Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
Department of Defense
Alexandria, Virginia
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
07/09/2019
Date
The claimant, who retired from the Office of the Inspector General for the Department of Defense on October 28, 2016, requests the U.S. Office of Personnel Management (OPM) direct her former agency to restore 56 hours of her annual leave for the 2015 leave year. OPM received her claim on October 4, 2016, and the agency’s administrative report on August 28, 2018. For the reasons discussed herein, the claim is denied.
The record shows the claimant, while employed with the Office of the Inspector General, was selected for a detail as a Contract Auditor with the U.S. Central Command from August 8, 2015, to August 31, 2016. She was detailed to a civilian expeditionary workforce position and assigned to the Resolute Support Mission Headquarters in Kabul, Afghanistan. The claimant states she was unable to use her annual leave in excess of the amount allowed for leave year 2015, i.e., January 11, 2015, to January 9, 2016. The agency initially granted her request to restore 152 hours of forfeited annual leave for that year. However, in an August 8, 2016, memorandum (“Approval of Restoration of Annual Leave – Amended”), the agency stated that it had amended its initial February 11, 2016, decision to restore 152 hours of forfeited annual leave and intended to deduct 56 of the 152 annual leave hours initially restored to her.
The agency provides an explanation for the deduction in its August 2016 memorandum:
During the period of exigency of August 8, 2015, through the end of the leave year; January 9, 2016, you took the following leave: 16 hours Travel Compensatory Time Off and 40 hours Excused Leave…This evidence shows you were not prevented from taking leave during the exigency, and that you, in fact, did take leave. The evidence further shows you chose to use other forms of paid leave or paid time off rather than annual leave. As such, this does not constitute a forfeiture of annual leave due to the exigency of the public business or any other authorized reason for approval to restore forfeited annual leave.
The agency’s administrative report further explains:
Ms. Webb was authorized and took the following leave: 16 hours Travel Compensatory Time Off (December 30, 2015, through December 31, 2015); and 40 hours Excused Leave (January 3, 2016, through January 7, 2016). The Excused Leave, and Travel Compensatory Time Off (56 hours) represent leave periods for which Ms. Webb could have taken excess (use or lose) annual leave, but she elected instead to use the other forms of leave. Ms. Webb’s decision to use other forms of leave did not constitute a forfeiture of annual leave due to the exigency of the public business. Accordingly, her request to restore 56 hours of forfeited annual leave was disapproved.
Forfeited annual leave can be restored under the limited circumstances set out in section 6304 of title 5, United States Code (U.S.C.), which states:
(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 1103 of Public Law 106-65, National Defense Authorization Act of 2000, amended 5 U.S.C. 6304(d) by inserting section 6304(d)(4), establishing that the service of a Department of Defense emergency essential employee in a combat zone is considered an exigency of public business for that employee. The statute at U.S.C. 6304(d)(4)(A) specifically provides that “[a]ny leave that, by reason of such service, is lost by the employee by operation of this section (regardless of whether such leave was scheduled) shall be restored to the employee…”
OPM’s Restoration of Annual Leave Fact Sheet serves as guidance to help agencies apply Federal regulations correctly and is to be considered, regarding an exigency of public business, in concert with 5 U.S.C. 6304(d)(1)(B) and (d)(4)(A). The fact sheet explains:
The employing agency determines that an exigency – i.e., an urgent need for the employee to be at work – is of major importance and that excess annual leave cannot be used. An employee’s use of earned compensatory time off or credit hours does not constitute an exigency of the public business. If the use of earned compensatory time off or credit hours that are about to expire results in the forfeiture of excess annual leave, the forfeited leave cannot be restored.
An employee’s choice of paid leave options, excluding situations involving sickness of the employee covered by 5 U.S.C. 6304(d)(1)(C), is clearly a factor when considering leave restoration determinations based on reasons of public business exigency. OPM’s guidance specifically explains that an employee’s use of paid leave such as compensatory time off is not considered an exigency of public business for leave restoration purposes. Therefore, an employee choosing to use categories of paid leave resulting in lost annual leave at the end of the leave year will not be eligible for annual leave restoration. OPM’s guidance cautions against the practice of using other paid leave options in lieu of use-or-lose annual leave (i.e., the accrued annual leave in excess of the maximum annual leave limitation for carry over into the next year) in an effort to maximize the use-or-lose balance with the expectation of having the annual leave restored. Instead, employees projected to have use-or-lose annual leave are expected to manage use of annual leave, compensatory time off, compensatory time off for travel, credit hours, and other paid leave in a way to prevent forfeiture of annual leave.
