B-155634, DEC. 10, 1964

B-155634: Dec 10, 1964

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WAS SEPARATED ON MARCH 12. THE FOLLOWING CHOICES ARE STATED TO HAVE BEEN AVAILABLE: 1.IMMEDIATE PAYMENT OF UNUSED ANNUAL LEAVE. 2. PAYMENT WAS MADE AND COMPUTED ON THE BASIS OF THE SALARY RATE WHICH PREVAILED ON MARCH 12. THE EMPLOYEE CONTENDS THAT THE COMPUTATION OF THE LUMP SUM SHOULD HAVE BEEN BASED ON THE SALARY RATES PREVAILING ON AUGUST 17. WHICH WOULD HAVE INCLUDED STATUTORY PAY INCREASES AND A STEP INCREASE. ANY EMPLOYEE SERVING UNDER A FEDERAL APPOINTMENT NOT LIMITED TO ONE YEAR OR LESS WHO TRANSFERS TO AN INTERNATIONAL ORGANIZATION IS ENTITLED * * * "/4) TO ELECT TO RETAIN TO HIS CREDIT ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH ENTITLED AT THE TIME OF TRANSFER TO AN INTERNATIONAL ORGANIZATION WHICH WOULD OTHERWISE BE LIQUIDATED BY A LUMP-SUM PAYMENT.

B-155634, DEC. 10, 1964

TO MISS MARY E. BROWN, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF LABOR:

ON NOVEMBER 16, 1964, YOU REQUESTED OUR DECISION CONCERNING THE PROPER BASIS FOR COMPUTING THE LUMP-SUM PAYMENT DUE UNDER THE FACTS AND CIRCUMSTANCES RELATED BELOW.

YOUR LETTER POINTS OUT THAT MR. GEORGE TOBIAS, AN EMPLOYEE OF THE DEPARTMENT OF LABOR, WAS SEPARATED ON MARCH 12, 1963, TO ACCEPT AN APPOINTMENT WITH A PUBLIC INTERNATIONAL ORGANIZATION. YOU SAY THAT THE FEDERAL EMPLOYEES INTERNATIONAL ORGANIZATION SERVICE ACT, PUB.L. 85-795, PROVIDES FOR RETENTION OF CERTAIN BENEFITS AND GRANTS CERTAIN RIGHTS TO NONTEMPORARY EMPLOYEES OF FEDERAL DEPARTMENTS OR AGENCIES WHO TRANSFER WITH THE CONSENT OF THE HEAD OF THE DEPARTMENT OR AGENCY TO RECOGNIZED INTERNATIONAL ORGANIZATIONS. WITH REGARD TO THE ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE AT THE TIME OF HIS SEPARATION, THE FOLLOWING CHOICES ARE STATED TO HAVE BEEN AVAILABLE:

1.IMMEDIATE PAYMENT OF UNUSED ANNUAL LEAVE.

2. REQUEST AT A LATER DATE FOR PAYMENT OF UNUSED LEAVE.

3. RETENTION OF ANNUAL LEAVE CREDIT.

ON AUGUST 17, 1964, THE EMPLOYEE REQUESTED PAYMENT OF HIS ANNUAL LEAVE. PAYMENT WAS MADE AND COMPUTED ON THE BASIS OF THE SALARY RATE WHICH PREVAILED ON MARCH 12, 1963, THE EFFECTIVE DATE OF SEPARATION. THE EMPLOYEE CONTENDS THAT THE COMPUTATION OF THE LUMP SUM SHOULD HAVE BEEN BASED ON THE SALARY RATES PREVAILING ON AUGUST 17, 1964, WHICH WOULD HAVE INCLUDED STATUTORY PAY INCREASES AND A STEP INCREASE.

SECTIONS 4 (A) AND 4 (A) (4) OF THE FEDERAL EMPLOYEES INTERNATIONAL ORGANIZATION SERVICE ACT, PUB.L. 85-795, 72 STAT. 960, PROVIDES IN PART AS FOLLOWS:

"SEC. 4. (A) NOTWITHSTANDING THE PROVISIONS OF ANY LAW, EXECUTIVE ORDER, OR REGULATION, ANY EMPLOYEE SERVING UNDER A FEDERAL APPOINTMENT NOT LIMITED TO ONE YEAR OR LESS WHO TRANSFERS TO AN INTERNATIONAL ORGANIZATION IS ENTITLED * * *

"/4) TO ELECT TO RETAIN TO HIS CREDIT ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH ENTITLED AT THE TIME OF TRANSFER TO AN INTERNATIONAL ORGANIZATION WHICH WOULD OTHERWISE BE LIQUIDATED BY A LUMP-SUM PAYMENT. ON THE REQUEST OF AN EMPLOYEE AT ANY TIME PRIOR TO REEMPLOYMENT, PAYMENT SHALL BE MADE FOR ALL OF THE LEAVE RETAINED. * * *"

HOUSE OF REPRESENTATIVES REPORT NO. 2509, DATED AUGUST 7, 1958, 85TH CONGRESS, 2D SESSION, WHICH ACCOMPANIED S. 4004, LATER ENACTED AS PUBL.L. 85-795, EXPLAINING THE VARIOUS SECTIONS OF THE ACT PROVIDES AS FOLLOWS:

"SECTION 4 (A) (4) AUTHORIZES A TRANSFERRED EMPLOYEE TO RETAIN HIS ACCUMULATED ANNUAL LEAVE TO HIS CREDIT RATHER THAN TO LIQUIDATE THE ANNUAL LEAVE BY A LUMP-SUM PAYMENT AT TIME OF TRANSFER. THIS SECTION IS INTENDED TO OPERATE ENTIRELY WITHIN THE FRAMEWORK OF THE ACT OF DECEMBER 21, 1944 (5 U.S.C. 51B (61B) (, PROVIDING FOR LUMP-SUM PAYMENTS FOR ANNUAL LEAVE UNUSED AT TIME OF SEPARATION, AND THE ANNUAL AND SICK LEAVE ACT OF 1951. THE SECTION IS INTENDED TO PROTECT THE TRANSFERRING EMPLOYEE'S ANNUAL LEAVE RIGHTS BY REASON OF THOSE ACTS; BUT IT IS NOT INTENDED TO PLACE THE EMPLOYEE IN A MORE ADVANTAGEOUS POSITION THAN HE OTHERWISE WOULD BE ENTITLED TO UNDER THESE ACTS.'

IN VIEW OF THE LAST SENTENCE OF THE ABOVE-QUOTED REPORT IT IS APPARENT THAT THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, 5 U.S.C. 61B, AS AMENDED, IS CONTROLLING IN COMPUTING THE PAYMENT HERE IN QUESTION. SECTION 1 OF THAT ACT PROVIDES IN PART AS FOLLOWS:

"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 * * *"

THEREFORE, IT WAS PROPER TO COMPUTE THE LUMP-SUM PAYMENT DUE MR. TOBIAS ON THE BASIS OF THE SALARY RATE HE WAS RECEIVING ON MARCH 12, 1963, THE EFFECTIVE DATE OF HIS SEPARATION FROM THE ROLLS OF THE DEPARTMENT OF LABOR.