B-180604, APR 9, 1974

B-180604, APR 9, 1974

FEDERAL EMPLOYEE SEPARATED FROM FEDERAL SERVICE ON JANUARY 23, 1970, AND OFFERED REEMPLOYMENT WITHIN 3 YEARS THEREAFTER BUT BECAUSE OF HIRING FREEZE NOT APPOINTED UNTIL AFTER 3 YEARS FROM SEPARATION MAY NOT BE RECREDITED WITH SICK LEAVE EARNED DURING PRIOR SERVICE SINCE CIVIL SERVICE COMMISSION REGULATIONS CONTAINED IN 5 CFR 630.502(B)(1) PROVIDE THAT SEPARATED EMPLOYEE MAY BE RECREDITED WITH SICK LEAVE ONLY IF BREAK IN SERVICE IS 3 YEARS OR LESS, HAS FORCE AND EFFECT OF LAW AND MAY NOT BE WAIVED BY GAO NOR ANY AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.

TO MR. WILLIAM F. GALLO:

THIS ACTION CONCERNS A REQUEST FOR RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT OF NOVEMBER 13, 1973, WHICH DISALLOWED THE CLAIM OF MR. WILLIAM F. GALLO FOR THE RECREDIT OF 613 HOURS OF SICK LEAVE INCIDENT TO HIS EMPLOYMENT WITH THE FEDERAL AVIATION ADMINISTRATION (FAA) AT WASHINGTON, D.C., AFTER A BREAK IN SERVICE OF MORE THAN 3 YEARS. MR. GALLO, WHO WAS SEPARATED FROM THE FEDERAL SERVICE ON JANUARY 23, 1970, WAS OFFERED A POSITION WITH THE FAA ON SEPTEMBER 26, 1972, BUT DID NOT ACTUALLY REPORT FOR DUTY UNTIL MARCH 13, 1973, PRIMARILY BECAUSE OF A HIRING FREEZE.

THE CLAIM WAS DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION ON THE GROUND THAT SUBPARAGRAPH 630.502(B)(1) OF THE CIVIL SERVICE COMMISSION (CSC) REGULATIONS CONTAINED IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS (CFR) PRECLUDES THE RECREDIT OF SICK LEAVE WHERE THE EMPLOYEE IS SEPARATED FROM THE FEDERAL GOVERNMENT OR THE DISTRICT GOVERNMENT FOR MORE THAN 3 YEARS. THE CLAIMANT WAS ALSO ADVISED THAT THE REGULATION WAS ISSUED BY THE CSC PURSUANT TO SECTION 6311 OF TITLE 5 OF THE UNITED STATES CODE AND HAS THE FORCE AND EFFECT OF LAW AND THAT NEITHER OUR OFFICE NOR ANY AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT HAS THE AUTHORITY TO WAIVE OR GRANT EXCEPTIONS TO THAT REGULATION.

IN THE CLAIMANT'S LETTER OF DECEMBER 14, 1973, HE DIRECTS OUR ATTENTION TO SECTION 5.1(B) OF TITLE 5 OF THE CFR AS AUTHORITY TO WAIVE OR GRANT EXCEPTIONS TO THE COMMISSION'S REGULATIONS. SECTION 5.1(B) PROVIDES AS FOLLOWS:

"(B) THE COMMISSION IS AUTHORIZED, WHENEVER THERE SHALL BE PRACTICAL DIFFICULTIES AND UNNECESSARY HARDSHIPS IN COMPLYING WITH THE STRICT LETTER OF ITS REGULATIONS, TO GRANT A VARIATION FROM THE STRICT LETTER OF THE REGULATIONS IF SUCH VARIATION IS WITHIN THE SPIRIT OF THE REGULATIONS, AND THE EFFICIENCY OF THE GOVERNMENT AND THE INTEGRITY OF THE COMPETITIVE SERVICE ARE PROTECTED AND PROMOTED:PROVIDED, THAT WHENEVER SUCH A VARIATION IS GRANTED THE COMMISSION SHALL RECORD IN THE MINUTES OF ITS PROCEEDINGS (1) THE PARTICULAR PRACTICAL DIFFICULTY OR HARDSHIP INVOLVED, (2) WHAT IS PERMITTED IN LIEU OF WHAT IS REQUIRED BY REGULATION, (3) THE CIRCUMSTANCES WHICH PROTECT OR PROMOTE THE EFFICIENCY OF THE GOVERNMENT AND THE INTEGRITY OF THE COMPETITIVE SERVICE, AND (4) A STATEMENT LIMITING THE APPLICATION OF THE VARIATION TO THE CONTINUATION OF THE CONDITIONS WHICH GAVE RISE TO THE VARIATION: PROVIDED FURTHER, THAT SIMILAR VARIATIONS SHALL BE GRANTED WHENEVER SIMILAR CONDITIONS EXIST. ALL MINUTES APPROVED UNDER AUTHORITY OF THIS SECTION SHALL BE PUBLISHED IN THE COMMISSION'S ANNUAL REPORTS."

WE HAVE INFORMALLY CONTACTED THE COMMISSION WHICH AGENCY PROMULGATED THE REGULATION AND WERE ADVISED THAT SECTION 5.1(B) IS APPLIED ONLY IN CASES OF PROMOTIONS. IF THE CLAIMANT STILL FEELS THAT HIS CASE COMES WITHIN THE PURVIEW OF SECTION 5.1(B) HE MAY TAKE THE MATTER UP WITH THE COMMISSION WHICH AGENCY HAS THE SOLE AUTHORITY TO GRANT A VARIATION FROM THE STRICT LETTER OF ITS REGULATIONS.

ACCORDINGLY, THE ACTION OF THE TRANSPORTATION AND CLAIMS DIVISION IN DENYING RECREDIT OF THE 613 HOURS OF SICK LEAVE IS SUSTAINED.