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70102500
Office of the General Counsel
Date: [XXX]
Matter of: [XXX]
File Number: S9701025
OPM Contact: Joann Charleston
We have completed our review of a claim for back pay submitted on behalf of a past, federal, postal employee of [agency], [city, country]. The claimant requests back pay for the period of his employment prior to October 1, 1979.
Part of this claim is subject to the Barring Act. As provided in 31 U.S.C. 3700(b)(1), every claim against the United States is barred unless such claim is received within 6 years after the date such claim first accrued. Regulations issued under 31 U.S.C. section 3702(b)(1) were modified to provide that a claim can be filed with the agency out of whose activities the claim arose to toll the 6-year Barring Act. However, this amendment affected only those claims not barred as of June 15, 1989.
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 it merits. We have no authority to disregard the provisions of that Act or waive the time limitation it imposes.
Since the claim was not received in this Office until September 15, 1997, the claim is barred, and there is no basis upon which the claim can be considered. This Office has no authority to waive the application of the act, and we cannot make any exceptions to its provisions. Thus, we are precluded by law from considering the claim.
The record further shows that the employee is part of a unit covered by a Collective Bargaining Agreement, and that a grievance has been filed through the negotiated grievance procedure. Our Office cannot take jurisdiction over the claim of a Federal employee on a matter that is subject to the negotiated grievance procedure under a collective bargaining agreement between the employees agency and union, unless that matter is or was specifically excluded from the agreements grievance procedure. This is because the courts have found that Congress intended that such grievance procedure is to be the exclusive remedy for
Cecil E. Riggs, et al.,
B-222962.3, April 23, 1992.
Accordingly, we cannot consider the claim for back pay for the period prior to October 1, 1979 because the claim is barred by the Barring Act. Moreover, we decline to assert jurisdiction over, or issue a decision in the claim because it is subject to negotiated grievance procedures.