Office of the General Counsel

In Reply Refer To: Your Reference:

Date: May 28, 1998
Matter of: [xxx]
File Number: s9700855

OPM Contact: Jo-Ann Chabot

This is a claim for retroactive payment of a living quarters allowance (LQA) from October 1977 to October 1988. The claim is denied for the reasons stated herein.

The claimant states that, on March 25, 1982, he submitted a claim for an LQA through his request for a transportation agreement. The claimant also said that the local and command civilian personnel offices refused to apply existing regulations or seek competent review. Thus, it appears that the claimant's employing agency initially denied his claim and did not seek further advice or review concerning his claim.

The claimant submitted documentary evidence showing that, on November 4, 1994, the Assistant Deputy Chief of Staff for Personnel determined that the claimant should have been afforded a transportation agreement and an LQA when his sponsoring spouse left the overseas area in October 1977. It is not clear, though, whether the Assistant Deputy Chief of Staff was responding to the original request for a transportation agreement that claimant allegedly submitted in March 1982, or whether he was responding to a more recent request from the claimant. The Assistant Deputy Chief of Staff for Personnel concluded that the claimant should be authorized a transportation agreement and granted an LQA retroactively to October 1977, subject to the six-year statute of limitation. See 31 U.S.C. 3702. Accordingly, the claimant received an LQA retroactive to October 1988, rather than October 1977. In his memorandum of March 7, 1995, the claimant requested the Deputy Chief of Staff for Personnel to reconsider the decision limiting the retroactive payment of his LQA to October 1988. On April 29, 1997, the Director of Civilian Personnel concluded that the agency's November 4, 1994 decision was correct and denied the claimant's request. The claimant, however, alleges that the Barring Act's six-year deadline for filing claims stopped running when he filed his claim in March 1982.

The Barring Act, 31 U.S.C.  3702(b)(1), requires that a claim against the United States must be received within six years after the claim arises. General Accounting Office (GAO) regulations in effect before June 15, 1989 required that, to stop the limitation period from running, a claim had to be received at GAO within six years after the claim arose. John M. Nelson, B-238379 (March 16, 1990); Jerry L. Courson, B-200699 (March 2, 1981). Filing a claim with any other government agency at that time failed to satisfy the filing requirements of the Barring Act, and did not toll or stop the statutory six-year limitation period from running. My Anh Company, B-252872 (April 19, 1994); Frederick C. Welch, 62 Comp. Gen. 80 (1982). This was true even though failure to file with the GAO within the six-year period was the fault of the agency and not of the employee. Sara Dyson, B-260207.2 (November 6, 1995); John M. Nelson, supra; Richard C. Bockus, B-198085 (November 5, 1980); James C. Payne, B-191801 (October 20, 1978).

The GAO revised its regulations on June 15, 1989 to provide that the filing requirements of the Barring Act would be satisfied by timely filing the claim with the agency involved or with GAO. John M. Nelson, supra. The revised regulations only applied to claims that were not barred under the Barring Act as of June 15, 1989. Thus, a claim that arose on or after June 15, 1983 (six years prior to June 15, 1989), and had been filed with an agency, did not have to be filed with GAO for purposes of tolling the Act, but was treated as if it had been filed with the GAO on June 15, 1989.

If the claimant filed a claim with his agency in 1982, and the claim was not filed with the GAO, his claim never met the filing requirements of the Barring Act and did not stop the Act's six-year limitation period from running. Because the 1989 regulations only applied to claims that arose on or after June 15, 1983, they would not retroactively cure the deficiency in the claimant's 1982 claim -- its failure to fulfill the filing requirements of the Barring Act. Accordingly, unless the claimant submitted another claim to his agency on or after June 15, 1983, the six-year limitation period continued to run until November 1994 when the agency again investigated his eligibility to receive an LQA and issued its decision.

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. The Office of Personnel Management (OPM) does not have any authority to disregard the provisions of that Act or waive the time limitation it imposes. OPM also does not have the authority to waive the application of the Act, or to make any exceptions to its provisions. OPM clearly is precluded from considering the claimant's entitlement to payment of an LQA from October 1977 to June 15, 1983. Unless the claimant can prove that he submitted another claim to his agency on or after June 15, 1983, OPM also would be precluded from considering that part of the claim requesting payment of an LQA between June 15, 1983 and October 1988.

Section 31.7 of Title 4, Code of Federal Regulations, specifies that claims are settled on the basis of the written record and that the claimant has the burden of proving his right to payment.⁽¹⁾ See John P. Mitchell, B-180010 and B-180010.12 (March 8, 1979) (Record failed to include any documentary evidence establishing that promotion should have occurred at an earlier date); John R. Figard, B-181700 (January 18, 1978) (Evidence of record did not establish that employee was performing higher graded duties); Samuel P. Berzon, B-180880 (April 18, 1974) (Claim for reimbursement for health expenses and services rendered was not corroborated by any evidence).

The claimant has not submitted any evidence, other than his own assertion, that he actually filed a claim with his employing agency prior to 1994. The claimant's documentary evidence shows that, in November 1994, his employing agency issued a decision on his eligibility for an LQA. However, the documentary evidence does not indicate whether the claimant submitted only one request or several requests for an LQA, when he submitted his request or requests, or when the agency received the request or requests. He also has not submitted evidence of any written response that he might have received from his employing agency prior to 1994. Finally, the claimant has not submitted any evidence or explanation that would shed any light on the reason why the agency evidently decided to revisit, and issue a determination on, his eligibility for an LQA in 1994, 12 years after he allegedly filed his initial claim and 12 years after the agency apparently denied that claim. The claimant clearly has failed to meet his burden of proving his entitlement to payment of an LQA from June 15, 1983 through October 1988. Accordingly, his claim is denied.

1. 202(n)(1)(B) of the General Accounting Office Act of 1996, Pub. L. 104-316, 110 Stat 3826, 3843-44, October 19, 1996, transferred the Comptroller General's authority to settle claims for Federal civilian employees' compensation to the Director of OPM. On October 31, 1996, OPM published a Federal Register notice stating that it would apply to any authority transferred from the GAO any applicable GAO regulations in effect at the time of the transfer. 61 FR 51730. The GAO regulations apply to claims received before OPM issued its own claims settlement regulations, which include a similar provision. See 5 C.F.R. Part 178.