B-136639, AUGUST 1, 1958, 38 COMP. GEN. 91

B-136639, AUGUST 1, 1958, 38 COMP. GEN. 91

CIVILIAN PERSONNEL - LEAVES OF ABSENCE - LUMP-SUM LEAVE PAYMENTS - LEAVE CEILING DETERMINATION IN THE CASE OF AN EMPLOYEE WHO RESIGNED AT THE END OF A LEAVE YEAR WITH A "SAVED" MAXIMUM ANNUAL LEAVE ACCUMULATION UNDER 5 U.S.C. 2066 AND WHO WAS RE-EMPLOYED THE FOLLOWING YEAR BEFORE EXPIRATION OF THE PERIOD COVERED BY THE LUMP-SUM PAYMENT FOR LEAVE UNDER 5 U.S.C. 61B, THE PREVIOUS "SAVED" MAXIMUM MAY BE CONSTRUCTIVELY REESTABLISHED AT THE BEGINNING OF THE LEAVE YEAR IN WHICH REEMPLOYED, AND THE MAXIMUM CARRY OVER INTO THE FOLLOWING YEAR DETERMINED BY DEDUCTING FROM THE PREVIOUS MAXIMUM THE EXCESS OVER CURRENT ACCRUAL, IF ANY, OF THE AGGREGATE OF THE EXPIRED PORTION OF LEAVE COVERED BY THE LUMP-SUM PAYMENT AND THE LEAVE ACTUALLY USED DURING THE YEAR. THE ANNUAL LEAVE ACCOUNT OF AN EMPLOYEE WHO IS REEMPLOYED PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY A LUMP-SUM LEAVE PAYMENT SHOULD BE RECONSTRUCTED AS OF THE DATE OF REEMPLOYMENT EVEN THOUGH THE LEAVE REFUND IS PERMITTED TO BE MADE IN INSTALLMENTS AND THE USE OF LEAVE REPRESENTED BY THE REFUND IS DENIED UNTIL FULL REFUND IS MADE.

TO THE SECRETARY OF COMMERCE, AUGUST 1, 1958:

THE ASSISTANT SECRETARY REQUESTS OUR DECISION CONCERNING THE MAXIMUM ACCUMULATION OF ANNUAL LEAVE UNDER THE CIRCUMSTANCES SET FORTH IN HIS LETTER OF JUNE 27, 1958, AS FOLLOWS:

MR. CARRICK B. MACGOWAN, AN EMPLOYEE OF THE BUREAU OF PUBLIC ROADS, RESIGNED C.O.B. DECEMBER 31, 1954. HE HAD CARRIED OVER INTO THE 1954 LEAVE YEAR 527 HOURS OF ANNUAL LEAVE; DURING THE 1954 LEAVE YEAR HE EARNED 144 HOURS AND USED 132. AT THE CLOSE OF BUSINESS, DECEMBER 31, 1954, HE HAD TO HIS CREDIT 539 HOURS OF ANNUAL LEAVE, 527 HOURS OF WHICH, IN ACCORDANCE WITH PRESCRIBED PROCEDURE FOR COMPUTING THE LUMP SUM LEAVE PAYMENT, WAS EXTENDED INTO THE 1955 LEAVE YEAR SO THAT HE WAS PAID THROUGH SEVEN HOURS ON APRIL 5, 1955.

MR. MACGOWAN WAS REEMPLOYED BY THE BUREAU OF PUBLIC ROADS ON JANUARY 31, 1955, AND WAS REQUESTED TO REFUND THE PAYMENT HE HAD RECEIVED FOR THE PERIOD JANUARY 31 THROUGH APRIL 5, 1955, OR FOR 367 HOURS PLUS ONE HOLIDAY. HE DID NOT COMPLETE THE REFUND UNTIL 1957, AT WHICH TIME HE WAS CREDITED WITH 367 HOURS OF ANNUAL LEAVE.

