Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of Defense
Alexandria, VA
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/23/2016
Date
The claimant is employed by the Department of Defense (DOD) in the Office of the Inspector General (OIG) in Alexandria, Virginia. In his undated claim received by the U.S. Office of Personnel Management (OPM) on May 6, 2015, the claimant seeks the restoration of 32.5 hours of forfeited restored annual leave. The U.S. Office of Personnel Management (OPM) received the agency administrative report (AAR) on June 10, 2015. For the reasons discussed herein, the claim is denied.
The claimant states that in January 2014, his payroll provider, the Defense Finance and Accounting Service (DFAS), removed 32.5 hours of restored annual leave from his leave account. The claimant states that the annual leave had been carried over from February 5, 2005, until January 2014, and that he "was told years ago that it would carry on no matter what." He contends that prior to the leave forfeiture, he was never informed of the regulations governing restored leave, did not receive "a direct email from the HR office to warn [him],” and there was "no policy explanation in MyPay Remarks section and even the last pay stubs." He states that had he known about the two-year limitation for restored annual leave carry-over, he would have used the leave sooner.
In its AAR, the agency confirms that the claimant was granted 52 hours of restored annual leave in 2005 which, for unknown reasons, remained "on the books" beyond the two-year limitation specified in section 630.306(a) of title 5, Code of Federal Regulations (CFR), and that in January 2014 confirmed the remaining balance at issue in this claim was removed from his leave account by the agency’s payroll provider. However, the agency states that "[b]ecause [claimant] has been adamant that he was not informed of the time limitation and the fact that the DFAS-Payroll office did not remove the unused restored leave... the unused restored leave should be returned to him to use within the 5 CFR 630.306 time limitation." The agency did not cite any statutory or regulatory basis supporting such action.
Forfeited annual leave can be restored under the limited circumstances set out in 5 U.S.C. §6304, which provides:
(d)(1) Annual leave which is lost by operation of this section because of-
(A) administrative error when the error causes a loss of annual leave otherwise accruable…;
(B) exigencies of the public business when the annual leave was scheduled in advance; or
(C) sickness of the employee when the annual leave was scheduled in advance;
shall be restored to the employee.
Section 6311 of 5 U.S.C. authorizes OPM to “prescribe regulations necessary for the administration of this subchapter.” Consequently, 5 CFR 630.306(a) sets forth the time limit for the use of restored leave and states, in part:
...annual leave restored under 5 U.S.C. 6304(d) must be scheduled and used not later than the end of the leave year ending 2 years after:
(1) The date of restoration of the annual leave forfeited because of administrative error; or
(2) The date fixed by the agency head, or his or her designee, as the termination date of the exigency of the public business that resulted in forfeiture of the annual leave; or,
(3) The date the employee is determined to be recovered and able to return to duty if the leave was forfeited because of sickness.
Under 5 CFR 630.306, the claimant had two years from the applicable start date above to schedule and use the restored leave at issue in this claim. However, he failed to do so. There is no provision in 5 CFR 630.306 for waiving the two-year requirement in individual cases. Because 5 CFR 630.306 has the force and effect of law, no remedy is available once the two-year period expires; restored leave which is forfeited again carries no further rights to retention or payment. See Patrick J. Quinlan, B-188993, December 12, 1977. Furthermore, administrative error may not serve as the basis to extend the two-year period in which to use restored annual leave. This is so even where the agency fails to fix the date for the running of the two years as required by the regulations. See William Corcoran, B-213380, August 20, 1984. Even if they have no actual knowledge, Federal employees are charged with constructive knowledge of the statutory requirements pertaining to them and of the implementing regulations authorized to be issued by statute. See B-173927, October 27, 1971; B-187104, April 1, 1977; and B-192510, April 6, 1979. Specifically, it is well established that Federal employees are charged with constructive knowledge of leave scheduling requirements. See 56 Comp. Gen. 470 (1977); B-193567, May 24, 1979; B-192510, April 6, 1979; B-187104, March 8, 1978; OPM file number 11-0017, August 13, 2013.
Further, it is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law. See OPM v. Richmond, 496 U.S. 414, 425-426 (1990); Falso v. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981). Therefore, that the claimant may have been provided incorrect information regarding the use of restored annual leave does not create an entitlement that is not otherwise permitted by the governing statute or regulations. Accordingly, the claim for restoration of forfeited restored annual leave is denied.
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.