B-152694, DEC. 19, 1963

B-152694, DEC. 19, 1963

TO MR. HUGH WILKINSON:

THIS REFERS TO YOUR LETTER OF AUGUST 21, 1963, ADDRESSED TO OUR CLAIMS DIVISION, YOUR REFERENCE 3BCRPA, FILE 292-63, JAMES C. WILLIAMS, LEAVE ACCOUNT, FORWARDING MR. WILLIAMS' LETTER OF JUNE 12, 1963, AND ENCLOSURES. YOU REQUESTED AN OPINION CONCERNING THE PROPER DISPOSITION TO BE MADE OF THE 176 HOURS ANNUAL LEAVE AND THE 470 HOURS SICK LEAVE BALANCES WHICH THE RECORD SHOWS MR. WILLIAMS HAD ACCUMULATED WHEN HE RESIGNED AT THE CLOSE OF BUSINESS JANUARY 31, 1943, FROM THE PUBLIC BUILDINGS ADMINISTRATION, FEDERAL WORKS AGENCY.

AN OFFICIAL DECISION, SUCH AS YOU REQUEST IN THE MATTER, IS ONE WHICH THE HEAD OF THE AGENCY OR A CERTIFYING OR DISBURSING OFFICER USUALLY WOULD REQUEST. HOWEVER, AS THE MATTER MIGHT EVENTUATE IN AN ADDITIONAL PAYMENT WE WILL UNDERTAKE TO EXPRESS OUR VIEWS IN THIS CASE.

THE LEAVE CREDITS IN QUESTION APPARENTLY WERE EARNED UNDER THE LEAVE ACTS OF MARCH 14, 1936, 5 U.S.C. 30, ET SEQ. (1940 ED.). THE RECORD SHOWS THAT MR. WILLIAMS' RESIGNATION WAS FOR THE PURPOSE OF ACCEPTING A POSITION IN THE CUSTODIAL SERVICE OF THE POST OFFICE DEPARTMENT, AT THE PROVIDENCE, RHODE ISLAND, POST OFFICE, AND IN THAT POSITION HE BECAME SUBJECT TO THE POSTAL LEAVE SYSTEM, 39 U.S.C. 823 (1940 ED.). THEREFORE, THE LEAVE CREDITS WERE NOT TRANSFERABLE AT THAT TIME. THE RECORD ALSO SHOWS THAT THERE WAS NO BREAK IN SERVICE AND THAT ACTUAL SEPARATION FROM THE FEDERAL SERVICE DID NOT OCCUR AT THAT TIME OR LATER. MR. WILLIAMS' APPOINTMENT AT PROVIDENCE WAS EFFECTIVE FEBRUARY 1, 1943, AND HE HAS BEEN IN THE FEDERAL CIVILIAN SERVICE CONTINUOUSLY FROM MAY 11, 1938, TO THE PRESENT TIME. FURTHER, THE PRESENT RECORD DOES NOT REVEAL TO US AN OCCASION WHICH WOULD HAVE WARRANTED EITHER A GRANT OF SUCH LEAVE, OR A LUMP-SUM PAYMENT THEREFOR SUBSEQUENT TO JANUARY 31, 1943.

AT THE TIME, SECTION 6 OF EXECUTIVE ORDER NO. 8384 DATED MARCH 29, 1940, PROVIDED IN PERTINENT PART, AS FOLLOWS:

"* * * ANY EMPLOYEE TRANSFERRED OR APPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT * * * POSITION WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936, TO ANOTHER POSITION OR EMPLOYMENT IN THE FEDERAL SERVICE WHICH IS NOT WITHIN THE PURVIEW OF THAT ACT, SHALL BE CREDITED WITH ALL LEAVE ACCUMULATED AND ACCRUED ON THE DATE OF SUCH TRANSFER OR APPOINTMENT AT SUCH TIME AS HE MAY BE SUBSEQUENTLY RETRANSFERRED OR REAPPOINTED TO A POSITION WITHIN THE PURVIEW OF THAT ACT, PROVIDED SUCH SUBSEQUENT RETRANSFER OR REAPPOINTMENT IS ALSO WITHOUT BREAK IN SERVICE. "BREAK IN SERVICE" MEANS SEPARATION FROM THE FEDERAL SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.'

