Office of the General Counsel

Matter of: [claimant]
Date: October 6, 2000
File Number: 00-4386

OPM Contact: Melissa Drummond

The claimant is a former employee of the xxxx. The claimant received an indefinite suspension from his agency on xxxx. At that time, he states that he had an annual leave balance of 336 hours and a sick leave balance of 261 hours. The claimant was later terminated from the agency on xxxx. At the time of his termination, the claimant was paid for 240 hours of annual leave that he was allowed to carry over from the previous calendar year. The remaining 96 hours of annual leave were forfeited. The claimant asserts that he is entitled to restoration of the 96 hours of forfeited annual leave as well as the 261 hours of sick leave. For the reasons discussed herein, the claim is denied.

Agency documentation shows that the claimant was indefinitely suspended on xxxx, and was placed in a non-pay status. The agency stipulates that, during the time of his indefinite suspension, the claimant could not use his accrued leave because he was in a non-pay status. Agency records also show that the claimant was later removed from Federal service on xxxx. At the time of his removal, the 240 hours of annual leave, which is the maximum amount eligible to be carried over from one leave year to another, was paid to the claimant. The agency believes that they have appropriately compensated the claimant and that the claim should be disallowed, especially since the suspension that prohibited the claimant from using his leave was caused by his personal actions.

We will first address the claimants issue of restoration of annual leave. The provision governing the issue raised in this claim is found in Title II of the Civilian Personnel Law Manual, Chapter 2, Subpart B, which states the following:

Federal employees are generally eligible to carry over no more than 240 hours of unused annual leave from one year to the next. An employee who has been suspended from duty without pay, and who cannot use annual leave, is subject to this maximum leave carryover limitation.

An employee who cannot use paid annual leave during a period of suspension from duty is subject to this maximum leave carryover limitation, and is liable to forfeit annual leave in excess of the amount allowable at the beginning of the next succeeding leave year. See B-219974, October 21, 1985; B-209958, March 2, 1983; B-197957, July 24, 1980.

Since the claimant was suspended and was not restored to duty during the next succeeding leave year, he forfeits the number of hours of annual leave, in excess of 240 hours, which were credited to his leave account at the time the suspension began. The claimants request for restoration of 96 hours of forfeited annual leave is denied.

Regulations pertaining to the claimants request for restoration of sick leave is found in Title II of the Civilian Personnel Law Manual, Chapter 4, Subpart B, which states the following:

Unused sick leave may be credited towards service upon retirement or it may be recredited to the employee if reemployed within 3 years from separation. However, there is no authority for lump-sum payment of sick leave. B-190152, November 30, 1977. See also B-199477, May 3, 1982.

Under the provisions of 5 U.S.C. 5551(a), employees who are separated from Federal service are entitled to lump-sum payment for all accumulated and accrued annual leave (which the claimant did receive), but there is no similar statutory provision for lump-sum payments of sick leave. Based on these regulations, the claimant is not able to receive restoration of his 261 hours of sick leave at this time. These hours may be recredited to the claimant if the following conditions under 5 CFR 630.502b are met:

An employee who has had a break in service is entitled to a recredit of sick leave (without regard to the date of his separation), if he returns to Federal employment on or after December 2, 1994, unless the sick leave was forfeited upon reemployment in the Federal Government before December 2, 1994.

The claimants request for restoration of 96 hours of forfeited annual leave and 261 hours of sick leave is denied. 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.