B-134134, JUN. 18, 1969

B-134134, JUN. 18, 1969

TO MR. ROY W. LOCKWOOD:

THIS REFERS TO YOUR LETTERS OF APRIL 19 AND 30, 1969, REQUESTING RECONSIDERATION OF OUR OFFICE SETTLEMENT OF APRIL 23, 1969, AND ALSO SUBMITTING A CLAIM FOR DAMAGES.

IN OUR SETTLEMENT OF APRIL 23, 1969, WE DISALLOWED YOUR CLAIM FOR AN ADJUSTMENT OF LEAVE OR IN THE ALTERNATIVE 62 DAYS HOLIDAY PAY BEGINNING IN FEBRUARY 1958. THE ADJUSTMENT OF LEAVE WAS DISALLOWED BECAUSE WE CONSIDERED AS PROPER THE DECREASE IN YOUR LEAVE BALANCES EFFECTIVE AUGUST 29, 1965, TO ACCORD WITH A CHANGE IN YOUR WORKWEEK FROM 56 TO 40 HOURS. MOREOVER, WE DID NOT CONSIDER YOUR CLAIM FOR WORKING ON HOLIDAYS AS VALID, IT BEING ASSUMED THAT YOU RECEIVED PREMIUM COMPENSATION ON A PERCENTAGE BASIS IN LIEU OF REGULAR OVERTIME, HOLIDAY AND NIGHT DIFFERENTIAL COMPENSATION.

5 U.S.C. 6311 PROVIDES THAT THE CIVIL SERVICE COMMISSION MAY PRESCRIBE REGULATIONS NECESSARY FOR THE ADMINISTRATION OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED. WHEN AN AGENCY NEEDS TO ESTABLISH UNCOMMON TOURS OF DUTY, SECTION 630.210 OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION AUTHORIZES THE AGENCY TO ADJUST LEAVE EARNINGS AND CHARGES IN RELATION TO THE ESTABLISHED UNCOMMON TOURS OF DUTY. LEAVE USED IS TO BE CHARGED ON THE SAME PROPORTION AS EARNED. FOR EXAMPLE, AN EMPLOYEE WORKING A NORMAL 40-HOUR WORKWEEK WOULD BE CREDITED WITH ANNUAL LEAVE ON THE BASIS OF 8 HOURS PER PAY PERIOD (15 YEARS OF SERVICE) AND CHARGED 40 HOURS FOR A WEEK'S ABSENCE, WHEREAS AN EMPLOYEE WORKING A 56-HOUR TOUR OF DUTY WOULD BE CREDITED WITH 11 HOURS AND 12 MINUTES PER PAY PERIOD (7/5 X 8) AND BE CHARGED 56 HOURS FOR A WEEK'S ABSENCE. WHEN AN EMPLOYEE IS CONVERTED TO A NEW BASIC WORKWEEK, THE LEAVE BALANCE OF THE EMPLOYEE MUST BE INCREASED OR DECREASED TO CONFORM THEREWITH. IN OTHER WORDS IT WOULD BE ILLEGAL FOR AN EMPLOYEE WHOSE WORKWEEK IS CHANGED FROM 56 TO 40 HOURS TO BE CREDITED WITH THE FULL AMOUNT OF LEAVE EARNED ON THE BASIS OF A 56 HOUR WORKWEEK. SEE FPM SUPPLEMENT NO. 990-2, SUBCHAPTER 2, PARAGRAPH S2- 6, PAGE 630-10, ISSUED BY THE CIVIL SERVICE COMMISSION.

UNDER THE PROCEDURES REFERRED TO ABOVE AN EMPLOYEE WITH A BALANCE OF 30 DAYS ANNUAL LEAVE WHOSE 40-HOUR WORKWEEK IS CHANGED TO 56 HOURS PER WEEK WOULD RECEIVE A CONVERSION OF SUCH LEAVE TO 42 DAYS. ACCORDING TO YOUR THEORY IF HE IS CHANGED BACK TO A 40-HOUR WORKWEEK SHORTLY THEREAFTER HE HAS GAINED A WINDFALL OF AT LEAST 12 DAYS BECAUSE ANY LEAVE TAKEN WOULD THEN BE CHARGEABLE ON THE BASIS OF 40 HOURS PER WEEK.

IN VIEW OF THE FOREGOING THE DISALLOWANCE OF YOUR CLAIM FOR ADJUSTMENT OF LEAVE OR IN LIEU THEREOF PAYMENT (ADDITIONAL) FOR WORK ON HOLIDAYS MUST BE SUSTAINED.

YOU REFER TO PUBLIC LAW 90-616 AS PREVENTING THE DECREASE IN THE LEAVE BALANCES IN YOUR CASE. PUBLIC LAW 90-616 AUTHORIZES THE WAIVER, IN CERTAIN CASES, OF CLAIMS AGAINST PERSONS BY THE UNITED STATES ARISING OUT OF ERRONEOUS PAYMENTS OF PAY TO EMPLOYEES OF THE EXECUTIVE AGENCIES AND WOULD HAVE NO BEARING IN YOUR CASE.

WITH REFERENCE TO YOUR NEW CLAIM FOR $1,200,000 FOR DAMAGES ALLEGEDLY SUSTAINED AS THE RESULT OF THE ISSUANCE OF A REPRIMAND TO YOU INVOLVING VIOLATION OF YOUR CIVIL AND CONSTITUTIONAL RIGHTS, YOU ARE ADVISED THAT WE DO NOT HAVE JURISDICTION TO CONSIDER SUCH A CLAIM; NOR ARE WE AWARE OF ANY OTHER GOVERNMENT AGENCY HAVING BEEN GRANTED AUTHORITY IN THAT RESPECT.