[Protest of Navy Nonresponsibility Decision]

B-165843, MARCH 3, 1969 48 COMP. GEN. 572

COMPENSATION--REMOVALS, SUSPENSIONS, ETC.--DEDUCTIONS FROM BACK PAY- OUTSIDE EARNINGS--IN EXCESS OF "BACK PAY" DUE IN COMPUTING THE BACK PAY DUE AN EMPLOYEE FOR AN IMPROPER SUSPENSION, 5 U.S.C. 5596 (B), WHICH REQUIRES THE DEDUCTION OF ANY AMOUNTS EARNED THROUGH OTHER EMPLOYMENT DURING THE PERIOD OF THE SUSPENSION, DOES NOT CONTEMPLATE A DAILY OR WEEKLY COMPARISON OF THE BACK PAY WITH THE OUTSIDE EARNINGS, BUT RATHER THE TOTAL AMOUNT OF OUTSIDE EARNINGS IS FOR COMPARISON WITH THE TOTAL AMOUNT OF BACK PAY DUE THE EMPLOYEE. THEREFORE, AN EMPLOYEE WHOSE OUTSIDE EARNINGS EXCEEDED THE AMOUNT HE WOULD HAVE EARNED IN THE GOVERNMENT HAD HE NOT BEEN SUSPENDED FROM DUTY IS NOT ENTITLED TO BACK PAY FOR THE PERIOD OF THE SUSPENSION, NOTWITHSTANDING THAT DURING THE SUSPENSION PERIOD, HE DID NOT HAVE ANY EARNINGS FOR 6 DAYS. LEAVES OF ABSENCE--INVOLUNTARY LEAVE--REMOVALS, SUSPENSIONS, ETC.-- RECREDITING OF LEAVE UNDER 5 U.S.C. 5596 (B), AN EMPLOYEE WHO IS ENTITLED TO BACK PAY AND OTHER RESTORATION BENEFITS MAY NOT BE CREDITED WITH LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AUTHORIZED BY LAW OR REGULATION. THEREFORE, IN RECONSTRUCTING THE ANNUAL LEAVE ACCOUNT OF AN EMPLOYEE SEPARATED FEBRUARY 20, 1968 AFTER A SUSPENSION PERIOD THAT WAS CANCELED, WHO AT THE TIME OF SUSPENSION MAY 1, 1967, HAD A LEAVE CEILING OF 240 HOURS AND 290 HOURS OF LEAVE TO HIS CREDIT, LEAVE IN EXCESS OF THE 240 HOURS CEILING IS FORFEITED AND, ALTHOUGH THE EMPLOYEE ACCRUED 32 HOURS OF ANNUAL LEAVE FROM JANUARY 1 TO FEBRUARY 20, 1968, HIS LUMP-SUM LEAVE PAYMENT UNDER 5 U.S.C. 5551 (A) IS LIMITED TO 240 HOURS, AND THE FORFEITURE OF LEAVE MAY NOT BE RETROACTIVELY SUBSTITUTED FOR A CORRESPONDING PORTION OF THE SUSPENSION PERIOD.

TO JAMES J. D'ANGELILLIO, DEFENSE SUPPLY AGENCY, MARCH 3, 1969:

WE REFER TO YOUR LETTER OF NOVEMBER 29, 1968, REFERENCE DPSC-BE, REQUESTING OUR ADVICE CONCERNING THE GRANTING OF ANNUAL LEAVE TO AN EMPLOYEE WHO WAS IMPROPERLY SUSPENDED FROM HIS POSITION WITH THE DEFENSE SUPPLY AGENCY. YOUR LETTER READS, IN PART, AS FOLLOWS:

A. AN EMPLOYEE WAS SUSPENDED FROM DUTY DURING AN ADVANCE NOTICE PERIOD OF PROPOSED REMOVAL FROM 1 MAY 1967 THROUGH 20 FEBRUARY 1968. HE WAS REMOVED FROM THE FEDERAL SERVICE ON 20 FEBRUARY 1968. AT THE TIME OF HIS SUSPENSION HE HAD 290 HOURS OF ANNUAL LEAVE. HIS MAXIMUM ACCRUAL WAS 240 HOURS FOR WHICH HE RECEIVED A LUMP SUM PAYMENT AFTER HIS SEPARATION ON 20 FEBRUARY 1968.

