B-163053, DEC. 13, 1967

B-163053: Dec 13, 1967

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EMPLOYEE WHO WAS RESTORED TO DUTY ON MAY 15. 1966 WHICH WAS MAXIMUM AUTHORIZED BY LAW. THERE IS NO AUTHORITY FOR CREDIT FOR LEAVE WHICH WOULD HAVE ACCRUED DURING OCTOBER. SINCE LEAVE CEILING IS FOR APPLICATION ZEIGER V U.S. 155 CT. IS FOUND BY APPROPRIATE AUTHORITY * * * TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL * * * OF THE PAY * * * OF THE EMPLOYEE. IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD. WHICH IS NOT USED BY AN EMPLOYEE. WHEN YOU WERE RESTORED TO DUTY ON MAY 15. NECESSARILY WAS CANCELLED AS OF THE LATTER DATE. THERE IS NO RIGHT OF ELECTION OF AN EMPLOYEE TO RETAIN THE LUMP-SUM LEAVE PAYMENT UPON RESTORATION AFTER AN ERRONEOUS SEPARATION SINCE THE BACK PAY STATUTE EXPRESSLY PROVIDES THAT FOR ALL PURPOSES THE EMPLOYEE IS DEEMED TO HAVE PERFORMED SERVICE FOR THE PERIOD FOR WHICH HE RECEIVES COMPENSATION THEREUNDER.

B-163053, DEC. 13, 1967

LEAVES OF ABSENCE - ANNUAL - FORFEITURE - REMOVALS, ETC. DECISION TO CLAIMANT, A FORMER IRS EMPLOYEE, DISALLOWING CLAIM FOR ANNUAL LEAVE LOST DUE TO ERRONEOUS SEPARATION. EMPLOYEE WHO WAS RESTORED TO DUTY ON MAY 15, 1967, AND GIVEN CREDIT FOR ANNUAL LEAVE TO HER CREDIT AS OF DATE OF ERRONEOUS SEPARATION OCTOBER 3, 1966 WHICH WAS MAXIMUM AUTHORIZED BY LAW, THERE IS NO AUTHORITY FOR CREDIT FOR LEAVE WHICH WOULD HAVE ACCRUED DURING OCTOBER, NOVEMBER, AND DECEMBER 1966. SINCE LEAVE CEILING IS FOR APPLICATION ZEIGER V U.S. 155 CT. CL. 353.

TO MISS JUDITH M. GLICK:

WE REFER TO YOUR LETTER OF NOVEMBER 21, 1967, WITH ENCLOSURE, IN WHICH YOU REQUEST A RULING ON THE QUESTION OF 54 HOURS ANNUAL LEAVE LOST BY YOU AS A CONSEQUENCE OF YOUR ERRONEOUS SEPARATION FROM THE SERVICE OF THE BUREAU OF INTERNAL REVENUE ON OCTOBER 3, 1966.

THE BACK PAY ACT OF 1966, NOW CODIFIED AS 5 U.S.C. 5596, PROVIDES IN PART, AS FOLLOWS:

"/B) AN EMPLOYEE * * * WHO, ON THE BASIS OF * * * A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY * * * TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL * * * OF THE PAY * * * OF THE EMPLOYEE--

"/2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATIONS.' 5 U.S.C. 6304 (A) PROVIDES:

"* * * ANNUAL LEAVE PROVIDED BY SECTION 6303 OF THIS TITLE, WHICH IS NOT USED BY AN EMPLOYEE, ACCUMULATES FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT MORE THAN 30 DAYS AT THE BEGINNING OF THE FIRST FULL BIWEEKLY PAY PERIOD * * * OCCURRING IN A YEAR.'

WHEN YOU WERE RESTORED TO DUTY ON MAY 15, 1967, THE BASIS FOR THE LUMP- SUM PAYMENT COVERING 240 HOURS ANNUAL LEAVE, I.E., YOUR ERRONEOUS SEPARATION FROM THE SERVICE ON OCTOBER 3, 1966, NECESSARILY WAS CANCELLED AS OF THE LATTER DATE. THUS, WE BELIEVE THAT THE INTERNAL REVENUE SERVICE HAD NO ALTERNATIVE BUT TO RESTORE YOUR ANNUAL LEAVE CREDIT OF 240 HOURS AS OF OCTOBER 3, 1966. UNDER THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 59 STAT. 845, NOW CODIFIED AS 5 U.S.C. 5551, THERE IS NO RIGHT OF ELECTION OF AN EMPLOYEE TO RETAIN THE LUMP-SUM LEAVE PAYMENT UPON RESTORATION AFTER AN ERRONEOUS SEPARATION SINCE THE BACK PAY STATUTE EXPRESSLY PROVIDES THAT FOR ALL PURPOSES THE EMPLOYEE IS DEEMED TO HAVE PERFORMED SERVICE FOR THE PERIOD FOR WHICH HE RECEIVES COMPENSATION THEREUNDER.

AS OF THE BEGINNING OF THE LEAVE YEAR 1967, THERE STOOD TO YOUR CREDIT 240 HOURS OR 30 DAYS OF ANNUAL LEAVE. SINCE YOU HAD TO YOUR CREDIT 30 DAYS OF ANNUAL LEAVE--THE MAXIMUM AUTHORIZED BY LAW--AT THE BEGINNING OF LEAVE YEAR 1967, A CREDIT NOW FOR THE ANNUAL LEAVE WHICH BUT FOR YOUR SEPARATION WOULD HAVE ACCRUED DURING THE MONTHS OF OCTOBER, NOVEMBER AND DECEMBER 1966, WOULD BE IN CONTRAVENTION OF THE EXPRESS PROVISIONS OF 5 U.S.C. 5596.

A SIMILAR SITUATION WAS INVOLVED IN ZEIGER V. UNITED STATES, 155 CT. CL. 353. THE COURT CONSIDERED THE ISSUE AT LENGTH AND CONCLUDED THAT THE 240- HOUR LEAVE CEILING WAS FOR APPLICATION. WHILE THAT DECISION WAS RENDERED PRIOR TO THE BACK PAY ACT OF 1966, THE EXPRESS LIMITATION IN THAT ACT REQUIRES THE SAME RESULT. THUS, NO ADDITIONAL LEAVE CREDIT MAY BE AUTHORIZED.