Office of the General Counsel

Matter of: [claimant]
Date: June 1, 2000
File Number: 003710

OPM Contact: JoAnn Chabot

The claimant, a federal employee working overseas, filed a claim for a living quarters allowance (LQA) from December 1987 to October 28, 1992 and for return transportation. Based on the administrative record, we have determined that the claim for an LQA may not be allowed for the reasons stated below. The claim for return transportation has been referred to the General Services Board of Contract Appeals because that Board has jurisdiction to consider travel and transportation claims. 31 U.S.C. ' 3702.

On April 19, 1987, the claimant separated from military service while he was overseas and, on December 3, 1987, he was appointed to a civilian position overseas. On October 28, 1998, the claimant asked his employing agency to grant him an LQA retroactively effective from December 1987. On December 31, 1998, the employing agency issued a decision approving the claimant's request for an LQA, subject to the statutory six-year limitation period for filing a claim. See 31 U.S.C. ' 3702 (the Barring Act). Thus, the claimant received an LQA with retroactive payment of the LQA from October 28, 1992 to December 31, 1998.

Section 178.105 of Title 5, Code of Federal Regulations, specifies that claims are settled on the basis of the written record, and the claimant has the burden of establishing the timeliness of his or her claim as well as the burden of proving his or her right to payment. William K. Knotts, B-248232 (September 22, 1992); Wade B. Bumgardner, B-184795 (August 5, 1976). The claimant reports that his employing agency advised in 1987 that he was not eligible for an LQA, he made another request for an LQA in 1988, and he never received a response to the 1988 request. The claimant submitted a DA Form 2496 (Overseas Benefits Questionnaire), dated December 3, 1987, the date of the claimant's appointment. This form does not include a request for an LQA and merely appears to be an information gathering device. Moreover, there is no evidence, other than the claimant's assertions, to substantiate that, in 1987, the agency determined he was ineligible for an LQA, or that he requested an LQA in 1988.

To support his claim, the claimant also submitted a letter to his agency dated January 11, 1996, requesting an exception to policy to receive an LQA for housing closer to his job. The letter relates to his placement, following a reduction-in-force, in a position in another city as well as to the length of his daily commute to that position. It does not mention any claim for retroactive payment of an LQA beginning in December 1987.

In addition, the claimant submitted a letter, dated October 7, 1996, from the office of the agency Inspector General, acknowledging receipt of his Inspector General Action Request@ concerning his Living Quarters Allowance from 1987.@ It also advised that the Inspector General Ahas initiated a thorough inquiry into [the claimant's] allegations.@ The claimant also submitted the first page of a November 6, 1996 letter from the same office regarding a request for an LQA. However, the claimant's evidence does not include a copy of the action request that he submitted to the Office of the Inspector General. Without a copy of the actual written action request, we cannot determine whether the request, in fact, was a valid claim.

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. Except for his request of October 28, 1998 and the agency decision of December 31, 1998, the claimant has not submitted any written claim of entitlement for, or any agency decision concerning, retroactive payment of an LQA from December 1987. Therefore, based on the evidence of record, the claim for retroactive payment of an LQA from December 1987 to October 28, 1992 is barred under the Barring Act.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court. 

DISTRIBUTION
Claimant: [claimant's name and address]

Agency:
[agency's name and address]

General Services Board of Contract Appeals:

Ms. Beatrice Jones
Clerk of the Board of Contract Appeals General Services Board of Contract Appeals
Room 7022 General Services Administration
18^th and F Streets, NW Washington, DC 20405