Court Leave Erroneously Granted

An agency requested a determination as to whether it must adjust an employee's leave account to charge him leave for 48 hours of absence previously treated as court leave. The court leave at issue was granted in connection with the employee's unsuccessful discrimination action against his employing agency under the Civil Rights Act of 1964. According to the record, the agency was unsure if the employee was entitled to court leave but concluded that certain regulations and statutes, although not directly applicable, provided support for its determination to grant the leave in question. At the time of the court action, the agency was unaware of a GAO decision rendered 3 months previously which held that the authority of the Act to grant court leave to a Government employee summoned as a witness in certain proceedings does not extend to an employee who is the plaintiff in such action. In that decision, GAO recognized that there is authority to grant official time to a plaintiff who prevails in an action brought against the United States under the Act. However, the employee was not the prevailing party in this case. GAO held that, while the agency's original determination was carefuly considered and was a good faith attempt to follow the law, the determination was nevertheless erroneous. Accordingly, the agency determination could not be sustained, and the employee must be charged with 48 hours of annual leave or leave without pay, as appropriate.