B-182229, NOV 7, 1974

B-182229: Nov 7, 1974

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NO OBJECTION APPEARS TO AN AGENCY DETERMINATION TO RESTORE ANNUAL LEAVE FORFEITED BECAUSE OF MAXIMUM ACCUMULATION PROVISION WHERE LEAVE ACCOUNTS WERE ADJUSTED TO PROVIDE LEAVE CREDIT AT THE DIRECTION OF THE CIVIL SERVICE COMMISSION FOR A PRIOR PERIOD OF SERVICE FOR WHICH THE AGENCY HAD NOT CONSIDERED THE EMPLOYEE SUBJECT TO THE ANNUAL AND SICK LEAVE PROVISIONS. KUHN WAS EMPLOYED ON A DAILY BASIS UNDER PERSONAL SERVICE CONTRACTS FROM JANUARY 1959 TO JUNE 1964 WHICH SERVICE THE CIVIL SERVICE COMMISSION DETERMINED WAS CREDITABLE SERVICE FOR RETIREMENT PURPOSES. KUHN WAS EMPLOYED BY THE AGENCY TO DATE IN A POSITION SUBJECT TO ANNUAL AND SICK LEAVE UNDER CHAPTER 63. KUHN'S STATUS UNDER THE PERSONAL SERVICE CONTRACTS WAS SUBJECT TO SUCH ANNUAL AND SICK LEAVE PROVISIONS AND THAT HIS LEAVE RECORDS SHOULD BE RETROACTIVELY ADJUSTED TO JANUARY 5.

B-182229, NOV 7, 1974

ALTHOUGH GAO HAS BEEN GIVEN NO SPECIAL AUTHORITY TO MAKE DETERMINATIONS OF ERROR UNDER 5 U.S.C. 6304, NO OBJECTION APPEARS TO AN AGENCY DETERMINATION TO RESTORE ANNUAL LEAVE FORFEITED BECAUSE OF MAXIMUM ACCUMULATION PROVISION WHERE LEAVE ACCOUNTS WERE ADJUSTED TO PROVIDE LEAVE CREDIT AT THE DIRECTION OF THE CIVIL SERVICE COMMISSION FOR A PRIOR PERIOD OF SERVICE FOR WHICH THE AGENCY HAD NOT CONSIDERED THE EMPLOYEE SUBJECT TO THE ANNUAL AND SICK LEAVE PROVISIONS.

FRANK X. KUHN - ANNUAL LEAVE RESTORATION - ADMINISTRATIVE ERROR:

THE ARCHITECT OF THE CAPITOL ASKS WHETHER HE MAY RESTORE ANNUAL LEAVE LOST TRHOUGH FORFEITURE IN RECONSTRUCTING THE ANNUAL LEAVE ACCOUNT FOR MR. FRANK X. KUHN UNDER THE FOLLOWING CIRCUMSTANCES.

THE PERTINENT FACTS AS PRESENTED BY THE AGENCY SHOW THAT MR. KUHN WAS EMPLOYED ON A DAILY BASIS UNDER PERSONAL SERVICE CONTRACTS FROM JANUARY 1959 TO JUNE 1964 WHICH SERVICE THE CIVIL SERVICE COMMISSION DETERMINED WAS CREDITABLE SERVICE FOR RETIREMENT PURPOSES. THEREAFTER, MR. KUHN WAS EMPLOYED BY THE AGENCY TO DATE IN A POSITION SUBJECT TO ANNUAL AND SICK LEAVE UNDER CHAPTER 63, SUBCHAPTER I, TITLE 5, UNITED STATES CODE. 1971 THE CIVIL SERVICE COMMISSION ADVISED THE AGENCY THAT MR. KUHN'S STATUS UNDER THE PERSONAL SERVICE CONTRACTS WAS SUBJECT TO SUCH ANNUAL AND SICK LEAVE PROVISIONS AND THAT HIS LEAVE RECORDS SHOULD BE RETROACTIVELY ADJUSTED TO JANUARY 5, 1959, THE DATE MR. KUHN BEGAN WORKING UNDER HIS ORIGINAL CONTRACT. IN RECONSTRUCTING MR. KUHN'S LEAVE RECORD, HIS ANNUAL LEAVE ACCOUNT WAS ADJUSTED EACH YEAR TO CONFORM TO THE MAXIMUM CARRYOVER LIMITATION OF 240 HOURS. THIS ADJUSTMENT RESULTED IN A LOSS OF 564 HOURS OF ANNUAL LEAVE DURING THE PERIOD FROM 1962 THROUGH 1965. THE AGENCY ASKS WHETHER SUCH LOST MAY BE CONSTRUED TO BE THE RESULT OF AN ADMINISTRATIVE ERROR AND SUBJECT TO RESTORATION UNDER THE PROVISIONS OF 5 U.S.C. 6304, AS AMENDED.

