B-194317.OM, JAN 22, 1980

B-194317.OM: Jan 22, 1980

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PRECIS-UNAVAILABLE COMPTROLLER GENERAL: HEREWITH ARE THE FILES OF JAMES L. THE RECORD SHOWS THAT 15 OF THE EMPLOYEES WERE ENGINEERS OF THE ALASKA RAILROAD WHO HAD SCHEDULED ANNUAL LEAVE FOR LEAVE YEAR 1975. ALL LEAVE WAS CANCELLED BY THE OPERATIONS OFFICE "UNTIL FURTHER NOTICE. THIS NOTICE WAS RESCINDED IN NOVEMBER 1975. THE ENGINEERS WERE INFORMED THAT ANNUAL LEAVE IN EXCESS OF THEIR CEILINGS. WAS ALSO ADVISED SHE COULD CARRY OVER LEAVE BECAUSE THE LACK OF A REPLACEMENT PREVENTED HER FROM USING SCHEDULED LEAVE AT THE END OF 1975. THAT THE RESTORATION OF THE EMPLOYEES' ANNUAL LEAVE WAS NOT IN ACCORDANCE WITH FPM LETTER 630.22. THESE EMPLOYEES HAD USED LEAVE TO WHICH THEY WERE NOT ENTITLED.

B-194317.OM, JAN 22, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

HEREWITH ARE THE FILES OF JAMES L. STRAH AND 15 OTHER EMPLOYEES OF THE ALASKA RAILROAD. THE AGENCY HAS FORWARDED THESE CLAIMS TO US, REQUESTING THAT WE WAIVE REPAYMENT OF ANNUAL LEAVE ERRONEOUSLY RESTORED TO THE EMPLOYEES.

THE RECORD SHOWS THAT 15 OF THE EMPLOYEES WERE ENGINEERS OF THE ALASKA RAILROAD WHO HAD SCHEDULED ANNUAL LEAVE FOR LEAVE YEAR 1975. HOWEVER, BY A NOTICE POSTED ON MARCH 17, 1975, ALL LEAVE WAS CANCELLED BY THE OPERATIONS OFFICE "UNTIL FURTHER NOTICE," DUE TO A SHORTAGE OF QUALIFIED ENGINEERS NEEDED TO MOVE FREIGHT DURING THE CONSTRUCTION OF THE ALASKA PIPELINE. THIS NOTICE WAS RESCINDED IN NOVEMBER 1975, AND THE ENGINEERS WERE INFORMED THAT ANNUAL LEAVE IN EXCESS OF THEIR CEILINGS, WHICH WOULD NORMALLY BE FORFEITED, WOULD BE RESTORED IN LEAVE YEAR 1976. THE ENGINEERS ACTED IN ACCORDANCE WITH THIS NOTICE, AND RECEIVED AND USED RESTORED LEAVE IN VARYING AMOUNTS DURING THE NEXT 2 YEARS. ANOTHER EMPLOYEE OF THE RAILROAD, MS. DORA MCKINNEY, WAS ALSO ADVISED SHE COULD CARRY OVER LEAVE BECAUSE THE LACK OF A REPLACEMENT PREVENTED HER FROM USING SCHEDULED LEAVE AT THE END OF 1975.

IN FEBRUARY 1977, GAO AUDITORS NOTIFIED THE ALASKA RAILROAD THAT A MISINTERPRETATION OF THE APPLICABLE REGULATIONS HAD OCCURRED, AND THAT THE RESTORATION OF THE EMPLOYEES' ANNUAL LEAVE WAS NOT IN ACCORDANCE WITH FPM LETTER 630.22. THEREFORE, THESE EMPLOYEES HAD USED LEAVE TO WHICH THEY WERE NOT ENTITLED. THE ALASKA RAILROAD HAS DETERMINED THAT THE EMPLOYEES ACTED IN GOOD FAITH WHEN TAKING THIS LEAVE, AND HAS REQUESTED RELIEF FOR THEM.

