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Office of the General Counsel

Date: September 9, 1998
Matter of: [xxx]
File Number: s98001133

OPM Contact: Murray M. Meeker

On January 13, 1998, the Office of Personnel Management (OPM) received a claim from nineteen employees of the [agency] in [xxx]. The claimants seek back pay as a result of a decision issued by the United States Court of Appeals for the Federal Circuit, Armitage v. United States, 991 F.2d 746 (Fed. Cir. 1993), in which the court held that federal police officers were entitled to receive Sunday premium pay under 5 U.S.C. 5546(a) for periods of authorized annual or sick leave when the leave was taken during their regularly scheduled Sunday work hours. OPM concurs that in accordance with this decision, the claimants are entitled to additional premium pay.

On June 18, 1998, OPM was advised by the [agency] that the agency was prohibited from paying the claimants by section 636 of the Treasury, Postal Service, and General Government Appropriations Act for 1998, Pub. L. No. 105-61 (hereafter, Section 636).

The record establishes, however, that the claims were submitted in May of 1997, approximately five months before October 10, 1997, the effective date of Pub. L. No. 105-61. It is well established that statutory provisions are not retroactive unless a retroactive construction is required by express language in the statute. Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988); Greene v. United States, 376 U.S. 149, 160 (1964); and Sargisson v. United States, 913 F.2d 918, 922-923 (Fed. Cir. 1990). This is especially true where to construe a statute to apply retroactively would abolish or diminish rights which had accrued before the statute was enacted as would be true concerning the instant claims. See Treasury Department - $50 Special Payment Authority, B-190751, September 26, 1980 and April 11, 1978. Therefore, we conclude that Section 636 is prospective only and does not prohibit the payment of claims for Sunday premium pay that arose before the effective date of that law and which otherwise would have been payable under Armitage.

Accordingly, the employees' claims are granted. This settlement is final. No further administrative review is available within OPM.

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