B. AFTER APPEAL THROUGH THE DEFENSE SUPPLY AGENCY'S APPEAL PROCEDURE, THE EMPLOYEE'S SUSPENSION DURING THE ADVANCE NOTICE PERIOD WAS CANCELLED BUT THE REMOVAL ACTION WAS SUSTAINED. ACCORDING TO CIVIL SERVICE REGULATIONS SECTION 5596, VOLUME B, TITLE 5 OF THE U. S. CODE, THE EMPLOYEE IS ENTITLED TO BACK PAY DURING THE PERIOD OF SUSPENSION FROM 1 MAY 1967 THROUGH 20 FEBRUARY 1968 LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD.

C. DURING THE PERIOD OF SUSPENSION THE EMPLOYEE HAD BEEN EMPLOYED BY PRIVATE INDUSTRY AND HIS EARNINGS EXCEEDED THE SALARY HE WOULD HAVE EARNED HAD HE REMAINED EMPLOYED BY THIS CENTER. ALTHOUGH HIS TOTAL EARNINGS DURING THE ENTIRE SUSPENSION PERIOD EXCEED HIS FEDERAL SALARY, HE DID NOT HAVE ANY EARNINGS FOR SIX (6) DAYS.

D. DURING 1967 THE EMPLOYEE WORKED IN PRIVATE INDUSTRY FOR 33 WEEKS AND 4 DAYS AND EARNED $5,306.64. HE CONTINUED WORKING AT THE SAME RATE DURING 1968. THE EARNINGS HE WOULD HAVE RECEIVED DURING THE PERIOD 1 MAY 1967 THROUGH 31 DECEMBER 1967 (35 WEEKS), WOULD HAVE BEEN $4,302.00 AND $911.68 FOR 7 WEEKS AND 2 DAYS IN 1968.

THE EMPLOYEE DID NOT WORK OR RECEIVE ANY PAY FOR ONLY SIX (6) DAYS DURING HIS ENTIRE PERIOD OF SUSPENSION 1 MAY 1967 THROUGH 20 FEBRUARY 1968. THEREFORE, HE WOULD BE ENTITLED TO BACK PAY OF ONLY $147.84 LESS APPROXIMATELY $25.00 FOR INCOME TAX AND LIFE INSURANCE AND CIVIL SERVICE RETIREMENT.

F. THIS EMPLOYEE WORKED IN OUR DIRECTORATE OF MANUFACTURING WHICH SHUT DOWN AND REQUIRED EMPLOYEES TO TAKE ANNUAL LEAVE FOR SUMMER VACATION FROM 24 JULY 1967 THROUGH 4 AUGUST 1967 AND DURING THE CHRISTMAS HOLIDAY PERIOD FROM 26 DECEMBER 1967 THROUGH 29 DECEMBER 1967, A TOTAL OF 14 DAYS ANNUAL LEAVE. THE SUSPENDED EMPLOYEE HAD 290 HOURS OF ANNUAL LEAVE TO HIS CREDIT AS OF 1 MAY 1967. HE EARNS 8 HOURS FOR EVERY TWO WEEKS, THEREFORE, HE WOULD HAVE EARNED 136 ADDITIONAL HOURS DURING 1967 AND 32 HOURS DURING 1968.

BASED UPON THE FACTS ABOVE, YOU PRESENT THE FOLLOWING QUESTIONS FOR OUR CONSIDERATION:

(1) WOULD THE EMPLOYEE BE ENTITLED TO BE ON LEAVE AND PAID FOR 186 HOURS, THE AMOUNT OF EXCESS ANNUAL LEAVE HE WOULD HAVE EARNED IN 1967?

(2) WOULD HE ALSO BE ENTITLED TO BE ON LEAVE AND BE PAID FOR THE 32 HOURS LEAVE HE EARNED IN 1968?

(3) IF NOT ENTITLED TO THE EXCESS ANNUAL LEAVE, WOULD THE EMPLOYEE BE ENTITLED TO BE PAID FOR 14 DAYS ANNUAL LEAVE HE WOULD HAVE BEEN REQUIRED TO TAKE DURING THE PERIODS THE DIRECTORATE OF MANUFACTURING WAS SHUT DOWN FOR SUMMER VACATION AND CHRISTMAS VACATION?

(4) IF NOT, WOULD THE EMPLOYEE BE ENTITLED TO BE GRANTED LEAVE FOR THE 50 HOURS EXCESS ANNUAL LEAVE THAT HE HAD AT THE TIME OF THE UNWARRANTED SUSPENSION ACTION?

