Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code

---

Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


11/05/2015

---

Date

The claimant, who is employed by the Department of the Army (DA) in Wiesbaden, Germany, requests “[r]einstatement of 176 hours of personal leave and 58 hours sick leave,” the “[i]ssuance of a Transportation Agreement, thereby gaining return rights or PPP [Priority Placement Program] reemployment,” and “accrual of home leave.”  The U.S. Office of Personnel Management (OPM) received the claim request on April 30, 2015, the agency administrative report (AAR), forwarded by the claimant with his comments on July 9, 2015, and additional information from the claimant on July 17, 2015, provided at our request.  The AAR states, and the claimant does not dispute, that he has been granted home leave.  Therefore, this portion of his claim is moot and will not be addressed further in this decision.  For the reasons discussed herein, the remainder of the claim is denied. 

The claim emanates from the claimant’s efforts to obtain a Federal civilian position in Germany in order to join his active duty military spouse who was being reassigned from the United States to Germany.  The claimant, who was employed by the Department of the Navy in Suffolk, Virginia, states that on November 13, 2014, he received a tentative job offer for the DA position in Wiesbaden, Germany, which he accepted the next day.  He states that on December 4, 2014, he was notified he had not “met the 2 year CONUS [continental United States] residency requirement and would have to be considered under “Military Spouse Preference.””  He asserts he was not covered by the rotational requirements, and provided a copy of an April 15, 2015, email from the Wiesbaden Civilian Personnel Advisory Center (CPAC) director which states:  “I agree that the civilian personnel rotation policy was misapplied in your case, for which I apologize,” and agrees the claimant “could have been brought under [his] own status” rather than under his spouse’s military orders.  The claimant asserts he “should have been selected for this position and granted [his] own PCS [permanent change of station] costs associated with a bona fide job offer instead of using [his] wife’s PCS orders as a military spouse.”  He seeks, as “personal relief,” the reinstatement of 176 hours “personal” [i.e., annual] leave and 58 hours sick leave which he used from November 2014 to February 2015 before and after his move to Germany, and the issuance of a transportation agreement in connection with his overseas assignment. 

OPM has the authority to adjudicate compensation and leave claims for many Federal employees under the provisions of section 3702(a)(2) of title 31, United States Code (U.S.C.).  However, the authority in § 3702(a)(2) is narrow and limited to the adjudication of compensation and leave claims.  Section 3702(a)(2) does not include the authority to review an agency’s exercise of its staffing and recruitment decisions such as granting PPP reemployment or return rights as they are not compensation matters within the meaning of § 3702(a)(2).

OPM also lacks subject-matter jurisdiction over the claimant’s request to be issued a transportation agreement.  The U.S. General Services Administration (GSA), not OPM, is responsible for issuing regulations on travel, transportation, and subsistence expenses and allowances for Federal civilian employees as authorized in Chapter 57 of title 5, United States Code.  GSA’s Civilian Board of Contract Appeals (CBCA) is responsible for settling travel, transportation and subsistence claims (http://www.cbca.gsa.gov/).  Thus, OPM lacks jurisdiction to render a decision on the claimant’s request for a transportation agreement or whether the agency acted within its authority to decline to authorize PCS for the claimant. 

The claimant requests that he be granted “duty time” (i.e., administrative leave) in lieu of the annual and sick leave he used to accomplish what he describes as “PCS-related” personal tasks prior to his move to Germany.  However, he does not identify a basis for this claim.  There is no general statutory authority for what is commonly referred to as administrative leave; i.e., an administratively authorized absence from duty without loss of pay and without charge to other paid leave.  Although administrative leave is not expressly referenced in title 5, the authority to grant an excused absence derives from the inherent authority for heads of agencies to prescribe regulations for the government of their organizations.  (See, e.g., 5 U.S.C. 301-302.)  Since there is no statutory authority for administrative leave, there are also no OPM-issued regulations defining the circumstances under which administrative leave may be granted to Federal employees paid at an annual rate (such as the claimant).  However, to promote equity and consistency across Government, OPM has advised that administrative leave be limited to those situations not specifically prohibited by law and satisfying one or more of the following criteria:[1]

• The absence is directly related to the department or agency’s mission;
• The absence is officially sponsored or sanctioned by the head of the department or agency;
• The absence will clearly enhance the professional development or skills of the employee in his or her current position; or
• The absence is as brief as possible under the circumstances and is determined to be in the interest of the agency.

