B-181790, MAR 26, 1975, 54 COMP GEN 801

B-181790: Mar 26, 1975

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LEAVES OF ABSENCE - FORFEITURE - ADMINISTRATIVE ERROR - RESTORATION - EXCEPTIONS EMPLOYEE WHO WAS REINSTATED AFTER DETERMINATION BY CIVIL SERVICE COMMISSION (CSC) THAT HE HAD BEEN IMPROPERLY SEPARATED DUE TO PROCEDURAL DEFECT IS NOT ENTITLED TO BE CREDITED WITH FORFEITED ANNUAL LEAVE UNDER PROVISIONS OF 5 U.S.C. 6304(D)(1)(A) PROVIDING FOR RESTORATION OF ANNUAL LEAVE LOST THROUGH ADMINISTRATIVE ERROR AFTER JUNE 30. THAT AGENCY'S WRONGFUL ACTION WAS ONE OF SUBSTANCE IN THAT AGENCY'S REASON FOR REFUSING TO PERMIT WITHDRAWAL OF RESIGNATION WAS UNWARRANTED AND ADVERSE ACTION PROCEDURES SHOULD HAVE BEEN FOLLOWED. 1975: THE UNITED STATES INFORMATION AGENCY REQUESTED AN ADVANCE DECISION AS TO WHETHER AN EMPLOYEE WHO HAS BEEN REINSTATED AFTER A SEPARATION WHICH HAS BEEN FOUND TO BE IMPROPER BECAUSE OF A PROCEDURAL DEFECT IS ENTITLED TO BE CREDITED ANNUAL LEAVE UNDER THE PROVISIONS OF 5 U.S.C. 6304(D) AS AMENDED BY PUBLIC LAW 93-181.

B-181790, MAR 26, 1975, 54 COMP GEN 801

LEAVES OF ABSENCE - FORFEITURE - ADMINISTRATIVE ERROR - RESTORATION - EXCEPTIONS EMPLOYEE WHO WAS REINSTATED AFTER DETERMINATION BY CIVIL SERVICE COMMISSION (CSC) THAT HE HAD BEEN IMPROPERLY SEPARATED DUE TO PROCEDURAL DEFECT IS NOT ENTITLED TO BE CREDITED WITH FORFEITED ANNUAL LEAVE UNDER PROVISIONS OF 5 U.S.C. 6304(D)(1)(A) PROVIDING FOR RESTORATION OF ANNUAL LEAVE LOST THROUGH ADMINISTRATIVE ERROR AFTER JUNE 30, 1960, SINCE CSC REGULATIONS DO NOT CONSIDER AN "UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION" UNDER 5 U.S.C. 5596 AS AN ADMINISTRATIVE ERROR AND CSC HELD, IN FACT, THAT AGENCY'S WRONGFUL ACTION WAS ONE OF SUBSTANCE IN THAT AGENCY'S REASON FOR REFUSING TO PERMIT WITHDRAWAL OF RESIGNATION WAS UNWARRANTED AND ADVERSE ACTION PROCEDURES SHOULD HAVE BEEN FOLLOWED.

IN THE MATTER OF IMPROPER SEPARATION DUE TO PROCEDURAL DEFECT - RESTORATION OF FORFEITED ANNUAL LEAVE, MARCH 26, 1975:

THE UNITED STATES INFORMATION AGENCY REQUESTED AN ADVANCE DECISION AS TO WHETHER AN EMPLOYEE WHO HAS BEEN REINSTATED AFTER A SEPARATION WHICH HAS BEEN FOUND TO BE IMPROPER BECAUSE OF A PROCEDURAL DEFECT IS ENTITLED TO BE CREDITED ANNUAL LEAVE UNDER THE PROVISIONS OF 5 U.S.C. 6304(D) AS AMENDED BY PUBLIC LAW 93-181, APPROVED DECEMBER 14, 1973, 87 STAT. 706.

