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In Reply Refer To: Your Reference:
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.