B-190851, FEB 15, 1978
Highlights
CLAIM WAS NOT RECEIVED IN GENERAL ACCOUNTING OFFICE UNTIL JUNE 14. SEC. 71A PROVIDES THAT EVERY CLAIM COGNIZABLE BY GAO IS BARRED FOREVER UNLESS IT IS RECEIVED IN GAO WITHIN 6 YEARS AFTER DATE CLAIM ACCRUED. THE CLAIM WAS BASED ON DECISIONS OF OUR OFFICE WHICH HELD THAT EMPLOYEES DETAILED TO HIGHER GRADE POSITIONS FOR MORE THAN 120 DAYS. ARE ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION. FOR THE PERIOD BEGINNING WITH THE 121ST DAY OF THE DETAIL UNTIL THE DETAIL IS TERMINATED. SYLVAIN WAS ADVISED BY THE DIRECTOR. SYLVAIN WAS INFORMED BY THE ACTING DIRECTOR. WAS FINALLY RESOLVED. SYLVAIN CONCERNING HIS CLAIM WHICH WAS PENDING WITH HIS AGENCY. THAT HIS CLAIM WAS BARRED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9.
B-190851, FEB 15, 1978
PUBLIC HEALTH SERVICE EMPLOYEE FILED WITH AGENCY ON MARCH 19, 1976, A CLAIM FOR BACK PAY INCIDENT TO EXTENDED DETAIL TO A HIGHER GRADE POSITION FROM DECEMBER 30, 1968, TO APRIL 4, 1970. CLAIM WAS NOT RECEIVED IN GENERAL ACCOUNTING OFFICE UNTIL JUNE 14, 1976. IT MAY NOT BE CONSIDERED SINCE ACT OF OCTOBER 9, 1940, AS AMENDED, 31 U.S.C. SEC. 71A PROVIDES THAT EVERY CLAIM COGNIZABLE BY GAO IS BARRED FOREVER UNLESS IT IS RECEIVED IN GAO WITHIN 6 YEARS AFTER DATE CLAIM ACCRUED. FILING CLAIM WITH ADMINISTRATIVE OFFICE CONCERNED DOES NOT MEET REQUIREMENT OF BARRING ACT.
DONALD B. SYLVAIN - CLAIM FOR RETROACTIVE COMPENSATION:
BY LETTER DATED NOVEMBER 8, 1977, MR. DONALD B. SYLVAIN, AN EMPLOYEE OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (DHEW), PUBLIC HEALTH SERVICE, HEALTH RESOURCES ADMINISTRATION (HRA), APPEALED THE ACTION OF OUR CLAIMS DIVISION WHICH RETURNED HIS CLAIM FOR BACK PAY AS A RESULT OF THE CLAIM BEING BARRED BY THE STATUTE OF LIMITATIONS.
THE RECORD SHOWS THAT ON MARCH 19, 1976, MR. SYLVAIN FILED A CLAIM WITH THE HRA FOR A TEMPORARY PROMOTION AND ACCOMPANYING BACK PAY IN CONNECTION WITH A DETAIL TO A HIGHER GRADE POSITION FOR THE PERIOD DECEMBER 30, 1968, TO APRIL 4, 1970. THE CLAIM WAS BASED ON DECISIONS OF OUR OFFICE WHICH HELD THAT EMPLOYEES DETAILED TO HIGHER GRADE POSITIONS FOR MORE THAN 120 DAYS, WITHOUT CIVIL SERVICE COMMISSION APPROVAL, ARE ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION, WITH BACK PAY, FOR THE PERIOD BEGINNING WITH THE 121ST DAY OF THE DETAIL UNTIL THE DETAIL IS TERMINATED. MATTER OF EVERETT TURNER AND DAVID L. CALDWELL, B-183086, DECEMBER 5, 1975, 55 COMP.GEN. 539:MATTER OF MARIE GRANT, B-184990, FEBRUARY 20, 1976, 55 COMP.GEN. 785 (1976).
ON MARCH 29, 1976, MR. SYLVAIN WAS ADVISED BY THE DIRECTOR, DIVISION OF PERSONNEL MANAGEMENT, HRA, THAT DHEW HAD INSTRUCTED HIM TO SUSPEND ACTION ON ALL CLAIMS FOR BACK PAY INCIDENT TO IMPROPER DETAILS UNTIL THE CIVIL SERVICE COMMISSION HAD FORMULATED GUIDELINES FOR HANDLING SUCH CLAIMS. MR. SYLVAIN WAS INFORMED BY THE ACTING DIRECTOR, DIVISION OF PERSONNEL MANAGEMENT, ON JUNE 2, 1976, THAT THE AGENCY WOULD HOLD ONTO ALL CLAIMS ARISING OUT OF AN ALLEGED IMPROPER DETAIL UNTIL THE STATUS OF THE APPLICATION OF OUR DECISION IN TURNER-CALDWELL, SUPRA, WAS FINALLY RESOLVED.
