Office of the General Counsel

Date: September 7, 2000
Matter of: [Claimant]
File Number: 00-0003

OPM Contact: Robert D. Hendler

The claimant, a former employee of the [agency], asserts that his agency was mistaken in applying the statutory biweekly pay cap under section 5547 of title 5, United States Code (U.S.C.) to his lump-sum payment for annual leave upon his retirement on December 3, 1999. He bases his claim on 5 U.S.C in 5 U.S.C. 5551 which provides that "[t]he lump-sum payment is considered pay for taxation purposes only" and Comptroller General decision B-201031which provides that "[t]he lump-sum payment is considered pay for taxation purposes only" and Comptroller General decision B-201031. For the reasons discussed herein, the claim is denied.

Five U.S.C. 5551 provides that "[t]he lump-sum payment is considered pay for taxation purposes only." That is, it is not counted as part of the aggregate limit on annual compensation stipulated in 5 U.S.C. 5307. It also states that the lump-sum payment of accrued leave will equal "the pay (excluding any differential under section 5925 and any allowance under section 5928) the employee or individual would have received had he remained in the service until the expiration of the period of annual or accrued leave." That is, lump-sum annual leave is paid at the rate of pay the employee would have received had they remained in Federal service. Five U.S.C. 5551 does not directly address how premium pay is treated in calculating lump-sum payment for accumulated and accrued leave on separation.

Comptroller General decision B-201031states that credit hours are treated like lump-sum annual leave, and are not subject to the limitations on the maximum allowable pay in 5 U.S.C. 5308 (now 5303(f)) and section 304 of the Legislative Branch Appropriations Act of 1979. The decision also states that "[s]ince payment for credit hours is not a form of premium pay under either 5 U.S.C. 5542, 5545(a)-(c), or 5546(a) or (b), the limitation in 5 U.S.C. 5547 is not applicable to the accumulation or payment of credit hours."

However, 5 U.S.C. 5545(c) defines administratively uncontrollable overtime (AUO) as a form of premium pay. As such, it is subject to the limitations on premium pay stipulated in 5 U.S.C. 5547 and its implementing regulations in title 5, Code of Federal Regulations (CFR). See Comptroller General decision B-271346, July 12, 1996; 60 Comp. Gen. 198, January 28, 1981. Information from the agency shows that the claimant retired from a District Director, GS-1801-15 position on December 3, 1999. In the pay period immediately preceding his retirement, his 25 percent (AUO) premium pay was limited by the statutory cap specified in 5 U.S.C. 5547. We find that the claimant's lump-sum payment for 621 hours of annual leave was properly paid by the agency at a reduced AUO rate based on the implementing regulations in title 5, Code of Federal Relations (CFR), section 550.1205, Calculating a lump-sum annual payment. According to 5 CFR 550.1205(b)(5)(ii), a lump-sum payment includes:

Premium pay under 5 U.S.C. 5545(c) or 5545a if the employee was receiving premium pay for the pay period immediately prior to the date the employee became eligible for lump sum payment under 550.1203. The agency must base the lump-sum payment on the percentage rate received by the employee for the pay period immediately prior to the date the employee became eligible for a lump-sum payment under 550.1203. In cases where the amount of premium pay actually payable in the final pay period was limited by statutory cap, the agency must base the lump-sum payment on a reduced percentage rate that reflects the actual amount of premium pay the employee received in that pay period.

Other than for the reduced percentage rate that we conclude is required by U.S.C. 5547, the claimant does not challenge the agency's calculation of his lump-sum payment. OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.

Distribution 

[claimant's name and address]

[agency's human resources office and address]