Matter of: David A. Turner File: B-251043 Date: February 8, 1993

B-251043: Feb 8, 1993

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CIVILIAN PERSONNEL Compensation Retroactive compensation Eligibility Arbitration decisions GAO review CIVILIAN PERSONNEL Compensation Retroactive compensation Statutes of limitation Supervisor's backpay claim for environmental differential pay (EDP) is partially barred from consideration by the 6-year limitation provision of the Barring Act. A claim for EDP is considered to be a continuing claim that accrues on the date the services were performed by the employee. Not on the date that other employees who were members of a collective bargaining unit were found by an arbitrator to be entitled to payment. Was partially barred from consideration by provisions of the Barring Act. Payment was made by the Depot to the grievants for the period from December 4.

Matter of: David A. Turner File: B-251043 Date: February 8, 1993

CIVILIAN PERSONNEL Compensation Retroactive compensation Eligibility Arbitration decisions GAO review CIVILIAN PERSONNEL Compensation Retroactive compensation Statutes of limitation Supervisor's backpay claim for environmental differential pay (EDP) is partially barred from consideration by the 6-year limitation provision of the Barring Act, 31 U.S.C. Sec. 3702(b)(1) (1988). A claim for EDP is considered to be a continuing claim that accrues on the date the services were performed by the employee, and not on the date that other employees who were members of a collective bargaining unit were found by an arbitrator to be entitled to payment.

DECISION Mr. David A. Turner, a supervisory employee of the Department of the Army, New Cumberland Army Depot, appeals our Claims Group settlement. The settlement determined that Mr. Turner's claim for back payment of environmental differential pay (EDP) for the period from December 4, 1978, to September 19, 1985, was partially barred from consideration by provisions of the Barring Act, 31 U.S.C. Sec. 3702(b)(1) (1988).

On December 4, 1984, the American Federation of Government Employees (AFGE) filed a grievance for backpay for EDP for employees working in Building 55-1 at the New Cumberland Army Depot. The grievance covered the period from December 4, 1978, to December 4, 1984. As the result of an arbitrator's award on June 30, 1986, payment was made by the Depot to the grievants for the period from December 4, 1978, to September 19, 1985. Since Mr. Turner was a supervisor at that time, he was not part of the collective bargaining unit and was not permitted to participate in the grievance process.

Mr. Turner subsequently filed an individual claim with the Depot on March 16, 1988, for EDP for the same period covered by the grievance award. The Depot offered Mr. Turner an expedited settlement in the amount of $3,152.86, covering the 6-year period from the date of his claim, March 16, 1988, back through March 16, 1982, calculated from the latter date to the claim cut-off date of September 19, 1985. Mr. Turner declined to accept the settlement since he contends his claim should cover the same period as that of the other employees.

Mr. Turner appealed the Depot's denial of his claim for the full period to this Office. Our Claims Group determined in its settlement that Mr. Turner's claim was filed with his agency prior to our change in procedures for filing claims against the United States in 4 C.F.R. Sec. 31.5. Therefore, Claims Group held that his claim was constructively filed on June 15, 1989, the effective date of the change in our regulations, and could not be considered for the period before June 15, 1983.

Mr. Turner contends that there were no enforceable rights for the payment of EDP until the arbitrator signed his decision. Thus, he contends, that June 30, 1986, is the accrual date, and that he has 6 years from that date to file a claim for the full period going back to December 4, 1978.

Section 3702(b) of title 31, United States Code, provides that every claim or demand against the United States cognizable by the General Accounting Office must be received in our Office within 6 years after the date it first accrued or be forever barred. In 34 Comp.Gen. 605 (1955), we considered a situation in which a determination of the validity of a claim by a designated agency was specifically required by statute in order for the claim to be payable. Under those circumstances, we held that the claim did not accrue for purposes of the running of the statute of limitations until a determination of the validity of the claim had been made by the designated agency. Also, see Leverett C. Burke and James E. Mole, 62 Comp.Gen. 275 (1983), and Ralph C. Harbin, 61 Comp.Gen. 57 at 59-60 (1981) where the claims were based on appeals decided by the Civil Service Commission. In those cases, the Civil Service Commission determined that the employees involved had been improperly separated from their positions. We held that their claim to backpay was not established until the Commission had acted. Therefore, their claims accrued as a whole on the date of the administrative determination. Also, see Friedman v. United States, 310 F.2d 381 (Ct. Cl. 1962), cert. denied, sub non. Lipp, et al. v. United States, 373 U.S. 932, and Feldman v. United States, 181 F. Supp. 393 (Ct. Cl. 1960).

However, in cases such as the present one, where a claim is payable at the time the employee performs service for which compensation is denied, there is no other condition precedent to filing of the claims. Such a claim accrues at the time the work is performed, and the 6-year barring act begins to run at that time. See Richard C. Clough, 58 Comp.Gen. 3 (1978). We have applied this continuing claim rule to claims arising from exposure to environmental hazards such as the hazards involved in this case. FAA Employees - Hazard Pay Differential, 70 Comp.Gen. 262 (1991).

Mr. Turner's claim for backpay was not subject to a decision by an outside administrative body under a statutory mandate, e.g., the Merit Systems Protection Board. Instead, his backpay claim for EDP is a continuing claim that accrued on the date the services were rendered by the employee, not on the date the arbitrator rendered his decision. Mary J. Kampe and Martha Johnson, B-214245, July 23, 1984; Horace T. Morelli, B-214975, Dec. 26, 1984.

As a supervisor, Mr. Turner was not a member of the collective bargaining unit, but his claim for EDP was not dependent upon the claims of other employees and he could have filed a claim with this Office at the same time as the members of the bargaining unit filed their grievance in order to toll the limitation provision in 31 U.S.C. Sec. 3702(b)(1). See FAA Employees - Hazard Pay Differential, 70 Comp.Gen. 292, supra.

Accordingly, our Claims Group settlement is affirmed.