B-171947, DEC 29, 1971

B-171947, DEC 29, 1971

CIVILIAN EMPLOYEE - ANNUAL LEAVE - FORFEITURE DECISION DENYING CLAIM OF MR. JAMES T. ESTEP TO 92 HOURS OF ANNUAL LEAVE FORFEITED AS EXCESS ABOVE CEILING WHEN CLAIMANT WAS RETROACTIVELY REINSTATED AFTER WRONGFULLY BEING DISMISSED. ACCORDING TO 5 U.S.C. 5596(B), A MAXIMUM OF 240 HOURS OF LEAVE MAY BE CARRIED FORWARD. THIS IS SO, REGARDLESS OF THE FACT THAT CLAIMANT HAD NO OPPORTUNITY TO USE SUCH LEAVE. OF THE 112 HOURS EARNED DURING THE PERIOD OF REMOVAL ONLY 20 HOURS COULD BE CREDITED AS THIS, WITH THE OTHER LEAVE CARRIED FORWARD, AMOUNTED TO 240 HOURS. ACCORDINGLY, THE CLAIM IS DENIED.

TO MR. JAMES T. ESTEP:

THIS REFERS TO YOUR LETTER OF OCTOBER 2, 1971, WITH ENCLOSURES, WHEREIN YOU STATE THAT YOU WERE DISMISSED FROM YOUR POSITION AS AN AIR TRAFFIC CONTROLLER WITH THE FEDERAL AVIATION ADMINISTRATION ON JULY 3, 1970, AND RETROACTIVELY REINSTATED ON JULY 26, 1971.

AT THE TIME OF YOUR DISMISSAL YOU HAD TO YOUR CREDIT 220 HOURS OF ACCRUED ANNUAL LEAVE FOR WHICH YOU RECEIVED A LUMP-SUM PAYMENT. IN RECOMPUTING YOUR LEAVE UPON BEING REINSTATED, YOU SAY THAT FOR THE PERIOD JANUARY 1, 1970, TO DECEMBER 31, 1970, YOU HAD ACCUMULATED 208 HOURS OF ANNUAL LEAVE. AFTER RECREDITING YOUR ACCOUNT WITH THE 220 HOURS AND ADDING THE 208 HOURS, YOU HAD A TOTAL OF 428 HOURS ANNUAL LEAVE. SINCE YOU HAD USED 96 HOURS ANNUAL LEAVE DURING THE 1970 LEAVE YEAR, THIS LEFT A TOTAL OF 92 HOURS ANNUAL LEAVE WHICH WAS IN EXCESS OF THE CEILING OF 240 HOURS YOU WERE ALLOWED TO CARRY OVER AT THE END OF THE 1970 LEAVE YEAR AND WHICH WAS FORFEITED.

SECTION 3 OF THE BACK PAY ACT OF 1966, AS CODIFIED IN 5 U.S.C. 5596(B), PROVIDES IN PART THAT:

"(B) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

"(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

"(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION."

5 U.S.C. 6304 PERMITS AN EMPLOYEE TO ACCUMULATE AND CARRY OVER A MAXIMUM OF 240 HOURS OF ACCUMULATED ANNUAL LEAVE. HOWEVER, HOURS OF LEAVE EARNED IN A CURRENT YEAR WHICH ARE NOT USED IN THAT YEAR MAY NOT BE CARRIED OVER EXCEPT TO THE EXTENT THEY ARE INCLUDED IN THE 240-HOUR MAXIMUM. THERE IS NO AUTHORITY TO COMPENSATE THE EMPLOYEE FOR SUCH EXCESS LEAVE.

UNDER THE PROVISIONS OF 5 U.S.C. 5596(B) PREVIOUSLY QUOTED, YOU WERE ONLY ENTITLED TO BE CREDITED WITH LEAVE EARNED DURING THE PERIOD OF YOUR REMOVAL WHICH WOULD NOT CAUSE YOUR LEAVE ACCUMULATION TO EXCEED 240 HOURS AT THE END OF THE 1970 LEAVE YEAR. THIS IS SO, REGARDLESS OF THE FACT THAT YOU HAD NO OPPORTUNITY TO USE SUCH LEAVE. OF THE 112 HOURS EARNED DURING THE PERIOD OF YOUR REMOVAL, YOU THEREFORE COULD ONLY BE CREDITED WITH 20 HOURS (220 20) SO AS TO RAISE YOUR ACCUMULATION TO 240 HOURS, THE MAXIMUM LIMITATION. THUS IT APPEARS THAT YOUR LEAVE ACCOUNT WAS COMPUTED AS REQUIRED BY 5 U.S.C. 5596(B) WHICH RESULTED IN THE FORFEITURE OF 92 HOURS AND WOULD NOT BE APPROPRIATE FOR WAIVER UNDER 5 U.S.C. 5584.