Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
Department of Defense
Alexandria, Virginia
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
07/09/2019
Date
The claimant, who retired from the Office of the Inspector General for the Department of Defense on January 3, 2017, requests the U.S. Office of Personnel Management (OPM) direct her former agency to restore 73 hours of her annual leave for leave year 2015. OPM received her claim on October 31, 2016, and the agency’s administrative report on July 27, 2018. For the reasons discussed herein, the claim is denied.
The claimant was employed as a Program Analyst with the Office of the Inspector General’s Special Plans and Operations Office. She was deployed on temporary duty to the U.S. Central Command in Kabul, Afghanistan, from May 30, 2015, to or around May 30, 2016, to provide direct support of a military operation designated as an overseas contingency operation. The claimant states she lost 73 hours of annual leave in excess of the amount allowed for leave year 2015, i.e., January 11, 2015, to January 9, 2016. The agency denied the claimant’s February 19, 2016, request to restore the 73 hours of forfeited annual leave for that leave year.
The agency explains the denial in its February 22, 2016, decision:
During the period of exigency of May 30, 2015, through the end of the leave year, January 9, 2016, you took the following leave: 120 hours Excused Leave (September 11, 2015, through October 2, 2015); 24 hours Time Off Award (December 21, 2015, through December 23, 2015); 15 hours Travel Compensatory Time Off (December 28, 2015, through December 29, 2015). The Excused Leave, Time Off Award and Travel Compensatory Time Off (159 hours) represent a time period during the exigency for which you could have taken your use or lose annual leave, but elected instead to use the other leave. As such this does not constitute a forfeiture of annual leave due to the exigency of the public business and therefore the 159 hours are deducted from the 73 hours of forfeited annual leave. Consequently, your request for restoration of 73 hours of Annual Leave is disapproved.
Forfeited annual leave can be restored under the limited circumstances set out in section 6304 of title 5, United States Code (U.S.C.), which states in pertinent part:
(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…;(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.
Section 630.311(a) of title 5, Code of Federal Regulations (CFR), also deemed the “National Emergency by Reason of Certain Terrorist Attacks” (Presidential Proclamation of September 14, 2001) to be an exigency of the public business for leave restoration purposes. As provided by 5 CFR 630.311(b), “[f]or any employee who forfeits annual leave under 5 U.S.C. 6304 at the beginning of a leave year because the agency determined the employee’s services were required in response to the national emergency, the forfeited annual leave is deemed to have been scheduled in advance for the purpose of 5 U.S.C. 6304(d)(1)(B) and § 630.308.”
OPM’s Restoration of Annual Leave Fact Sheet serves as guidance to help agencies apply Federal regulations correctly and is to be considered, regarding an exigency of public business, in concert with 5 U.S.C. 6304(d)(1)(B) and 5 CFR 630.311. The fact sheet explains:
The employing agency determines that an exigency – i.e., an urgent need for the employee to be at work – is of major importance and that excess annual leave cannot be used. An employee’s use of earned compensatory time off or credit hours does not constitute an exigency of the public business. If the use of earned compensatory time off or credit hours that are about to expire results in the forfeiture of excess annual leave, the forfeited leave cannot be restored.
An employee’s choice of paid leave options, excluding situations involving sickness of the employee covered by 5 U.S.C. 6304(d)(1)(C), is clearly a factor when considering leave restoration determinations based on reasons of public business exigency. Furthermore, in accordance with 5 CFR 630.305, “[b]efore annual leave may be restored under 5 U.S.C. 6304, the determination that an exigency is of major importance and that therefore annual leave may not be used by employees to avoid forfeiture must be made by the head of the agency or someone designated to act for him or her on this matter.” An exigency must be considered to be of such importance as to preclude the employee from using annual leave. An employee permitted to be on paid leave is, therefore, not impacted by an exigency of public business as described by 5 CFR 630.305. OPM’s fact sheet illustrates the point that the use of compensatory time off and credit hours, as well as other paid leave options, is indicative of an absence of a public business exigency. Therefore, an employee who chooses to use categories of paid leave which subsequently results in lost annual leave at the end of the leave year will not be eligible for annual leave restoration. OPM’s guidance cautions against the practice of using other paid leave options in lieu of use-or-lose annual leave (i.e., the accrued annual leave in excess of the maximum annual leave limitation for carry over into the next year) in an effort to maximize the use-or-lose balance with the expectation of having the annual leave restored. Instead, employees projected to have use-or-lose annual leave are expected to manage use of annual leave, compensatory time, compensatory time off for travel, credit hours, and other paid leave or paid time off in a way to prevent forfeiture of annual leave.
