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Office of the General Counsel

Date: January 14, 1998
Matter of: [xxx]
File Number: s9701310

OPM Contact: Murray M. Meeker

The [agency] has requested a decision concerning its denial of a request from one of its employees that 27.75 hours of annual leave be restored to the employee's annual leave balance. For the reasons discussed herein, we affirm the [agency's] action in denying its employee's request.

Congress has provided limitations on the accrual of annual leave by federal employees. These limitations are currently codified at 5 U.S.C. 6304 which provides in pertinent part as follows:

(a) Except as provided by subsection ... (f) ... of this section, annual leave ... which is not used by an employee, accumulates for use in succeeding years until it totals not more than 30 days ....

(d)(1) Annual leave which is lost by operation of this section because of--
administrative error when the error causes a loss of annual leave otherwise accruable after June 30, 1960;
exigencies of the public business when the annual leave was scheduled in advance; or
sickness of the employee when the annual leave was scheduled in advance;
shall be restored to the employee.

(f)(1) This subsection applies with respect to annual leave accrued by an individual while serving in a position in--
(A) the Senior Executive Service;

(2) For purposes of applying any limitation on accumulation under this section with respect to any annual leave described in paragraph (1)--
(A) '30 days' in subsection (a) shall be deemed to read '90 days' ....

On September 1, 1996, the employee was moved to the Senior Executive Service (SES) from a General Schedule (GS) position. At the time of this action, as reported by the [agency], the employee had an annual leave balance of 267.75 hours, 27.75 hours above the 30 day or 240 hour carry over ceiling for GS employees. 5 U.S.C.  6304(a).

The employee earned an additional 72 hours of annual leave between September 1, 1996, and the end of the leave year, but he used no annual leave during this period, nor did the employee schedule annual leave in advance that could not be taken because of either an exigency of the public business or sickness of the employee. See 5 U.S.C. 6304(d)(1)(B) and (C).

The employee asserts that the forfeiture resulted from administrative error. See 5 U.S.C. 6304(d)(1)(A). A determination as to what constitutes administrative error is primarily within the jurisdiction of the agency involved. 55 Comp.Gen. 784 (1976); Priscilla Cooke, B-231759, January 4, 1989; and Laurence H. Holmes, B-195562, June 6, 1980. In general, administrative error occurs only where an agency fails to carry out written administrative regulations having mandatory effect. See John J. Lynch, 55 Comp.Gen. 784 (1976). There has been no failure by the [agency] to carry out mandatory written regulations.

The employee insists that the word "accrued" in 5 U.S.C.  6304(f)(1) means simply that the annual leave that he earned prior to September 1, 1996, may "grow" while he is in the Senior Executive Service, and that the word "accrued" does not mean "earned". The employee's statutory interpretation is without merit. To accrue annual leave is to earn annual leave; the terms are synonymous. See, e.g., Colosi v. Electri-Flex Co., 965 F.2d 500, 504 (7th Cir. 1992).

The employee also argues that he was not told or counseled concerning the forfeiture provision. However, this argument is unavailing in the absence of a regulation which requires that employees be counseled concerning an impending forfeiture of annual leave. See John J. Lynch, supra.

The employee asserts that the agency erred in preparing his pay slips. However, the failure to show the correct leave information on pay slips does not constitute administrative error. Priscilla Cooke, supra; J. Paul Guedet, B-200855, Mar. 26, 1981. See also Manuel Cortez, B-185035, July 12, 1976.

The employee asserts further that the forfeiture should be waived. OPM lacks authority to review waiver requests. In accordance with the General Accounting Office Act of 1996, Public Law 104-316, and the Determination of OMB issued on December 17, 1996, the [agency] is responsible for reviewing waiver requests from its employees. We note, however, that the [agency's] denial of its employee's waiver request is in accordance with decisions of the Comptroller General which have held that an employee's use of leave may not be waived under 5 U.S.C. 5584. John P. Mitchell, B-180010.12, March 8, 1979.

Accordingly, it is OPM's conclusion that the [agency] correctly denied the employee's request that his forfeited annual leave be restored.

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