B-180605, MAY 1, 1974, 53 COMP GEN 820

B-180605, MAY 1, 1974, 53 COMP GEN 820

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - LIMITATIONS - REMOVAL GOVERNMENT EMPLOYEE, WHO AT TIME OF RETIREMENT (DEC. 31, 1973) WAS PAID A LUMP SUM FOR 240 HOURS OF ACCRUED AND UNUSED ANNUAL LEAVE, IS ENTITLED TO BE PAID FOR ADDITIONAL 148 HOURS OF ANNUAL LEAVE BECAUSE PUBLIC LAW 93-181 WHICH AMENDS 5 U.S.C. 5551(A) REMOVES LIMITATION ON AMOUNT OF ACCUMULATED ANNUAL LEAVE THAT CAN BE CARRIED OVER FOR PAYMENT PURPOSES.

IN THE MATTER OF LUMP-SUM PAYMENT OF ANNUAL LEAVE UNDER PUBLIC LAW 93 181, MAY 1, 1974:

THIS ACTION IS IN RESPONSE TO A LETTER DATED FEBRUARY 4, 1974, FROM AN AUTHORIZED CERTIFYING OFFICER IN THE UNITED STATES DEPARTMENT OF COMMERCE, SOCIAL AND ECONOMIC STATISTICS ADMINISTRATION, REQUESTING AN ADVANCE DECISION CONCERNING THE ENTITLEMENT OF MRS. BETTY L. WISEMAN, A FORMER EMPLOYEE OF THE ABOVE-NAMED AGENCY, TO RECEIVE A LUMP-SUM PAYMENT FOR 388 HOURS OF ACCUMULATED AND UNUSED ANNUAL LEAVE AT THE TIME OF HER RETIREMENT ON DECEMBER 31, 1973. MRS. WISEMAN WAS GIVEN A LUMP-SUM PAYMENT FOR 240 HOURS PLUS 8 HOURS FOR A HOLIDAY. SHE NOW ASSERTS THAT THE PAYMENT SHOULD HAVE INCLUDED AN ADDITIONAL 148 HOURS UNDER THE PROVISIONS OF 5 U.S.C. 5551(A) AS AMENDED BY SECTION 1 OF THE ACT OF DECEMBER 14, 1973, PUBLIC LAW 93-181, 87 STAT. 705.

TITLE 5 U.S.C. 5551(A) AS AMENDED BY PUBLIC LAW 93-181 PROVIDES AS FOLLOWS:

SEC. 5551. LUMP-SUM PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE ON SEPARATION.

(A) AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, WHO IS SEPARATED FROM THE SERVICE OR ELECTS TO RECEIVE A LUMP-SUM PAYMENT FOR LEAVE UNDER SECTION 5552 OF THIS TITLE, IS ENTITLED TO RECEIVE A LUMP-SUM PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED BY STATUTE. THE LUMP-SUM PAYMENT SHALL EQUAL THE PAY THE EMPLOYEE OR INDIVIDUAL WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL EXPIRATION OF THE PERIOD OF THE ANNUAL OR VACATION LEAVE. THE LUMP- SUM PAYMENT IS CONSIDERED PAY FOR TAXATION PURPOSES ONLY.

THAT SECTION NO LONGER CONTAINS THE RESTRICTION IN EFFECT PRIOR TO THE 1973 AMENDMENT THAT LUMP-SUM PAYMENTS FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE UPON SEPARATION ARE LIMITED TO 30 DAYS OR THE AMOUNT OF LEAVE CARRIED FORWARD TO THE EMPLOYEE'S CREDIT AT THE BEGINNING OF THE LEAVE YEAR, WHICHEVER IS GREATER.

THE LEGISLATIVE HISTORY TO THE PUBLIC LAW 93-181 MAKES IT CLEAR THAT CONGRESS INTENDED TO REMOVE ENTIRELY THE LIMITATION ON THE NUMBER OF HOURS OF ACCUMULATED ANNUAL LEAVE FOR WHICH AN EMPLOYEE MAY RECEIVE A LUMP-SUM PAYMENT UPON SEPARATION. THIS IS INDICATED IN H. REPORT NO. 93-456, 93D CONGRESS, 1ST SESSION, 6, AS FOLLOWS:

THE BILL ALSO PROVIDES FOR LUMP-SUM PAYMENT FOR LEAVE ACCRUED ABOVE CURRENT MAXIMUMS DURING THE YEAR OF THE EMPLOYEE'S SEPARATION. SECTION 5551(A) OF TITLE 5 NOW LIMITS THIS LUMP-SUM PAYMENT TO 30 DAYS, UNLESS AN EMPLOYEE IS CARRYING LEAVE IN EXCESS OF SUCH MAXIMUM UNDER PRIOR LEGISLATION. THIS LIMITATION IS REPEALED BY THIS BILL.

THE CIVIL SERVICE COMMISSION'S EXPLANATION OF THE AMENDMENT TO SECTION 5551(A), AS CONTAINED IN AN ATTACHMENT TO FPM LETTER NO. 630 22, JANUARY 11, 1974, STATES THAT THE AMENDMENT DEALS ONLY WITH THE AMOUNT OF ACCUMULATED LEAVE THAT MAY BE INCLUDED IN A LUMP-SUM PAYMENT ON SEPARATION, WHICH CONSISTS OF: (1) THE REGULAR CARRY-OVER BALANCE FROM THE PREVIOUS LEAVE YEAR, IF ANY; PLUS, (2) ACCRUED AND UNUSED ANNUAL LEAVE DURING THE THEN CURRENT LEAVE YEAR, IF ANY; PLUS (3) ANY UNUSED RESTORED ANNUAL LEAVE MAINTAINED IN A SEPARATE ACCOUNT.

IT IS OUR VIEW THAT PUBLIC LAW 93-181 HAS EFFECTIVELY REMOVED THE RESTRICTION ON THE NUMBER OF HOURS IN EXCESS OF 240 THAT AN EMPLOYEE IS ENTITLED TO AS A LUMP-SUM PAYMENT AND THAT AN EMPLOYEE IS ENTITLED TO PAYMENT FOR ALL ANNUAL LEAVE PROPERLY TO HIS CREDIT AT THE TIME OF SEPARATION. THE FACT THAT THE EMPLOYEE'S ANNUAL LEAVE IN EXCESS OF THE AMOUNT HE COULD CARRY OVER INTO THE NEXT LEAVE YEAR IS MORE THAN HE COULD USE BETWEEN THE DATE OF RETIREMENT AND THE END OF THE LEAVE YEAR DOES NOT PRECLUDE A LUMP-SUM PAYMENT FOR THAT LEAVE.

ACCORDINGLY, SINCE MRS. WISEMAN RETIRED AFTER THE EFFECTIVE DATE OF PUBLIC LAW 93-181, A VOUCHER FOR AN ADDITIONAL LUMP-SUM PAYMENT FOR 148 HOURS OF UNUSED AND ACCRUED ANNUAL LEAVE MAY PROPERLY BE CERTIFIED FOR PAYMENT.