Office of Merit Systems Oversight and Effectiveness

Date: February, 2001
File Number: [OPM#]
Matter of: [Claimants Name]

OPM Contact: Melissa Drummond

The claimant is a former employee of the [agency] in [city, state]. He believes that he was not appropriately compensated for his leave at the time of his separation from the [agency]. He also asks if he is entitled to interest on any money that is owed to him. We acknowledged receipt of the claim on September 22, 2000, but were not able to accept the claim because there was no record of an agency denial. The claimant resubmitted the claim, along with a copy of the agency's denial, on February 2, 2001. For the reasons stated below, we do not have the authority to settle this claim.

The claimant separated from the [agency] on September 12, 1987. During later employment with the [current agency], the claimant submitted a request to the Human Resources office to research and calculate his service computation date. During the research, they found that the claimant was not appropriately compensated for his leave at the time of his separation from the [former agency]. The claimant provided copies of the records found by the [current agency], which annotated on May 11, 2000 that the claimant had never been paid a lump-sum payment for his annual leave during his separation from [former agency] on September 12, 1987.

The [former agency] has denied the claim, based on the statute of limitation for claims against the United States that limits the period of reimbursement to six years. We concur with the agency's decision and find that the claim is time barred because the claimant did not file the claim within 6 years after it first accrued as required by 31 U.S.C. 3702 (b).

The 6-year limitation begins running from the date a claim first accrues. Accordingly, any claim for the leave in question first accrued no later than September 12, 1987 (which was the claimant's separation date from the [former agency], and expired no later than 6 years thereafter on September 12, 1993. The claimant originally filed a claim with the Office of Personnel Management on September 1, 2000. Since on September 12, 1993, 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.

We also reference a Comptroller General decision, Simon B. Guedea, B-189385, Aug. 10, 1977, which found that 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.

This determination is in accordance with the Barring Act, 31 U.S.C. 3702(b)(1), which states that 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.

OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.

In summary, the claim for compensation of leave, concurrent with the claimant's separation from the [current agency] on September 12, 1987, is barred, because the claim was not received until on or around September 1, 2000, which is more than six years from the date it first accrued.

Regarding the claimant's inquiry regarding interest, we find that interest is not recoverable against the U.S. Government unless expressly authorized by statute or contract. Library of Congress v. Shaw, 478 U.S. 310, 317 (1986); United States v. Louisiana, 446 U.S. 253, 264-5 (1980); and United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 590 (1947). See also 5 C.F.R. 550.803 (expressly excluding lump-sum payments for annual leave from the definition of pay, allowances, and differentials in the Back Pay Act, 5 U.S.C. 5596(b)(1)).

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.