Office of the General Counsel

S9600925

Dear Mr. [xxx]:

This concerns the claim that you filed with the [agency] on June 7, 1995. Your claim for 353 hours of overtime pay, as well as for restoration of 104 hours of annual leave, is denied for the reasons stated below.

You state with respect to your claim for overtime pay that you worked 97.5 hours of overtime from February 1, 1993 through February 8, 1993 in connection with an escape from the Federal Penitentiary; 116.5 hours of overtime from June 19, 1993 to July 4, 1993 because of an attempted escape and a disturbance at the penitentiary; and 139.5 hours of overtime from February 8, 1993 through June 18, 1993 in connection with your attendance at the wardens evening close out sessions.

The [agency component] confirmed in its report on your claim that you temporarily worked longer hours as the result of a February 1993 escape and a June 1993 disturbance at the penitentiary, and that you were required to meet in close-out sessions with the warden at the completion of the work day. The Bureau reported that its internal regulations require employees at grade levels of GS-12 and above to take compensatory time off in lieu of being paid for irregular or occasional overtime work. The Bureau noted that the only exception to this policy is in emergencies where the warden, through the appropriate channels, requests a waiver of the policy and the director of the Bureau approves the waiver. The Bureau noted that no such waiver was requested or granted during February 1993 or June 1993.

Section 5543(a)(2) of Title 5, United States Code, authorizes an agency head to require an employee whose salary exceeds GS-10, step 10, to take compensatory time off instead of receiving overtime pay for irregular or occasional overtime work. Program Statement 3000.2 in the Bureaus Human Resource Management Manual provides that employees graded at GS-12 and above are required to take compensatory time in lieu of being paid for irregular or occasional overtime work. Accordingly, your claim for overtime pay is denied, because your agency head clearly has determined that employees at your grade level must take compensatory time in lieu of overtime pay.

You state with respect to your claim for restoration of 104 hours of annual leave that you could not use the accrued leave in 1993 because you were on placed on (administrative leave) from July 12, 1993 to December 12, 1993, and you were returned to full duty status on December 13, 1993. You state that, following your return to duty, you requested an extension to use the accumulated annual leave, but your request was denied.

According to 5 U.S.C. 6304, a Federal employee may accrue and carry over a maximum of 30 days annual leave into the next leave year. Accumulated annual leave is forfeited when it exceeds the maximum amount and is not used before the end of a leave year. Section 6304(d)(1) specifies that forfeited annual leave may be restored when it was lost because of administrative error, or when the leave was scheduled in advance and was lost because of the exigencies of the public business or the sickness of the employee. OPM leave regulations at 5 C.F.R. 630.308 (1993) require that, before forfeited annual leave may be considered for restoration, use of the annual leave must have been scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year.

The record reflects that your claim does not meet the criteria for restoration of 104 hours of forfeited annual leave. First, you were not prevented from using your excess annual leave because of an administrative error, the exigencies of the public business, or illness. Moreover, the record does not include any evidence suggesting that you submitted a written request to take the excess annual leave prior to the deadline specified in the OPM regulation. Accordingly, your claim for restoration of 104 hours of forfeited annual leave also is denied.

Sincerely,

Jo-Ann Chabot

Attorney Advisor

cc. [agency name and address]