EACH YEAR MR. MACGOWAN HAS EARNED MORE ANNUAL LEAVE THAN HE USED SO THAT THE QUESTION NOW ARISES AS TO WHETHER THE 527 HOURS, WHICH WAS IN EFFECT CARRIED IN THE 1955 LEAVE YEAR OR THE 367 HOURS, FOR WHICH REFUND WAS MADE, SHOULD BE THE MAXIMUM ACCUMULATION FOR CARRY-OVER PURPOSES.

AS PROVIDED BY SECTION 1 OF THE ACT OF DECEMBER 21, 1944, AS AMENDED BY SECTION 4 (A) OF THE ACT OF JULY 2, 1953, 67 STAT. 138, 5 U.S.C. 61B, AN EMPLOYEE WHO IS SEPARATED FROM SERVICE IS ENTITLED TO BE PAID A LUMP SUM FOR ANNUAL LEAVE NOT IN EXCESS OF 30 DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS THE GREATER. THE AMOUNT OF PAYMENT IS REQUIRED TO EQUAL THE COMPENSATION THAT THE EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN SERVICE UNTIL THE EXPIRATION OF THE LEAVE PAID FOR. THE LAW ALSO PROVIDES THAT IF THE EMPLOYEE IS REEMPLOYED IN THE FEDERAL SERVICE PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY THE PAYMENT, HE SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF THE LEAVE PERIOD AND IF, AS HERE, THE REEMPLOYMENT IS UNDER THE SAME LEAVE SYSTEM, THE LEAVE REPRESENTED BY THE REFUND IS REQUIRED TO BE RECREDITED IN AN AMOUNT EQUAL TO THE AMOUNT REPRESENTED BY THE REFUND.

WE HAVE UNIFORMLY HELD THAT THE LAW CONTEMPLATES AN IMMEDIATE REFUND OF THAT PART OF THE LUMP-SUM PAYMENT WHICH IS TO BE REFUNDED AND SUCH REQUIREMENT ORDINARILY SHOULD BE A CONDITION PRECEDENT TO REEMPLOYMENT. 34 COMP. GEN. 17, 19. THEREFORE, EVEN THOUGH THE REFUND BE PERMITTED TO BE MADE IN INSTALLMENTS AND, AS HELD IN THE CITED DECISION, USE OF THE LEAVE REPRESENTED BY THE REFUND BE DENIED UNTIL FULL REFUND HAS BEEN MADE, THE LEAVE ACCOUNT SHOULD BE RECONSTRUCTED AS TO THE DATE OF REEMPLOYMENT.

APPLYING THE FOREGOING PRINCIPLES HERE, THE EMPLOYEE SHOULD BE RECREDITED WITH 367 HOURS OF ACCUMULATED ANNUAL LEAVE AS OF JANUARY 31, 1955, THE DATE OF REEMPLOYMENT.

THE QUESTION THEN ARISES AS TO THE MAXIMUM AMOUNT OF ANNUAL LEAVE THE EMPLOYEE MAY CARRY OVER FROM 1955 INTO THE 1956 LEAVE YEAR. THE CARRY- OVER OR ACCUMULATION OF ANNUAL LEAVE FROM YEAR TO YEAR IS CONTROLLED BY SECTION 203 (C) AND SECTION 208 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED BY SUBSECTION (A) AND (C), RESPECTIVELY, OF SECTION 3 OF THE ACT OF JULY 2, 1953, 67 STAT. 137, 5 U.S.C. 2066 (A) AND (C), READING IN PERTINENT PART AS FOLLOWS:

(C) THE ANNUAL LEAVE PROVIDED FOR IN THIS SECTION, WHICH IS NOT USED BY AN OFFICER OR EMPLOYEE, SHALL ACCUMULATE FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT TO EXCEED THIRTY DAYS AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, OCCURRING IN ANY YEAR.

