B-171947, APR 7, 1972

B-171947, APR 7, 1972

CIVILIAN EMPLOYEE - FORFEITURE OF EXCESS ANNUAL LEAVE DECISION DENYING THE CLAIM OF ANNA CHANIN FOR ANNUAL LEAVE WHICH SHE WAS REQUIRED TO FORFEIT AT THE CLOSE OF THE 1971 LEAVE YEAR INCIDENT TO HER RECEIPT OF A SUMMONS TO GRAND JURY DUTY. THE FORFEITURE OF ANNUAL LEAVE IN EXCESS OF THE CEILING ESTABLISHED BY THE PROVISIONS OF 5 U.S.C. 6304(A) IS MANDATORY REGARDLESS OF INDIVIDUAL CIRCUMSTANCES. THE ONLY EXCEPTIONS PROVIDED UNDER THE STATUTE ARE WHERE AN EMPLOYEE MOVES FROM A POSITION WHICH PERMITS A 45 DAY ACCUMULATION TO ONE SUBJECT TO THE 30-DAY MAXIMUM, OR WHERE THE EXCESS LEAVE HAD BEEN ACCUMULATED PRIOR TO THE END OF THE 1952 LEAVE YEAR WHEN THE ACT WENT INTO EFFECT. SINCE NEITHER OF THESE EXCEPTIONS APPLY TO MRS. CHANIN'S SITUATION, HER CLAIM MUST BE DISALLOWED.

TO MRS. ANNA CHANIN:

WE REFER TO YOUR LETTER OF JANUARY 13, 1972, IN WHICH YOU REQUEST OUR CONSIDERATION OF YOUR CLAIM FOR THE RESTORATION TO YOUR LEAVE ACCOUNT OF 23 HOURS OF ANNUAL LEAVE WHICH YOU WERE REQUIRED TO FORFEIT AT THE CLOSE OF THE 1971 LEAVE YEAR.

THE RECORD INDICATES THAT ON DECEMBER 6, 1971, YOU HAD ACCUMULATED ANNUAL LEAVE TO THE EXTENT THAT BY THE END OF THE 1971 LEAVE YEAR YOU WOULD ACCRUE 63 HOURS OF LEAVE IN EXCESS OF THE 240-HOUR CEILING WHICH AN EMPLOYEE MAY CARRY FORWARD INTO A NEW LEAVE YEAR. ACCORDINGLY, YOU HAD MADE PLANS TO USE THE EXCESS LEAVE DURING THE WEEK BETWEEN CHRISTMAS AND NEW YEAR'S AND THE ONE WEEK THEREAFTER. HOWEVER, ON DECEMBER 6, 1971, YOU RECEIVED A SUMMONS TO GRAND JURY SERVICE FROM DECEMBER 7 THROUGH DECEMBER 31, 1971, AND AS A RESULT WERE ABLE TO USE ONLY 40 HOURS OF YOUR LEAVE PRIOR TO THE END OF THE LEAVE YEAR AND SUBSEQUENTLY FORFEITED 23 HOURS. YOU NOTE THAT THE DEPARTMENT OF THE NAVY CONSIDERS IT A CIVIC RESPONSIBILITY OF ALL ITS EMPLOYEES TO RESPOND TO CALLS FOR JURY DUTY AND YOU SEEK TO HAVE THE 23 HOURS RESTORED TO YOU ON THE BASIS THAT YOU SHOULD NOT BE PENALIZED WITH THE LOSS OF LEAVE YOU WERE UNABLE TO USE AS A RESULT OF BEING CALLED FOR JURY SERVICE IN DECEMBER.

SECTION 203(C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 680, AS AMENDED BY THE ACT OF JULY 2, 1953, 67 STAT. 137, AND PRESENTLY CODIFIED AS 5 U.S.C. 6304(A), PROVIDES IN PERTINENT PART:

"(A) *** ANNUAL LEAVE PROVIDED BY SECTION 6303 OF THIS TITLE, WHICH IS NOT USED BY AN EMPLOYEE, ACCUMULATES FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT MORE THAN 30 DAYS AT THE BEGINNING OF THE FIRST FULL BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD FOR AN EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS OCCURRING IN A YEAR."

OUR OFFICE CONSISTENTLY HAS HELD THAT THE QUOTED PROVISION OF LAW REQUIRES THE FORFEITURE OF ALL ANNUAL LEAVE CREDITED TO AN EMPLOYEE AT THE CLOSE OF A LEAVE YEAR WHICH IS IN EXCESS OF THE CEILING ESTABLISHED THEREIN REGARDLESS OF THE REASON FOR THE EMPLOYEE'S FAILURE TO USE SUCH EXCESS ANNUAL LEAVE. 36 COMP. GEN. 596 (1957); 32 ID. 162 (1952). BECAUSE OF THE MANDATORY NATURE OF THE STATUTORY RESTRICTION AND ITS CONSISTENT CONSTRUCTION AS AN ABSOLUTE PROHIBITION AGAINST THE CARRYING FORWARD OF EXCESS ANNUAL LEAVE CREDITS, WE WOULD NOT BE LEGALLY WARRANTED IN MAKING AN EXCEPTION IN YOUR CASE IRRESPECTIVE OF THE FACT THAT YOU WERE SUMMONED TO JURY SERVICE DURING THE TIME YOU HAD PLANNED TO USE THE LEAVE AND, THEREFORE, DID NOT HAVE AN ADEQUATE OPPORTUNITY TO USE THE EXCESS LEAVE PRIOR TO THE END OF THE 1971 LEAVE YEAR.

THE FEDERAL PERSONNEL MANUAL (FPM) PROVISION TO WHICH YOU REFER, FPM CHAPTER 630, SUBCHAPTER 3-5D, WHICH STIPULATES THAT UNDER CERTAIN CIRCUMSTANCES AN EMPLOYEE MAY BE ENTITLED TO CARRY FORWARD INTO A LEAVE YEAR A GREATER ACCUMULATION THAN IS ORDINARILY PERMITTED, IS NOT APPLICABLE UNDER THESE CIRCUMSTANCES. THAT SAVING PROVISION IS IN ACCORD WITH 5 U.S.C. 6304 AND IS ONLY APPLICABLE UNDER THE CIRCUMSTANCES THEREIN MENTIONED, I.E., AN EMPLOYEE MAY RETAIN AN ACCUMULATION IN EXCESS OF THE CEILING WHEN HE MOVES FROM A POSITION WHICH PERMITS A 45-DAY ACCUMULATION TO ONE SUBJECT TO THE 30-DAY MAXIMUM, OR IF HE HAD ACCUMULATED LEAVE IN EXCESS OF 30 DAYS AT THE END OF THE 1952 LEAVE YEAR WHEN THE ACT WENT INTO EFFECT.

THEREFORE, AS PREVIOUSLY NOTED, THERE IS NO AUTHORITY UNDER WHICH WE MAY PERMIT A WAIVER IN THESE CIRCUMSTANCES, AND YOUR LEAVE ACCOUNT WAS ADJUSTED AT THE END OF THE 1971 LEAVE YEAR IN ACCORDANCE WITH THE APPLICABLE STATUTES.