B-197704, OCT 7, 1980

B-197704, OCT 7, 1980

DIGEST: EMPLOYEE CLAIMS RESTORATION OF ANNUAL LEAVE FORFEITED AT THE END OF THE 1976, 1977, AND 1978 LEAVE YEARS BECAUSE OF EXIGENCIES OF THE PUBLIC BUSINESS. ALTHOUGH AGENCY FAILURE TO MAKE PROPER EXIGENCY DETERMINATION MAY NOT IN AND OF ITSELF BAR RESTORATION OF FORFEITED ANNUAL LEAVE UNDER 5 U.S.C. 6304(D)(1), SUCH LEAVE MAY NOT BE RESTORED IN THE ABSENCE OF EVIDENCE THAT IT WAS TIMELY REQUESTED AND SCHEDULED IN WRITING AND THAT ITS USE WAS OFFICIALLY DENIED.

EDNA M. THOMAS - RESTORATION OF FORFEITED ANNUAL LEAVE:

THE COMPTROLLER OF THE ARMY HAS SUBMITTED TO US THE CLAIM OF MS. EDNA M. THOMAS, SENIOR BUDGET ANALYST GS-9 AT THE U.S. ARMY AIR DEFENSE SCHOOL, FORT BLISS, TEXAS, FOR RESTORATION OF ANNUAL LEAVE FORFEITED AT THE END OF THE 1976, 1977, AND 1978 LEAVE YEARS BECAUSE OF EXIGENCIES OF THE PUBLIC BUSINESS.

MS. THOMAS CLAIMS THAT SHE REPEATEDLY SCHEDULED AND RESCHEDULED LEAVE DURING THE YEARS IN QUESTION BUT THAT HER LEAVE WAS REPEATEDLY CANCELLED. SHE WAS UNABLE TO LOCATE RECORDS OF HER SCHEDULED AND CANCELLED LEAVE. HOWEVER, IN SUPPORT OF HER CLAIM SHE HAS SUBMITTED SCHEDULES AND STATEMENTS SIGNED BY HER FORMER SUPERVISOR AFTER HE RETIRED AND APPARENTLY AFTER SHE FILED HER CLAIM WHICH WAS NOT UNTIL NOVEMBER 28, 1979. THESE STATEMENTS INDICATE THAT MS. THOMAS' LEAVE WAS CANCELLED BECAUSE THERE WAS A SHORTAGE OF PERSONNEL AND HER TECHNICAL EXPERTISE WAS REQUIRED TO ACCOMPLISH THE FUNCTIONS OF THE OFFICE.

MS. THOMAS APPARENTLY FORFEITED 93 HOURS IN 1976, 208 HOURS IN 1977, AND 216 HOURS IN 1978. IN ADDITION SHE STATES, AND HER SUPERVISOR CONCURS, THAT SHE WORKED 161 HOURS OF OVERTIME IN 1976, 737 HOURS IN 1977, AND 559 HOURS IN 1978. HOWEVER, THERE WAS NO DETERMINATION MADE IN ACCORDANCE WITH 5 C.F.R. 630.305 THAT AN EXIGENCY OF THE PUBLIC BUSINESS EXISTED AT ANYTIME DURING THE PERIOD INVOLVED.

FORFEITED ANNUAL LEAVE CAN BE RESTORED UNDER THE LIMITED CIRCUMSTANCES SET OUT IN SECTION 6304(D)(1) OF TITLE 5, U.S.C. (1976), WHICH PROVIDES:

"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."

