Office of the General Counsel

Date: August 18, 1998
Matter of:
File Number: S9601058

OPM Contact: Murray M. Meeker

On August 8, 1996, the district manager of the [xxx] of the Department of Labor in [xxx], requested that the General Accounting Office (GAO) approve payment to an [xxx] employee of salary that the employee would have received, but for an administrative error that occurred thirteen years earlier when the agency processed one of the employee's within grade increase (WGI). GAO forwarded the request to OPM.⁽¹⁾

As explained in the district manager's request, in the process of performing a service history for the [xxx] employee, a staffing specialist in the regional personnel office discovered an administrative error concerning the effective date for a within grade increase (WGI) that the employee received in 1983. The record established that the employee received a merit increase on October 3, 1982; that on December 12, 1982, the employee changed from GM-13 to GS-13, step 2; and that on December 11, 1983, the employee received a WGI to GS-13, step 3, but that this increase should have been effected more than two months earlier on October 2, 1983. As a result of the initial error, the employee received untimely WGIs in 1985 and 1987.

Following precedential decisions issued by the Comptroller General, OPM advised [xxx] on May 22, 1997, that in determining whether a claim should be barred under the Barring Act, 31 U.S.C. 3702(b)(1), the accrual date for the claim was the date when the WGI was payable rather than the date when the error was discovered. See, e.g., Mary J. Kampe and Martha R. Johnson, B-214245, July 23, 1984. Accordingly, OPM denied [xxx]'s request, advising the agency that there was no authority to make retroactive payment to its employee.

On further review, OPM has determined that [xxx] is authorized to make payment under the "continuing claim" rule. See Jackie A. Murphy, B-251301, April 23, 1993; FAA Employees, 70 Comp. Gen. 292 (1991); and Richard C. Bockus, B-198085, Nov. 5, 1980. Under the continuing claim rule, a new claim arises each time the Government fails to make a proper payment. Thus, a claimant may recover for six years prior to the filing of a continuing pay claim, regardless of when the underlying events occurred creating the initial claim. Janie B. Lopez, B-249968, February 16, 1993. Accord, Burich v. United States, 366 F.2d 984, 986 (Ct.Cl. 1966), cert. denied, 389 U.S. 885 (1967); Batten v. United States, 597 F.2d 1385, 1387 (Ct.Cl. 1979); and 62 Comp. Gen. 80 (1982).

Accordingly, [xxx] is authorized to pay its employee back pay for the six year period immediately prior to the date when this claim was filed. The amount payable is the difference between the amount that was paid to the employee during this period and the amount that the employee would have received during this six year period if his salary had been correctly computed.

1. ¹ Effective June 30, 1996, GAO's authority to issue advance decisions regarding federal employees' claims for compensation and leave was transferred to OPM. See the General Accounting Office Act of 1996, Pub. L. No. 104-316,  204, 110 Stat. 3826.