B-206846.OM., SEP 28, 1982

B-206846.OM., SEP 28, 1982

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM FILES OF LESLIE ADAMS, PAUL M. GEIER, DAVID R. HUGHES, AND RONALD L. OLESON FOR RESTORATION OF ANNUAL LEAVE FORFEITED AT THE END OF THE 1979 LEAVE YEAR.

THE OFFICE OF SPECIAL COUNSEL (OSC) FOR COMPLIANCE, DEPARTMENT OF ENERGY, WAS MANDATED BY CONGRESS TO COMPLETE AUDITS OF 15 OF THE 35 LARGEST OIL COMPANIES BY THE END OF DECEMBER 1979. BY MEMORANDUM TO THE LITIGATION STAFF DATED SEPTEMBER 25, 1979, FROM NEAL J. TONKEN, DEPUTY SOLICITOR TO THE SPECIAL COUNSEL FOR COMPLIANCE, ALL EMPLOYEES WERE ADVISED THAT "NO VACATIONS WILL BE TAKEN BETWEEN NOW AND JANUARY 1." BY MEMORANDUM TO THE SOLICITOR'S STAFF DATED OCTOBER 1, 1979, CARL A. CORRALLO, THE SOLICITOR, ADVISED EMPLOYEES THAT NO EXTENDED LEAVE WOULD BE AUTHORIZED UNTIL AFTER JANUARY 1, 1980. BY MEMORANDUM DATED NOVEMBER 30, 1979, FROM CARL A. CORRALLO'S ADMINISTRATIVE ASSISTANT, NANCY SHAHADI, ALL EMPLOYEES OF OSC WERE ADVISED THAT, IF THEY WOULD HAVE LEAVE IN EXCESS OF 240 HOURS BY THE END OF THE 1979 LEAVE YEAR, THEY SHOULD SUBMIT A COPY OF THEIR MOST RECENT PAY STATEMENT TO HER BY MONDAY, DECEMBER 3, 1979, SO SHE COULD DETERMINE HOW MUCH LEAVE MUST BE RESTORED. THAT MEMO ALSO STATED THAT SHE AND CARL CORRALLO WOULD BE PREPARING ONE MEMO REQUESTING RESTORATION OF "USE OR LOSE" LEAVE FOR ALL AFFECTED PERSONNEL.

BY MEMORANDUM DATED DECEMBER 14, 1979, TO THE DEPUTY DIRECTOR OF ADMINISTRATION, DOE HEADQUARTERS, PAUL BLOOM, THE SPECIAL COUNSEL, REQUESTED RESTORATION OF ANNUAL LEAVE IN EXCESS OF 240 HOURS FOR ELEVEN EMPLOYEES. THE REQUEST WAS DENIED UNDER 5 U.S.C. 6304(D)(1)(B), FOR THE FOUR EMPLOYEES HERE INVOLVED AND FIVE OTHERS, ON THE BASIS THAT NO WRITTEN REQUEST FOR USE OF THE FORFEITED ANNUAL LEAVE HAD BEEN SUBMITTED PRIOR TO THE BEGINNING OF THE THIRD BI-WEEKLY PAY PERIOD PRIOR TO THE END OF THE LEAVE YEAR (DECEMBER 2, 1979). THE CLAIMANTS ARE NOW REQUESTING RESTORATION OF THE FORFEITED LEAVE UNDER THE ADMINISTRATIVE ERROR PROVISION, 5 U.S.C. 6304(D)(1)(A). THEIR SUPERVISOR, CARL CORRALLO, CONTENDS THAT THEIR FAILURE TO INDIVIDUALLY REQUEST THE SCHEDULING OF LEAVE SUBJECT TO FORFEITURE RESULTED FROM HIS ADVICE TO THEM (THROUGH HIS ADMINISTRATIVE ASSISTANT) THAT HE WOULD TAKE CARE OF THE NECESSARY PAPERWORK, AND THAT THIS CONSTITUTES ADMINISTRATIVE ERROR. MR. CORRALLO ALSO HAS PRESENTED A PERSUASIVE CASE AS TO WHY SEVERAL OF OUR DECISIONS ON LEAVE RESTORATION UNDER THE EXIGENCY-OF-THE-PUBLIC-BUSINESS PROVISION ARE NOT ON POINT WITH THIS SITUATION.

WE ARE AWARE OF THE STATUTORY REQUIREMENT THAT, IN ORDER FOR LEAVE TO BE RESTORED UNDER 5 U.S.C. 6304(D)(1)(B), THE LEAVE MUST HAVE BEEN SCHEDULED IN WRITING PRIOR TO THE BEGINNING OF THE THIRD BI-WEEKLY PAY PERIOD PRIOR TO THE END OF THE LEAVE YEAR. HOWEVER, IN SOME DECISIONS THE FAILURE TO SCHEDULE LEAVE PROPERLY HAS BEEN VIEWED AS HAVING RESULTED FROM ADMINISTRATIVE ERROR. SEE, PARTICULARLY, B-188284, MARCH 7, 1978 (57 COMP.GEN. 325), WHERE THE TECHNICAL REQUIREMENTS OF ADVANCE SCHEDULING WERE NOT FULLY MET (ALTHOUGH THE EMPLOYEE THERE DID REQUEST SCHEDULING IN WRITING). ALSO SEE B-187582-O.M., MARCH 3, 1977.

