B-171947.65, DEC 13, 1974

B-171947.65, DEC 13, 1974

DEPARTMENT OF AGRICULTURE EMPLOYEE SEEKING COMPENSATION FOR 63 HOURS OF ANNUAL LEAVE ALLEGED TO HAVE BEEN FORFEITED THROUGH ADMINISTRATIVE ERROR MAY NOT BE COMPENSATED UNDER PUBLIC LAW 93-181, APPROVED DECEMBER 14, 1973, AMENDING 5 U.S.C. SEC. 6304, SINCE EMPLOYING AGENCY AUTHORIZED BY REGULATIONS TO MAKE SUCH DETERMINATIONS OF ERROR FINDS NO ERROR TO HAVE BEEN MADE AS CONTEMPLATED BY THE STATUTE AND GAO HAS NO AUTHORITY TO MAKE INDEPENDENT DETERMINATIONS OF ADMINISTRATIVE ERROR UNDER 5 U.S.C. SEC. 6304.

JAMES E. MALLONEE - FORFEITURE OF ACCRUED ANNUAL LEAVE:

THIS ACTION IS THE CONSIDERATION OF A CLAIM BY MR. JAMES E. MALLONEE, AN EMPLOYEE OF THE SNOQUALMIE NATIONAL FOREST, DEPARTMENT OF AGRICULTURE, FOR COMPENSATION FOR UNUSED ANNUAL LEAVE FORFEITED AT THE TIME OF HIS SEPARATION BECAUSE OF AN ALLEGED ADMINISTRATIVE ERROR.

THE RECORD SHOWS THAT THE CLAIMANT RETIRED FROM HIS POSITION AS A SUPERVISORY CIVIL ENGINEER WITH THE FOREST SERVICE ON JUNE 30, 1973. HIS LETTER TO THIS OFFICE DATED APRIL 12, 1974, CLAIMANT STATED THAT AS OF JUNE 30, 1973, HE HAD ACCUMULATED 547 HOURS OF ANNUAL LEAVE. (A REPORT FURNISHED BY THE FOREST SERVICE SHOWS THE AMOUNT OF ANNUAL LEAVE ACCUMULATED AS 543 HOURS.) CLAIMANT STATES THAT WHEN HE LEARNED IN THE SPRING OF 1973 THAT HIS LEAVE CEILING WAS 480 HOURS, HE ASKED HIS AGENCY'S PERSONNEL SECTION WHETHER IT WOULD BE PROPER TO SUBSTITUTE ANNUAL LEAVE FOR SICK LEAVE TAKEN EARLIER IN THE YEAR IN ORDER TO STAY WITHIN HIS LEAVE CEILING AND AVOID FORFEITING THE BALANCE. THE PERSONNEL OFFICE TOLD HIM THAT WOULD BE PERMISSIBLE, HE SAYS.

HE STATES THAT IN EARLY JUNE OF 1973 THE AGENCY DISCOVERED ITS ADVICE TO BE ERRONEOUS AND ADVISED HIM THAT HE SHOULD GO ON ANNUAL LEAVE AT THAT TIME TO GET WITHIN HIS LEAVE CEILING. HE POINTS OUT THAT HE REFUSED THIS ADVICE SINCE HE WAS INVOLVED IN YEAR-END CLOSING ACTIVITIES, PLANNING FOR A FIELD PROGRAM, AND ADMINISTRATION OF A NUMBER OF FORMAL CONTRACTS. AS A RESULT, 63 HOURS OF EXCESS ANNUAL LEAVE WERE FORFEITED UPON HIS RETIREMENT.

SINCE MR. MALLONEE HAS RETIRED FROM THE FEDERAL SERVICE AND IS CLAIMING A LUMP-SUM PAYMENT FOR ANNUAL LEAVE TO HIS CREDIT AT SEPARATION IT WOULD APPEAR THAT SECTION 5 OF PUBLIC LAW 93-181, APPROVED DECEMBER 14, 1973, AMENDING 5 U.S.C. SEC. 6304, WOULD BE APPLICABLE TO HIS CASE. SECTION 5 PROVIDES AS FOLLOWS:

"SEC. 5. WITH RESPECT TO A FORMER EMPLOYEE (EXCEPT A FORMER EMPLOYEE UNDER SECTION 6 OF THIS ACT) WHO IS NOT ON THE ROLLS ON THE DATE OF ENACTMENT OF THIS ACT, ANNUAL LEAVE WHICH ACCRUED AFTER JUNE 30, 1960, BUT, BECAUSE OF ADMINISTRATIVE ERROR, WAS LOST BY OPERATION OF SECTION 6304 OF TITLE 5, U.S.C. IS SUBJECT TO CREDIT AND LIQUIDATION BY LUMP-SUM PAYMENT ONLY IF A CLAIM THEREFOR IS FILED WITHIN THREE YEARS IMMEDIATELY FOLLOWING THE DATE OF ENACTMENT OF THIS ACT, WITH THE AGENCY BY WHICH HE WAS EMPLOYED WHEN THE LUMP-SUM PAYMENT PROVISIONS OF SECTION 5551 OF TITLE 5, U.S.C. LAST BECAME APPLICABLE TO HIM. PAYMENT SHALL BE BY THAT AGENCY AT THE SALARY RATE IN EFFECT ON THE DATE THE LUMP-SUM PAYMENT PROVISIONS BECAME APPLICABLE."