In her February 19, 2016, leave restoration request to her agency, the claimant stated her annual leave was forfeited as a result of her support of a national emergency covered by 5 CFR 630.311. The agency agreed that 5 CFR 630.311 provisions apply to her situation since she was deployed to Afghanistan, i.e., a location subject to the Presidential Proclamation regarding the “National Emergency by Reason of Certain Terrorist Attacks.” We thus considered the claimant’s situation under 5 CFR 630.311, which establishes such service as an exigency of public business and relieves the employee and supervisor from the administrative burden of scheduling and cancelling annual leave in advance for leave restoration purposes. The record shows the claimant, during the 2015 leave year, took 15 hours of compensatory time off for travel, 24 hours of time off award, and 120 hours of “excused leave,” which is provided for by U.S. Central Command’s rest and recuperation (R&R) leave program and considered an authorized absence from duty without loss of pay and without charge to other paid leave. Forfeited annual leave may be restored for exigency-based reasons under 5 CFR 630.311 if an employee forfeits annual leave “because the agency determined the employee’s services were required in response to the national emergency.” In order to meet the requirements for restoration of annual leave, the public business exigency must be the proximate cause for the annual leave being lost (e.g., situations where the leave is cancelled or lost as a result of an urgent need for the employee to be at work). In this case, there is no dispute the claimant was on other types of leave and paid time off. Therefore, the claimant did not meet the requirements of 5 U.S.C. 6304 and 5 CFR 630.311(b) because the exigency of public business did not prevent the claimant from using annual leave.
Furthermore, Inspector General Instruction 1424.630, Leave Administration Policy and Procedures, require its employees to “[s]chedule and request use or lose annual leave early in the leave year and use annual leave that would otherwise be subject to forfeiture throughout the leave year so as to avoid a large unused balance of use or lose annual leave at the end of the leave year.” The burden is clearly on the employee to prove the annual leave was not lost because of a choice to not use it. In this case, the claimant was allowed to take leave but she chose to use compensatory time off for travel, time off award, and excused leave in lieu of use-or-lose annual leave. The claimant acknowledges that she could have used leave, as she states in her request to OPM that: “While it is true I could have used the Use or Lose Leave, I chose not to as I believed I would get the leave restored…” Because the forfeiture of annual leave was not caused by an exigency of public business, that leave cannot be restored under 5 U.S.C. 6304(d)(1)(B) and 5 CFR 630.311.
The claimant states she believes her annual leave should also be restored based on “an “administrative error” on the part of the agency.” 5 U.S.C. 6304(d)(1)(A) provides for the restoration of annual leave lost as a result of an administrative error; however, the agency has made no determination under the statute that her annual leave was forfeited due to an administrative error. What constitutes an administrative error under 5 U.S.C. 6304(d)(1)(A) is a matter within the primary jurisdiction of the agency involved. See Matter of John J. Lynch, 55 Comp. Gen. 784 (1976).
The claimant also stated that other employees have had their annual leave restored in similar circumstances. However, our review of leave restoration determinations is based on controlling law, regulations, policies and the facts of the claim presented. In addition, there is no assurance the other cases cited by the claimant have been decided properly or on similar facts.
We find that the annual leave for which the claimant requests restoration may not be restored because the requirements of 5 U.S.C. 6304(d) and 5 CFR 630.311 permitting the restoration of forfeited annual leave were not met. Accordingly, the claim to restore forfeited annual leave is denied.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.