IN ADDITION, THIS CASE WAS NEITHER ONE WHERE THE EMPLOYEES WERE ADVISED TO SUBMIT A WRITTEN LEAVE REQUEST, AS IN B-187104, SEPTEMBER 28, 1978, NOR ONE WHERE THEY WERE SIMPLY UNAWARE OF THE REQUIREMENT FOR ADVANCE SCHEDULING. RATHER, THEY RELIED ON ADVICE FROM THEIR SUPERVISOR TO FOLLOW A PROCEDURE WHICH HAPPENED TO BE ERRONEOUS AND INSUFFICIENT TO MEET ORDINARY REQUIREMENTS FOR RESTORATION OF LEAVE FORFEITED BECAUSE OF AN EXIGENCY OF THE PUBLIC BUSINESS.

IT SHOULD BE NOTED THAT THE NOVEMBER 30, 1979 MEMORANDUM WAS ALSO INCORRECT IN STATING THAT THE DOCUMENTATION REQUESTED SHOULD BE SUBMITTED BY "COB MONDAY DECEMBER 3, 1979." ADVANCE SCHEDULING WOULD HAVE TO HAVE BEEN COMPLETED BEFORE DECEMBER 2, 1979. THE FILES DO NOT INDICATE EXACTLY WHEN EACH EMPLOYEE TURNED IN A PAY STATEMENT.

THE QUESTIONS INVOLVED ARE AS FOLLOWS:

1) MAY EACH EMPLOYEE'S TURNING IN A PAY STATEMENT BE CONSIDERED AS MEETING THE ADVANCE SCHEDULING REQUIREMENT UNDER 5 U.S.C. 6304(D)(1)(B)?

2) ALTERNATIVELY, IF THE ANSWER TO THE FIRST QUESTION IS NEGATIVE OR APPLICABLE ONLY TO THOSE WHO TURNED IN A PAY STATEMENT BEFORE DECEMBER 2, MAY THE ERRONEOUS ADVICE CONVEYED IN THE NOVEMBER 30 MEMORANDUM BE VIEWED AS CONSTITUTING ADMINISTRATIVE ERROR, SO AS TO ALLOW RESTORATION UNDER 5 U.S.C. 6304(D)(1)(A)?

ACCORDINGLY, THE MATTER IS SUBMITTED FOR YOUR ADVICE.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. IN ORDER FOR LEAVE TO BE RESTORED UNDER 5 U.S.C. 6304(D)(1)(B) THE LEAVE MUST HAVE BEEN TIMELY SCHEDULED IN WRITING. 5 C.F.R. 630.308. SEE MATTER OF HANYOK, B-187104, SEPTEMBER 28, 1978 AND MATTER OF THOMAS, B-197704, OCTOBER 7, 1980. IN HANYOK THE EMPLOYEES HAD BEEN ADVISED BY MEMORANDUM ON NOVEMBER 16 THAT THEY WOULD NOT BE PERMITTED TO TAKE MORE THAN 2 DAYS OF ANNUAL LEAVE FOR THE BALANCE OF THE LEAVE YEAR. THAT MEMORANDUM WAS HELD NOT TO SATISFY THE SCHEDULING REQUIREMENT OF 5 U.S.C. 6304(D)(1)(B) SINCE IT DID NOT AFFIRMATIVELY SCHEDULE LEAVE, FOR ANY EMPLOYEE. BY THE SAME RATIONALE, AN EMPLOYEE'S SUBMISSION OF A PAY STATEMENT REFLECTING HIS ANNUAL LEAVE BALANCE DOES NOT CONSTITUTE THE REQUIRED SCHEDULING OF LEAVE UNDER 5 U.S.C. 6304(D)(1)(B).

IF THE ANSWER TO YOUR FIRST QUESTION WAS NEGATIVE YOU ASK WHETHER THE ERRONEOUS ADVICE CONVEYED IN THE NOVEMBER 30 MEMORANDUM CONSTITUTED ADMINISTRATIVE ERROR, SO AS TO ALLOW THE RESTORATION OF FORFEITED ANNUAL LEAVE UNDER 5 U.S.C. 6304(D)(1)(A). THE MEMORANDUM INDICATED THAT EMPLOYEES NEED NOT SUBMIT SPECIFIC REQUESTS FOR SCHEDULING OF LEAVE, BUT THAT A SINGLE MEMORANDUM TO BE PREPARED BY THE SOLICITOR TO THE SPECIAL COUNSEL REQUESTING RESTORATION OF LEAVE WOULD PRESERVE ANY LEAVE IN JEOPARDY.

