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CIVILIAN PERSONNEL Compensation Retroactive compensation Statutes of limitation Congresswoman is advised that substantive law in 10 U.S.C. Upon which authority we held that employee was entitled to backpay in Yukio Fujikawa. Section 3702(b)(1) is not a mere statute of limitations but rather is a condition precedent to the right to have the claim considered by the General Accounting Office. We are without authority to waive or modify the application of this statute. Mink: This is in response to your letter of July 10. Fujikawa was entitled to additional compensation since his employing agency. At less than that to which he was entitled to when he returned from an overseas assignment in 1974.

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B-231927.4, August 20, 1992

CIVILIAN PERSONNEL Compensation Retroactive compensation Statutes of limitation Congresswoman is advised that substantive law in 10 U.S.C. Sec. 1586(d), upon which authority we held that employee was entitled to backpay in Yukio Fujikawa, B-231927.3, Apr. 13, 1990, does not supersede statute of limitations provision in 31 U.S.C. Sec. 3702(b)(1). Section 3702(b)(1) is not a mere statute of limitations but rather is a condition precedent to the right to have the claim considered by the General Accounting Office. The federal courts follow the same rule. We are without authority to waive or modify the application of this statute.

The Honorable Patsy T. Mink House of Representatives

Dear Ms. Mink:

This is in response to your letter of July 10, 1992, on behalf of your constituent Mr. Yukio Fujikawa. In Yukio Fujikawa, B-231927.3, Apr. 13, 1990, we determined, upon reconsideration, that Mr. Fujikawa was entitled to additional compensation since his employing agency, Pearl Harbor Naval Shipyard, Hawaii, set his rate of basic pay under the provisions of 10 U.S.C. Sec. 1586 (1982), at less than that to which he was entitled to when he returned from an overseas assignment in 1974.

We also held that the portion of Mr. Fujikawa's claim which accrued prior to December 29, 1981, is barred by the statutory 6-year time limitation in 31 U.S.C. Sec. 3702(b)(1) (1982). Mr. Fujikawa's claim was received in this Office on December 29, 1987, and under 31 U.S.C. Sec. 3702(b)(1), a claim against the United States must be received by the Comptroller General within 6 years after the claim accrues.

Mr. Fujikawa believes that the substantive law in 10 U.S.C. Sec. 1586(d), upon which authority we held that he was entitled to backpay, supersedes the statute of limitations on his claim. Thus, you have requested an explanation from us as to why the law pertaining to the statute of limitations takes precedence over the law that guarantees the pay rate for employees returning from overseas. Mr. Fujikawa also states that he questioned the reduction in his pay in a memorandum dated June 24, 1976, to the Industrial Relations Office and that, despite repeated requests for clarification, he never received a response. Accordingly, you ask why Mr. Fujikawa should be penalized for the government's error.

In response to your first question, section 3702(b)(1) is a barring act and a "condition precedent" to the right to have the claim considered by the General Accounting Office. British, Dutch and Italian Claims for Fuel and Services, 67 Comp.Gen. 52 (1987); Federal Firefighters - Overtime Pay, 69 Comp.Gen. 455 (1990). Therefore, this Office is precluded from taking jurisdiction of a claim that accrued more than 6 years prior to its receipt in this Office even though the employee may have had a substantive right to payment under a separate specific statutory authority. See e.g., Wilber E. Porter, B-233352, June 11, 1990 (claim for travel expenses under the provisions of 5 U.S.C. Sec. 5728(a)); James McKeown, Jr., B-235887, Aug. 30, 1990 (claim for a lump-sum annual leave payment under the provisions of 5 U.S.C. Sec. 5551(a)).

We also point out that the statute of limitations provision in 31 U.S.C. Sec. 3702(b) parallels the 6-year limitations followed by the federal courts which precludes the courts from taking jurisdiction unless the claim is filed within 6 years after the claim first accrues. Demo v. United States, 3 Cl.Ct. 349 (1983); 28 U.S.C. Sec. 2501 (1988). The courts have held that the public interest is served by the statute of limitations since it protects the government from having to defend suits long after events sued upon have occurred, and it puts an end to the possibility of litigation after a reasonable time. Hart v. United States, 910 F.2d 815 (Fed. Cir. 1990).

We have also held that we are without authority to waive or modify the application of 31 U.S.C. Sec. 3702(b)(l). Therefore, the fact that Mr. Fujikawa's claim was filed previously with his employing agency would not have any effect on our jurisdiction to consider his claim. Carmine A. Barone, 67 Comp.Gen. 467 (1988); Samuel Pavone and Robert Wilgus, B-222948, Jan. 9, 1987. Further, regulations of this Office in effect at the time Mr. Fujikawa presented his claim to his agency stated that claimants should submit their claims to the General Accounting Office if the statutory period of limitations was about to expire. 4 C.F.R. Sec. 31.5 (1976). Thus, Mr. Fujikawa could have preserved his rights to payment by filing a claim with this Office in accordance with our regulations.

Finally, we point out that the statute of limitations works both ways: it also prohibits the government from pursuing stale claims against employees. For example, the 10-year statute of limitations in 31 U.S.C. Sec. 3716(c)(1), prevented the government from exercising its right to an administrative offset from the amount of the final settlement made to Mr. Fujikawa. The record indicated that Mr. Fujikawa had been overpaid approximately $600 for 2 years in 1974, when the Navy erroneously set his saved pay upon his reemployment and subsequent demotion. See Fujikawa, p.2, f.n. 3.

We hope that this response is satisfactory, and we regret that we cannot be of further assistance to your constituent.

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