B-200956 L/M, NOV 18, 1980

B-200956 L/M, NOV 18, 1980

PRECIS-UNAVAILABLE

ELIZABETH HOLTZMAN, HOUSE OF REPRESENTATIVES:

FURTHER REFERENCE IS MADE TO YOUR SUBMISSION RECEIVED ON OCTOBER 21, 1980, ON BEHALF OF MR. CHARLES J. SCHWARTZ, AN EMPLOYEE OF THE BROOKLYN OFFICE OF THE INTERNAL REVENUE SERVICE WHO REQUESTS THAT HE BE GRANTED AN EXTENSION OF THE TIME PERIOD WITHIN WHICH HE MAY USE RESTORED ANNUAL LEAVE.

IN HIS LETTER DATED DECEMBER 6, 1979, MR. SCHWARTZ STATES THAT HE WAS RESTORED A TOTAL OF 1960 HOURS OF ANNUAL LEAVE PURSUANT TO THE AUTHORITY OF THE BACK PAY ACT, 5 U.S.C. SEC. 5596, INCIDENT TO THE CORRECTION OF HIS UNJUSTIFIED OR UNWARRANTED REMOVAL FROM HIS EMPLOYMENT WITH THE INTERNAL REVENUE SERVICE. HE FURTHER STATES THAT ON MAY 22, 1978, HIS IMMEDIATE SUPERVISOR ADVISED HIM THAT THE RESTORED LEAVE HAD BEEN CREDITED TO A SEPARATE LEAVE ACCOUNT TO BE USED BY JANUARY 10, 1981, THE END OF THE LEAVE YEAR ENDING TWO YEARS AFTER THE DATE ON WHICH THE ANNUAL LEAVE WAS CREDITED TO THE SEPARATE ACCOUNT. HE WAS ADVISED THAT FAILURE TO USE THE RESTORED LEAVE WITHIN THE SPECIFIED TIME PERIOD WOULD RESULT IN THE FORFEITURE OF THE UNUSED LEAVE.

ACCORDING TO MR. SCHWARTZ, HE HAD 1092 HOURS OF ANNUAL LEAVE REMAINING IN THE SEPARATE LEAVE ACCOUNT AS OF THE DATE OF HIS LETTER AND HE ACCORDINGLY ASKS THAT HE BE GRANTED A MINIMUM EXTENSION OF 4 YEARS, TO JANUARY 5, 1985, WITHIN WHICH TO USE THE RESTORED LEAVE. HE STATES THAT OTHERWISE HE WOULD HAVE TO BE IN A LEAVE STATUS FOR ABOUT EIGHT FULL MONTHS PRIOR TO JANUARY 10, 1981, THE TIME LIMIT SPECIFIED, IN ORDER TO USE ALL OF THE RESTORED LEAVE TOGETHER WITH LEAVE IN HIS REGULAR ANNUAL LEAVE ACCOUNT.

PUBLIC LAW 94-172, DECEMBER 23, 1975, 89 STAT. 1025, AMENDED THE BACK PAY ACT, 5 U.S.C. SEC. 5596, TO ALLOW, UPON CORRECTION OF AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION, THE RESTORATION OF ALL THE ACCRUED LEAVE THAT THE EMPLOYEE WOULD HAVE EARNED DURING THE PERIOD OF THE IMPROPER SEPARATION. HOWEVER, SUBSECTION 5596(B)(1)(B) PROVIDES IN PERTINENT PART AS FOLLOWS:

"(I) ANNUAL LEAVE RESTORED WHICH IS IN EXCESS OF THE MAXIMUM LEAVE ACCUMULATION PERMITTED BY LAW SHALL BE CREDITED TO A SEPARATE LEAVE ACCOUNT FOR THE EMPLOYEE AND SHALL BE AVAILABLE FOR USE BY THE EMPLOYEE WITHIN THE TIME LIMITS PRESCRIBED BY REGULATIONS OF THE OFFICE OF PERSONNEL MANAGEMENT ***"

THE LEGISLATIVE HISTORY OF PUBLIC LAW 94-172 SHOWS THAT IT WAS INTENDED THAT THE RESTORED LEAVE WOULD BE FOR USE BY THE EMPLOYEE WITHIN A REASONABLE TIME LIMIT TO BE PRESCRIBED BY REGULATIONS OF THE CIVIL SERVICE COMMISSION. SEE SENATE REPORT 94-536, DECEMBER 11, 1975, PAGE 3.

THE REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF PERSONNEL MANAGEMENT) SET FORTH AS SUBSECTION 550.804(F) OF TITLE 5, CODE OF FEDERAL REGULATIONS (1978), PROVIDES IN PERTINENT PART AS FOLLOWS:

"(F) ANNUAL LEAVE WHICH IS IN EXCESS OF THE MAXIMUM LEAVE ACCUMULATION AUTHORIZED BY LAW IS CREDITED TO A SEPARATE LEAVE ACCOUNT FOR THE USE OF AN EMPLOYEE IF REINSTATED TO THE ROLLS. ANNUAL LEAVE IN THIS SEPARATE LEAVE ACCOUNT MUST BE SCHEDULED AND USED BY THE END OF THE LEAVE YEAR ENDING TWO YEARS *** AFTER THE DATE ON WHICH THE ANNUAL LEAVE IS CREDITED TO THE SEPARATE ACCOUNT ***"

UNDER THIS REGULATION, MR. SCHWARTZ MUST USE THE RESTORED ANNUAL LEAVE BY THE END OF THE LEAVE YEAR ENDING 2 YEARS AFTER THE DATE ON WHICH THE LEAVE WAS CREDITED. ON THE FACTS BEFORE US, THE INTERNAL REVENUE SERVICE CORRECTLY ADVISED HIM AS TO THE DATE BY WHICH HE HAD TO USE THE REMAINING LEAVE IN ORDER TO AVOID ITS FORFEITURE.

REGULATIONS WHICH ARE PROMULGATED PURSUANT TO EXPRESS STATUTORY AUTHORITY, SUCH AS THE REGULATION HERE INVOLVED, HAVE THE FORCE AND EFFECT OF LAW AND NEITHER OUR OFFICE NOR ANY AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT HAS THE AUTHORITY TO WAIVE OR GRANT EXCEPTIONS TO THAT REGULATION. SEE 53 COMP.GEN. 364 (1973), AND MATTER OF WILLIAM F. GALLO, B-180604, APRIL 9, 1974.

THUS, WE ARE UNABLE TO GRANT MR. SCHWARTZ'S REQUEST FOR THE EXTENSION OF THE TIME PERIOD SET FORTH AT 5 C.F.R. SEC. 550.804(F) WITHIN WHICH HE MUST SCHEDULE AND USE THE RESTORED ANNUAL LEAVE TO AVOID FORFEITURE. WE REGRET THAT A FAVORABLE REPLY IN THIS MATTER IS NOT POSSIBLE.

DIGEST

EMPLOYEE HAD 1960 HOURS OF ANNUAL LEAVE RESTORED UNDER BACK PAY ACT, 5 U.S.C. SEC. 5596, INCIDENT TO CORRECTION OF UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. EMPLOYEE MUST SCHEDULE AND USE THE RESTORED ANNUAL LEAVE BY END OF LEAVE YEAR ENDING 2 YEARS AFTER RESTORATION OF THE LEAVE IN ACCORDANCE WITH 5 C.F.R. 550.804(F). NEITHER GAO NOR AGENCY HAVE AUTHORITY TO WAIVE OR GRANT EXCEPTIONS TO REGULATIONS ISSUED PURSUANT TO STATUTE.