SECTION 21 OF EXECUTIVE ORDER NO. 8384 PROVIDED THAT SECTION 6 SHALL BE EFFECTIVE AS OF JULY 1, 1936, AND THAT THE TOTAL AMOUNT OF LEAVE TO THE CREDIT OF ANY EMPLOYEE RESULTING FROM AN ADJUSTMENT OF SUCH LEAVE ON THE BASIS OF THE REGULATIONS AS THEREIN AMENDED "SHALL NOT EXCEED THE AMOUNT AUTHORIZED TO BE ACCUMULATED BY LAW.'

SUBSEQUENTLY, WHILE THE SELFSAME LANGUAGE OF SUBSECTION 4.9 (B) OF EXECUTIVE ORDER NO. 9414 (9 F.R. 623), 5 CFR 54.4 (I) (2), WAS OMITTED WHEN SECTION 54.4 WAS REVISED BY THE CIVIL SERVICE COMMISSION ON DECEMBER 15, 1944 (9 F.R. 15031), THE COMMISSION'S REGULATIONS EFFECTIVE JULY 1, 1946 (11 F.R. 7257), 5 CFR 54.408 (C), PROVIDED, SO FAR AS MATERIAL HERE, THAT "ANY PERSON WHO WAS APPOINTED, REAPPOINTED, OR TRANSFERRED PRIOR TO JANUARY 1, 1945, TO A POSITION NOT WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, WHO IS OR HAS BEEN APPOINTED, REAPPOINTED, OR TRANSFERRED TO A POSITION WITHIN THE PURVIEW OF SUCH ACTS WITH NO BREAK IN SERVICE * * * SHALL BE CREDITED WITH LEAVE SHOWN TO BE DUE.' THAT PROVISION WAS REPEATED IN THE COMMISSION'S REPUBLISHED REGULATIONS OF NOVEMBER 5, 1947, 12 F.R. 7241, 7242, SECTION 30.410, AMENDED DECEMBER 18, 1948, 13 F.R. 7816, SO THAT SUBSECTION 30.410 (C) PROVIDED ANY PERSON WHO BEFORE THE LUMP SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, WAS APPOINTED, REAPPOINTED, OR TRANSFERRED WITHOUT BREAK IN SERVICE FROM A POSITION UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, TO A POSITION NOT UNDER THE ACT, SHALL BE RECREDITED UPON REAPPOINTMENT TO A POSITION UNDER THE ACT WITH THE ANNUAL LEAVE HE HAD TO HIS CREDIT AT THE TIME OF LEAVING THE POSITION UNDER THE ACT, PROVIDED THAT, UPON SUCH REAPPOINTMENT, HE HAS HAD NO BREAK IN SERVICE, OR A BREAK OF LESS THAN 90 DAYS. THE ESSENCE OF THE FOREGOING REGULATORY PROVISIONS WAS RETAINED IN SECTION 30.703 OF THE ANNUAL AND SICK LEAVE REGULATIONS ISSUED DECEMBER 30, 1951, EFFECTIVE JANUARY 6, 1952. THAT SECTION WAS IN EFFECT ON JANUARY 1, 1961, THE DATE THAT MR. WILLIAMS WAS TRANSFERRED FROM THE POSTAL FIELD SERVICE TO THE GENERAL SERVICES ADMINISTRATION, WITHOUT ANY BREAK IN SERVICE.

