B-198424,(MRV), OCT 1, 1980

B-198424,(MRV): Oct 1, 1980

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S. DEPARTMENT OF AGRICULTURE: THIS IS IN RESPONSE TO YOUR LETTER DATED APRIL 2. WE ARE UNABLE TO RENDER A FORMAL DECISION TO YOU AT THIS TIME. YOU BELIEVE YOU ARE ENTITLED TO RESTORATION OF YOUR FORFEITED ANNUAL LEAVE. YOUR LETTER INDICATES THAT IN EARLY NOVEMBER OF 1974 YOU VERBALLY REQUESTED SCHEDULING OF ANNUAL LEAVE TO AVOID FORFEITURE BUT THAT IT WAS NOT UNTIL THE FIRST DAY OF THE THIRD PAY PERIOD BEFORE THE END OF LEAVE YEAR 1974 THAT YOU SUBMITTED A WRITTEN REQUEST. YOU WERE UNABLE TO USE YOUR EXCESS ANNUAL LEAVE IN 1974. YOU CONTEND THAT ONCE THE APPROVED LEAVE WAS CANCELLED ON DECEMBER 4. YOU ARGUE THAT THE APPLICABLE REGULATIONS REQUIRING THE SCHEDULING OF LEAVE ARE IN CONFLICT WITH THE INTENT OF PUBLIC LAW 93-181 AS CODIFIED IN 5 U.S.C.

B-198424,(MRV), OCT 1, 1980

OFFICE OF GENERAL COUNSEL

NORMAN E. JOHNSON, U. S. DEPARTMENT OF AGRICULTURE:

THIS IS IN RESPONSE TO YOUR LETTER DATED APRIL 2, 1980, CONCERNING THE RESTORATION OF FORFEITED ANNUAL LEAVE. WE REGRET THAT OUR RESPONSE HAS BEEN DELAYED DUE TO THE CONSIDERABLE CASE LOAD IN OUR OFFICE.

IN VIEW OF THE STATUTES RELATING TO OUR DECISION-MAKING AUTHORITY, WE ARE UNABLE TO RENDER A FORMAL DECISION TO YOU AT THIS TIME. SEE 31 U.S.C. SECS. 74, 82D. HOWEVER, ON THE BASIS OF THE INFORMATION PROVIDED BY YOU, WE OFFER THE FOLLOWING COMMENTS ON YOUR QUESTION. IF, AFTER STUDYING THIS INFORMATION, YOU BELIEVE YOU ARE ENTITLED TO RESTORATION OF YOUR FORFEITED ANNUAL LEAVE, YOU MAY SUBMIT A CLAIM THROUGH YOUR AGENCY TO OUR CLAIMS GROUP, FGMSD, IN ACCORDANCE WITH THE PROVISIONS OF 31 U.S.C. SEC. 71 AND 4 C.F.R. PART 31.

YOUR LETTER INDICATES THAT IN EARLY NOVEMBER OF 1974 YOU VERBALLY REQUESTED SCHEDULING OF ANNUAL LEAVE TO AVOID FORFEITURE BUT THAT IT WAS NOT UNTIL THE FIRST DAY OF THE THIRD PAY PERIOD BEFORE THE END OF LEAVE YEAR 1974 THAT YOU SUBMITTED A WRITTEN REQUEST. YOU WERE UNABLE TO USE YOUR EXCESS ANNUAL LEAVE IN 1974, AND YOU SUBSEQUENTLY FORFEITED 80 HOURS OF ANNUAL LEAVE. YOU CONTEND THAT ONCE THE APPROVED LEAVE WAS CANCELLED ON DECEMBER 4, 1974, YOU HAD NO RECOURSE TO RESCHEDULE THE LEAVE TO AVOID FORFEITURE. IN ADDITION, YOU ARGUE THAT THE APPLICABLE REGULATIONS REQUIRING THE SCHEDULING OF LEAVE ARE IN CONFLICT WITH THE INTENT OF PUBLIC LAW 93-181 AS CODIFIED IN 5 U.S.C. SEC. 6304.

FORFEITED ANNUAL LEAVE MAY BE RESTORED UNDER THE PROVISIONS OF 5 U.S.C. SEC. 6304(D)(1) WHERE SUCH LEAVE WAS LOST DUE TO ADMINISTRATIVE ERROR OR WHERE SCHEDULED IN ADVANCE IT IS LOST DUE TO THE EXIGENCIES OF PUBLIC BUSINESS OR SICKNESS OF THE EMPLOYEE. OUR DECISIONS HAVE HELD THAT THE STATUTORY REQUIREMENT FOR SCHEDULING CANNOT BE WAIVED OR MODIFIED DUE TO EXTENUATING CIRCUMSTANCES. SEE MICHAEL DANA, 56 COMP.GEN. 470 (1977); AND DR. W. NEWLIN HEWSON, B-193567, MAY 24, 1979. THE LEAVE MUST BE SCHEDULED BEFORE THE START OF THE THIRD PAY PERIOD PRIOR TO THE END OF THE LEAVE YEAR, AND SCHEDULES SUBMITTED ON THE FIRST DAY OF THE THIRD PAY PERIOD DO NOT SATISFY THIS REQUIREMENT. B-194459, AUGUST 22, 1979.

WHEN THE EMPLOYEE SUBMITS A "BONA FIDE, FORMAL, AND TIMELY REQUEST FOR LEAVE", THE AGENCY MUST APPROVE AND SCHEDULE THE LEAVE OR SUBMIT THE MATTER TO A DESIGNATED OFFICIAL FOR A DETERMINATION ON THE EXIGENCIES OF PUBLIC BUSINESS. WILLIAM D. NORSWORTHY, 57 COMP.GEN. 325 (1978); AND JOSEPH HANYOK, B-187104, SEPTEMBER 28, 1978. THE FAILURE OF AN AGENCY TO PROPERLY APPROVE REQUESTED LEAVE MAY CONSTITUTE ADMINISTRATIVE ERROR WHICH MIGHT WARRANT RESTORATION OF THE FORFEITED LEAVE. NORBERT A. SHEPANEK, 58 COMP.GEN. 684 (1979); NORSWORTHY, SUPRA; AND HANYOK, SUPRA.

HOWEVER, THE BURDEN REMAINS ON THE EMPLOYEE TO PROPERLY SCHEDULE THE LEAVE IN ADVANCE. SEE THE DISCUSSION OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 93-181 IN NORSWORTHY, SUPRA. THE FAILURE OF THE AGENCY TO ADVISE THE EMPLOYEE OF THE SCHEDULING REQUIREMENT DOES NOT CONSTITUTE ADMINISTRATIVE ERROR, EXCEPT WHERE THE AGENCY HAS A WRITTEN REGULATION REQUIRING THAT EMPLOYEES BE COUNSELED ON THE POSSIBLE FORFEITURE OF ANNUAL LEAVE. SEE JOHN J. LYNCH, 55 COMP.GEN. 784 (1976); HEWSON, SUPRA; AND EDWARD MCCARTHY, B-192510, APRIL 6, 1979.

WE HAVE ENCLOSED COPIES OF THE ABOVE-CITED DECISIONS, AND WE TRUST THIS INFORMATION IS OF ASSISTANCE TO YOU.