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OPM Contact: Murray M. Meeker
On August 8, 1996, the district manager of the [xxx] of the
Department of Labor in [xxx], requested that the General Accounting
Office (GAO) approve payment to an [xxx] employee of salary that
the employee would have received, but for an administrative error
that occurred thirteen years earlier when the agency processed one
of the employee's within grade increase (WGI). GAO forwarded the
request to OPM.(1)
As explained in the district manager's request, in the process
of performing a service history for the [xxx] employee, a staffing
specialist in the regional personnel office discovered an
administrative error concerning the effective date for a within
grade increase (WGI) that the employee received in 1983. The record
established that the employee received a merit increase on October
3, 1982; that on December 12, 1982, the employee changed from GM-13
to GS-13, step 2; and that on December 11, 1983, the employee
received a WGI to GS-13, step 3, but that this increase should have
been effected more than two months earlier on October 2, 1983. As a
result of the initial error, the employee received untimely WGIs in
1985 and 1987.
Following precedential decisions issued by the Comptroller
General, OPM advised [xxx] on May 22, 1997, that in determining
whether a claim should be barred under the Barring Act, 31 U.S.C.
3702(b)(1), the accrual date for the claim was the date when the
WGI was payable rather than the date when the error was discovered.
See, e.g., Mary J. Kampe and Martha R.
Johnson, B-214245, July 23, 1984. Accordingly, OPM denied
[xxx]'s request, advising the agency that there was no authority to
make retroactive payment to its employee.
On further review, OPM has determined that [xxx] is authorized
to make payment under the "continuing claim" rule. See
Jackie A. Murphy, B-251301, April 23, 1993; FAA
Employees, 70 Comp. Gen. 292 (1991); and Richard C.
Bockus, B-198085, Nov. 5, 1980. Under the continuing claim
rule, a new claim arises each time the Government fails to make a
proper payment. Thus, a claimant may recover for six years prior to
the filing of a continuing pay claim, regardless of when the
underlying events occurred creating the initial claim. Janie B.
Lopez, B-249968, February 16, 1993. Accord,
Burich v. United States, 366 F.2d 984, 986
(Ct.Cl. 1966), cert. denied, 389 U.S. 885 (1967);
Batten v. United States, 597 F.2d 1385, 1387
(Ct.Cl. 1979); and 62 Comp. Gen. 80 (1982).
Accordingly, [xxx] is authorized to pay its employee back pay
for the six year period immediately prior to the date when this
claim was filed. The amount payable is the difference between the
amount that was paid to the employee during this period and the
amount that the employee would have received during this six year
period if his salary had been correctly computed.
1 Effective June 30, 1996,
GAO's authority to issue advance decisions regarding federal
employees' claims for compensation and leave was transferred to
OPM. See the General Accounting Office Act of 1996, Pub. L. No.
104-316, 204, 110 Stat. 3826.