IN COMPUTING THE AMOUNT OF BACK PAY DUE AN EMPLOYEE FOR A PERIOD OF IMPROPER SUSPENSION, SECTION 5596 (B) OF TITLE 5, UNITED STATES CODE, REQUIRES THE DEDUCTION OF "ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD." THAT STATUTE DOES NOT REQUIRE OR CONTEMPLATE THAT A DAILY OR WEEKLY DIVISION OF THE BACK PAY BE COMPARED WITH THE EMPLOYEE'S OUTSIDE EARNINGS OVER AN EQUIVALENT PERIOD OF TIME AS SUGGESTED IN PARAGRAPHS C AND D OF YOUR LETTER. RATHER, THE TOTAL AMOUNT OF OUTSIDE EARNINGS IS TO BE COMPARED WITH THE TOTAL AMOUNT OF BACK PAY OTHERWISE DUE THE EMPLOYEE FOR THE PERIOD OF SUSPENSION OR REMOVAL.

IN THE PRESENT CASE NO AMOUNT OF BACK PAY APPEARS TO BE DUE THE EMPLOYEE FOR THE PERIOD OF HIS SUSPENSION SINCE HIS OUTSIDE EARNINGS EXCEEDED THE AMOUNT WHICH HE WOULD HAVE EARNED IN THE GOVERNMENT HAD HE NOT BEEN SUSPENDED FROM DUTY. ACCORDINGLY, THE STATEMENT IN PARAGRAPH D OF YOUR LETTER THAT THE EMPLOYEE IS ENTITLED TO RECEIVE BACK PAY FOR THE 6 DAYS FOR WHICH HE HAD NO OUTSIDE EARNINGS IS INCORRECT.

SECTION 5596 (B) OF TITLE 5, U.S.C. PROVIDES THAT AN EMPLOYEE WHO IS ENTITLED TO BACK PAY AND OTHER RESTORATION BENEFITS PROVIDED THEREUNDER MAY NOT BE CREDITED WITH LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT AUTHORIZED BY LAW OR REGULATION. THE EMPLOYEE HERE INVOLVED HAD AN ANNUAL LEAVE CEILING OF 240 HOURS. THEREFORE, IN THE RECONSTRUCTION OF HIS LEAVE ACCOUNT FOLLOWING THE CANCELLATION OF THE SUSPENSION ACTION, THE EMPLOYEE WAS PROHIBITED BY STATUTE (5 U.S.C. 6304 (A)) FROM RECEIVING CREDIT FOR MORE THAN 240 HOURS OF ANNUAL LEAVE AT THE BEGINNING OF THE 1968 LEAVE YEAR. CONSEQUENTLY, HE WAS REQUIRED TO FORFEIT 186 HOURS OF ANNUAL LEAVE. IN THAT REGARD OUR OFFICE CONSISTENTLY HAS HELD THAT THE ABOVE-CITED STATUTORY PROVISION REQUIRES THE FORFEITURE OF ALL ANNUAL LEAVE CREDITED TO AN EMPLOYEE AT THE CLOSE OF A LEAVE YEAR WHICH IS IN EXCESS OF THE CEILING ESTABLISHED THEREIN REGARDLESS OF THE REASON FOR THE EMPLOYEE'S FAILURE TO USE SUCH EXCESS LEAVE. 32 COMP. GEN. 162; 36 ID. 596.

DURING THE PERIOD JANUARY 1 THROUGH FEBRUARY 20, 1968, THE EMPLOYEE ACCRUED AN ADDITIONAL 32 HOURS OF ANNUAL LEAVE AND, THUS, HAD A TOTAL OF 272 HOURS OF LEAVE TO HIS CREDIT ON THE DATE OF HIS SEPARATION FROM THE SERVICE (FEBRUARY 20, 1968). HOWEVER, IN ACCORDANCE WITH 5 U.S.C. 5551 (A) HIS LUMP-SUM PAYMENT FOR ANNUAL LEAVE UPON SEPARATION WAS LIMITED TO 240 HOURS.

SINCE THE ANNUAL LEAVE WHICH WAS FORFEITED UNDER THE PROVISIONS OF 5 U.S.C. 6304 (A) AND 5551 (A), DISCUSSED ABOVE, MAY NOT NOW BE RECREDITED TO THE EMPLOYEE'S ACCOUNT, THERE EXISTS NO BASIS UPON WHICH SUCH LEAVE MAY BE RETROACTIVELY SUBSTITUTED FOR A CORRESPONDING PORTION OF THE SUSPENSION PERIOD. THEREFORE, QUESTIONS (1) THROUGH (4), ABOVE, ARE ANSWERED IN THE NEGATIVE.