01-0014

Office of Merit Systems Oversight and Effectiveness

Date: March 19, 2001
File Number: [01-0014]
Matter of: [Claimants Name]

OPM Contact: Melissa Drummond

The claimant is a former employee of the [agency], [city, state], where he worked as a non-supervisory pipefitter from 1964 through 1980. He believes that he should receive an environmental pay differential retroactively for the time period when he was exposed to asbestos. We acknowledged receipt of the claim on December 22, 2000, and received information from the agency on March 5, 2001. For the reasons stated below, we do not have the authority to settle this claim.

Based on information from worker compensation forms completed by the claimant, he states that he was heavily exposed to asbestos on an intermittent basis from 1964 to the late 1970's while working at [agency]. [Note: No exact date can be determined for when the claimant was no longer in contact with asbestos. Therefore, we are establishing December 31, 1979 as the equivalency date for the "late 1970's."] The agency has no records or documentation involving the claimant's concern for safety in the workplace nor a request for an environmental pay differential during his employment. The agency has, therefore, 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 accrued as required by 31 U.S.C. 3702 (b).

The 6-year limitation begins running from the date a claim accrues. Accordingly, any claim for the leave in question accrued no later than December 31, 1979 and expired no later than 6 years thereafter on December 31, 1985. The claimant originally filed a claim, through his Congressman, with the Office of Personnel Management on December 7, 2000. Since on December 31, 1985, 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.

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 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 an environmental pay differential, concurrent with the claimant's last exposure to asbestos of December 31, 1979, is barred, because the claim was not received until on or around December 7, 2000, which is more than six years from the date it first accrued.

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.