B-171716, MAR 26, 1971

B-171716, MAR 26, 1971

CIVILIAN EMPLOYEE - ACCUMULATED ANNUAL LEAVE - USE OR LOSE CATEGORY REAFFIRMING PRIOR SETTLEMENT DISALLOWING CLAIM OF ARNOLD T. BUTLER, EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION, FOR 15 HOURS OF ANNUAL LEAVE USED WHICH RESULTED IN A REDUCTION IN THE ANNUAL LEAVE CEILING. ALTHOUGH ADMINISTRATIVE ERROR LED CLAIMANT TO USE 15 HOURS OF ANNUAL LEAVE ERRONEOUSLY DESIGNATED AS BEING IN EXCESS OF THE MAXIMUM ALLOWABLE CARRY-OVER, CLAIMANT HAS BEEN REASSIGNED TO THE CONTINENTAL U.S. AND THERE IS NO BASIS FOR RESTORING LEAVE TO THE GREATER ACCUMULATION ALLOWED FOR EMPLOYEES STATIONED ABROAD. THE U.S. IS NOT LIABLE FOR THE ERRONEOUS ADVICE GIVEN BY ITS EMPLOYEES IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

TO MR. ARNOLD T. BUTLER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16, 1970, REQUESTING REVIEW OF THE SETTLEMENT OF NOVEMBER 6, 1970, WHICH DISALLOWED YOUR CLAIM FOR 15 HOURS OF ANNUAL LEAVE USED IN 1969, WHICH RESULTED IN A REDUCTION IN YOUR ANNUAL LEAVE CEILING AT THE END OF THE 1969 LEAVE YEAR.

YOUR CLAIM IS BASED ON THE CONTENTION THAT YOUR LEAVE CEILING WAS REDUCED FROM 360 HOURS TO 345 HOURS AND SHOULD BE RESTORED TO 360 HOURS SINCE YOU USED THE LEAVE ON THE ERRONEOUS ADVICE OF EMPLOYEES OF THE DEPARTMENT OF TRANSPORTATION WITH RESPECT TO THE NUMBER OF HOURS OF ANNUAL LEAVE YOU HAD TO USE OR LOSE DURING THE 1969 LEAVE YEAR.

OUR RECORDS SHOW THAT ON SEPTEMBER 21, 1969, WHEN YOU TRANSFERRED FROM YOUR OVERSEAS LOCATION TO THE CONTINENTAL UNITED STATES YOUR ANNUAL LEAVE BALANCE WAS 360 HOURS. DUE TO AN ADMINISTRATIVE ERROR YOUR LEAVE CEILING WAS INCORRECTLY ESTABLISHED AS 326 HOURS, WHICH WAS YOUR 1968 CEILING. PRIOR TO THE CORRECTION OF THAT ERROR YOU HAD USED 15 HOURS ANNUAL LEAVE IN EXCESS OF THAT NECESSARY TO REDUCE YOUR BALANCE TO THE MAXIMUM ALLOWABLE CARRY-OVER OF 360 HOURS AT THE END OF THE 1969 LEAVE YEAR. SINCE YOUR CEILING AT THE END OF THE 1968 LEAVE YEAR WAS 326 HOURS AND YOU USED 189 HOURS OF THE 208 HOURS EARNED IN 1969, YOUR CEILING AT THE END OF THE 1969 LEAVE YEAR WAS 345 HOURS.

SINCE YOU HAVE BEEN REASSIGNED TO THE CONTINENTAL UNITED STATES AND HAVE USED THE LEAVE, YOU WERE ADVISED BY THE SETTLEMENT THAT THERE IS NO BASIS FOR RESTORING YOUR LEAVE TO THE 360 HOURS MAXIMUM ANNUAL LEAVE ACCUMULATION ALLOWED FOR EMPLOYEES STATIONED OUTSIDE THE UNITED STATES. ALSO, SINCE YOU CONTENDED THAT YOU USED THE LEAVE BECAUSE OF ERRONEOUS ADVICE FURNISHED BY EMPLOYEES OF THE DEPARTMENT OF TRANSPORTATION YOU WERE FURTHER ADVISED THAT, IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR, THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACTIONS OF ITS OFFICER, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

