B-173111, AUG 2, 1971

B-173111: Aug 2, 1971

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AN EMPLOYEE WHO IS ENTITLED TO RESTORATION BENEFITS MAY NOT BE CREDITED WITH LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE CREDITED TO EXCEED THAT AUTHORIZED BY LAW. FRANK WALTJEN: REFERENCE IS MADE TO YOUR LETTER OF MAY 22. LEAVE IN EXCESS OF HIS ANNUAL LEAVE CEILING WAS FORFEITED AND YOU NOW QUESTION SUCH FORFEITURE. BRIONES WAS DELAYED AFTER THE FINAL DECISION OF THE CIVIL SERVICE COMMISSION IN THE MATTER. WE ARE NOT AWARE OF ANY LAW OR REGULATION WHICH REQUIRES AN AGENCY TO TAKE THE RESTORATION ACTION AS RECOMMENDED BY THE CIVIL SERVICE COMMISSION WITHIN A SPECIFIC TIME LIMIT. IF SUCH ACTION IS NOT TAKEN WITHIN A REASONABLE TIME WE PRESUME SUCH RESTORATION COULD BE ENFORCED BY APPROPRIATE COURT PROCEEDINGS.

B-173111, AUG 2, 1971

CIVILIAN EMPLOYEE - REINSTATEMENT TO POSITION - EXCESS ANNUAL LEAVE DENIAL OF CLAIM ON BEHALF OF MR. HENRY BRIONES FOR CREDIT FOR ANNUAL LEAVE FORFEITED UPON HIS REINSTATEMENT TO HIS POSITION WITH THE DEPARTMENT OF THE ARMY AS DIRECTED BY THE CIVIL SERVICE COMMISSION. UNDER SECTION 5596(B), TITLE 5 U.S. CODE, AN EMPLOYEE WHO IS ENTITLED TO RESTORATION BENEFITS MAY NOT BE CREDITED WITH LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE CREDITED TO EXCEED THAT AUTHORIZED BY LAW. THE COMP. GEN. HAS CONSISTENTLY HELD THAT THIS STATUTORY PROVISION REQUIRES THE FORFEITURE OF ALL ANNUAL LEAVE EXCESS TO THE MAXIMUM ALLOWED AT THE CLOSE OF A LEAVE YEAR IRREGARDLESS OF THE REASON FOR THE EMPLOYEE'S FAILURE TO USE THE LEAVE.

TO MR. FRANK WALTJEN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 22, 1971, WRITTEN IN BEHALF OF MR. HENRY BRIONES, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, PRESIDIO OF SAN FRANCISCO, CALIFORNIA, AND REQUESTING A REVIEW BY THIS OFFICE OF THE RECORD WITH RESPECT TO MR. BRIONES' RESTORATION TO DUTY AND ENTITLEMENT TO CREDIT FOR ANNUAL LEAVE FORFEITED UPON HIS REINSTATEMENT TO HIS POSITION AS DIRECTED BY THE UNITED STATES CIVIL SERVICE COMMISSION.

IT APPEARS FROM YOUR LETTER AND ATTACHMENTS THAT MR. BRIONES, AFTER RESTORATION TO DUTY FOLLOWING AN UNJUSTIFIED REMOVAL, RECEIVED BACK PAY IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C.5596. HOWEVER, LEAVE IN EXCESS OF HIS ANNUAL LEAVE CEILING WAS FORFEITED AND YOU NOW QUESTION SUCH FORFEITURE. YOU PARTICULARLY QUESTION THE FORFEITURE BECAUSE ADMINISTRATIVE ACTION TO RESTORE MR. BRIONES WAS DELAYED AFTER THE FINAL DECISION OF THE CIVIL SERVICE COMMISSION IN THE MATTER.

OUR OFFICE HAS NO JURISDICTION OVER MATTERS INVOLVING REINSTATEMENT TO POSITIONS OR RESTORATION TO DUTY, THESE MATTERS BEING FOR THE CONSIDERATION OF THE ADMINISTRATIVE OFFICE CONCERNED AND THE CIVIL SERVICE COMMISSION. MOREOVER, WE ARE NOT AWARE OF ANY LAW OR REGULATION WHICH REQUIRES AN AGENCY TO TAKE THE RESTORATION ACTION AS RECOMMENDED BY THE CIVIL SERVICE COMMISSION WITHIN A SPECIFIC TIME LIMIT. IF SUCH ACTION IS NOT TAKEN WITHIN A REASONABLE TIME WE PRESUME SUCH RESTORATION COULD BE ENFORCED BY APPROPRIATE COURT PROCEEDINGS.

IN REGARD TO THE FORFEITURE OF ANNUAL LEAVE, SECTION 5596(B) OF TITLE 5, U.S.C. PROVIDES THAT AN EMPLOYEE WHO IS ENTITLED TO BACK PAY AND OTHER RESTORATION BENEFITS PROVIDED THEREUNDER MAY NOT BE CREDITED WITH LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT AUTHORIZED BY LAW OR REGULATION. WHILE THE RECORD BEFORE US DOES NOT SHOW, IT IS PRESUMED MR. BRIONES HAD AN ANNUAL LEAVE CEILING OF 240 HOURS. THEREFORE, IN THE RECONSTRUCTION OF HIS LEAVE ACCOUNT FOLLOWING THE CANCELLATION OF THE SUSPENSION ACTION, HE WOULD BE PROHIBITED BY STATUTE (5 U.S.C. 6304(A)) FROM RECEIVING CREDIT FOR MORE THAN 240 HOURS OF ANNUAL LEAVE AT THE BEGINNING OF THE LEAVE YEAR. CONSEQUENTLY, HE WAS REQUIRED TO FORFEIT A TOTAL OF 288 HOURS OF ANNUAL LEAVE, 80 HOURS IN 1969 AND 208 HOURS IN 1970.

WE HAVE CONSISTENTLY HELD THAT THE ABOVE-CITED STATUTORY PROVISION REQUIRES THE FORFEITURE OF ALL ANNUAL LEAVE CREDITED TO AN EMPLOYEE AT THE CLOSE OF A LEAVE YEAR WHICH IS IN EXCESS OF THE CEILING ESTABLISHED THEREIN REGARDLESS OF THE REASON FOR THE EMPLOYEE'S FAILURE TO USE SUCH EXCESS LEAVE. 32 COMP. GEN. 162 (1952); 36 ID. 596 (1957); AND 48 ID. 572 (1969). THE FACT THAT MR. BRIONES WOULD HAVE HAD AN OPPORTUNITY TO USE THE LEAVE IF THE DEPARTMENT OF THE ARMY HAD TIMELY RESTORED HIM TO DUTY INSTEAD OF WAITING UNTIL AFTER THE END OF THE LEAVE YEAR AFFORDS NO BASIS FOR ANY DIFFERENT VIEW.

ACCORDINGLY, MR. BRIONES IS NOT ENTITLED TO BE CREDITED WITH THE LEAVE OR ENTITLED TO PAYMENT THEREFOR.