B-143552, AUG. 30, 1960

B-143552: Aug 30, 1960

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THE RECORD SHOWS THAT YOU WERE SUSPENDED ON MARCH 1. WHEN YOU WERE SUSPENDED YOU HAD 219 HOURS OF ANNUAL LEAVE TO YOUR CREDIT AND YOU WOULD HAVE EARNED AN ADDITIONAL 176 HOURS OF ANNUAL LEAVE BY THE END OF THE 1955 LEAVE YEAR HAD YOU CONTINUED ON ACTIVE DUTY. SINCE YOUR LEAVE CEILING WAS 240 HOURS YOU FORFEITED 155 HOURS OF ANNUAL LEAVE AT THE END OF THE 1955 LEAVE YEAR AS THAT AMOUNT WAS IN EXCESS OF THE LIMITATION PROVIDED IN THE ANNUAL AND SICK LEAVE ACT OF 1951. WHICH WAS FORFEITED. YOU WERE ADVISED IN OUR SETTLEMENT OF OCTOBER 27. THAT 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. YOU WERE ALSO ADVISED THAT THE RESTRICTIONS CONTAINED IN THE ABOVE-MENTIONED LEAVE ACCUMULATION PROVISIONS MUST BE OBSERVED IN CONSTRUCTING THE LEAVE ACCOUNTS OF EMPLOYEES WHO HAVE BEEN SUSPENDED OR REMOVED UNDER PUBLIC LAW 733 AND LATER RESTORED WITH BACK PAY.

B-143552, AUG. 30, 1960

TO MR. SIDNEY HATKIN:

YOUR LETTER OF JULY 11, 1960, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF OCTOBER 27, 1958, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR 155 HOURS OF ANNUAL LEAVE.

THE RECORD SHOWS THAT YOU WERE SUSPENDED ON MARCH 1, 1955, UNDER THE PROVISIONS OF PUBLIC LAW 733, 64 STAT. 476, AND RESTORED TO DUTY ON MAY 15, 1956. WHEN YOU WERE SUSPENDED YOU HAD 219 HOURS OF ANNUAL LEAVE TO YOUR CREDIT AND YOU WOULD HAVE EARNED AN ADDITIONAL 176 HOURS OF ANNUAL LEAVE BY THE END OF THE 1955 LEAVE YEAR HAD YOU CONTINUED ON ACTIVE DUTY. SINCE YOUR LEAVE CEILING WAS 240 HOURS YOU FORFEITED 155 HOURS OF ANNUAL LEAVE AT THE END OF THE 1955 LEAVE YEAR AS THAT AMOUNT WAS IN EXCESS OF THE LIMITATION PROVIDED IN THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED BY THE ACT OF JULY 2, 1953, 67 STAT. 137.

YOU CONTEND THAT YOU SHOULD BE PAID FOR THE LEAVE, WHICH WAS FORFEITED, ON THE BASIS OF THE DECISION IN THE CASE OF WILLIAM VINCENT VITARELLI V. UNITED STATES, DECIDED BY THE UNITED STATES COURT OF CLAIMS ON JUNE 8, 1960, NO. 283-59.

YOU WERE ADVISED IN OUR SETTLEMENT OF OCTOBER 27, 1958, THAT 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). YOU WERE ALSO ADVISED THAT THE RESTRICTIONS CONTAINED IN THE ABOVE-MENTIONED LEAVE ACCUMULATION PROVISIONS MUST BE OBSERVED IN CONSTRUCTING THE LEAVE ACCOUNTS OF EMPLOYEES WHO HAVE BEEN SUSPENDED OR REMOVED UNDER PUBLIC LAW 733 AND LATER RESTORED WITH BACK PAY. IN THE VITARELLI CASE THE COURT OF CLAIMS BASED ITS FINDINGS ON THE HYNNING CASE WHICH HELD, SO FAR AS PERTINENT HERE, THAT BY REASON OF PLAINTIFF'S SUSPENSION AND REMOVAL, HE WAS DENIED THE 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 LIMITATION ON LEAVE ACCUMULATION.

IT SHOULD BE POINTED OUT THAT WHILE DECISIONS OF THE COURT OF CLAIMS ARE GIVEN CAREFUL CONSIDERATION IN CONNECTION WITH MATTERS COMING BEFORE OUR OFFICE, SUCH DECISIONS ARE NOT BINDING UPON OUR OFFICE. SEE 14 COMP. GEN. 648; 31 ID. 73. ALSO, THERE IS AN IMPORTANT DISTINCTION BETWEEN SETTLEMENTS OF THE GENERAL ACCOUNTING OFFICE AND JUDGMENTS OF THE COURT OF CLAIMS, IN THAT THE FORMER MUST BE BASED UPON THE EXISTENCE OF AN APPROPRIATION WHICH MAY BE CONSIDERED AS HAVING BEEN OBLIGATED BY THE CIRCUMSTANCES GIVING RISE TO THE CLAIM, WHEREAS THE LATTER ARE PAYABLE FROM AN APPROPRIATION MADE SPECIFICALLY FOR THE PAYMENTS OF JUDGMENTS RENDERED AGAINST THE UNITED STATES BY THE UNITED STATES COURT OF CLAIMS. THESE JUDGMENTS ARE RENDERED REGARDLESS OF WHETHER THERE IS AN AVAILABLE APPROPRIATION TO THE AGENCY CONCERNED FROM WHICH THE CLAIM MIGHT HAVE BEEN PAID ADMINISTRATIVELY OR BY SETTLEMENT OF THE ACCOUNTING OFFICERS. CF. GIBNEY V. UNITED STATES, 114 CT.CL. 38; 31 COMP. GEN. 73. HENCE, IT CAN BE SEEN THAT THE GENERAL ACCOUNTING OFFICE, IN THE SETTLEMENT OF CLAIMS, MUST NOT ONLY LOOK TO THE LEGAL MERITS OF THE CLAIM BUT MUST PROCEED ONE STEP FARTHER, NAMELY, TO DETERMINE WHETHER AN APPROPRIATION IS AVAILABLE FROM WHICH IT MIGHT ALLOW THE CLAIM.

IN THE VITARELLI CASE IT WAS STATED THAT "THE COURT RECOGNIZED THAT IT COULD NOT REQUIRE THE DEFENDANT TO CREDIT THE REINSTATED EMPLOYEE WITH ANY MORE THAN THE 30 DAYS PERMITTED BY 5 U.S.C. 2062 (C).' 5 U.S.C. 2052 (C), 67 STAT. 137, PLACES A LIMITATION ON ANNUAL LEAVE THAT MAY BE ACCUMULATED BY AN EMPLOYEE. HOWEVER, THE STATUTE CONTAINS NO PROVISION, EXPRESS OR IMPLIED, WHICH WOULD SERVE TO OBLIGATE A SALARY APPROPRIATION FOR REIMBURSEMENT FOR ANNUAL LEAVE IN EXCESS OF THE MAXIMUM LOST BY AN EMPLOYEE WHO IS SUSPENDED UNDER PUBLIC LAW 733 AND SUBSEQUENTLY RESTORED TO DUTY WITH BACK PAY.

IN VIEW OF THE FOREGOING, WE ARE REQUIRED TO CONCLUDE THAT THE ACTION TAKEN IN OUR SETTLEMENT OF OCTOBER 27, 1958, WHICH DISALLOWED YOUR CLAIM, IS CORRECT, AND MUST BE SUSTAINED.