B-167853, SEP 17, 1969

B-167853, SEP 17, 1969

CIVIL PAY - ANNUAL LEAVE FORFEITURE DECISION TO CERTIFYING OFFICER OF NATIONAL LABOR RELATIONS BOARD CONCLUDING THAT VOUCHER REPRESENTING PAYMENT FOR ANNUAL LEAVE FORFEITED UPON EXPIRATION OF TEMPORARY APPOINTMENT MAY NOT BE CERTIFIED. HEARING EXAMINER WHO, WHEN HE REACHED MANDATORY RETIREMENT, WAS ASKED TO REMAIN ON DUTY UNDER TEMPORARY APPOINTMENT FOR SEVERAL YEARS AND WHO WHEN TEMPORARY APPOINTMENT EXPIRED HAD 112 HOURS OF CURRENT ACCRUED LEAVE MAY NOT BE PAID FOR SUCH EXCESS ANNUAL LEAVE THAT COULD NOT BE INCLUDED IN LUMP-SUM PAYMENT.

ETHELREDA C. FESMIRE:

WE REFER TO YOUR LETTER OF SEPTEMBER 5, 1969, REQUESTING OUR DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT A PAYROLL VOUCHER COVERING ANNUAL LEAVE TO THE CREDIT OF AN EMPLOYEE WHICH WAS FORFEITED BY THE EXPIRATION OF THE TEMPORARY APPOINTMENT UNDER WHICH HE WAS SERVING.

THE PERTINENT FACTS ARE RELATED IN YOUR LETTER AS FOLLOWS: A HEARING EXAMINER OF THE NATIONAL LABOR RELATIONS BOARD REACHED THE MANDATORY RETIREMENT AGE OF 70 ON SEPTEMBER 30, 1965. BECAUSE AT THAT TIME HE WAS WORKING ON A DIFFICULT CASE HE WAS REQUESTED TO REMAIN ON DUTY AND CONTINUE THE CASE. THE EMPLOYEE CONTINUED ON DUTY UNDER TEMPORARY APPOINTMENTS AND ON APRIL 1, 1969, THE CIVIL SERVICE COMMISSION AUTHORIZED A TEMPORARY APPOINTMENT NOT TO EXCEED JULY 29, 1969, EXCEPT THAT HE COULD BE SEPARATED EARLIER AT THE WILL OF THE APPOINTING OFFICER OR AT THE DISPOSITION OF THE CASE TO WHICH HE WAS CURRENTLY ASSIGNED, WHICHEVER OCCURRED FIRST. IN ACCORDANCE WITH THE TERMS OF THE AUTHORITY GRANTED BY THE CIVIL SERVICE COMMISSION THE EMPLOYEE FINALLY WAS SEPARATED ON JULY 29, 1969, AT WHICH TIME HE HAD 112 HOURS ANNUAL LEAVE TO HIS CREDIT WHICH COULD NOT BE INCLUDED IN A LUMP-SUM PAYMENT. YOU NOW WANT TO KNOW WHETHER HE MAY APPROPRIATELY BE PAID FOR SUCH LEAVE APPARENTLY BY EXTENSION OF HIS SEPARATION DATE OR OTHERWISE.

WE UNDERSTAND THAT THE 112 HOURS REPRESENTED CURRENT ACCRUED LEAVE IN EXCESS OF THE MAXIMUM AMOUNT AUTHORIZED TO BE INCLUDED IN HIS LUMP-SUM LEAVE PAYMENT.

5 U.S.C. 5551 IS IN PART AS FOLLOWS:

"(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 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, EXCEPT THAT IT MAY NOT EXCEED PAY FOR A PERIOD OF ANNUAL OR VACATION LEAVE 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 GREATER. THE LUMP-SUM PAYMENT IS CONSIDERED PAY FOR TAXATION PURPOSES ONLY."

THE QUOTED STATUTORY PROVISION MAKES NO EXCEPTION TO THE APPLICATION OF THE LIMITATION CONTAINED THEREIN ON THE AMOUNT OF LEAVE FOR INCLUSION IN A LUMP-SUM PAYMENT EVEN THOUGH THE EXIGENCIES OF THE SERVICE AND/OR THE LIMITATIONS ON AN EMPLOYEE'S APPOINTMENT PREVENT HIM FROM TAKING ANNUAL LEAVE IN KIND SUCH AS HERE.

MOREOVER, SINCE THE EMPLOYEE ACTUALLY WAS SEPARATED AS REQUIRED BY THE TERMS OF HIS APPOINTMENT, WE ARE AWARE OF NO BASIS UPON WHICH SUCH PERIOD OF EMPLOYMENT NOW MAY BE EXTENDED TO INCLUDE THE LEAVE WHICH COULD NOT BE INCLUDED IN THE LUMP-SUM PAYMENT.

WE NOTE THAT THERE PRESENTLY IS PENDING IN THE HOUSE OF REPRESENTATIVES A BILL, H.R. 282, 91ST CONGRESS, WHICH WOULD PERMIT EMPLOYEES TO BE PAID FOR ANNUAL LEAVE WHICH OTHERWISE IS FORFEITED BY REASON OF THE LACK OF OPPORTUNITY FOR, OR INABILITY OF, SUCH OFFICER OR EMPLOYEE TO USE THE LEAVE BECAUSE OF THE EXIGENCIES OF THE PUBLIC BUSINESS. HOWEVER, THE BILL DOES NOT CONTAIN ANY RETROACTIVE PROVISION. SEE ALSO H.R. 16890, 90TH CONGRESS; S. 1543, 90TH CONGRESS; H.R. 5947, 89TH CONGRESS AND SIMILAR BILLS IN PRIOR CONGRESSES.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.