THE AGENCY IN ITS REQUEST STATED:

MR. DONALD W. PAXTON WAS SEPARATED FROM THE UNITED STATES INFORMATION AGENCY ON JUNE 30, 1971 ON THE BASIS OF A VOLUNTARY RESIGNATION DATED APRIL 29, 1971, SUBMITTED IN MONROVIA, LIBERIA. ON MAY 20, 1971, HE REQUESTED THAT HIS RESIGNATION BE RESCINDED. THE REQUEST WAS DENIED, THE RESIGNATION ACCEPTED, AND HE WAS SEPARATED. SUBSEQUENTLY, MR. PAXTON SOUGHT LEGAL REDRESS THROUGH JUDICIAL AND ADMINISTRATIVE PROCEEDINGS.

ON FEBRUARY 17 OF THIS YEAR, THE APPEALS EXAMINING OFFICE OF THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND REVIEW HELD THAT MR. PAXTON HAD BEEN IMPROPERLY SEPARATED BY RESIGNATION ON JUNE 30, 1971 AND THAT HIS SEPARATION WAS FATALLY DEFECTIVE ON A PROCEDURAL BASIS. IT WAS RECOMMENDED THAT THE AGENCY RESTORE MR. PAXTON TO HIS FORMER POSITION OR TO ANOTHER POSITION OF LIKE SALARY, GRADE, SENIORITY, AND TENURE, RETROACTIVE TO JUNE 30, 1971, THE EFFECTIVE DATE OF HIS SEPARATION.

HAD MR. PAXTON REMAINED IN SERVICE IN LIBERIA, HE WOULD HAVE BEEN ENTITLED TO USE OR TO ACCUMULATE AND CARRY FORWARD 45 DAYS OF ANNUAL LEAVE EACH YEAR. BECAUSE OF HIS SEPARATION, THE LEAVE THAT COULD HAVE BEEN ACCUMULATED HAS NOT BEEN FORFEITED.

WE ARE UNCERTAIN WHETHER THE PROVISIONS OF THE BACK PAY ACT (5 U.S.C. 5596) MUST BE READ IN CONJUNCTION WITH SECTION 3 OF PUBLIC LAW 93-181, WHICH READS:

"ANNUAL LEAVE WHICH IS LOST BY OPERATION OF THIS SECTION (5 U.S.C. 6304) BECAUSE OF -

"(A) ADMINISTRATIVE ERROR WHEN THE ERROR CAUSES A LOSS OF ANNUAL LEAVE OTHERWISE ACCRUABLE AFTER JUNE 30, 1960;

SHALL BE RESTORED TO THE EMPLOYEE."

IT IS UNCLEAR WHETHER THE WORDS "ADMINISTRATIVE ERROR" MUST BE READ TOGETHER WITH THE TERMS "UNJUSTIFIED OR UNWARRANTED ACTION" EMBODIED IN THE BACK PAY ACT.

THE CIVIL SERVICE COMMISSION IN ATTACHMENT TO ITS FEDERAL PERSONNEL MANUAL LETTER NO. 630-22, DATED JANUARY 11, 1974, SETTING FORTH GUIDELINES AND REGULATIONS IMPLEMENTING PUBLIC LAW 93-181 STATED, IN PERTINENT PART, AT PAGES 2 AND 3 THE FOLLOWING:

SECTION THREE OF LAW. AMENDS SECTION 6304 IN TWO RESPECTS.

A. EXPLANATION OF FIRST CHANGE IN SECTION 6304. TEMPORARILY SUSPENDS, UNDER THREE CONDITIONS, THE NORMAL RULE THAT REQUIRES THAT ANY ANNUAL LEAVE IN EXCESS OF MAXIMUM PERMISSIBLE CARRYOVER BE AUTOMATICALLY FORFEITED AT THE END OF THE LEAVE YEAR. THE THREE CONDITIONS ARE:

(1) ADMINISTRATIVE ERROR WHEN THE ERROR CAUSES THE LOSS OF ANNUAL LEAVE OTHERWISE ACCRUABLE AFTER JUNE 30, 1960.