WE HAVE CONSTRUED PARAGRAPHS (B) AND (C) OF THE ABOVE STATUTE AS CREATING A RIGHT TO RESTORATION OF ANNUAL LEAVE WHEN IT WAS SCHEDULED IN ADVANCE IN WRITING AND WAS SUBSEQUENTLY LOST BECAUSE OF A PUBLIC EXIGENCY OR SICKNESS AND WAS NOT LOST DUE TO THE FAULT OF THE EMPLOYEE. CONSEQUENTLY, WHEN AN EMPLOYEE SUBMITS A "BONA FIDE, FORMAL, AND TIMELY REQUEST FOR LEAVE", THERE CAN BE NO DISCRETION WHETHER TO SCHEDULE THE LEAVE OR NOT. THE AGENCY MUST APPROVE AND SCHEDULE THE LEAVE EITHER AT THE TIME REQUESTED BY THE EMPLOYEE OR IF THAT IS NOT POSSIBLE BECAUSE OF THE AGENCY'S WORKLOAD, AT SOME OTHER TIME. IF THE AGENCY IS UNABLE TO SCHEDULE THE LEAVE DUE TO A PUBLIC EXIGENCY, THE MATTER MUST BE SUBMITTED TO THE DESIGNATED OFFICIAL FOR HIS DETERMINATION. WE HAVE HELD THAT THE FAILURE TO SUBMIT A MATTER OF PUBLIC EXIGENCY TO THE DESIGNATED OFFICIAL FOR HIS DETERMINATION CONSTITUTES AN ADMINISTRATIVE ERROR WHICH WOULD SUPPORT A RESTORATION OF THE REQUESTED LEAVE PURSUANT TO 5 U.S.C. 6304(D)(1)(A). SEE 58 COMP.GEN. 684 (1979).

HOWEVER, IN ORDER FOR AN EMPLOYEE TO BE ENTITLED TO RESTORATION OF LEAVE IN THE ABOVE SITUATION, HE MUST SHOW THAT HE SUBMITTED A FORMAL WRITTEN AND TIMELY REQUEST FOR LEAVE AND THAT HE WAS OFFICIALLY DENIED USE OF THAT LEAVE. THIS REQUIREMENT EMANATES FROM THE CONGRESSIONAL INTENTION THAT SECTION 6304(D)(1) WOULD AUTHORIZE RESTORATION OF LEAVE LOST THROUGH NO FAULT OF HIS OWN, BUT WOULD NOT AUTHORIZE RESTORATION OF LEAVE LOST BECAUSE THE EMPLOYEE ON HIS OWN VOLITION CHOSE NOT TO USE LEAVE. THUS, THE REQUIREMENT PLACES A REASONABLE BURDEN ON THE EMPLOYEE TO PROVE THAT LEAVE WAS NOT LOST BECAUSE HE CHOSE NOT TO USE IT. TO MEET THIS BURDEN THE EMPLOYEE SUBMITS A WRITTEN REQUEST FOR A CERTAIN PERIOD OF LEAVE AS REQUIRED BY PARAGRAPH 5C(3)(C) OF THE ATTACHMENT TO FEDERAL PERSONNEL MANUAL LETTER 630-22, JANUARY 11, 1974, AND 5 C.F.R. 630.308, (THE OFFICE OF PERSONNEL MANAGEMENT'S INSTRUCTIONS AND REGULATIONS ISSUED PURSUANT TO 5 U.S.C. 6304(D)(2) AND 6311). IT IS NOT NECESSARY THAT A STANDARD FORM 71 BE SUBMITTED, BUT IS NECESSARY THAT THE APPLICATION BE IN WRITING. ADDITION, IT MUST BE ESTABLISHED THAT THE EMPLOYEE WAS IN FACT ORDERED NOT TO TAKE THE LEAVE BY HIS SUPERVISOR OR SOME HIGHER AUTHORITY AND THAT HE DID NOT VOLUNTARILY FORGO THE USE OF THE LEAVE BECAUSE HE BELIEVED THAT HIS SERVICES COULD NOT BE SPARED. JOSEPH HANYOK, B-187104, SEPTEMBER 28, 1978.

AS STATED ABOVE, AN EMPLOYEE MUST SHOW THAT HE SUBMITTED A WRITTEN REQUEST FOR LEAVE IN ORDER TO BE ELIGIBLE FOR RESTORATION OF THAT LEAVE. MS. THOMAS HAS FAILED TO SUBMIT THE REQUISITE DOCUMENTATION OF HER WRITTEN REQUEST FOR LEAVE. FURTHERMORE, THE SCHEDULES AND STATEMENTS SIGNED BY MS. THOMAS' SUPERVISOR DO NOT, IN OUR VIEW, ESTABLISH THAT SHE WAS ORDERED NOT TO TAKE THE LEAVE NOR DO THEY ESTABLISH THAT SHE DID NOT VOLUNTARILY FORGO THE USE OF THE LEAVE. AS A RESULT, SHE IS NOT ENTITLED TO RESTORATION OF LEAVE.