THE GENERAL ACCOUNTING OFFICE (GAO) HAD NO NOTICE OF MR. SYLVAIN'S CLAIM UNTIL JUNE 14, 1976, WHEN OUR CLAIMS DIVISION RECEIVED CORRESPONDENCE FROM MR. SYLVAIN CONCERNING HIS CLAIM WHICH WAS PENDING WITH HIS AGENCY. OUR CLAIMS DIVISION INFORMED MR. SYLVAIN ON OCTOBER 20, 1976, THAT HIS CLAIM WAS BARRED UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, AS AMENDED BY SECTION 801 OF PUB. L. 93 604, APPROVED JANUARY 2, 1975, 88 STAT. 1965, 31 U.S.C. SEC. 71A, WHICH PROVIDES THAT EVERY CLAIM OR DEMAND COGNIZABLE BY THE GAO SHALL BE FOREVER BARRED UNLESS RECEIVED IN THIS OFFICE WITHIN 6 YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. HAVE LONG HELD THAT THE FILING OF A CLAIM IN THE ADMINISTRATIVE OFFICE CONCERNED DOES NOT MEET THE REQUIREMENT OF THE BARRING ACT OF OCTOBER 9, 1940, AS AMENDED 31 U.S.C. SEC 71A. SEE 53 COMP.GEN. 148 AT 155 (1973). ALSO OUR OFFICE HAS HELD THAT THE DATE OF ACCRUAL OF A CLAIM FOR THE PURPOSE OF THE ABOVE CITED STATUTE IS TO BE REGARDED AS THE DATE THE SERVICES WERE RENDERED AND THAT THE CLAIM ACCRUES UPON A DAILY BASIS. COMP.GEN. 517 (1950). THUS, EVEN IF MR. SYLVAIN'S CLAIM OF MARCH 19, 1976, HAD BEEN FORWARDED PROMPTLY BY HIS AGENCY, ONLY THAT PORTION COVERING THE PERIOD BETWEEN ITS RECEIPT IN THIS OFFICE AND APRIL 4, 1976, COULD HAVE BEEN CONSIDERED. THE REMAINDER WOULD HAVE BEEN BARRED SINCE IT COVERED A PERIOD MORE THAN 6 YEARS FROM ITS ACCRUAL.
WE ARE WITHOUT AUTHORITY TO WAIVE OR MODIFY THE APPLICATION OF 31 U.S.C. SEC. 71A. MATTER OF JOHN B. MOORE, B-187427, JUNE 3, 1977, AND B-171774, JULY 2, 1971. THEREFORE, SINCE THE CLAIM WAS NOT RECEIVED IN THIS OFFICE WITHIN 6 YEARS FROM WHEN IT ACCRUED IT IS BARRED.
SECTION 7.1 OF THE GAO POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES, AS INFORMALLY AMENDED BY LETTER OF MARCH 14, 1975, FROM THE DIRECTOR OF OUR CLAIMS DIVISION TO THE HEADS OF ALL AGENCIES, PROVIDES THAT CLAIMS WHICH ACCRUED 4 YEARS PRIOR TO RECEIPT BY AGENCIES SHOULD BE FORWARDED HERE. THEREFORE, THE AGENCY SHOULD HAVE FORWARDED THE CLAIM TO THIS OFFICE IN A MORE TIMELY MANNER SO THAT A PORTION THEREOF WOULD NOT HAVE BEEN BARRED. HOWEVER, THERE IS NO PROVISION IN 31 U.S.C. SEC. 71A, FOR MAKING AN EXCEPTION TO THE BARRING OF CLAIMS WHEN THE REASON FOR SUCH BARRING MIGHT BE DUE TO ADMINISTRATIVE ERROR. B-175278, APRIL 12, 1972. IN ADDITION, SECTION 31.5 OF TITLE 4, CODE OF FEDERAL REGULATIONS (1976), PROVIDES IN PERTINENT PART THAT CLAIMANTS SHOULD SUBMIT THEIR CLAIMS DIRECTLY TO THE CLAIMS DIVISION OF THE GAO IF THE STATUTORY PERIOD OF LIMITATIONS WILL SOON EXPIRE.
IN ACCORDANCE WITH THE ABOVE, THIS OFFICE IS BARRED FROM CONSIDERING THE MERITS OF MR. SYLVAIN'S CLAIM AND THE ACTION OF OUR CLAIMS DIVISION IS SUSTAINED.