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Office of the General Counsel

In Reply Refer To: Your Reference:

Date: December 14, 1998
Matter of: [xxx]
File Number: s98000776

OPM Contact: Jo-Ann Chabot

This is a claim for back pay and retroactive step adjustments. For the reasons stated below, the Office of Personnel Management (OPM) does not have the authority to settle this claim.

The claimant worked at the [previous agency] as a clerk-typist at a grade level of GS-3, step 8, until she was separated on December 26, 1980, due to lack of work. The claimant accepted a temporary appointment, effective May 26, 1981, with the [agency] as a medical clerk at GS-3, step 1. The claimant received another temporary appointment to the same position on August 1, 1981 and, on October 1, 1981, the claimant received a permanent career appointment as a file clerk at GS-2, step 4. She currently is in another position classified at GS-7, step 8. The claimant believes that the [agency] should have hired her in 1981 at step 8 rather than at step 1.

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. Because the claimant's claim was not received in this office until December 22, 1997, her claim for retroactive step-increases and back pay from May 26, 1981 to December 22, 1991 is barred.

With respect to the claims that arose after December 22, 1991, the agency advises that the claimant is included in a bargaining unit that is subject to a collective bargaining agreement between the agency and a federal employee labor organization. The agency further advises, and it appears from the documents that the agency provided, that these claims would not be excluded from the negotiated grievance procedure. This office does not have jurisdiction to consider a matter that is or was subject to a negotiated grievance procedure under a collective bargaining agreement between the employee's agency and labor union, unless that matter is or was specifically excluded from the agreement's grievance procedure. Congress intended that such a grievance procedure would be the exclusive remedy for matters not excluded from the grievance process. Carter v. Gibbs, 909 F.2d 1452, 1454-55 (Fed. Cir. 1990) (en banc), cert. denied, 498 U.S. 811 (1990) (Construing therein the provision in the Civil Service Reform Act codified at 5 U.S.C.  7121(a) which mandates that the grievance procedures in negotiated collective bargaining agreements be the exclusive remedy for matters covered by the agreements). Accord, Cecil E. Riggs, et al., 71 Comp. Gen. 374 (1992). The matters that the claimant has raised clearly stem from incidents that are subject to the negotiated grievance procedure. Accordingly, we cannot assert jurisdiction over, or issue a decision concerning, these matters.

Control Panel