Office of Merit Systems Oversight and Effectiveness

Date: January 4, 2001
File Number: [01-0011]
Matter of: [Claimants Name]

OPM Contact: Melissa Drummond

The claimant is currently an employee of the [agency]. He states that, during the fall of 1999, he was informed by his servicing personnel office at that time, that he had been placed in an incorrect leave category from October 1989 through October 1990 while he was employed with the [previous agency]. Since he should have been accumulating 6 hours of annual leave per pay period instead of 4 hours, the claimant believes that he is owed "one year's worth of annual leave, at 2 hours per pay period." For the reasons stated below, we do not have the authority to settle this claim.

We accepted the claim on November 17, 2000 and the [acronym] provided information on December 27, 2000. We obtained additional information from the claimant's Official Personnel Folder (OPF), which is currently housed at the [agency's] MidPacific Regional Office and contacted the claimant to obtain additional leave and earnings statements.

The claimant states that, prior to his appointment with the [acronym], he was accruing 6 hours of annual leave per pay period. This information is substantiated by a Record of Leave Data Form, dated November 23, 1988, which shows 3 years, 4 months, and 26 days of total Federal service for the claimant. This record is found in the claimant's OPF. However, the claimant stipulates that, during his appointment with the , he accrued only 4 hours of annual leave per pay period. A Record of Leave Transfer from the [acronym]'s Civilian Payroll Office substantiates this information. It shows a leave category of 4 hours for the time period from October 10, 1989 to October 6, 1990. This time period corresponds to the date that the claimant was appointed by the [acronym] and assigned a service computation date (SCD) of October 10, 1989, and the claimant's discharge date of October 5, 1990. The claimant is correct in that the [acronym] placed him in an incorrect leave category and did not revise his SCD for leave purposes based on his prior Federal service. However, we have decided that his claim is time barred because he did not file the claim within 6 years after it accrued as required by 31 U.S.C. 3702 (b).

We did consider whether it was appropriate to use the 'continuing claim' rule for this claim. Under the continuing claim rule, a new claim arises each time the Government fails to make a proper payment. Thus, a claimant may recover for six years prior to the filing of continuing pay claim, regardless of when the underlying events occurred creating the initial claim. Janie B. Lopez, B-249968, February 16, 1993. Accord, Burich v. United States, 366 F.2d 984, 986 (Ct.Cl. 1966), cert. denied, 389 U.S. 885 (1967); Batten v. United States, 597 F.2d 1385, 1387 (Ct.Cl. 1979); and 62 Comp. Gen. 80 (1982). However, the claimant has stipulated that he has "received the correct annual leave for jobs since the [acronym] position." Based on this information, the 'continuing claim' rule does not apply.

As stated above, the 6-year limitation begins running from the date a claim first accrues. Accordingly, any claim for the leave in question accrued no later than October 6, 1990, and expired no later than 6 years thereafter on October 6, 1996. The first notice of the leave claim we received was the claimant's letter to us, received in our office on November 15, 2000. (The claimant did file a claim with his agency, but only during the 2000 calendar year.) Since on October 6, 1996, the claim expired due to the running of the statutory 6-year limitation period, the claim is barred from our consideration and may not be allowed. B-221252, Matter of John E. Denton, September 19, 1986.

The claimant states that he should not be penalized for the agency's ignorance or deceit. We agree that the [acronym] mistakenly placed the claimant in an incorrect leave category. Nevertheless, in a Comptroller General decision, Simon B. Guedea, B-189385, Aug. 10, 1977, the employee's request for waiver of a resulting indebtedness was denied in view of the employee's fault in failing to verify the correctness of the information (or lack thereof) provided on his earnings and leave statements. That decision stated that the employee's agency has the responsibility to prepare proper payrolls and the duty to take steps to ensure that this responsibility is properly discharged. It pointed out, however, that the employee has the responsibility of verifying the correctness of the payments he or she receives and, where a reasonable person would have made inquiry but the employee did not, then he or she is not free from fault and the claim may not be waived.

In accordance with the Barring Act, 31 U.S.C. 3702(b)(1), every claim against the United States is barred unless such claim is received within six years after the date such claim first accrued. Matter of Robert O. Schultz, B-261461 (November 27, 1995). The Barring Act does not merely establish administrative guidelines; it specifically prescribes the time within which a claim must be received in order for it to be considered on its merits. Matter of Nguyen Thi Hao, B-253096, (August 11, 1995). OPM does not have any authority to disregard the provisions of the Barring Act, make exceptions to its provisions, or waive the time limitation that it imposes. See Matter of Nguyen Thi Hao, supra; Matter of Jackie A. Murphy , B-251301 (April 23, 1993); Matter of Alfred L. Lillie, B-209955, May 31, 1983. Thus, the law precludes us from considering this claim.

In summary, the claim for compensation of leave based on an incorrect leave category for the period from October 10, 1989 through October 6, 1990 is barred, because the claim was not received until on or around November 15, 2000, which is more than six years from the date it first accrued.

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