B-126269, APR. 4, 1956

B-126269, APR. 4, 1956

TO MR. HOWARD S. GAY:

IN COMPLIANCE WITH YOUR RECENT REQUEST THERE HAS BEEN RECONSIDERED OUR SETTLEMENT OF SEPTEMBER 20, 1955, WHICH DISALLOWED YOUR CLAIM FOR AN ADDITIONAL LUMP-SUM LEAVE PAYMENT INCIDENT TO YOUR RETIREMENT, REEMPLOYMENT AND EVENTUAL SEPARATION FROM THE GOVERNMENT SERVICE.

ON NOVEMBER 30, 1952, HAVING ATTAINED THE AGE OF 70 YEARS, YOU WERE RETIRED WHILE SERVING WITH THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY. YOUR RETIREMENT ANNUITY, UNDER THE CIVIL SERVICE RETIREMENT ACT (5 U.S.C. 691 ET SEQ., IS IN THE AMOUNT OF $2,868. ON DECEMBER 15, 1952, YOU WERE TEMPORARILY REEMPLOYED BY THE CORPS OF ENGINEERS AT THE SALARY OF $6,932 PER ANNUM ($9,800 PER ANNUM, YOUR FORMER SALARY, LESS $2,868, YOUR CIVIL SERVICE ANNUITY). THE FIXING OF YOUR SALARY UPON REEMPLOYMENT AT $6,932 PER ANNUM WAS IN ACCORDANCE WITH SECTION 2 (B) OF THE CIVIL SERVICE RETIREMENT ACT, PROVIDING THAT THE COMPENSATION OF A REEMPLOYED ANNUITANT SHALL BE REDUCED BY THE AMOUNT OF HIS ANNUITY. 5 U.S.C. 715 (B). ON MAY 29, 1953, YOUR TEMPORARY REEMPLOYMENT WAS TERMINATED. RECENTLY YOU SERVED A SECOND PERIOD OF TEMPORARY EMPLOYMENT WHICH WAS TERMINATED JUNE 30, 1955.

AT THE TIME OF YOUR RETIREMENT, NOVEMBER 30, 1952, YOU HAD TO YOUR CREDIT 786 HOURS OF ANNUAL LEAVE. THE DISPOSITION OF THAT LEAVE IS CONTROLLED BY THE ACT OF DECEMBER 21, 1944, 58 STAT. 845--- WHICH SO FAR AS HERE PERTINENT PROVIDES:

"* * * 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 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 * * * 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. * * *"

FOR THE PERIOD INTERVENING BETWEEN YOUR RETIREMENT ON NOVEMBER 30, 1952, AND YOUR REEMPLOYMENT ON DECEMBER 15, 1952, YOU WERE ALLOWED A LUMP-SUM PAYMENT FOR 80 HOURS' ANNUAL LEAVE COMPUTED AT THE RATE OF $9,800 PER ANNUM. THE REMAINDER OF THE ANNUAL LEAVE--- 706 HOURS--- WAS RESTORED TO YOUR CREDIT IN ACCORDANCE WITH THE PROVISIONS OF THE 1944 ACT. UPON TERMINATION OF YOUR FIRST PERIOD OF TEMPORARY EMPLOYMENT, MAY 29, 1953, YOU WERE PAID A LUMP SUM FOR THE 706 HOURS OF ANNUAL LEAVE, PLUS 72 HOURS ACCRUED DURING SUCH EMPLOYMENT, AT THE RATE OF $6,932 PER ANNUM, WHICH YOU THEN WERE EARNING. SUBSEQUENTLY, YOU WERE ADMINISTRATIVELY ALLOWED AN ADDITIONAL AMOUNT, REPRESENTING THE DIFFERENCE BETWEEN 706 HOURS OF LEAVE COMPUTED AT $6,932 AND THE SAME QUANTITY COMPUTED AT THE RATE OF $9,800 PER ANNUM. HOWEVER, BASED UPON OUR DECISION OF JUNE 9, 1954, 33 COMP. GEN. 591, THE ADDITIONAL PAYMENT ADMINISTRATIVELY WAS RECOUPED BY PAYROLL DEDUCTIONS DURING THE LATER PERIOD OF TEMPORARY REEMPLOYMENT. IN THE DECISION REFERRED TO IT WAS HELD, QUOTING FROM THE SYLLABUS, AS FOLLOWS:

"ANNUAL AND SICK LEAVE ACT OF 1951 REMOVED ALL DISTINCTIONS BETWEEN TEMPORARY AND PERMANENT EMPLOYEES FOR LEAVE PURPOSES, AND THEREFORE EMPLOYEE WHO WAS RETIRED FROM THE SERVICE AND IMMEDIATELY REEMPLOYED IN A TEMPORARY POSITION, AND WHOSE ANNUAL LEAVE WAS TRANSFERRED, IS ENTITLED TO LUMP-SUM PAYMENT FOR ANNUAL LEAVE ONLY UPON FINAL SEPARATION FROM THE SERVICE COMPUTED AT THE RATE OF COMPENSATION OF WHICH HE ACTUALLY IS IN RECEIPT AT THAT TIME, LESS THE AMOUNT OF HIS ANNUITY.'

THE RULE IN OUR DECISION IN 33 COMP. GEN. 591 WAS CAREFULLY CONSIDERED AND SUSTAINED IN A LATER DECISION, 34 COMP. GEN. 685, WHICH ALSO RELATED TO A REEMPLOYED ANNUITANT.

IN THE LIGHT OF THOSE DECISIONS WE MUST CONCLUDE THAT OUR SETTLEMENT OF SEPTEMBER 20, 1955, DISALLOWING YOUR CLAIM, IS CORRECT AND UPON REVIEW IT IS SUSTAINED.

WE WOULD LIKE TO ADD THAT WE ARE AWARE OF THE INEQUITIES INHERENT IN THE STATUTORY LAW AS IT NOW EXISTS AND IN A REPORT CONCERNING SECTION 12 OF S. 1153, 84TH CONGRESS, WE RECOMMENDED REMEDIAL LEGISLATION. CONCERNING YOUR INQUIRY AS TO PERTINENT COURT DECISIONS, IT DOES NOT APPEAR THAT THE SITUATION UNDER CONSIDERATION HAS BEEN THE SUBJECT OF LITIGATION.