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Office of the General Counsel

OPM Ref. # 1996-01642


Dear [XXX]:

We have reviewed the claim that you submitted to the General Accounting Office (GAO) on May 6, 1996. For the following reasons, your claim is denied.

As explained in the report submitted on November 25, 1996, by [XXX], prior to September 28, 1990, you held a career appointment as a GS-0470-14, step 5. You applied for and were granted discontinued service retirement; and on December 16, 1990, you received an appointment not to exceed December 15, 1991, as a GS-0470-14, step 1. You received three additional temporary appointments in December 1991, December 1992, and December 1993, and on December 11, 1994, you received a term appointment as a GS-0470-14, step 2.

In your letter of May 6, 1996, you stated as follows:

The [Agency] does not have a valid highest previous rate of pay policy. Therefore, the operative policy for determining and paying highest previous rate of pay in the Forest Service is the USDA policy, which is to pay all its employees 'the maximum rate permitted by law and regulation.' Under that policy, both as a temporary employee, as I supposedly was from December 1990 to December 1994, and as a permanent employee, as I have officially been since December 1994, I was and am entitled to my highest previous rate, which is the GS-14 Step 5 rate, plus step increases for which I became eligible since being reemployed.

However, the record establishes that on March 28, 1985, USDA delegated authority to the [Agency] to set its own highest previous rate (HPR) policy. See [Agency] Personnel Letter No. 531-83 (March 28, 1985) (copy enclosed). In accordance with this delegation, in February 1986, [XXX] issued new HR policy for the [Agency]. See memoranda from [XXX] to Regional Foresters, Station Directors, and Area Director, dated February 7, 1986 (copy enclosed), and from [XXX] to [XXX], dated February 10, 1986 (copy enclosed). The new [Agency] HPR policy was approved by [Agency] on March 4, 1986. See memorandum from [XXX], to [XXX], dated March 4, 1986 (copy enclosed). The approved [Agency] HPR policy provided that only the minimum rate would be paid unless a higher rate was justified and that an HPR could only be granted to a nontemporary employee.

Sincerely yours,

Murray M. Meeker
Senior Attorney


cc: [Agency]

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