Office of the General Counsel

Date: May 15, 1998
Matter of: [xxx]
File Number: S98001507
Re: Claim S98001507 -- Request of [xxx] for payment of accrued annual and sick leave

Dear [xxx]:

This responds to your inquiry on behalf of Mrs. [xxx] who requests that the Office of Personnel Management (OPM) reconsider previous General Accounting Office (GAO) decisions disallowing her claim for a lump-sum payment for her late husband's unused annual leave. In addition, Mrs. [xxx] is filing a claim for payment for her late husband's unused sick leave.

Mrs. [xxx]'s husband, [xxx], was a civilian employee of the War Department when he passed away on April 25, 1944. War Department officials advised Mrs. [xxx] that, on April 11, 1944, Mr. [xxx] had 233 hours of sick leave and 629 hours of annual leave to his credit. On December 17, 1947, the General Accounting Office (GAO) denied Mrs. [xxx]'s claim for payment for Mr. [xxx]'s unused annual leave, finding that the applicable statute, which authorized payment for unused annual leave upon an employee's separation from federal service, had not been enacted at the time of Mr. [xxx]'s demise.⁽¹⁾

The GAO reconsidered its initial decision but found that, at the time of Mr. [xxx]'s demise, no statutory authority existed that would have authorized payment for a deceased employee's unused annual leave. See [xxx]. The GAO found that, although a statute existed providing for such payment, the statute had not been enacted until December 21, 1944, more than eight months following Mr. [xxx]'s demise.⁽²⁾ The GAO also found that this statute did not include any provision authorizing its retroactive application to the unused annual leave of a federal employee who passed away prior to its enactment. The GAO found, moreover, that Congress had enacted a statute repealing and superseding section 2 of Ch. 632, Act of December 21, 1944,⁽³⁾ but the superseding statute also did not include any provision that would make its application retroactive. Therefore, the GAO sustained its previous denial of Mrs. [xxx]'s claim.

After reviewing these statutes as enacted, amended, and codified at 5 U.S.C. 5551, 5581, and 5583, we find that they do not include any provision that would make them apply retroactively to payment for the unused annual leave of a federal employee who passed away prior to their enactment. Therefore, we must affirm the GAO decisions to deny Mrs. [xxx]'s claim for payment for her late husband's unused annual leave.

Mrs. [xxx] also requested payment for sick leave that Mr. [xxx] earned, but did not use prior to his demise. We do not know of any statutory provision that would authorize payment for unused sick leave. Existing statutes that authorize payment for unused leave are limited to annual leave and do not apply to sick leave. Because the GAO did not address the question of payment for unused sick leave, it appears that this is the first time Mrs. [xxx] has presented this claim for consideration. If this is the case, the Barring Act (31 U.S.C.  3702(b)(1)) would preclude us from considering her claim for payment for unused sick leave. Under 31 U.S. C. 3702(b)(1) and (3), a claim against the United States must be received within 6 years after the date that the claim first accrued to qualify for consideration. OPM does not have any authority to make exceptions to, or to waive, the six-year time limit specified in section 3702(b). Therefore, we must deny the claim for payment for unused sick leave.

Finally, I am enclosing for your assistance copies of the Act of December 21, 1944, Ch 632; the Act of August 3, 1950, Ch. 518; the GAO decision [xxx]; 5 U.S.C. 5551, 5581, and 5583; and, 31 U.S.C. 3702. If you or your staff have any questions concerning our decision on Mrs. [xxx]'s request for reconsideration, please call Jo-Ann Chabot of my staff .

Sincerely,

James S. Green
Associate General Counsel

Enclosures (7)

1. Act of December 21, 1944, Ch. 632, 58 Stat. 845-46.

2. Section 2 of the Act of December 21, 1944, Ch. 632, 58 Stat. 845-46, provides in pertinent part: Upon the death of any civilian . . . employee of the Federal Government, . . . , compensation for all of his accumulated and current accrued annual or vacation leave in a lump sum equal to the compensation that such employee would have received had he remained in the service until the expiration of the period of such annual or vacation leave shall be paid, upon the establishment of a valid claim therefore, . . . to the beneficiary or beneficiaries, if any, lawfully designated by the employee . . . [or], if there be no such designated beneficiary, to the estate of such deceased employee.

3. Act of August 3, 1950, Ch. 518, 64 Stat. 395-96

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