HOWEVER, UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951 THE REGULATION SECTION 30.703 EFFECTIVE JANUARY 6, 1952, AND UNTIL RECENTLY--- COMPARE FEDERAL PERSONNEL MANUAL, PAGE Z1-355 (356.02) AND FPM BULLETIN 990-1, PAGE III-171--- READS AS FOLLOWS:

"SEC. 30.703 LEAVE FROM FORMER LEAVE SYSTEMS. ALL LEAVE WHICH WAS EARNED UNDER THE LEAVE ACTS OF 1936 OR UNDER ANY OTHER OF THE LEAVE SYSTEMS MERGED UNDER THIS ACT, AND TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED UPON REENTERING OR REMAINING IN THE SAME LEAVE SYSTEM, SHALL BE RECREDITED UNDER THIS ACT: PROVIDED, THAT LEAVE ALREADY FORFEITED SHALL NOT BE REVIVED BY THIS REGULATION.' (QUOTING FROM PAGE Z1-356.02, INST. 19, JANUARY 23, 1961.)

THUS, UNDER THE TERMS OF EXECUTIVE ORDER NO. 8384 AND THE SUBSEQUENT STATUTORY AUTHORITIES, REFERRED TO ABOVE--- NONE OF WHICH EXPRESSLY HAVE BEEN REPEALED AB INITIO OR HAS CAUSED AN ABSOLUTE FORFEITURE OF THE LEAVE IN QUESTION--- OUR VIEW IS THAT UNDER THE FACTS PRESENTED MR. WILLIAMS RETAINED HIS RIGHT TO RECREDIT OF THE LEAVE, WHICH AS A MATTER OF LAW SHOULD HAVE BEEN RECREDITED TO HIM ON JANUARY 6, 1952. ON THAT DATE THE POSTAL LEAVE SYSTEM WAS MERGED INTO THE NEW LEAVE SYSTEM, WHICH ALSO ON THAT DATE EMBRACED THE PRIOR ACCOUNTS AND RIGHTS ACCRUED UNDER THE LEAVE ACTS OF 1936, REFERRED TO ABOVE. HOWEVER, EFFECTIVE JANUARY 6, 1952, WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE, AN EMPLOYEE'S MERGED ACCOUNT OF ACCUMULATED LEAVE CREDIT WAS LIMITED TO 60 DAYS. SECTION 203 (C), ACT OF OCTOBER 30, 1951, 65 STAT. 679; 5 U.S.C. 2062 (C); FPM, PAGES L1-14 (TS 367) AND Z1-354 (TS 364).

THEREFORE, RESPONDING TO THE SPECIFIC QUESTIONS YOU RAISE, OUR VIEW IS THAT THE 176 HOURS ANNUAL LEAVE AND THE 470 HOURS SICK LEAVE ACCOUNTS WITH THE FORMER FEDERAL WORKS AGENCY, MAY BE REINSTATED AS OF JANUARY 6, 1952, BY THE GENERAL SERVICES ADMINISTRATION, SUBJECT TO THE ABOVE 60-DAY LIMITATION ON ANNUAL LEAVE. THAT SPECIFIC LIMITATION IS WITHIN THE PURVIEW OF THE GENERAL LIMITATION OF SECTION 21 OF EXECUTIVE ORDER NO. 8384, NOTED ABOVE AND AS IT BECAME APPLICABLE JANUARY 6, 1952, IN MR. WILLIAMS' CASE, IT WILL NECESSITATE RECONSTRUCTION OF THE ANNUAL LEAVE ACCOUNT FROM THAT DATE TO THE PRESENT. OF COURSE ANY ANNUAL LEAVE CREDIT IN EXCESS OF 60 DAYS AT THE CLOSE OF EITHER JANUARY 5, 1952, OR OF THE SUBSEQUENT LEAVE YEARS 1952 TO 1963 WOULD BE, BY OPERATION OF LAW, FORFEITED; THAT IS TO SAY, THE EXCESS WOULD NOT BE USABLE IN THE NEXT YEAR; NEITHER WOULD IT BE FOR PAYMENT UNDER THE EXISTING LAW.