WITH RESPECT TO RESTORING ANNUAL LEAVE WHICH WAS LOST DUE TO AN ADMINISTRATIVE ERROR, 5 U.S.C. 6304 IN PERTINENT PART PAROVIDES:

"(D)(1) ANNUAL LEAVE WHICH IS LOST BY OPERATION OF THIS SECTION BECAUSE OF -

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

"(B) EXIGENCIES OF THE PUBLIC BUSINESS WHEN THE ANNUAL LEAVE WAS SCHEDULED IN ADVANCE; OR

"(C) SICKNESS OF THE EMPLOYEE WHEN THE ANNUAL LEAVE WAS SCHEDULED IN ADVANCE; SHALL BE RESTORED TO THE EMPLOYEE."

THE PHRASE "OTHERWISE ACCRUABLE" AS USED IN SUBSECTION (D)(1)(A) CONTEMPLATES ANNUAL LEAVE TO WHICH AN EMPLOYEE WOULD OTHERWISE BE LEGALLY ENTITLED. THUS, THE LOSS OF LEAVE OTHERWISE ACCRUABLE, AS USED IN THAT SECTION, WOULD OCCUR IN A SITUATION SUCH AS MR. KUHN'S WHERE HE WAS NOT GRANTED LEAVE ALTHOUGH ENTITLED THERETO. THE CIVIL SERVICE COMMISSION'S EXPLANATION OF THE ABOVE PROVISIONS OF SECTION 6304, AS CONTAINED IN AN ATTACHMENT TO FEDERAL PERSONNEL MANUAL (FPM) LETTER NO. 630-22, JANUARY 11, 1974, IS AS FOLLOWS:

"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.

"IN ADDITION TO PERMITTING RETROACTIVE ADJUSTMENT, THIS PROVISION ALSO GRANTS CONTINUING AUTHORITY TO PERMIT THE FUTURE RESTORATION OF ALL ANNUAL LEAVE TO WHICH AN EMPLOYEE IS ENTITLED IN CORRECTING AN ADMINISTRATIVE ERROR. AGAIN, THE LEAVE MUST HAVE BEEN EARNED AFTER JUNE 30, 1960, EVEN THOUGH THE ERROR MAY HAVE OCCURRED BEFORE THIS DATE."

THE COMMISSION'S INSTRUCTIONS INDICATE THAT THE RESTORATION OF LEAVE LOST THROUGH ADMINISTRATIVE ERROR IS PRIMARILY FOR CONSIDERATION BY THE AGENCY INVOLVED. ALTHOUGH THE GENERAL ACCOUNTING OFFICE HAS BEEN GIVEN NO SPECIAL AUTHORITY TO MAKE DETERMINATIONS OF ERROR UNDER 5 U.S.C. 6304, UNDER THE CIRCUMSTANCES WE SEE NO OBJECTION TO ANY AGENCY DETERMINATION THAT AN ADMINISTRATIVE ERROR HAD OCCURRED AND THAT MR. KUHN'S LEAVE MAY BE RESTORED FOR USE WITHIN THE TIME LIMITS PRESCRIBED BY THE CIVIL SERVICE COMMISSION. SEE 5 CFR 630.306 WHICH IS ALSO PRINTED IN THE ATTACHMENT TO FPM LETTER 630-22 CITED ABOVE.