BOARD.

THE RECORD SHOWS THAT MR. COLE RETIRED AT THE CLOSE OF BUSINESS DECEMBER 16, 1953, HIS SEVENTIETH BIRTHDAY, TO BE EFFECTIVE JANUARY 1, 1954. THE NEXT DAY HE WAS GIVEN AN APPOINTMENT UNDER THE PROVISIONS OF SECTION 2 (B) OF THE ACT OF FEBRUARY 28, 1949, 62 STAT. 49, SINCE HE POSSESSED SPECIAL QUALIFICATIONS AS REQUIRED BY THAT SECTION AND BECAUSE OF THE URGENT ADMINISTRATIVE NECESSITY FOR HIS SERVICES. AT THE TIME OF RETIREMENT, MR. COLE HAD TO HIS CREDIT 90 DAYS' ANNUAL LEAVE WHICH REEXAMINED TO HIS CREDIT UPON REEMPLOYMENT. THE SECOND EMPLOYMENT WAS TERMINATED JANUARY 16, 1955, WHEN HE FINALLY RETIRED FROM ACTIVE DUTY. A LUMP-SUM PAYMENT WAS MADE TO HIM AFTER THAT DATE FOR HIS 90 DAYS' ACCUMULATED ANNUAL LEAVE. THE PAYMENT WAS MADE AT THE SALARY RATE HE WAS RECEIVING ON THE DATE OF SEPARATION, THAT IS, $10,600 PER ANNUM, LESS THE AMOUNT OF HIS ANNUITY, $5,052 PER ANNUM, IN ACCORDANCE WITH OUR DECISION OF JUNE 9, 1954, REFERRED TO ABOVE. THE AMOUNT PAID WAS $1,920.42. MR. COLE CONTENDS THAT HIS LUMP-SUM PAYMENT SHOULD HAVE BEEN IN THE AMOUNT OF $3,669.21, COMPUTED AT THE RATE OF $10,600 PER ANNUM, THE SALARY RATE PRESCRIBED FOR THE POSITION HELD BY HIM, AND NOT AT THE RATE OF $5,548 PER ANNUM ($10,600 PER ANNUM LESS $5,052 PER ANNUM, THE AMOUNT OF THE ANNUITY).

THE CLAIMANT, AN ANNUITANT, WAS REEMPLOYED UNDER THE PROVISIONS OF SECTION 2 (B), ABOVE, WHICH PROVIDES AS FOLLOWS:

NO PERSON WHO IS RECEIVING AN ANNUITY UNDER THE PROVISIONS OF THIS ACT AND WHO HAS REACHED THE AGE OF SIXTY YEARS SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE GOVERNMENT OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, UNLESS THE APPOINTING AUTHORITY DETERMINES THAT HE IS POSSESSED OF SPECIAL QUALIFICATIONS: PROVIDED, THAT NO DEDUCTIONS FOR THE RETIREMENT FUND SHALL BE WITHHELD FROM THE SALARY, PAY, OR COMPENSATION OF SUCH PERSON, BUT THERE SHALL BE DEDUCTED FROM HIS SALARY, PAY, OR COMPENSATION OTHERWISE PAYABLE A SUM EQUAL TO THE RETIREMENT ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT: PROVIDED FURTHER, THAT THE ANNUITY IN SUCH CASE SHALL NOT BE REDETERMINED UPON SUCH PERSON'S SUBSEQUENT SEPARATION FROM THE SERVICE.

THE LANGUAGE OF THE FIRST PROVISO OF THAT SECTION, TO THE EFFECT THAT THE RETIREMENT ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT SHALL BE DEDUCTED FROM THE SALARY, PAY, OR COMPENSATION OTHERWISE PAYABLE, IS MANDATORY. ACCORDINGLY, THE SALARY OF THE REEMPLOYED ANNUITANT UNDER THE ABOVE STATUTORY PROVISION AMOUNTS TO THE SUM OF $5,548 PER ANNUM.

THE LUMP SUM PAYABLE TO MR. COLE UPON THE TERMINATION OF HIS SECOND EMPLOYMENT WAS GOVERNED BY THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, AS AMENDED BY THE ACT OF JULY 2, 1953, 67 STAT. 137, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

THAT WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT * * * 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 ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH OFFICER OR EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE * * *.

BASED UPON THE FOREGOING STATUTORY LANGUAGE, SINCE THE CLAIMANT WAS NOT SEPARATED FROM THE SERVICE UNTIL JANUARY 16, 1955, AT WHICH TIME HIS SALARY OR COMPENSATION AMOUNTED TO $5,548 PER ANNUM, AS COMPUTED ABOVE IN ACCORDANCE WITH EXISTING LAW, THE LUMP-SUM PAYMENT WAS NECESSARILY MADE AT THAT RATE.

THE METHOD USED IN COMPUTING MR. COLE'S LUMP-SUM PAYMENT IS THE SAME AS HAS BEEN USED IN THE NUMEROUS SIMILAR SITUATIONS WHICH HAVE ARISEN SINCE THE ENACTMENT OF THE AMENDATORY ACT OF FEBRUARY 28, 1948, AND WHICH WAS SET FORTH IN OUR DECISION OF NOVEMBER 5, 1948, 28 COMP. GEN. 294, RENDERED JUST A FEW MONTHS AFTER THE PASSAGE OF THAT ACT.

IT IS RECOGNIZED THAT AN INEQUITY ARISES UNDER EXISTING LAW WITH RESPECT TO THE LUMP-SUM PAYMENT TO ANNUITANTS REEMPLOYED UNDER CIRCUMSTANCES SUCH AS EXISTED IN MR. COLE'S CASE OR TO THOSE ANNUITANTS REEMPLOYED BEFORE THE EXPIRATION OF THE PERIOD COVERED BY A LUMP-SUM PAYMENT. IN THIS RESPECT, OUR OFFICE HAS RECOMMENDED FOR CONSIDERATION OF THE CONGRESS AMENDATORY LANGUAGE FOR SECTION 2 (B), ABOVE, WHICH WILL OVERCOME SUCH INEQUITY.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE ARGUMENTS FURNISHED BY MR. COLE. HIS CONTENTION THAT AN EMPLOYEE WHO RECEIVES A LUMP-SUM PAYMENT FOR HIS ACCUMULATED ANNUAL LEAVE UPON RETIREMENT AND WHO IS REEMPLOYED 10 DAYS LATER IS ONLY REQUIRED TO MAKE REFUND AT THE REDUCED RATE OF THE POSITION IN WHICH REEMPLOYED FOR THE UNEXPIRED PORTION OF THE LEAVE IS NOT CORRECT. THE STATUTE STATES SPECIFICALLY THAT THE REFUND BE "AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF SUCH LEAVE PERIOD.' ACCORDINGLY, UNDER THE ABOVE CIRCUMSTANCES, REFUND WOULD BE REQUIRED AT THE RATE IN WHICH THE LUMP-SUM PAYMENT WAS MADE. SEE 24 COMP. GEN. 522.

IN VIEW OF THE EXISTING STATUTORY LANGUAGE GOVERNING THIS MATTER, IT MUST BE CONCLUDED THAT THE LUMP-SUM PAYMENT FOR ANNUAL LEAVE MADE TO MR. COLE IN ACCORDANCE WITH OUR PRIOR DECISION, 33 COMP. GEN. 591, WAS PROPER.