B-71081, DECEMBER 22, 1947, 27 COMP. GEN. 339

B-71081: Dec 22, 1947

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RATHER THAN WITHIN 90 DAYS FROM SEPARATION AS WAS PREVIOUSLY PROVIDED. MAY NOT BE GIVEN A RETROACTIVE EFFECT SO AS TO PERMIT THE RECREDITING OF SICK LEAVE AFTER THE EFFECTIVE DATE OF SAID AMENDMENT IN THE CASE OF A FORMER EMPLOYEE WHO WAS REEMPLOYED PRIOR TO THE EFFECTIVE DATE OF THE AMENDMENT AFTER MORE THAN 90 DAYS FROM SEPARATION BUT WITHIN ONE YEAR FROM NOTIFICATION OF PROPOSED SEPARATION BY REDUCTION IN FORCE. SECTION 30.408 OF THE ANNUAL AND SICK LEAVE REGULATIONS WAS AMENDED BY THE CIVIL SERVICE COMMISSION TO PROVIDE. SICK LEAVE COULD ONLY BE RECREDITED IF REEMPLOYMENT WERE EFFECTED WITHIN 90 DAYS OF THE SEPARATION. AN OBVIOUS INEQUITY HAS DEVELOPED WHICH IS TYPIFIED BY THE FOLLOWING EXAMPLES: MR.

B-71081, DECEMBER 22, 1947, 27 COMP. GEN. 339

LEAVES OF ABSENCE - SICK - RECREDIT OF PRIOR ACCRUED LEAVE UPON REEMPLOYMENT THE AMENDMENT TO SECTION 30.408 OF THE ANNUAL AND SICK LEAVE REGULATIONS- -- EFFECTIVE MARCH 21, 1947--- PROVIDING FOR THE RECREDIT OF SICK LEAVE TO AN EMPLOYEE APPOINTED OR REAPPOINTED WITHIN ONE YEAR AFTER NOTICE OF PROPOSED SEPARATION BY REDUCTION IN FORCE, RATHER THAN WITHIN 90 DAYS FROM SEPARATION AS WAS PREVIOUSLY PROVIDED, MAY NOT BE GIVEN A RETROACTIVE EFFECT SO AS TO PERMIT THE RECREDITING OF SICK LEAVE AFTER THE EFFECTIVE DATE OF SAID AMENDMENT IN THE CASE OF A FORMER EMPLOYEE WHO WAS REEMPLOYED PRIOR TO THE EFFECTIVE DATE OF THE AMENDMENT AFTER MORE THAN 90 DAYS FROM SEPARATION BUT WITHIN ONE YEAR FROM NOTIFICATION OF PROPOSED SEPARATION BY REDUCTION IN FORCE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, DECEMBER 22, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 12, 1947, AS FOLLOWS:

EFFECTIVE 21 MARCH 1947, SECTION 30.408 OF THE ANNUAL AND SICK LEAVE REGULATIONS WAS AMENDED BY THE CIVIL SERVICE COMMISSION TO PROVIDE, IN ESSENCE, THAT AN EMPLOYEE SHALL, UPON REEMPLOYMENT WITHIN ONE YEAR AFTER NOTICE OF SEPARATION BY REDUCTION IN FORCE, BE ENTITLED TO RECREDIT OF HIS SICK LEAVE BALANCE. PRIOR TO THIS AMENDMENT, SICK LEAVE COULD ONLY BE RECREDITED IF REEMPLOYMENT WERE EFFECTED WITHIN 90 DAYS OF THE SEPARATION.

IN THE ADMINISTRATION OF THIS REVISED REGULATION, AN OBVIOUS INEQUITY HAS DEVELOPED WHICH IS TYPIFIED BY THE FOLLOWING EXAMPLES:

MR. X, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY WAS SEPARATED BY REDUCTION IN FORCE ON 2 AUGUST 1946, HAVING RECEIVED HIS NOTICE ON 3 JULY 1946. SUBSEQUENTLY, ON 3 JANUARY 1947, HE WAS REINSTATED. HOWEVER, SINCE THE REGULATIONS APPLICABLE AT THAT TIME PERMITTED RECREDIT OF/SICK LEAVE ONLY WITHIN 90 DAYS AFTER SEPARATION, MR. X WAS NOT RECREDITED WITH HIS SICK LEAVE BALANCE.

ON THE OTHER HAND, MR. Y, ALSO AN EMPLOYEE OF THIS DEPARTMENT, WAS SEPARATED ON THE SAME DATE, 2 AUGUST 1946, HAVING ALSO RECEIVED HIS NOTICE ON 3 JULY 1946. MR. Y, HOWEVER, WAS NOT REEMPLOYED UNTIL 3 APRIL 1947. AT THAT TIME, THE LEAVE REGULATION HAD BEEN AMENDED, AND MR. Y WAS THEREFORE RECREDITED WITH HIS SICK LEAVE BALANCE, AS PERMITTED BY THE 21 MARCH AMENDMENT.

