Matter of: Jackie A. Murphy File: B-251301 Date: April 23, 1993

Matter of: Jackie A. Murphy File: B-251301 Date: April 23, 1993

CIVILIAN PERSONNEL Compensation Classification Appeals Statutes of limitation CIVILIAN PERSONNEL Compensation Retroactive compensation Eligibility Adverse personnel actions Classification A former employee of the Bureau of Alcohol, Tobacco and Firearms should have been appointed as an Inspector at grade 11, step 6, under the nondiscretionary administrative regulation then in effect, but was mistakenly appointed at grade 11, step 3 in 1977. The Bureau discovered this error in October 1992, and the former employee seeks backpay. The former employee's compensation claims for the time prior to October 1986, i.e., 6 years prior to the discovery of the mistake in October 1992, are barred by the general 6-year statute of limitations in 31 U.S.C. Sec. 3702(b) (1988).

DECISION The Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms requests a decision as to whether payment of part of the backpay sought by Mr. Jackie A. Murphy is barred by the general 6-year statute of limitations in 31 U.S.C. Sec. 3702(b) (1988).[1] For the following reasons, we find that payment of part of his backpay is so barred.

Mr. Jackie A. Murphy became a Bureau employee on April 10, 1977, when he was appointed as an Inspector at grade 11, step 3. In October 1992, while reviewing Mr. Murphy's official personnel folder prior to his retirement on November 3, 1992, the Bureau discovered and determined that Mr. Murphy's entry step was incorrectly set. Under the nondiscretionary administrative regulation then in effect, the Bureau was required to appoint Mr. Murphy at his highest previous rate which was grade 11, step 6.[2] However, the Bureau had erroneously set Mr. Murphy's rate at grade 11, step 3. Thus, throughout his 15 years with the Bureau, Mr. Murphy was underpaid and now seeks backpay. In view of the general 6-year statute of limitations in 31 U.S.C. Sec. 3702(b) (1988), the Bureau asks whether it can legally compensate Mr. Murphy for the backpay he is due for the time prior to October 1986, i.e., 6 years prior to the discovery of the mistake in October 1992.

With certain exceptions not relevant here, title 31, U.S.C. Sec. 3702(b) (1988), commonly known as the Barring Act, and implementing regulations, 4 C.F.R. Sec. 31.5 (1992), provide that every claim against the United States cognizable by the General Accounting Office (GAO) must be presented to the GAO or the department or agency concerned within 6 years of the date it accrues or be forever barred.[3] For the purpose of computing the statute of limitations for compensation claims filed with our Office or with the department or agency concerned, the date of accrual of the claim is usually considered to be the particular day on which the services, for which extra compensation is claimed, were rendered. Since the claim thus accrues on a daily basis, our decisions often refer to this as the continuing claim rule.[4]

In Mr. Murphy's case, where his claims were legally payable at the time he performed the services for which extra compensation was due, although neither he nor the Bureau may have been aware of his actual entitlement, there is legally no other condition precedent to the payment of his claims such as a personnel official's administrative determination that he is entitled to backpay. Rather, such compensation claims accrue at the time the work was performed, and the 6-year Barring Act begins to run on a daily basis at that time. Kampe and Johnson, B-214245, July 23, 1984. Furthermore, we have applied this continuing claim rule to claims arising from legally mandatory agency actions which were not taken due to error. See Alfred L. Lillie, B-209955, May 31, 1983 (applying continuing claim rule to legally mandatory agency actions (within-grade step increases for an intermittent employee over approximately a 19-year period) which were not taken due solely to agency errors), and Richard C. Bockus, B-198085, Nov. 5, 1980 (applying continuing claim rule to legally mandatory agency actions (timely processing of promotions in accordance with agency and Civil Service Commission regulations), which were not taken due to agency errors).

Mr. Murphy's claims for additional compensation are based upon the Bureau's failure to set his pay rate upon appointment at a higher step which was required under the nondiscretionary administrative regulation then in effect. His claims accrued on a daily basis as of each day on which the work was performed, and did not accrue on the dates in October 1992 when personnel officials discovered and determined that an administrative error had been made on April 10, 1977, the date of Mr. Murphy's appointment. Kampe and Johnson, B-214245, July 23, 1984, and other cases cited, supra.

Accordingly, any portion of Mr. Murphy's claims which arose 6 years prior to the date of the discovery of the administrative error in October 1992, are barred from consideration.

1. This request was submitted by Mr. Paul R. Gentille, Financial Manager, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, Washington, DC.

2. See Chapter C, para. 6b of BATF Order 2530.1, Oct. 2, 1974. This error occurred when Mr. Murphy was downgraded from an Inspector, GS-1854-12 to a Supervisory Inspector, GS-1854-11. Under the nondiscretionary provision of the foregoing administrative Order, the Bureau was required to appoint Mr. Murphy at his highest previous rate, i.e., grade 11, step 6, at the time of the downgrade. See Douglas C. Butler, 58 Comp.Gen. 51 (1978).

3. Prior to June 15, 1989, only filing with the GAO satisfied the Barring Act.

4. See FAA Employees, 70 Comp.Gen. 292 (1991); Alfred L. Lillie, B-209955, May 31, 1983; and see espec. Richard C. Bockus, B-198085, Nov. 5, 1980 (applying continuing claim rule to claims arising from legally mandatory agency actions which were not taken due to error).