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OPM Contact: Jo-Ann Chabot
A retired federal employee filed a claim for restoration of, and
payment for, 72 hours of compensatory time. His claim is denied for
the reasons stated below.
The claimant stated that he earned 73.4 hours of compensatory
time from April 1995 to early December 1995. He stated that he did
not have an opportunity to use any compensatory time during this
period because he had been given additional duties in August 1995
and he also was trying to exhaust accumulated annual leave that was
subject to forfeiture at the end of the leave year. On January 13,
1996, the claimant requested restoration of the annual leave that
he had forfeited at the end of the leave year because he had been
ill. The claimant states that, on January 25, 1996, he was advised
that his supervisor would not approve the restoration request until
the claimant exhausted his unused compensatory time. In this
regard, the claimant's restoration request shows a note written by
his supervisor and stating he would approve the claimant's request
"when his comp time balance is zero." The claimant took 72 hours of
compensatory time during the first two weeks of February 1996, he
returned to work on February 14, 1996, and his request for
restoration of the forfeited annual leave was approved on February
The claimant believes that he was coerced into taking
compensatory time that he had planned to use in the future to
preserve his sick and annual leave. He also stated that, if he had
not been required to use the compensatory time, he would have been
compensated for it as part of his retirement settlement.
Section 5543(a) of title 5, United States Code, provides that
agency heads may, at an employee's request, grant the employee
compensatory time off from his or her scheduled tour of duty
instead of payment for an equal amount of time spent in irregular
or occasional overtime work. Section 5543(a) also specifies that
agency heads may provide that an employee, whose rate of basic
compensation exceeds the maximum rate of basic pay for GS-10, shall
be granted compensatory time off equal to the amount of time spent
in irregular or occasional overtime work. Section 5543(b) provides
that, at the request of an employee, the head of an agency may
grant the employee compensatory time off instead of overtime pay
for an equal amount of time spent in irregular or occasional
overtime work. Subsection (b) further provides that an agency head
may not require an employee to be compensated for overtime work
with an equivalent amount of compensatory time off from his or her
tour of duty. The corresponding OPM regulation, at 5 C.F.R.
550.114, tracks the statutory language.
Agency regulations (NAVSEANOTE 12620, August 19, 1994) required
employees to take compensatory time off prior to using accrued
annual leave, unless use of the compensatory time would result in
forfeiture of accumulated annual leave at the end of the leave
year. The regulations also required employees to take compensatory
time off within three months after its accrual and specified that,
if employees declined to schedule the compensatory time, their
supervisors were required to schedule the time off and direct its
use. Moreover, the regulations specified that supervisors were
responsible for monitoring and controlling the accumulation and use
of compensatory time as well as for ensuring mission accomplishment
by establishing efficient and equitably managed work schedules.
The agency erred by withholding action on the claimant's request
for restoration of annual leave until he had exhausted his balance
of compensatory time. If the employee met all the qualifications
for the restoration of annual leave provided in 5 U.S.C 6304(d),
then the leave should have been restored, regardless of the status
of the employee's compensatory time. The applicable agency
regulation requiring the use of compensatory time before the use of
annual leave, by its own terms, does not alter the legal conditions
under which leave is accrued or under which forfeited leave may be
Nonetheless, the employee's supervisor had the legal authority
to schedule the employee's use of compensatory time. Accordingly,
the claim employee's claim for restoration of his compensatory time