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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
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 .
James S. Green
Associate General Counsel
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