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OPM Contact: Murray M. Meeker
By letter dated October 27, 1997, an employee of the [agency] at
[city, state], claimed that the [agency] had erroneously set his
pay when he was promoted from a GS-9 position to a GS-11
In July 1995, while employed by the [agency] in [city, state],
as an Architect, at grade GS-12, step 7, the claimant accepted a
GS-9, Engineering Technician position at [xxx]. In accordance with
the "highest previous rate" rule, 5 C.F.R. 531.202, and
the local [xxx] Pay Fixing Plan, the employee's salary was set at
GS-9, step 10. Nine months later, in April 1996, the claimant was
promoted to an Architect, GS-11, position, and in accordance with
the "two step rule", 5 U.S.C. 5334(b), and the local Pay
Fixing Plan, the employee's salary was set at GS-11, step 5.
The employee asserts that when he was promoted, his salary
"should" have been set at GS-11, step 10, based on his having
previously been paid at the GS-12, step 7, level. The claimant is
The establishment of an employee's rate of pay under the General
Schedule is governed by 5 U.S.C. 5334 and implementing regulations
that have been issued by the Office of Personnel Management and
which are currently codified at 5 C.F.R. Part 531, Subpart B. In
accordance with these provisions, each employing agency has
discretion to formulate its own policies regarding the application
of the highest previous rate rule See Jean M. Drummond, B-229165, Aug.
8, 1988; Carma A. Thomas,
B-212833, June 4, 1984; and Virginia A. Rawlings, B-195032,
July 25, 1979.
The claimant's salary was properly set. The [agency] was not
required to apply the "highest previous rate" rule in setting the
claimant's salary. See
Donald R. Rutt, B-247265,
June 5, 1992, and Milton
Morvitz, B-192562, June 11, 1979. Indeed, an employee has no
vested right to receive the highest salary rate previously paid to
him; an agency may exercise its discretion not to set an employee's
salary at the employee's highest previous rate. See 5 C.F.R. 531.203(c)
(the "highest previous rate" rule may be used to
set an employee's pay); Doris M.
Arehart-Zuidema, B-223356, August 21, 1987; and Michael F. Richardson, B-140790,
November 13, 1959.
We find no evidence that by setting the employee's pay in
accordance with the "two step rule", 5 U.S.C. 5334(b), and
the local Fort Carson Pay Fixing Plan, there has been an abuse of
administrative discretion. See Rutt, supra, and Morvitz, supra. Accordingly, we find that
the employee is not entitled to have his pay set at a higher