WHILE BOTH MR. X AND MR. Y WERE PERMANENT EMPLOYEES WITH COMPETITIVE STATUS, REGULATIONS GOVERNING REDUCTION IN FORCE THEN IN EFFECT PROVIDED FOR SEPARATION RATHER THAN FURLOUGH WHERE THE REDUCTION IN FORCE WAS DEEMED TO BE OF A PERMANENT NATURE. HOWEVER, THESE REGULATIONS ALSO REQUIRED THE ESTABLISHMENT ON THIS LIST, AND AN ORDERLY RECALL TO DUTY IN ACCORDANCE WITH THE REGISTER, AS VACANCIES OCCURRED WHICH SEPARATED EMPLOYEES WERE QUALIFIED TO FILL. IN DUE COURSE, MR. X AND MR. Y WERE REEMPLOYED IN THE MANNER CONTEMPLATED BY THESE MANDATORY INSTRUCTIONS,

AS THIS OFFICE INTERPRETS THE CITED SECTION 30.408 OF THE LEAVE REGULATIONS, THE ACTION TAKEN IN BOTH CASES JUST DESCRIBED WAS PROPER. YET MR. X APPARENTLY WAS PENALIZED FOR BEING REEMPLOYED TOO EARLY. HAD HE NOT BEEN RECALLED UNTIL AFTER 21 MARCH 1947, HE WOULD HAVE BEEN ENTITLED TO THE SAME BENEFITS GRANTED MR. Y.

YOUR OPINION IS THEREFORE SOLICITED ON THE FOLLOWING QUESTIONS:

1. WERE THE ACTIONS TAKEN BY THE DEPARTMENT IN THE ABOVE EXAMPLES CORRECT?

2. IS IT POSSIBLE TO INTERPRET THE REGULATIONS SO AS TO PERMIT A RECREDIT OF SICK LEAVE IN MR. X'S CASE AFTER 21 MARCH 1947, EVEN THOUGH HE WAS REEMPLOYED PRIOR TO THAT DATE?

THE AMENDMENT TO SECTION 30.408 OF THE ANNUAL AND SICK LEAVE REGULATIONS ADDING THE PROVISION FOR RECREDIT OF SICK LEAVE TO AN EMPLOYEE APPOINTED OR REAPPOINTED WITHIN ONE YEAR AFTER NOTICE OF PROPOSED SEPARATION BY REDUCTION IN FORCE, REFERRED TO IN THE FIRST PARAGRAPH OF YOUR LETTER, WAS ISSUED BY THE CIVIL SERVICE COMMISSION ON MARCH 20, 1947, AND SPECIFICALLY STATED THAT SUCH AMENDMENT WOULD BE EFFECTIVE UPON PUBLICATION IN THE FEDERAL REGISTER. THE AMENDMENT WAS SO PUBLISHED THE NEXT DAY, MARCH 21, 1947, AND THUS BY ITS OWN TERMS BECAME EFFECTIVE ON THAT DATE.

IN CONSTRUING STATUTES THE COURTS UNIFORMLY HAVE REFUSED TO GIVE RETROACTIVE OPERATION THERETO UNLESS AN INTENTION TO THAT EFFECT IS CLEARLY EXPRESSED. BREWSTER V. GAGE, 280 U.S. 327; SOHN V. WATERSON, 84 U.S. 596; COMMISSIONER OF INTERNAL REVENUE V. RILEY STOKER CORPORATION, 67 FED.2D 688. THE SAME HOLDING WOULD BE APPLICABLE TO A REGULATION HAVING THE FORCE AND EFFECT OF LAW, SUCH AS THAT HERE INVOLVED.

THE AMENDMENT TO THE LEAVE REGULATION, REFERRED TO ABOVE, CONTAINS NO INDICATION OF ANY RETROACTIVE EFFECT; IT OTHERWISE IS CLEAR AND UNAMBIGUOUS, AND, THEREFORE, IS NOT SUBJECT TO CONSTRUCTION. HENCE, THERE IS REQUIRED THE CONCLUSION THAT THE SAME IS EFFECTIVE ONLY FROM THE DATE IT WAS PUBLISHED IN THE FEDERAL REGISTER, NAMELY, MARCH 21, 1947, AND ANY DISPARITY IN RESULTS ARISING FROM THE APPLICATION OF THE REGULATIONS, SUCH AS THAT SET OUT IN THE TWO EXAMPLES COVERED BY YOUR LETTER, MAY NOT BE REMOVED BY CONSTRUCTION.

UPON THAT CONCLUSION YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE AND YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE.