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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.