Each agency or department has the authority to determine the situations in which excusing employees from work for brief periods of time without charge to leave or loss of pay is appropriate.  Neither the claimant nor DA provided a copy of any written agency regulation or policy in effect at the time of his move providing for the granting of administrative leave either in connection with a PCS or otherwise.  However, to the extent the claimant asserts he should have been granted administrative leave deriving directly from the requested PCS, an actual authorization of PCS for the claimant in conjunction with his transfer to his current position would be necessary for OPM to render a decision on the merits of the claim.  Since OPM does not have jurisdiction over the authorization of PCS, which must be brought before CBCA, any attempt to file a leave claim at this time on this basis is premature and speculative, and we must decline to take any action on the 64 hours of annual leave and 18 hours of sick leave the claimant used for “PCS-related tasks” prior to his arrival in Germany on January 26, 2015. 

The claimant remained in an annual leave status from January 26, 2015, through February 6, 2015, a sick leave status from February 9, 2015, through February 13, 2015, and then an annual leave status again from February 17, 2015, through February 20, 2015, while he was awaiting his entrance on duty in his new position.  He identifies this as leave he was “required to take due to a spouse PCS.”  The claimant states in his April 7, 2015, email rebuttal to the grievance response from the Weisbaden CPAC Director that he “was given a firm job offer on 27 January 2015 and told that [his] start date was 9 February 2015,” but this was "pushed to 23 February 2105 and [he] was “forced” again to burn 80 hours additional leave time, as this start date was delayed yet again due to CPAC with no fault on [his] end.”[2]  Thus, the claimant seeks 152 hours of administrative leave in lieu of the 112 hours of annual leave and 40 hours of sick leave he used after moving to Germany and while awaiting his entrance on duty in his new position.   

The record shows the claimant was advised in the November 13, 2014, tentative job offer to take no action prior to receiving a final job offer:

Again, this is a tentative offer.  The Department of the Army cannot assume any obligation for any premature action on your part prior to a final job offer by the CPAC.  You should take NO actions such as giving notice to your current employer, vacating a lease, or selling/purchasing a residence until a final job offer has been extended. A firm offer will NOT be extended until all administrative actions are completed.

However, the record shows the claimant had decided to travel to Germany before receiving a firm job offer despite the aforementioned guidance, as discussed in his December 3, 2014, email to an Army Civilian Human Resources Agency-Europe staff member: “FYSA-My wife’s shipment schedule is as follows:  NTS on 19JAN15; Pack HHGs [household goods] on 20/21JAN15; and pickup HHGs on 22JAN15.  My wife [sic] PCS travel date is 13JAN15 and our travel date is 25JAN15.”

This intention is confirmed in his April 17, 2105, claim request in which the claimant states:

Originally, my wife received an assignment to 66^TH MI BDE/2D MI BN located at Hoenfels [sic], Germany.  All initial processing had been completed…[sic] Housing and DoDEA were notified.  The plan was for my wife to PCS alone.  I would bring our two teenage children at a later date due to their mid-term exam schedule.  Our children and I would fly out 25 January 2015.  I would be on a two week [sic] leave and assist my wife in processing the children into school.  My two week leave was approved by my chain-of-command at Navy Cyber Command/ODAA, Suffolk VA [sic].  If I did not receive any offers before this time, our every intention was for me to fly back and remain until I received an offer of employment in Germany.

Prior claim decisions confirm that “the head of an agency may, in certain situations, excuse an employee for brief periods of time without a charge to leave or loss of pay.”  See B-156287, December 11, 1987; B-180693, May 23, 1974, “no objection will be made to the grant of such leave if the agency determines such leave was granted for the purpose of complying with the transfer order and its cancelation since an agency may excuse an employee for brief periods of time [italics added];” B-226397, September 8, 1987, “[w]here absences are for a lengthy period of time, a grant of administrative leave is not appropriate unless the absence is in connection with furthering a function of the agency. 63 Comp.Gen. 542, 544 (1984); DeRitter, supra, at 653” and “[w]e do not agree with the Navy's contention that granting administrative leave for the 30-day [reduction in force] notice period furthers its functions by alleviating potentially serious problems.  The Navy would be expending duly appropriated funds without receiving any benefit in kind since employees would be paid to stay at home.” 

The claimant characterizes his leave usage after his arrival in Germany and while he was awaiting his entrance on duty in his new position as leave he was “required to take due to a spouse PCS.” [3]  However, the claimant's decision to ship his HHG and travel to Germany before receiving a final job offer, which occurred two days after his arrival, and to remain in Germany after its receipt but before a firm start date had been set, must be considered to have been for his personal benefit and convenience rather than to further the functions of the agency.  Therefore, we see no authority that would provide for the agency (i.e., the Department of the Navy by whom he was employed at the time) to grant the claimant’s request for 152 hours of administrative leave while awaiting his entrance on duty for the DA position in Germany since his presence overseas during this time period was not only for his personal benefit and convenience, but also contrary to DA's instructions that he take no premature actions until a final job offer had been extended. 

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

---

 

Back to Top