Office of the General Counsel

Date: December 16, 1998
Matter of: [xxx]
File Number: s98002320

OPM Contact: Jo-Ann Chabot

This claim for restoration of annual leave is denied for the reasons stated below.

Under 5 U.S.C. 6304(a), federal employees may carry over "not more than 30 days" (240 hours) of accumulated annual leave from one leave-year to the next leave-year. However, 5 U.S.C. 6304(b) permits certain employees who are "stationed outside the United States" to carry "not more than 45 days" of accumulated annual leave from one leave-year into the succeeding leave-year. While he was stationed in Europe, and before his departure for the United States, the claimant was covered under 5 U.S.C.  6304(b). The claimant's employing agency advised him that the date for establishing the maximum amount of annual leave that he would be permitted to carry over into the next leave year was the date of his departure from Europe. At that time, the claimant had accumulated 320 hours (40 days) of annual leave. The agency arrived at this date on the basis of its interpretation of the Office of Personnel Management regulation at 5 CFR 630.302(b) and (c). The claimant continued to accrue annual leave after arriving in the United States until he had accumulated at least 45 days of annual leave. He believes that the determinative date for establishing the maximum carry over amount is the last day of the leave-year, and that he is entitled to carry 45 days of accumulated annual leave into the next leave-year.

Section 630.302(b) and (c) of Title 5, Code of Federal Regulations, sets the maximum amount of annual leave that employees covered under a higher limit may carry over into the leave-year that begins after they transfer, or are reassigned, to a position in the United States. Section 630.302(b)(2) specifies that, subject to 5 U.S.C. 6304(c),⁽¹⁾ the maximum amount of annual leave that an employee may carry forward into the leave year after the employee ceases to be covered under 5 U.S.C. 6304(b) is determined as follows:

When, on the date prescribed by paragraph (c) of this section, the amount of an employee's accumulated and accrued annual leave is more than 30 days but not more than 45 days, he may carry forward the full amount thereof that is unused at the end of the current leave year. [Emphasis added.]

According to the regulation, the amount of leave that an employee accumulated and accrued on the date specified in section 630.302(c) is the maximum amount that he would be permitted to carry over into the succeeding leave year. Paragraph (c)(1) of section 630.302 specifies that

for the purposes of paragraph (b) of [section 630.302], an agency shall determine the amount of an employee's accumulated and accrued annual leave at the end of the pay period when the employee departs from his post of regular assignment for transfer or reassignment.

Under 5 CFR 630.302(b)(2) and (c)(1), the date for establishing the maximum amount of leave that the claimant may carry over into the succeeding leave year is the end of the pay period which included the date of the claimant's departure from Europe. The regulation does not specify the last day of the current leave-year as the date for establishing the maximum amount of annual leave that the claimant may carry over into the next leave-year. See also Matter of the Honorable John W. Macy, Jr., B-145180 (Nov. 2, 1961). Thus, the 320 hours of annual leave that the claimant had to his credit when he departed from Europe is the maximum amount of leave that he may carry over into the next leave-year. His claim is denied.

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

1. Under 5 U.S.C. 6304(c), annual leave in excess of the standard 30-day carry over limit that an employee accumulated when subject to a higher limit in section 6304(b), remains to the credit of the employee until it is used. The limit may be reduced in succeeding leave-years when the amount of leave that the employee has used exceeds the amount of leave that the employee has accrued.