The record includes DD Form 1610, Request and Authorization for TDY Travel of DOD Personnel, showing the claimant’s detailed position was designated as emergency essential. Because she was designated as emergency essential personnel in a combat zone, we considered the claimant’s situation under the provisions of 5 U.S.C. 6304(d)(4)(A), which establishes such service as an exigency of public business and relieves the employee and supervisor from the administrative burden of scheduling and cancelling annual leave in advance for leave restoration purposes. The record shows the claimant, during the 2015 leave year, took 16 hours of compensatory time off for travel and 40 hours of excused leave, which is provided for by U.S. Central Command’s rest and recuperation (R&R) leave program and considered an authorized absence from duty without loss of pay and without charge to other paid leave. Forfeited annual leave may be restored for exigency-based reasons under 5 U.S.C. 6304(d)(4)(A) if leave “by reason of such service, is lost by the employee.” The public business exigency must be the proximate cause for the annual leave to be lost (e.g., situations where the leave is cancelled or lost as a result of an urgent need for the employee to be at work). In this case, there is no dispute the claimant was on approved absence, using “excused leave” and compensatory time off for travel. Therefore, the claimant did not meet the requirements for restoration of annual leave under 5 U.S.C. 6304(d)(4)(A) because the exigency of public business did not cause the claimant to forfeit annual leave.
Furthermore, Inspector General Instruction 1424.630, Leave Administration Policy and Procedures, require its employees to “[s]chedule and request use or lose annual leave early in the leave year and use annual leave that would otherwise be subject to forfeiture throughout the leave year so as to avoid a large unused balance of use or lose annual leave at the end of the leave year.” The burden is clearly on the employee to prove the annual leave was not lost because of a choice to not use it. In this case, the claimant was allowed to take leave but she chose to use compensatory time off for travel and excused leave in lieu of use-or-lose annual leave. Her situation is thus characteristic of that described by OPM’s fact sheet. Because the forfeiture of annual leave was not caused by an exigency of public business, that leave cannot be restored under 5 U.S.C. 6304(d)(4)(A).
We also considered the claimant’s situation under 5 U.S.C. 6304(d)(1)(A), which provides for the restoration of annual leave lost as a result of an administrative error. The claimant states in her request to OPM that the leave taken during the 2015 leave year had originally been scheduled for in or around March 2016, but that it was rescheduled for work- and medical-related reasons. The record includes a December 22, 2015, memorandum from the Audit Division Chief to the U.S. Forces-Afghanistan, Civilian Human Resources, stating:
I have requested Ms. Webb move up her R&R leave, originally planned for after March 2016, to instead be performed starting December 30th through January 15, 2015. This request for short-notice R&R date change is needed to facilitate Ms. Webb’s performance of an emerging mission requirement. Specifically, Ms. Webb has been tasked to perform a critical audit of the Ministry of Defense General Integration programs.
Had the supervisor not requested the claimant reschedule her R&R leave plans, the agency would have, assuming she worked for the duration of the leave year, restored the additional 56 hours of annual leave she forfeited in the 2015 leave year. We requested the agency specifically address the claimant’s issue that she was asked to take leave at her supervisor’s request. The agency reiterated its assertion that the laws and regulations preclude restoration of her annual leave regardless of the supervisor’s involvement, explaining in its May 10, 2019, letter to OPM:
Ms. Webb must also prove that her leave was officially denied or cancelled because of an exigency of the public business. Ms. Webb’s statement and supporting evidence proves that her leave dates were changed. However, her statement and supporting evidence does not prove her leave was denied or cancelled.
The agency concludes the claimant was not precluded from using annual leave because of the exigency of the public business; that her leave requests were always granted by the approving official; and that she chose to use other forms of leave or time off in lieu of annual leave although, as stated by the agency, “she knew or should have known of her duty to always use excess (use or lose) annual leave first or risk forfeiting it” considering “her lengthy service in the Federal government at the time of this matter.” Furthermore, the agency made no determination under the statute concerning whether her annual leave was forfeited due to an administrative error. What constitutes an administrative error under 5 U.S.C. 6304(d)(1)(A) is a matter within the primary jurisdiction of the agency involved. See Matter of John J. Lynch, 55 Comp. Gen. 784 (1976).
We find that the annual leave for which the claimant requests restoration may not be restored because the requirements of 5 U.S.C. 6304(d) permitting the restoration of forfeited annual leave were not met. Accordingly, the employee’s claim to restore forfeited 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.