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.