WE HAVE HELD THAT THE FAILURE OF AN AGENCY TO ADVISE AN EMPLOYEE OF THE SCHEDULING REQUIREMENT OF SUBSECTIONS (B) AND (C) DOES NOT CONSTITUTE AN ADMINISTRATIVE ERROR UNDER SUBSECTION (A) SINCE EMPLOYEES ARE CHARGED WITH CONSTRUCTIVE KNOWLEDGE OF STATUTORY REQUIREMENTS PERTAINING TO THEM AND OF THE IMPLEMENTING REGULATIONS ISSUED PURSUANT TO THE STATUTE. MATTER OF DANA, 56 COMP.GEN. 470, (1977) AND MATTER OF MCCARTHY, B-192510, APRIL 6, 1979. IN VIEW OF THIS IMPUTED KNOWLEDGE OF THE SCHEDULING REQUIREMENT, WE SEE NO REASON TO VIEW THIS SITUATION AS LEGALLY DISTINGUISHABLE FROM THOSE INSTANCES IN WHICH AN AGENCY HAS FAILED TO ADVISE ITS EMPLOYEES OF THE ADVANCE SCHEDULING REQUIREMENT.

ALTHOUGH IT IS UNCLEAR WHETHER ANY OF THE CLAIMANTS PERSONALLY RECEIVED OR WERE AWARE OF SUCH NOTICE, IT IS NOTED THAT A 1980 MEMORANDUM TO THE SPECIAL COUNSEL FOR COMPLIANCE FROM HEADQUARTERS, PERSONNEL OPERATIONS BRANCH, ADVISED THAT AN AGENCY ANNOUNCEMENT DATED AUGUST 27, 1979, PROVIDED IN PART THAT USE-OR-LOSE LEAVE NOT TAKEN BY THE END OF THE LEAVE YEAR WOULD NOT BE FOR RESTORATION UNLESS SCHEDULED IN WRITING PRIOR TO DECEMBER 2, 1979. IT IS FURTHER NOTED THAT IN THEIR RESPECTIVE REQUESTS FOR LEAVE RESTORATION SUBMITTED IN JUNE 1980 3 OF THE 4 CLAIMANTS - MS. ADAMS AND MESSRS. GEIER, AND HUGHES - HAVE CITED REASONS OTHER THAN THE NOVEMBER 30, 1979 MEMORANDUM AS BEING RESPONSIBLE FOR THEIR FAILURE TO TIMELY AND PROPERLY SCHEDULE USE OF ANNUAL LEAVE.

AS INDICATED IN MATTER OF NORSWORTHY, 57 COMP.GEN. 325 (1978) IT DOES CONSTITUTE ADMINISTRATIVE ERROR WITHIN THE MEANING OF 5 U.S.C. 6304(D)(1)(A) FOR AN AGENCY TO FAIL TO SCHEDULE LEAVE OR OBTAIN THE NECESSARY EXIGENCY DETERMINATION IN RESPONSE TO A "BONA FIDE, FORMAL AND TIMELY REQUEST FOR LEAVE." CONTRARY TO THE ARGUMENT POSED BY MR. CORRALLO IN HIS LETTER OF JANUARY 30, 1981, AN AGENCY OFFICIAL MAY NOT RELIEVE AN EMPLOYEE OF THE OBLIGATION TO REQUEST SCHEDULING OF HIS LEAVE, BY AGREEING BUT FAILING TO PROCESS A DOCUMENT PURPORTING TO SCHEDULE ALL USE-OR-LOSE LEAVE TO THE CREDIT OF HIS SUBORDINATES AND SEEKING AN EXIGENCY DETERMINATION TO JUSTIFY RESTORATION. HIS FAILURE TO DO SO IS NOT SIGNIFICANTLY DIFFERENT THAN THE SITUATION CONSIDERED IN NORSWORTHY WHERE THERE WAS A FAILURE TO PROCESS AND MAKE THE NECESSARY EXIGENCY DETERMINATION. THAT FAILURE CONSTITUTES ADMINISTRATIVE ERROR ONLY WHEN THE EMPLOYEE HAS SUBMITTED A TIMELY WRITTEN REQUEST FOR LEAVE. SEE HANYOK, SUPRA. THE EMPLOYEE'S ACTION IN TURNING A PAY STATEMENT REFLECTING THE AMOUNT OF ANNUAL LEAVE TO HIS CREDIT DOES NOT SERVE THE PURPOSE OF A WRITTEN LEAVE REQUEST, AS DISCUSSED IN NORSWORTHY.

IN VIEW OF THE ABOVE, THERE IS NO BASIS BEFORE US WHICH WOULD ALLOW RESTORATION OF THE ANNUAL LEAVE WHICH HAS BEEN FORFEITED.