s003505.99

Office of the General Counsel

Matter of: [xxx]
File Number: 003505
Date: September 9, 1999

OPM Contact: Jo-Ann Chabot

The claimant, a retired Federal employee, submitted a claim for a lump sum payment for unused annual leave. This claim is denied because it was not filed within the six-year filing period specified in the Barring Act, as explained below.

The claimant initally was scheduled to retire on November 30, 1990, and he had 208 hours of "use or lose" annual leave. The claimant withdrew his retirment notice on or about Novmber 29, 1990, but he was not able to use annual leave because the duties of his position required him to provide support for Operation Desert Shield. The claimant thereafter sought and received approval for restoration of the 208 hours of "use or lose" annual leave. He retired from Federal service, effective November 30, 1991, and received a lump sum payment for his unused annual leave. However, the lump sum did not include payment for the 208 hours of annual leave that he had not been able to use during the 1990 leave year and that the claimant's employing agency had restored to his annual leave account. To support his claim, the claimant submitted pay stubs for the pay period ending December 7, 1991, as well as a bank statement showing that a direct deposit, presumably a lump sum payment for unused annual leave, was made to the claimant's account on December 13, 1991. This claim therefore accrued during the first two weeks in December 1991. The claimant initially submitted this claim to his employing agency on December 28, 1998, but the agency denied the claim as being barred by the Barring Act.

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). The Office of Personnel Management 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. It is clear from the claim file that the claimant filed his claim seven years after it accrued. Accordingly, we must affirm the employing agency's denial of this claim.

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