SEC. 208. (A) IN ANY CASE IN WHICH---

(1) THE AMOUNT OF ACCUMULATED ANNUAL LEAVE TO THE CREDIT OF AN OFFICER OR EMPLOYEE IMMEDIATELY FOLLOWING THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN THE CALENDAR 1952, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, UNDER THE PROVISIONS OF LAW THEN APPLICABLE TO SUCH OFFICER OR EMPLOYEE IS IN EXCESS OF THE AMOUNT ALLOWABLE UNDER THE APPLICABLE PROVISIONS OF SECTION 203,

* * * * ** * * SUCH EXCESS SHALL REMAIN TO THE CREDIT OF SUCH OFFICER OR EMPLOYEE UNTIL USED, BUT THE USE DURING ANY LEAVE YEAR OF AN AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT WHICH SHALL HAVE ACCRUED DURING SUCH YEAR SHALL AUTOMATICALLY REDUCE THE MAXIMUM ALLOWABLE ACCUMULATION AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, IN THE FOLLOWING LEAVE YEAR, UNTIL THE ACCUMULATION OF SUCH OFFICER OR EMPLOYEE NO LONGER EXCEEDS THE AMOUNT PRESCRIBED IN THE APPLICABLE PROVISIONS OF SECTION 203.

STRICTLY SPEAKING, THE EMPLOYEE'S MAXIMUM PERMISSIBLE ACCUMULATION OF 527 HOURS OF ANNUAL LEAVE, WHICH HE COULD HAVE CARRIED OVER INTO THE 1955 LEAVE YEAR (BEGINNING JANUARY 2), BUT FOR THE SEPARATION, WAS "USED" WHEN IT WAS LIQUIDATED BY A LUMP-SUM PAYMENT AS OF DECEMBER 31, 1954, SO THAT HE HAD NO LEAVE BALANCE AT ALL AT THE BEGINNING OF THE 1955 LEAVE YEAR. IT IS ONLY BY REASON OF THE TERMS OF THE LUMP-SUM LEAVE PAYMENT STATUTE THAT THE LEAVE REPRESENTING THE UNEXPIRED PERIOD COVERED BY THE LUMP-SUM PAYMENT IS REVIVED AND RECREDITED. HOWEVER, HAVING IN MIND THAT IF THE PERIOD OF SEPARATION PRIOR TO REEMPLOYMENT HAD OCCURRED ENTIRELY WITHIN THE LEAVE YEAR RATHER THAN AT THE BEGINNING, THE MATTER OF LEAVE CARRY- OVER WOULD BE DETERMINED BY THE ACTIVITY IN THE ANNUAL LEAVE ACCOUNT DURING THAT YEAR IN RELATION TO THE ACTUAL LEAVE CREDIT EXISTING AT THE BEGINNING OF THE YEAR, WE CONCLUDE THAT IN THIS CASE THERE MAY BE CONSTRUCTIVELY ESTABLISHED AT THE BEGINNING OF THE 1955 LEAVE YEAR A CREDIT OF 527 HOURS. THE EXPIRED PORTION (APPARENTLY 160 HOURS) OF THE LEAVE PERIOD COVERED BY THE LUMP-SUM PAYMENT AND THE AMOUNT OF CURRENT ACCRUED ANNUAL LEAVE USED DURING THE YEAR SHOULD BE ADDED TOGETHER; AND THE EXCESS, IF ANY, OF THE RESULTING AGGREGATE OF ANNUAL LEAVE USED DURING 1955 OVER THE AMOUNT OF ANNUAL LEAVE WHICH ACCRUED FOR THAT YEAR SHOULD BE DEDUCTED FROM THE PREVIOUS "CEILING" OF 527 HOURS. THE FIGURE THUS RESULTING WILL CONSTITUTE THE MAXIMUM PERMISSIBLE ACCUMULATION AT THE BEGINNING OF THE 1956 LEAVE YEAR. OF COURSE, THE MAXIMUM ACCUMULATION AT THE BEGINNING OF SUBSEQUENT LEAVE YEARS SHOULD BE COMPUTED UNDER THE TERMS OF SECTION 208 (A) OF THE LEAVE ACT, AS AMENDED, QUOTED ABOVE, UPON THE BASIS OF THE 1956 MAXIMUM.