Office of the General Counsel

Matter of: [claimant]
Date: May 30, 2000
File Number: 00-4385

OPM Contact: Melissa Drummond

The claimant, an employee of the xxxx, asserts that he is entitled to a minimal restoration of 48 hours of annual leave with a possible restoration of an additional 50 hours based on ambiguity and a failure of supervisors to communicate. For the reasons discussed herein, the claim is denied.

In xxxx, the claimant was accepted into the xxxx at xxxx. At the programs orientation, it was suggested that most of his leave be used prior to beginning classes on June 13, 1998, but that some leave would be needed for the holidays (e.g. Christmas). Consequently, the claimant applied for 96 hours of annual leave from [xxxx] through [xxxx]. These 96 hours of annual leave were interrupted, however, when the claimant received travel orders to report to a new duty station. Therefore, he was unable to use 48 hours of the requested 96 hours. The claimant did not reschedule these 48 hours of unused annual leave and it was ultimately forfeited in 1999.

The provision governing the issue raised in this claim is found in Title II of the Civilian Personnel Law Manual, Chapter 2, Subpart G which states the following:

Leave forfeited by operation of 5 U.S.C. 6304(a) or (b) (30-day or 45-day or personal ceiling limitation on accumulated leave) may be restored under 5 U.S.C. 6304 (d), if the forfeited leave resulted from (1) an administrative error, (2) the exigencies of public business when the annual leave was scheduled in advance, or (3) sickness of the employee when the annual leave was scheduled in advance.

In documentation provided by the claimant, he states that the "loss of leave was not the result of the exigencies of public business, but rather, appear rooted in the lack of urgency and responsiveness by those who were supposed to support me. This would appear to be either administrative error or incompetence." Based on the claimants own submission, item #2 is not met. In addition, there is no evidence that the claimant was ill during the claim period, so item #3 is not met. Therefore, we will address item #1.

The agency cites the claimants own submissions from his xxxx leave request that he knew that he would be in a use or lose situation, that there would be limited opportunities to take annual leave while attending the ACP, and that he anticipated taking leave during the Christmas holidays. The agency also stipulates that there was little day-to-day supervision of the claimant and that he was not specifically counseled about the possible loss of leave. However, agency regulations do not specifically require such counseling. "Failure of an agency to counsel their employees properly regarding their rights to restored leave is not administrative error, absent a specific agency regulation requiring such counseling." William Corcoran, B-213380, August 1984. Also, it is well established that erroneous advice, which the claimant says that he received from his agency headquarters about resolving the claim, does not provide a basis for restoration of leave. See Bob R. Carson, B-196834, July 15, 1980; B-171716, March 26, 1971. Therefore, item #1 is not met.

The agency cites a previous Comptroller General decision, (Dennis J. Hubscher, B-252088.2, September 29, 1993), which they believe to be a proper remedy in this claim. The employee in this case had the opportunity to take annual leave during the school academic recess for the Christmas break, but elected not to do so. Therefore, the Comptroller General ruled that the employee was only entitled to the restoration of annual leave only in the amount that exceeded what he could have taken over the Christmas break.

In the claimants case, classes were in recess for the period of [xxxx] through [xxxx]. The leave year ended on xxxx. Therefore, the claimant could have taken 80 hours of annual leave during the period of [xxxx] through [xxxx] (not counting two holidays), but elected not to do so. The claimant is requesting that 98 hours of leave be restored. The difference in what he is claiming and what he could have taken over the Christmas holidays is 18 hours.

The agency agrees that the claimant should be given 18 hours of restored annual leave under the circumstances described in this case and we concur. The Office of Personnel Management (OPM) does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.

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