Norton Calls on Federal Government Not to Try to Recoup Pay of D.C. National Guard Members Who Took Encampment Leave

WASHINGTON, D.C. – Congresswoman Eleanor Holmes Norton (D-DC) sent a letter urging the Department of Defense (DoD) and the Office of Personnel Management (OPM) not to try to recoup money from current and former federal and District of Columbia employees who, as D.C. National Guard (DCNG) members, did not have their civilian pay offset by the pay they received from the DCNG when they took encampment leave. DoD and OPM have indicated these members should have had their civilian pay offset by their DCNG pay during encampment leave, including leave related to the coronavirus pandemic and the January 6,2021, attack on the U.S. Capitol, and may soon try to recoup it.

"For months, I have urged the Department of Defense and the Office of Personnel Management not to try to recoup the pay of these D.C. National Guard members," Norton said. "However, I have learned these agencies soon may try to do so. These agencies are misreading the applicable law. Congress intended for these DCNG members to receive both types of pay, not to have their pay offset. In addition, these DCNG members sincerely believed they were entitled to both types of pay, and recoupment would impose significant financial burdens on these members."

It is Norton's view that, under federal law, the pay of these DCNG members is not subject to an offset. However, to remove any doubt, Norton got language included in the National Defense Authorization Act for Fiscal Year 2022 clarifying that these members were entitled to both types of pay, but, because of congressional budget rules, the change could only apply prospectively.

The letter follows:

July 22, 2022

The Honorable Lloyd Austin

Secretary

Department of Defense

1300 Defense Pentagon

Washington, DC 20301

The Honorable Kiran Ahuja

Director

Office of Personnel Management

1900 E Street NW

Washington, DC 20415

Dear Secretary Austin and Director Ahuja:

I write with great concern regarding the possible attempt by the federal government to recoup money paid to District of Columbia National Guard (DCNG) members who took encampment leave.

It has come to my attention that the Defense Civilian Personnel Advisory Service and Defense Finance and Accounting Service are auditing current and former civilian federal employees who are or were members of the DCNG in 11 separate agencies to determine whether members who took encampment leave owe money to the federal government. As my staff stated to the Office of Personnel Management (OPM) in September 2021, and which I have since reiterated on the House floor, I do not believe the federal government should be attempting to recoup this money for many reasons, including that the members sincerely believed that they were taking this leave correctly, they have relied on this money, this will cause financial hardships for current and former DCNG members and it was Congress' intent that DCNG members were entitled to take this leave without a salary offset.

In 1889, Congress enacted a provision in the D.C. Code that authorized the following:

[A]ll officers and employees of the United States and of the District of Columbia who are members of the National Guard shall be entitled to leave of absence from their respective duties, without loss of pay or time, on all days of any parade or encampment ordered or authorized.

In 1968, that authority was moved to 5 U.S.C. § 6323. That same month, Congress also authorized two additional leave entitlements in 5 U.S.C. § 6323 for all National Guards and Reserves and established an offset provision in 5 U.S.C. § 5519 referencing only those two additional leave entitlements. However, because 5 U.S.C. § 6323 was not updated in the U.S. Code, the Code contained inconsistent subsections, one referring specifically to DCNG mobilizations and one to a more general leave entitlement for the National Guard and Reserves.

Based on this legislative drafting error, the federal government has sometimes attempted to apply a salary offset to DCNG members who are federal employees who used encampment leave and sometimes those attempts have been challenged by the affected employee in the forum that Congress designated, the Government Accountability Office (GAO). GAO, which was then responsible for federal employees' claims for compensation and leave, had determined that 5 U.S.C. § 6323(c) was not intended to be subject to salary offset under 5 U.S.C. § 5519. In a note in a GAO decision in 1990, B-237783, the Comptroller General also noted that "OPM advised that it now believes that the salary offset provisions of 5 U.S.C. § 5519 do not apply to D.C. National Guardsmen under the circumstances described in 5 U.S.C. § 6323(c)." However, despite that GAO decision, OPM once again believes that the salary offset provisions of 5 U.S.C. § 5519 apply to encampment leave in 5 U.S.C. § 6323(c).

It was and is Congress' intent that members of the DCNG who are civilian federal or D.C. employees are entitled to leave without loss in pay or time from their civilian employment when they are mobilized by the DCNG. To fix this longstanding legislative drafting error, Congress included my provision in the National Defense Authorization Act for Fiscal Year 2022 (NDAA) that removed the offset provision in 5 U.S.C. § 5519. However, the fix could only apply prospectively because of congressional budget rules.

During consideration of the NDAA, I made clear for the record that I believed that this language was not necessary given this legislative history, but that it would provide certainty for members of the DCNG regarding future encampment leave. Now, I am learning that the federal government is still seeking to recoup money from current and former DCNG members for encampment leave.

DCNG members have relied on this leave – and were entitled to it. It is wrong for the federal government to try to recoup this money.

I ask that the federal government not take any action to recoup this money and provide me assurances that it will not try to do so again in the future. I also ask for a response in writing to this letter by July 29, 2022.

Sincerely,

Eleanor Holmes Norton

Cc: Major General Sherrie L. McCandless, Commanding General, District of Columbia National Guard

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