Office of Merit Systems Oversight and Effectiveness

Date: June 19, 2002
File Number: [02-0022]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant is an employee of the [agency's name]. She is requesting a restoration of 108 hours of annual leave. The Office of Personnel Management received the claim on March 6, 2002 and received the agency administrative report on May 8, 2002. We received a copy of the covered collective bargaining agreement on June 10, 2002. For the reasons discussed herein, the claim is denied.

The claimant states that she lost 108 hours of annual leave, which was restored to her by the agency on January 19, 1999. After the annual leave was restored, the claimant worked for a "few hours" from January 4, 1999 to January 12, 1999. At the end of the 2001 leave year, the claimant had not used the 108 hours of annual leave. Therefore, the claimant forfeited the 108 hours of annual leave.

In response to the claim, the agency states that the claimant has been in a leave-without-pay (LWOP) status for more than four years since she experienced an injury on the job in February 1996, with an exception of a brief period of light duty after her first surgery. The agency states that, during this period, the claimant elected to receive worker's compensation through the Department of Labor in lieu of her restored leave.

Section 6304 (d)(2) of title 5 of the United States Code (5 U.S.C.) states:

Annual leave restored..., which is in excess of the maximum leave accumulation permitted by law shall be credited to a separate leave account for the employee and shall be available for use by the employee within the time limits prescribed by regulations of the Office of Personnel Management.

5 CFR § 630.306 (a) states:

. . . . annual leave restored under 5 U.S.C. 6304(d) must be scheduled and used not later than the end of the leave year ending 2 years after (1) the date of restoration of the annual leave forfeited . . . .

The Civilian Personnel Law Manual states:

. . . . The 2-year requirement, which is contained in a regulation issued by OPM, has the force and effect of law and may not be waived or modified by this Office. Dr. James A. Majeski, B-247196, April 13, 1992. See B-188993, December 12, 1977.

. . . .  no legal authority exists for further restoration of leave once it is forfeited a second time. William Corcoran, B-213380, August 20, 1984.

Considerable weight must be afforded to OPM's interpretation of its regulation which, having been issued pursuant to a statutory mandate, has the force and effect of law. In the absence of some inconsistency with the parent statute, this office has no authority to waive or modify the application of such a regulation even where they may be some indication of extenuating circumstances. Therefore, while it is a question of fact to be determined by the employing agency as to whether restored leave has or has not been used within the prescribed time limit, as a matter of law any restored leave unused at the expiration of the prescribed time limit is again forfeited with no further right to restoration or to be paid for it. Matter of Patrick J. Quinlan, B-188993, December 12, 1977.

OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. Moreover, the burden of proof is on the claimant to prove the liability of the government and his or her right to payment. 5 CFR 178.105; Matter of Jones and Short, B-205282, June 15, 1982. Thus, where the written record presents an irreconcilable dispute of fact between a government agency and an individual claimant, the factual dispute is settled in favor of the agency, absent clear and convincing evidence to the contrary. 5 CFR 178.105; Matter of Staff Sergeant Eugene K. Krampotich, B-249027, November 5, 1992; Matter of Elias S. Frey, B-208911, March 6, 1984; Matter of Charles F. Callis, B-205118, March 8, 1982. The claimant's annual leave was restored on January 19, 1999. The restored annual leave should have been used by the end of the 2001 leave year, but was not. Therefore, the claim is denied.

This settlement is final. No further administrative review is available within the Office of Personnel. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.