Office of Merit Systems Oversight and Effectiveness

Date: April 22, 2002
File Number: [02-0021]
Matter of: [Claimant]

OPM Contact: Melissa A. Drummond

The claimant alleges that his agency erred in setting his pay when it promoted him in July 1981 from WG-14, Step 5 to GS-9, Step 5. It appears from the file that he submitted a written claim to his agency in July 1999 and that the (the agency's payroll office) paid him only for the six years prior to July 1999. See the claimant's memo of March 4, 2002 and the agency's payroll office memo of August 7, 2000. Thus, the claimant appears to be requesting back pay for the period of July 1981 to July 1993. For the reasons stated below, we do not have the authority to settle this claim.

In August 1981, approximately a month after his promotion, the claimant filed a grievance under the agency's grievance procedure, arguing that the promotion should have been from WG-14 to GS-9, Step 7 rather than from WG-14 to GS-9, Step 5. On November 20, 1981, the agency denied the claimant's grievance.

In a memo of April 4, 2000, the Commander advised the agency's payroll office that the claimant brought up the matter of his pay several times over the years. He advised that the claimant raised the issue of his promotion to an agency personnel specialist in July 1999. The agency initiated corrective action in August 1999 and forwarded the matter to the agency's payroll office in January 2000.

In its memo of August 7, 2000, the agency's payroll office concluded that, based on the April 4, 2000 memo from the Commander and on e-mail correspondence provided by the claimant, the August 1981 grievance qualified as a claim. However, the agency's payroll office also concluded that submitting this grievance to the agency did not stop the Barring Act's six-year limitation period from continuing to run. The agency's payroll office advised that, in 1981, the six-year limitation period stopped running only with the submission of a claim to the Comptroller General of the General Accounting Office (GAO). The agency's payroll office explained that, it was not until this rule changed on June 15, 1989, filing a claim with the pertinent agency stopped the six-year limitation period from continuing to run. The agency's payroll office stated that, based on the documents produced thus far, there was no evidence of an appropriate "written claim" submitted to the Comptroller General by the claimant before July 1999. The agency's payroll office limited his recovery to six years before the July 1999 claim.

In a memo of September 19, 2000, the Civilian Personnel Officer (CPO) advised the agency's payroll office that, while he was in a "detailed session" with the claimant in August 1987, the claimant claimed that an error was made when he was promoted in August 1981.

In a memo of December 17, 2001, the claimant reported that the agency's payroll office had responded to the September 19, 2000 memorandum by stating that the claimant had not submitted a written document for a claim to be considered against the government. See page 2, paragraph 3 of the December 17th memorandum.

Based on the information currently in the claim file:

• The claimant's submission of a grievance to his employing agency in 1981 did not stop the Barring Act's six-year limitation period from running. In 1981, submission of a claim to the Comptroller General of the GAO was the only way to stop the six-year limitation period from running. OPM Decision, #S9700855, of May 28, 1998 (attachment 1) explains the filing requirements of the Barring Act for claims submitted before 1989, the change in filing requirements that occurred in 1989, and the application of that change to claims that arose on or after June 15, 1983. See Matter of John M. Nelson, B-238379 (March 16, 1990); GAO Interim Rule (June 15, 1989) (excerpt from Westlaw); and GAO Final Rule (December 19, 1989) (excerpt from Westlaw). Copies of these documents (attachments 2, 3, and 4) are attached.
   
• A claim must be in writing, and include the signature and address of the claimant. Congress enacted the Barring Act in 1940, providing for a ten-year limitation period. Ch. 788, section 1 (Pub. L. 76-820) (October 9, 1940). The Act stated:

[E]very claim . . . against the United States cognizable by the General Accounting Office . . . shall be forever barred unless such claim, bearing the signature and address of the claimant or of an authorized agency or attorney, shall be received in said Office . . .. [Emphasis added.]

Congress later reduced the limitation period to six years. The pertinent GAO regulation (4 CFR 31.2) stated the requirement for a signature and address and also required that a claim must be in writing. See 4 CFR Part 31 (attachment 5). The OPM regulation, 5 CFR 178.102(a), has the same requirements.

• The burden is on the claimant to prove that the claim was filed within the Barring Act's six-year limitation period, and to prove the liability of the United States. 5 CFR 178.104(a), 178.105.
   
• The September 19, 2000 memo, that addresses a "detailed session" occurring in August 1987 between the claimant and the CPO, does not show, or even suggest, that the claimant submitted a written claim, containing his signature and address, during the August 1987 meeting. There is nothing else in the claim file to indicate that he submitted such a claim before July 1999.
   
• The agency's payroll office was correct in concluding that, even though the claimant filed a claim with the agency in 1981, the six-year statute of limitations (Barring Act) continued to run because the claim was never filed with the Comptroller General of the General Accounting Office.

In view of this, the claim is barred under the Barring Act. 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.

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.