B-137267, SEPTEMBER 26, 1958, 38 COMP. GEN. 249

B-137267: Sep 26, 1958

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IN THE CONSTRUCTION OF LEAVE ACCOUNTS OF EMPLOYEES WHO ARE RESTORED TO DUTY AFTER A SUSPENSION OR REMOVAL UNDER THE ACT OF AUGUST 26. REQUESTS OUR DECISION WHETHER WE WILL FOLLOW THE HOLDING OF THE COURT IN THE MATTER OF ANNUAL LEAVE ACCRUING IN EXCESS OF THE STATUTORY CEILING DURING A PERIOD OF SUSPENSION AND REMOVAL UNDER THE ACT OF AUGUST 26. THE REQUEST FOR DECISION PERTAINS TO THE ANTICIPATED RESTORATION OF CERTAIN FORMER EMPLOYEES OF YOUR DEPARTMENT WHO WERE REMOVED UNDER PUBLIC LAW 733. THE ACCUMULATION OF ANNUAL LEAVE FROM YEAR TO YEAR IS CONTROLLED BY SECTION 203 (C) AND SECTION 208 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951. WHICH IS NOT USED BY AN OFFICER OR EMPLOYEE. OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS.

B-137267, SEPTEMBER 26, 1958, 38 COMP. GEN. 249

CIVILIAN PERSONNEL - LEAVES OF ABSENCE - MAXIMUM ACCUMULATION RESTRICTIONS THE APPLICATION MAXIMUM LEAVE ACCUMULATION RESTRICTIONS IN SECTIONS 203 (C) AND 208 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2062 (C), IN THE CONSTRUCTION OF LEAVE ACCOUNTS OF EMPLOYEES WHO ARE RESTORED TO DUTY AFTER A SUSPENSION OR REMOVAL UNDER THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1, SHOULD CONTINUE TO BE OBSERVED IN THE ABSENCE OF ANY THING TO JUSTIFY AN IMPLICATION OF CONGRESSIONAL INTENT TO PERMIT ACCUMULATION OF LEAVE OTHER THAN AS PROVIDED BY LAW AND NOTWITHSTANDING A DIFFERENT CONSTRUCTION IN HYNNING V. UNITED STATES, C.1CLS. NO. 305-58.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 26, 1958:

IN HIS LETTER OF SEPTEMBER 3, 1958, THE ACTING SECRETARY REFERS TO THE CASE OF CLIFFORD J. HYNNING V. UNITED STATES, C.1CLS. NO. 305-58, DECIDED BY THE UNITED STATES COURT OF CLAIMS ON MARCH 5, 1958 (MOTION FOR RECONSIDERATION DENIED JULY 16, 1958), AND REQUESTS OUR DECISION WHETHER WE WILL FOLLOW THE HOLDING OF THE COURT IN THE MATTER OF ANNUAL LEAVE ACCRUING IN EXCESS OF THE STATUTORY CEILING DURING A PERIOD OF SUSPENSION AND REMOVAL UNDER THE ACT OF AUGUST 26, 1950 ( PUBLIC LAW 733), 64 STAT. 476, 5 U.S.C. 22-1. THE REQUEST FOR DECISION PERTAINS TO THE ANTICIPATED RESTORATION OF CERTAIN FORMER EMPLOYEES OF YOUR DEPARTMENT WHO WERE REMOVED UNDER PUBLIC LAW 733.

THE ACCUMULATION OF ANNUAL LEAVE FROM YEAR TO YEAR IS CONTROLLED BY SECTION 203 (C) AND SECTION 208 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED BY SUBSECTIONS (A) AND (C), RESPECTIVELY, OF SECTION 3 OF THE ACT OF JULY 2, 1953, 67 STAT. 137, 5 U.S.C. 2062 (C) AND 2066 (A), READING IN PERTINENT PART AS FOLLOWS:

(C)THE ANNUAL LEAVE PROVIDED FOR IN THIS SECTION, WHICH IS NOT USED BY AN OFFICER OR EMPLOYEE, SHALL ACCUMULATE FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT TO EXCEED THIRTY DAYS AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, OCCURRING IN ANY YEAR.

SEC. 208. (A) IN ANY CASE IN WHICH---

(1) THE AMOUNT OF ACCUMULATED ANNUAL LEAVE TO THE CREDIT OF AN OFFICER OR EMPLOYEE IMMEDIATELY FOLLOWING THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN THE CALENDAR YEAR 1952, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, UNDER THE PROVISIONS OF LAW THEN APPLICABLE TO SUCH OFFICER OR EMPLOYEE IS IN EXCESS OF THE AMOUNT ALLOWABLE UNDER THE APPLICABLE PROVISIONS OF SECTION 203,

* * * * * * * SUCH EXCESS SHALL REMAIN TO THE CREDIT OF SUCH OFFICER OR EMPLOYEE UNTIL USED, BUT THE USE DURING ANY LEAVE YEAR OF AN AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT WHICH SHALL HAVE ACCRUED DURING SUCH YEAR SHALL AUTOMATICALLY REDUCE THE MAXIMUM ALLOWABLE ACCUMULATION AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, IN THE FOLLOWING LEAVE YEAR, UNTIL THE ACCUMULATION OF SUCH OFFICER OR EMPLOYEE NO LONGER EXCEEDS THE AMOUNT PRESCRIBED IN THE APPLICABLE PROVISIONS OF SECTION 203.

WE HELD IN 35 COMP. GEN. 121, AT PAGE 123, THAT THE RESTRICTIONS CONTAINED IN THE ABOVE-QUOTED LEAVE ACCUMULATION PROVISIONS MUST BE OBSERVED IN CONSTRUCTION THE LEAVE ACCOUNTS OF EMPLOYEES WHO HAVE BEEN SUSPENDED OR REMOVED UNDER PUBLIC LAW 733 AND LATER RESTORED WITH BACK PAY. IN THE HYNNING CASE THE COURT OF CLAIMS HELD THAT, BY REASON OF PLAINTIFF'S SUSPENSION AND REMOVAL, HE WAS DENIED THE BENEFICIAL USE OF THE LEAVE WHICH HE WOULD HAVE EARNED BUT FOR THE SUSPENSION AND REMOVAL, AND THAT, AFTER HIS RESTORATION AND SUBSEQUENT RESIGNATION, THE COURT WAS EMPOWERED TO AWARD JUDGMENT FOR THE MONEY VALUE OF THE LEAVE, NOTWITHSTANDING THE STATUTORY ACCUMULATION RESTRICTIONS.

WE HAVE GIVEN THE MATTER MOST CAREFUL STUDY BUT WE FIND NOTHING IN THE PERTINENT STATUTES OR THE LEGISLATIVE HISTORIES THEREOF WHICH APPEARS TO JUSTIFY THE IMPLICATION OF A CONGRESSIONAL INTENT TO PERMIT THE ACCUMULATION OF LEAVE IN THE SUBJECT CLASS OF CASES OTHER THAN AS SPECIFICALLY PROVIDED BY LAW. WE HAVE REPORTED OUR VIEWS ON THE MATTER TO THE DEPARTMENT OF JUSTICE, AND WE ARE ADVISED THAT THE DEPARTMENT WILL CONSIDER FURTHER ARGUMENT OF THE LEGAL ISSUES SHOULD THE OCCASION ARISE IN ANOTHER APPROPRIATE CASE. THEREFORE, THE RULE STATED IN 35 COMP. GEN. 121, SUPRA, SHOULD CONTINUE TO BE APPLIED UNLESS AND UNTIL FURTHER JUDICIAL PRECEDENT REQUIRES A RECONSIDERATION OF OUR POSITION.