UNDER THE PROVISIONS OF 5 U.S.C. 5584, WAIVER COULD ONLY BE GRANTED IF THE EMPLOYEES HAD RECEIVED AN OVERPAYMENT OF PAY, WHICH WOULD HAVE OCCURRED IF THEY HAD USED ANNUAL LEAVE IN EXCESS OF THEIR ENTITLEMENT IN ANY 1 LEAVE YEAR. IF THE "RESTORED" LEAVE TAKEN BY EACH EMPLOYEE IS SUBTRACTED FROM HIS REGULAR ANNUAL LEAVE BALANCE, IT APPEARS THAT SUCH AN OVERPAYMENT EXISTS ONLY FOR DONALD G. ANDERSON, WHO USED 24 HOURS IN EXCESS OF HIS TOTAL ANNUAL LEAVE ENTITLEMENT FOR 1976. OTHER EMPLOYEES MAY HAVE RECEIVED OVERPAYMENTS IN LUMP-SUM ANNUAL LEAVE PAYMENTS DUE TO THE "RESTORED" ANNUAL LEAVE UPON SEPARATION OR RETIREMENT, BUT OUR FILES DO NOT CONTAIN INFORMATION ON THIS POINT. HOWEVER, WE FEEL THAT IT MIGHT BE POSSIBLE TO CONSIDER THAT THE EMPLOYEES ACTUALLY RECEIVED ERRONEOUS PAYMENTS FOR THE ENTIRE AMOUNT OF "RESTORED" LEAVE TAKEN BY THEM. ACCORDING TO 5 U.S.C. 6304(D)(2), RESTORED LEAVE IS TO BE PLACED IN A SEPARATE LEAVE ACCOUNT. THEREFORE, EACH EMPLOYEE USED LEAVE FROM THAT SEPARATE ACCOUNT TO WHICH HE WAS NOT ENTITLED, AND IT COULD BE ARGUED THAT ALL THE "RESTORED" LEAVE USED WAS ERRONEOUS AND COULD BE CONSIDERED FOR WAIVER.

IT IS ALSO POSSIBLE THAT THIS OFFICE COULD RETROACTIVELY RESTORE THIS LEAVE, IF THE CANCELLATION OF THE SCHEDULED LEAVE IN MARCH 1975 COULD BE CONSIDERED AN ADMINISTRATIVE ERROR WITHIN THE MEANING OF 5 U.S.C. 6304(D)(1). SUCH AN ACTION WOULD HAVE THE EFFECT OF CORRECTING THE ENTIRE TRANSACTION, AND PROPERLY RESTORING THE ANNUAL LEAVE LOST BY THE AFFECTED EMPLOYEES DUE TO THE ADMINISTRATIVE ERROR.

IN VIEW OF OUR DOUBTS AS TO WHAT RELIEF, IF ANY, IS AVAILABLE TO THESE EMPLOYEES, THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED ARE FILES Z-2770322-121 ET AL.

AS YOU STATED, WAIVER UNDER 5 U.S.C. SEC. 5584 IS NOT AN AVAILABLE REMEDY FOR MOST OF THE ALASKA RAILROAD EMPLOYEES, EITHER BECAUSE THEY DID NOT HAVE NEGATIVE LEAVE BALANCES IN 1976 OR BECAUSE WE DO NOT HAVE INFORMATION INDICATING THAT THEY RECEIVED OVERPAYMENTS IN THE FORM OF LUMP-SUM ANNUAL LEAVE PAYMENTS. B-176020, AUGUST 4, 1972. THE RECORD SHOWS THAT ONE-HALF OF THE EMPLOYEES INVOLVED ARE NOW RETIRED AND MAY HAVE RECEIVED LUMP-SUM LEAVE OVERPAYMENTS. WE BELIEVE IT WOULD BE INEQUITABLE TO EFFECT LEAVE ADJUSTMENTS OF THE EMPLOYEES ON THE ROLLS WHILE WAIVING THE POSSIBLE OVERPAYMENTS TO THE RETIRED EMPLOYEES. THEREFORE, THE LEAVE IN QUESTION MAY BE CONSIDERED FOR RESTORATION TO ALL 16 ALASKA RAILROAD EMPLOYEES UNDER 5 U.S.C. SEC. 6304(D)(1)(A) (1976), WHICH PROVIDES FOR RESTORATION OF LEAVE LOST BECAUSE OF ADMINISTRATIVE ERROR.

IN THIS CASE THE GENERAL MANAGER OF THE ALASKA RAILROAD STATES THAT "FORFEITED LEAVE WAS IMPROPERLY RESTORED AS A DIRECT RESULT OF ERRONEOUS INSTRUCTIONS GIVEN TO THE EMPLOYEES BY MANAGEMENT." THE ENGINEERS AND MS. MCKINNEY WERE TOLD THAT THEY COULD CARRY OVER INTO 1976 LEAVE IN EXCESS OF THE AMOUNT NORMALLY AUTHORIZED AND, THEREFORE, THAT THEY DID NOT HAVE TO SCHEDULE LEAVE IN 1975 TO AVOID LOSING IT.IN A SIMILAR SITUATION, WE DIRECTED THE RESTORATION OF ANNUAL LEAVE UNDER 5 U.S.C. SEC. 6304(D)(1)(A) WHEN AN EMPLOYEE WAS ERRONEOUSLY INFORMED THAT HE WOULD NOT FORFEIT EXCESS LEAVE BECAUSE IT WOULD BE INCLUDED IN A LUMP-SUM PAYMENT ON SEPARATION. B-192103-O.M., DECEMBER 13, 1978. THE GENERAL MANAGER'S STATEMENT CONTAINS AN IMPLICIT DETERMINATION THAT THE LEAVE WAS FORFEITED BECAUSE OF ADMINISTRATIVE ERROR, AND THUS LEAVE MAY BE RESTORED UNDER 5 U.S.C. SEC. 6304(D)(1)(A).