B-233352, Jun 11, 1990

B-233352, Jun 11, 1990

CIVILIAN PERSONNEL - Travel - Travel expenses - Reimbursement - Statutes of limitation APPROPRIATIONS/FINANCIAL MANAGEMENT - Claims Against Government - Statutes of limitation DIGEST: That portion of an employee's claim for travel expenses for the period from 1974 to 1982 which accrued more than 6 years from the date the claim was filed in our Office is barred by 31 U.S.C. Sec. 3702(b) (1982). Although the agency did not authorize payment for such expenses until 1982 due to administrative error, that does not serve to enlarge the time for filing the claim, which accrues when the travel was performed.

Wilbur E. Porter (Deceased) - Claim for Travel Expenses - Barring Act:

This decision is in response to an appeal of the determination by our Claims Group, Z-2864428, Dec. 16, 1987, that a claim for travel expenses is barred under 31 U.S.C. 3702(b) since it was not received by our Office within the 6-year time limitation specified in that provision. /1/ For the reasons stated below, we sustain the Claim Group's determination.

BACKGROUND

Mr. Porter was denied the opportunity to negotiate a transportation agreement upon his employment with the Department of the Army in 1974 in Munich, West Germany, on the basis that he received only a temporary appointment as a teacher. Therefore, his return travel to the United States between overseas tours of duty was at his personal expense rather than at government expense. /2/ However, in 1982 the Army acknowledged that an administrative error had been made and approved a transportation agreement retroactive to the completion of the initial 2 year period of employment, 1974-1976.

Mr. Porter did not sign this agreement until May 23, 1983, and he did not submit his claim to the agency for reimbursement of tour renewal agreement travel for him and his wife during the period 1974 1982 and for educational travel for his son, who was attending college in the United States, until 1984. The agency submitted Mr. Porter's claim to our Office in July 1986, recommending that payment not be made in the absence of travel orders.

Our Claims Group determined that Mr. Porter's claim was barred by the 6- year limitation in 31 U.S.C. Sec. 3702(b)(1) since the claim was not timely filed with our Office and we have no authority to waive the statutory time limitation. /3/ The argument on appeal is that since the denial of the transportation entitlement was acknowledged by the agency as an administrative error in 1982, the claim did not begin to accrue until 1982, rather than 1974, thereby making the submission of the claim to our Office in 1986 timely.

OPINION

Under the provisions of 31 U.S.C. Sec. 3702(b) (1982), every claim or demand against the United States cognizable by the General Accounting Office must be received in this Office within 6 years from the date it first accrued or be forever barred. If a claim is not received here within 6 years it may not receive consideration on the merits. Moreover, we note that the filing of a claim with another agency does not satisfy the requirements of the Act and does not stop the running of the 6-year limitation. Russell T. Burgess, B-195564, Sept. 10, 1979. /4/

As noted above, the 6-year period begins to run from the date the claim first accrued. A claim first accrues on the date when all events have accrued which fix the liability, if any, of the United States and entitles the claimant to sue or to file a claim. Empire Institute of Tailoring, Inc. v. United States, 161 F.Supp. 409 (Ct.Cl. 1958); 42 Comp.Gen. 622 (1963). Thus, where, by statute, a claim is not cognizable until some particular determination is made by a designated government agency, the claim does not accrue until that determination has been made. Comp.Gen. 607 (1971); 34 Comp.Gen. 605 (1955).

Accordingly, we must determine whether Mr. Porter's claim accrued when he traveled or when the agency acknowledged its administrative error and approved a transportation agreement. We have held that an employee's entitlement to return travel to the United States does not depend on the employee having served in an overseas post under a written agreement. Rather, the employee is entitled to return travel, even without a written transportation agreement, provided he served in the overseas post for the required time to qualify for the entitlement and his place of residence upon hire was in the United States. See Estelle C. Maldonado, 62 Comp.Gen. 545, 551-552 (1983).

Therefore, here, as in most situations involving an employee's travel, the claim accrues when the employee performs the travel. See Roy M. Josephson, B-221042, Sept. 26, 1986; Captain Gary H. Silverberg, USAR, B-188909, Dec. 27, 1977. This rule is followed regardless of whether an agency's administrative error may have misled an employee as to the nature or extent of his or her entitlement. See Captain Gary H. Silverberg, USAR, B-188909, supra. See also Jack Smith, 63 Comp.Gen. 594 (1984).

Thus, as our Claims Group previously informed Mr. Porter, his claim accrued in 1974 and each subsequent date when he performed return travel from his overseas location at his own expense and without having entered into an overseas tour renewal agreement as required in 5 U.S.C. Sec. 5728(a). Mr. Porter had 6 years from the date such travel was performed to file his claim for reimbursement and toll the provisions of subsection 3702(b)(1) notwithstanding that the agency failed to recognize his entitlement to such return travel until 1982. That does not serve to enlarge the period for filing his claim for reimbursement.

Accordingly, any portion of this claim arising more than 6 years from when it was received in this Office in July 1986 is time-barred and may not be considered. However, any claims not time-barred may be paid by the agency, if otherwise correct.

/1/ The claimant, Wilbur E. Porter, is now deceased. His claim is being pursued by his surviving widow, Theresa Porter.

/2/ See 5 U.S.C. Sec. 5728(a) (1982) and Federal Travel Regulations, para. 2-1.5h (Supp. 1, Sept. 28, 1981), incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1981).

/3/ Z-2864428, July 28, 1987, and Dec. 16, 1987.

/4/ See, however, the amendment to our claims regulations which now accepts a claim as timely filed if filed within 6 years with GAO or the agency whose activities gave rise to the claim. 54 Fed.Reg. 25,437 (1989) (to be codified at 4 C.F.R. Sec. 31.5).