B-196807.OM, JAN 28, 1980

B-196807.OM, JAN 28, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING FOR YOUR CONSIDERATION THE CLAIM OF MR. SAM L. STROTHER FOR RESTORATION OF 64 HOURS OF ANNUAL LEAVE FORFEITED AS AN EMPLOYEE OF THE DEPARTMENT OF JUSTICE.

MR. STROTHER HAD 184 HOURS OF ANNUAL LEAVE WHICH HE HAD TO USE OR LOSE BEFORE THE END OF THE 1977 LEAVE YEAR. HE SCHEDULED 120 HOURS OF ANNUAL LEAVE FOR THE PERIOD OCTOBER 11, 1977 THROUGH NOVEMBER 1, 1977. THIS LEAVE PERIOD WAS CANCELLED DUE TO EXIGENCIES OF THE PUBLIC BUSINESS. SEE MEMORANDUM IN FILE DATED NOVEMBER 4, 1977. DURING THE LAST FOUR PAY PERIODS OF THE 1977 LEAVE YEAR HE USED 70 HOURS OF LEAVE, RESULTING IN A BALANCE OF 114 HOURS OF ANNUAL LEAVE IN EXCESS OF THE MAXIMUM CARRYOVER.

THE AGENCY POLICY, AS STATED IN A MEMORANDUM TO ALL EMPLOYEES DATED MAY 26, 1977, AN EXCERPT OF WHICH WAS QUOTED IN THE ADMINISTRATIVE REPORT, IS THAT ANY ANNUAL LEAVE USED AFTER THE DEADLINE DATE (NOVEMBER 19, 1977) MUST BE TREATED AS RESCHEDULED ANNUAL LEAVE AND DEDUCTED FROM THE TOTAL AMOUNT OF ANNUAL LEAVE SCHEDULED IN ADVANCE. THE DIFFERENCE IS THE AMOUNT OF FORFEITED ANNUAL LEAVE ELIGIBLE FOR RESTORATION.

ACCORDINGLY, RESTORATION WAS APPROVED FOR ONLY 50 HOURS OF THE 114 HOURS OF ANNUAL LEAVE FORFEITED AT THE END OF LEAVE YEAR 1977. SINCE THE 70 HOURS OF ANNUAL LEAVE TAKEN DURING THE LAST FOUR PAY PERIODS HAD NOT BEEN SCHEDULED BY NOVEMBER 19, 1977, THEY WERE CONSIDERED TO BE RESCHEDULED ANNUAL LEAVE AND WERE DEDUCTED FROM THE 120 HOURS THAT HAD BEEN SCHEDULED IN ADVANCE AND THEN CANCELLED.

WE ARE REFERRING THE CLAIM FOR ADVICE ON WHETHER THE OTHER 64 HOURS OF ANNUAL LEAVE MAY BE RESTORED OR WHETHER THE AGENCY'S POLICY IS CORRECT.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED. SECTION 6304(D)(1) OF TITLE 5, U.S.C. PROVIDES AS FOLLOWS:

"(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 CIVIL SERVICE COMMISSION'S IMPLEMENTING REGULATIONS AND GUIDELINES, ARE SET FORTH IN FEDERAL PERSONNEL MANUAL LETTER NO. 630 22, DATED JANUARY 11, 1974. THE REGULATIONS, BUT NOT THE GUIDELINES, HAVE BEEN CODIFIED IN SUBPART C, PART 630, TITLE 5, CODE OF FEDERAL REGULATIONS. 5 C.F.R. SEC. 630.308 PROVIDES THAT BEFORE ANNUAL LEAVE FORFEITED UNDER SECTION 6304 MAY BE CONSIDERED FOR RESTORATION UNDER THAT SECTION, USE OF ANNUAL LEAVE MUST HAVE BEEN SCHEDULED IN WRITING BEFORE THE START OF THE THIRD BIWEEKLY PAY PERIOD PRIOR TO THE END OF THE LEAVE YEAR.

THE STATUTORY SCHEDULING REQUIREMENT MAY NOT BE WAIVED OR MODIFIED EVEN WHERE EXTENUATING CIRCUMSTANCES MAY EXIST. MATTER OF MICHAEL DANA, 56 COMP.GEN. 470 (1977). IN THIS CASE THE CLAIMANT SCHEDULED IN WRITING ONLY 120 HOURS OF THE 184 HOURS OF THE ANNUAL LEAVE WHICH HE HAD TO USE OR LOSE AT THE END OF THE 1977 LEAVE YEAR. ALSO, THE AGENCY CONSIDERED THE 70 HOURS OF LEAVE USED TOWARD THE END OF THE LEAVE YEAR AS RESCHEDULED AS PROVIDED IN THE AGENCY MEMO OF MAY 26, 1977. IN VIEW OF THIS AND SINCE THE EXPRESS PROVISION IN 5 C.F.R. SEC. 630.308 REQUIRES THE ADVANCE SCHEDULING OF LEAVE IN WRITING, THE AGENCY ONLY HAD AUTHORITY TO RESTORE 50 HOURS OF THE FORFEITED ANNUAL LEAVE UNDER SUBSECTION 6304(D)(1)(B).

THE FAILURE OF AN AGENCY TO ADVISE AN EMPLOYEE OF THE SCHEDULING REQUIREMENT OF SUBSECTIONS (B) AND (C) DOES NOT CONSTITUTE ADMINISTRATIVE ERROR UNDER SUBSECTION (A) AS EMPLOYEES ARE CHARGED WITH CONSTRUCTIVE KNOWLEDGE OF STATUTORY REQUIREMENTS PERTAINING TO THEM AND THE IMPLEMENTING REGULATIONS. DANA, SUPRA. AN EXCEPTION TO THE GENERAL RULE COULD ARISE WHERE THE AGENCY HAS A WRITTEN REGULATION REQUIRING THAT EMPLOYEES BE COUNSELED IN THESE SITUATIONS CONCERNING A POSSIBLE FORFEITURE OF ANNUAL LEAVE. SEE MATTER OF JOHN J. LYNCH, 55 COMP.GEN. 784 (1976). A REVIEW OF THE RECORD FAILS TO SHOW ANY SUCH REGULATION.

ACCORDINGLY, THE AGENCY'S ACTION WAS PROPER.