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In Reply Refer To: Your Reference:
OPM Contact: Jo-Ann Chabot
This is a claim for retroactive payment of a living quarters
allowance (LQA) from October 1977 to October 1988. The claim is
denied for the reasons stated herein.
The claimant states that, on March 25, 1982, he submitted a
claim for an LQA through his request for a transportation
agreement. The claimant also said that the local and command
civilian personnel offices refused to apply existing regulations or
seek competent review. Thus, it appears that the claimant's
employing agency initially denied his claim and did not seek
further advice or review concerning his claim.
The claimant submitted documentary evidence showing that, on
November 4, 1994, the Assistant Deputy Chief of Staff for Personnel
determined that the claimant should have been afforded a
transportation agreement and an LQA when his sponsoring spouse left
the overseas area in October 1977. It is not clear, though, whether
the Assistant Deputy Chief of Staff was responding to the original
request for a transportation agreement that claimant allegedly
submitted in March 1982, or whether he was responding to a more
recent request from the claimant. The Assistant Deputy Chief of
Staff for Personnel concluded that the claimant should be
authorized a transportation agreement and granted an LQA
retroactively to October 1977, subject to the six-year statute of
limitation. See 31 U.S.C. 3702. Accordingly, the
claimant received an LQA retroactive to October 1988, rather than
October 1977. In his memorandum of March 7, 1995, the claimant
requested the Deputy Chief of Staff for Personnel to reconsider the
decision limiting the retroactive payment of his LQA to October
1988. On April 29, 1997, the Director of Civilian Personnel
concluded that the agency's November 4, 1994 decision was correct
and denied the claimant's request. The claimant, however, alleges
that the Barring Act's six-year deadline for filing claims stopped
running when he filed his claim in March 1982.
The Barring Act, 31 U.S.C. 3702(b)(1), requires that a
claim against the United States must be received within six years
after the claim arises. General Accounting Office (GAO) regulations
in effect before June 15, 1989 required that, to stop the
limitation period from running, a claim had to be received at GAO
within six years after the claim arose. John M. Nelson,
B-238379 (March 16, 1990); Jerry L. Courson, B-200699
(March 2, 1981). Filing a claim with any other government agency at
that time failed to satisfy the filing requirements of the Barring
Act, and did not toll or stop the statutory six-year limitation
period from running. My Anh Company, B-252872 (April 19,
1994); Frederick C. Welch, 62 Comp. Gen. 80 (1982). This
was true even though failure to file with the GAO within the
six-year period was the fault of the agency and not of the
employee. Sara Dyson, B-260207.2 (November 6, 1995);
John M. Nelson, supra; Richard C. Bockus, B-198085
(November 5, 1980); James C. Payne, B-191801 (October 20,
The GAO revised its regulations on June 15, 1989 to provide that
the filing requirements of the Barring Act would be satisfied by
timely filing the claim with the agency involved or with GAO.
John M. Nelson, supra. The revised regulations only
applied to claims that were not barred under the Barring Act as of
June 15, 1989. Thus, a claim that arose on or after June 15, 1983
(six years prior to June 15, 1989), and had been filed with an
agency, did not have to be filed with GAO for purposes of tolling
the Act, but was treated as if it had been filed with the GAO on
June 15, 1989.
If the claimant filed a claim with his agency in 1982, and the
claim was not filed with the GAO, his claim never met the filing
requirements of the Barring Act and did not stop the Act's six-year
limitation period from running. Because the 1989 regulations only
applied to claims that arose on or after June 15, 1983, they would
not retroactively cure the deficiency in the claimant's 1982 claim
-- its failure to fulfill the filing requirements of the Barring
Act. Accordingly, unless the claimant submitted another claim to
his agency on or after June 15, 1983, the six-year limitation
period continued to run until November 1994 when the agency again
investigated his eligibility to receive an LQA and issued its
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. The Office of Personnel Management (OPM) does not have any
authority to disregard the provisions of that Act or waive the time
limitation it imposes. OPM also does not have the authority to
waive the application of the Act, or to make any exceptions to its
provisions. OPM clearly is precluded from considering the
claimant's entitlement to payment of an LQA from October 1977 to
June 15, 1983. Unless the claimant can prove that he submitted
another claim to his agency on or after June 15, 1983, OPM also
would be precluded from considering that part of the claim
requesting payment of an LQA between June 15, 1983 and October
Section 31.7 of Title 4, Code of Federal Regulations, specifies
that claims are settled on the basis of the written record and that
the claimant has the burden of proving his right to payment.(1)
See John P. Mitchell, B-180010 and B-180010.12 (March 8,
1979) (Record failed to include any documentary evidence
establishing that promotion should have occurred at an earlier
date); John R. Figard, B-181700 (January 18, 1978)
(Evidence of record did not establish that employee was performing
higher graded duties); Samuel P. Berzon, B-180880 (April
18, 1974) (Claim for reimbursement for health expenses and services
rendered was not corroborated by any evidence).
The claimant has not submitted any evidence, other than his own
assertion, that he actually filed a claim with his employing agency
prior to 1994. The claimant's documentary evidence shows that, in
November 1994, his employing agency issued a decision on his
eligibility for an LQA. However, the documentary evidence does not
indicate whether the claimant submitted only one request or several
requests for an LQA, when he submitted his request or requests, or
when the agency received the request or requests. He also has not
submitted evidence of any written response that he might have
received from his employing agency prior to 1994. Finally, the
claimant has not submitted any evidence or explanation that would
shed any light on the reason why the agency evidently decided to
revisit, and issue a determination on, his eligibility for an LQA
in 1994, 12 years after he allegedly filed his initial claim and 12
years after the agency apparently denied that claim. The claimant
clearly has failed to meet his burden of proving his entitlement to
payment of an LQA from June 15, 1983 through October 1988.
Accordingly, his claim is denied.
202(n)(1)(B) of the General Accounting Office Act of 1996, Pub. L.
104-316, 110 Stat 3826, 3843-44, October 19, 1996, transferred the
Comptroller General's authority to settle claims for Federal
civilian employees' compensation to the Director of OPM. On October
31, 1996, OPM published a Federal Register notice stating
that it would apply to any authority transferred from the GAO any
applicable GAO regulations in effect at the time of the transfer.
61 FR 51730. The GAO regulations apply to claims received before
OPM issued its own claims settlement regulations, which include a
similar provision. See 5 C.F.R. Part 178.