WITH YOUR PRESENT LETTER YOU ENCLOSED AN EXCERPT COPY OF AN AIR TRAFFIC SERVICE BULLETIN ISSUED BY THE DIRECTOR, AIR TRAFFIC SERVICE, FEDERAL AVIATION ADMINISTRATION. YOU SAY THAT THIS BULLETIN, BASED ON THE FEDERAL TORT CLAIMS ACT, ESTABLISHES THAT THE GOVERNMENT IS IN FACT RESPONSIBLE FOR THE ACTS OF ITS EMPLOYEES. THEREFORE, YOU CONTEND THAT THE DISALLOWANCE OF YOUR CLAIM IS BASED ON TWO FALSE PREMISES; (1) THAT THE GOVERNMENT IS NOT RESPONSIBLE FOR THE ACTIONS OF THE PAYROLL PERSONNEL WHO COMMITTED THE ERROR, AND (2) SINCE YOU ARE NOW IN THE UNITED STATES YOU WOULD NOT BE ABLE TO BUILD UP YOUR CEILING TO 360 HOURS. YOU SAY YOU WERE IN NO WAY AT FAULT FOR LOWERING YOUR LEAVE CEILING BELOW 360 HOURS IRRESPECTIVE OF YOUR HAVING RETURNED TO THE UNITED STATES AND, THEREFORE, SHOULD BE ABLE TO BUILD IT UP TO 360 HOURS.

SUBSECTION (A) OF 5 U.S.C. 6304 PLACES A MAXIMUM LIMITATION OF 30 DAYS ON THE AMOUNT OF ANNUAL LEAVE THAT AN EMPLOYEE MAY ACCUMULATE. SUBSECTION (B) INCREASES THAT LIMITATION TO 45 DAYS WHEN EMPLOYEES ARE STATIONED OUTSIDE THE UNITED STATES. SUBSECTION (C) PROVIDES THAT ANNUAL LEAVE IN EXCESS OF THE AMOUNT ALLOWABLE UNDER SUBSECTION (A) WHICH WAS ACCUMULATED UNDER SUBSECTION (B) BY AN EMPLOYEE WHO BECOMES SUBJECT TO SUBSECTION (A) REMAINS TO THE CREDIT OF THE EMPLOYEE UNTIL USED. WHERE, AS HERE, THE ADDITIONAL LEAVE, WHICH MAY BE ACCUMULATED BY REASON OF SERVICE OVERSEAS HAS BEEN USED, THERE IS NO PROVISION OF LAW UNDER WHICH THE EMPLOYEE RETURNED TO THE UNITED STATES MAY HAVE HIS CEILING RESTORED TO 360 HOURS NOTWITHSTANDING THAT HE MAY HAVE USED THE LEAVE AS A RESULT OF ERRONEOUS ADVICE BY GOVERNMENT PERSONNEL.

THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2672, CONFERS UPON THE HEAD OF EACH FEDERAL AGENCY AUTHORITY TO CONSIDER CLAIMS AGAINST THE UNITED STATES "FOR MONEY DAMAGES" FOR INJURY OR LOSS OF PROPERTY, PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OR WRONGFUL ACT OF ANY EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT. SINCE THAT ACT PERMITS RECOVERY OF MONETARY DAMAGES ONLY, IT WOULD NOT AFFORD A BASIS FOR RESTORATION OF ANNUAL LEAVE EVEN IF APPLICABLE TO A CASE SUCH AS THIS. IN ANY EVENT, THIS OFFICE IS WITHOUT JURISDICTION TO CONSIDER A CLAIM UNDER THAT ACT WHERE EMPLOYEES OF ANOTHER AGENCY COMMITTED THE WRONGFUL ACT.

SINCE THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM, THE SETTLEMENT OF NOVEMBER 6, 1970, WAS CORRECT AND IS SUSTAINED.