B-152337, AUG. 30, 1963

B-152337: Aug 30, 1963

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THE INFORMATION FURNISHED SHOWS THAT THE EMPLOYEE WAS NOTIFIED MAY 29. THE REMOVAL ACTION WAS CANCELLED AND THE EMPLOYEE WAS RETURNED TO DUTY AND RECREDITED WITH 240 HOURS OF ANNUAL LEAVE AND PAID THE DIFFERENCE IN SALARY FROM JUNE 16. ATTENDANCE REPORTING HANDBOOK" THE EMPLOYEE IS ENTITLED TO REPAY ON AN INSTALLMENT BASIS THE AMOUNT OF THE LUMP-SUM PAYMENT WHICH WAS MADE AS A RESULT OF THE INITIAL REMOVAL ACTION. THE TERM "REEMPLOYMENT" IS DEFINED IN THE FEDERAL PERSONNEL MANUAL. SECTION 25.102 (L) AS FOLLOWS: " "REEMPLOYMENT" IS ANY EMPLOYMENT INCLUDING REINSTATEMENT. THE LUMP-SUM LEAVE PAYMENT IS AUTHORIZED UNDER THE ACT OF DECEMBER 21. PAYMENT OF COMPENSATION FOR THE PERIOD OF SEPARATION WITHOUT PAY IS AUTHORIZED UNDER SECTION 6 (B) (1) OF THE ACT OF AUGUST 24.

B-152337, AUG. 30, 1963

TO MR. E. K. SOKOLOSKI, AUTHORIZED CERTIFYING OFFICER, GENERAL SERVICES ADMINISTRATION:

THIS REFERS TO YOUR LETTER OF AUGUST 21, 1963, REFERENCE 3BCRPE, WITH ENCLOSURES, REQUESTING OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED VOUCHER FOR THE AMOUNT OF $590.24 UNDER THE CIRCUMSTANCES RELATED BELOW.

THE INFORMATION FURNISHED SHOWS THAT THE EMPLOYEE WAS NOTIFIED MAY 29, 1963, THAT SHE WOULD BE SEPARATED FROM THE GENERAL SERVICES FOR THE PAY PERIOD BEGINNING JUNE 9, 1963, AND ENDING JUNE 15, 1963, PLUS A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE OF 240 HOURS. ON AUGUST 9, 1963, THE REMOVAL ACTION WAS CANCELLED AND THE EMPLOYEE WAS RETURNED TO DUTY AND RECREDITED WITH 240 HOURS OF ANNUAL LEAVE AND PAID THE DIFFERENCE IN SALARY FROM JUNE 16, 1963, THROUGH AUGUST 8, 1963, WHICH INCLUDED THE ADJUSTMENT IN SALARY FOR ACCRUED ANNUAL LEAVE.

THE ATTORNEYS REPRESENTING THE EMPLOYEE CONTEND THAT UNDER PARAGRAPH 86, PAGE 46 OF THE GENERAL SERVICES ADMINISTRATION'S "LEAVE, TIME, AND ATTENDANCE REPORTING HANDBOOK" THE EMPLOYEE IS ENTITLED TO REPAY ON AN INSTALLMENT BASIS THE AMOUNT OF THE LUMP-SUM PAYMENT WHICH WAS MADE AS A RESULT OF THE INITIAL REMOVAL ACTION. PARAGRAPH 86 REFERS TO REFUND OF LUMP-SUM PAYMENTS UPON REEMPLOYMENT IN THE GENERAL SERVICES ADMINISTRATION AFTER A SEPARATION AND AUTHORIZES AT THE DISCRETION OF THE ADMINISTRATIVE OFFICE AN EMPLOYEE, WHERE CIRCUMSTANCES REQUIRE, TO REFUND THE LUMP-SUM PAYMENT OVER A PERIOD NOT TO EXCEED 12 CALENDAR MONTHS. THE TERM "REEMPLOYMENT" IS DEFINED IN THE FEDERAL PERSONNEL MANUAL, PART 25, PAGE Z1-315, SECTION 25.102 (L) AS FOLLOWS:

" "REEMPLOYMENT" IS ANY EMPLOYMENT INCLUDING REINSTATEMENT, OR ANY OTHER TYPE OF APPOINTMENT, AFTER A BREAK IN FEDERAL SERVICE OF AT LEAST ONE FULL WORKDAY.'

THE LUMP-SUM LEAVE PAYMENT IS AUTHORIZED UNDER THE ACT OF DECEMBER 21, 1944, ONLY UPON SEPARATION FROM THE SERVICE, AND PAYMENT OF COMPENSATION FOR THE PERIOD OF SEPARATION WITHOUT PAY IS AUTHORIZED UNDER SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, PUB.L. 623, 62 STAT. 355, ONLY UPON A DETERMINATION THAT THE SEPARATION WAS UNJUSTIFIED AND UNWARRANTED WHICH WHEN ESTABLISHED VOIDS THE SEPARATION AND REQUIRES THE RESTORATION OF THE EMPLOYEE TO THE SAME STATUS AS HE PREVIOUSLY OCCUPIED SUBJECT TO CERTAIN QUALIFICATIONS. THIS REQUIRES RECREDIT OF LEAVE AND THE REFUND OF ANY AMOUNT PAID AS LUMP-SUM PAYMENT BECAUSE OF THE REMOVAL.

SINCE THERE WAS NO SEPARATION FROM THE FEDERAL SERVICE WITHIN THE MEANING OF THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, AND THE EMPLOYEE IS DEEMED UNDER THE PROVISIONS OF PUB.L. 623 TO HAVE RENDERED SERVICE DURING THE PERIOD OF REMOVAL THE CANCELLATION OF THE REMOVAL ACTION MAY NOT BE REGARDED AS BEING SYNONYMOUS WITH "APPOINTMENT OR EMPLOYMENT" AS USED IN PARAGRAPH 86, PAGE 46 OF THE GENERAL SERVICES ADMINISTRATION'S "LEAVE, TIME, AND ATTENDANCE REPORTING HANDBOOK.'

WE HAVE RULED IN NUMEROUS DECISIONS OF OUR OFFICE THAT DEDUCTIONS FROM COMPENSATION PAYABLE UPON RESTORATION BECAUSE OF AN UNJUSTIFIED OR UNWARRANTED REMOVAL, SHOULD INCLUDE LUMP-SUM LEAVE PAYMENTS, WITH THE LEAVE SO REPRESENTED BEING RECREDITED TO THE EMPLOYEE'S LEAVE ACCOUNT SUBJECT TO THE MAXIMUM ACCUMULATED LIMITATION OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2062 (C). SEE 28 COMP. GEN. 333, 34 ID. 303; ID. 657. THE COURT OF CLAIMS CONSISTENTLY HAS FOLLOWED THAT RULE. WILLIAM W. PECHETTE V. UNITED STATES, 145 CT.CL. 189.

THEREFORE, THE VOUCHER WHICH IS RETURNED HEREWITH, TOGETHER WITH RELATED PAPERS, MAY NOT BE CERTIFIED FOR PAYMENT.