THE SECTION CITED ABOVE PROVIDES CONTINUING AUTHORITY TO PROVIDE PAYMENT TO FORMER EMPLOYEES WHO FORFEITED ANNUAL LEAVE BECAUSE OF AN ADMINISTRATIVE ERROR WHEN THE ERROR IS NOT DISCOVERED UNTIL AFTER SEPARATION. REGULATIONS AND INSTRUCTIONS IMPLEMENTING THE ABOVE STATUTE APPEAR IN AN ATTACHMENT TO FEDERAL PERSONNEL MANUAL LETTER NO. 630-22, JANUARY 11, 1974, ISSUED BY THE CIVIL SERVICE COMMISSION.

MR. MALLONEE BELIEVES THAT THE STATUTE APPLIES BECAUSE HIS LEAVE WAS FORFEITED DUE TO THE AGENCY'S ADMINISTRATIVE ERROR. IT IS NOT CLEAR WHETHER THE ALLEGED ERROR IS BELIEVED TO BE THE AGENCY'S REFUSAL TO SUBSTITUTE ANNUAL FOR SICK LEAVE PREVIOUSLY TAKEN, AS HE REQUESTED, OR WHETHER HE PREDICATES HIS CLAIM ON THE AGENCY'S INITIAL ADVICE THAT SUCH A SUBSTITUTION WOULD BE PROPER. AT ANY RATE, THE FOREST SERVICE HAS DETERMINED THAT IT DOES NOT CONSIDER THE ACTION OF ITS PERSONNEL SECTION IN INITIALLY GIVING THE ERRONEOUS ADVICE AS CONSTITUTING ADMINISTRATIVE ERROR WITHIN THE MEANING OF PUBLIC LAW 93-181, SINCE IT LATER CORRECTED ITS ERROR AND ADVISED MR. MALLONEE TO TAKE ANNUAL LEAVE IN EARLY JUNE WHICH WAS AMPLE TIME TO AVOID FORFEITING ANY LEAVE BEFORE HIS RETIREMENT. IN ITS REPORT TO THIS OFFICE, DATED OCTOBER 9, 1974, THE AGENCY POINTS OUT THAT UNDER FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 630, S3-4B(3), ALTHOUGH AN APPROVED ABSENCE CHARGEABLE TO SICK LEAVE MAY BE CHARGED TO ANNUAL LEAVE IF REQUESTED BY THE EMPLOYEE AND APPROVED BY THE AGENCY, ANNUAL LEAVE MAY NOT BE RETROACTIVELY SUBSTITUTED FOR SICK LEAVE FOR THE PURPOSE OF AVOIDING FORFEITURE OF ANNUAL LEAVE AT THE END OF THE LEAVE YEAR. SEE ALSO 31 COMP. GEN. 524 (1952). IT WAS FURTHER NOTED THAT AGENCY POLICY UNDER FOREST SERVICE MANUAL (FSM) 6163.51E PROVIDES FOR SUBSTITUTION OF ANNUAL LEAVE FOR SICK LEAVE PREVIOUSLY TAKEN ONLY IF REQUESTED NO LATER THAN A FULL PAY PERIOD AFTER THE EMPLOYEE RETURNS TO DUTY. THE FAILURE OF THE CLAIMANT TO MEET THE CONDITIONS IMPOSED BY THE ABOVE REGULATION AND POLICY WAS THE BASIS FOR THE AGENCY'S REFUSAL TO CHARGE ANNUAL LEAVE IN PLACE OF SICK LEAVE. THEREFORE, THE AGENCY DETERMINED THAT NO ADMINISTRATIVE ERROR WAS MADE, AND THE PROVISIONS OF SECTION 5, SUPRA, DO NOT APPLY.

UNDER THE IMPLEMENTING REGULATIONS AND INSTRUCTIONS FOUND IN FEDERAL PERSONNEL MANUAL LETTER NO. 630-22, JANUARY 11, 1974, THE DETERMINATION OF WHETHER AN ADMINISTRATIVE ERROR HAS OCCURRED, JUSTIFYING COMPENSATION FOR LEAVE LOST THROUGH SUCH ERROR IS PRIMARILY WITHIN THE DISCRETION OF THE AGENCY INVOLVED. THE GENERAL ACCOUNTING OFFICE HAS NO AUTHORITY TO MAKE INDEPENDENT DETERMINATIONS OF ADMINISTRATIVE ERROR UNDER PUBLIC LAW 93- 181. ACCORDINGLY, WE CONCUR IN THE AGENCY'S DETERMINATION THAT THE EMPLOYEE MAY NOT BE COMPENSATED FOR THE LOST ANNUAL LEAVE SINCE THE LOSS IS NOT ATTRIBUTABLE TO ADMINISTRATIVE ERROR.