(A) DISCUSSION. THIS IS A RETROACTIVE PROVISION. IT PERMITS AN AGENCY TO RESTORE TO A CURRENT EMPLOYEE ANY ANNUAL LEAVE THAT MAY HAVE BEEN FORFEITED BECAUSE OF ADMINISTRATIVE ERROR. THERE HAVE BEEN INSTANCES WHERE AN ERROR WAS DISCOVERED AND THE EMPLOYEE'S LEAVE RECORD ADJUSTED TO PROVIDE THE PROPER LEAVE CREDIT. THE NORMAL MAXIMUM CARRYOVER RULE (E.G., 30 DAYS) REMAINED IN EFFECT HOWEVER, AND SOMETIMES RESULTED IN FORFEITURE OF SOME OR MOST OF THE RESTORED LEAVE. THIS AMENDMENT PERMITS ALL OF THE LEAVE TO BE RESTORED SO LONG AS THE LEAVE WAS ACCRUABLE AFTER JUNE 30, 1960, EVEN THOUGH THE ERROR MAY HAVE OCCURRED BEFORE JUNE 30, 1960.

(3) SECTION 5596 OF TITLE 5 PROVIDES THE BASIC GUIDELINES FOR DETERMINING ENTITLEMENT TO PAY, ALLOWANCES, AND BENEFITS IN THE EVENT AN EMPLOYEE IS FOUND TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION. THIS SECTION PROVIDES THAT ANNUAL LEAVE IS TO BE RESTORED UP TO THE MAXIMUM AMOUNT PERMITTED BY THE LEAVE SYSTEM UNDER WHICH THE EMPLOYEE IS COVERED. FOR PURPOSES OF PUBLIC LAW 93-181, UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTIONS ARE NOT CONSIDERED TO BE ADMINISTRATIVE ERRORS. THUS, AN EMPLOYEE, UNDER SECTION 5596, IS NOT ENTITLED TO EXCEED THE NORMAL MAXIMUM AMOUNT OF ANNUAL LEAVE PERMITTED UNDER THE APPROPRIATE LEAVE SYSTEM.

IN THIS CASE THE CIVIL SERVICE COMMISSION FOUND THAT THE AGENCY'S REASON FOR REFUSING TO PERMIT MR. PAXTON TO WITHDRAW HIS RESIGNATION WAS UNWARRANTED AND THUS HIS SEPARATION WAS AN ADVERSE ACTION SUBJECT TO THE REQUIREMENTS OF PART 752-B OF TITLE 5, C.F.R., WHICH, NOT BEING FOLLOWED, MADE THE SEPARATION "FATALLY PROCEDURALLY DEFECTIVE."

RECENTLY WE HAVE RECOGNIZED IN SEVERAL DECISIONS INVOLVING THE "BACK PAY ACT" THAT ADMINISTRATIVE ERRORS MAY BE REGARDED AS A FORM OF UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH ARE COMPENSABLE WHEN THEY RESULT DIRECTLY IN DEPRIVING AN EMPLOYEE OF PAY, ALLOWANCES, OR DIFFERENTIAL, RATHER THAN A SEPARATE CATEGORY OF ACTION. CF. 54 COMP. GEN. 263 (1974); 54 ID. 403 (1974); 54 ID. 435 (1974). THE STATEMENT OF FACTS INDICATES THAT THE COMMISSION'S BOARD OF APPEALS AND REVIEW HELD THAT MR. PAXTON HAD BEEN IMPROPERLY SEPARATED AND THAT HIS SEPARATION WAS DEFECTIVE ON A PROCEDURAL BASIS. NOTWITHSTANDING THE USE OF THE TERM "PROCEDURAL," IT APPEARS TO US THAT THE CSC FOUND THE AGENCY ACTION TO BE SUBSTANTIVELY WRONGFUL AND THEREFORE WITHIN THE CONCEPT OF UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION UNDER SECTION 5596. SINCE THE COMMISSION, TO WHOM AUTHORITY TO PROMULGATE IMPLEMENTING REGULATIONS FOR PUBLIC LAW 93-181 WAS DELEGATED, HAS DETERMINED SPECIFICALLY THAT UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTIONS AS DEFINED BY SECTION 5596 ARE NOT ADMINISTRATIVE ERRORS UNDER SECTION 6304, THE QUESTION RAISED BY THE AGENCY IS ANSWERED IN THE NEGATIVE.

ACCORDINGLY, THE LEAVE MAY NOT BE RESTORED IN ACCORDANCE WITH THE ABOVE DISCUSSION.