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OPM Contact: Murray M. Meeker
By memorandum dated September 19, 1997, an employee with the
[agency] in [city,state], requested that the Office of Personnel
Management (OPM) review her claim for back pay based on the highest
previous rate rule. The claimant advised OPM that the servicing
personnel office for the Recruiting Squadron was currently the
Civilian Personnel Office (CPO) at [xxx], and on October 6, 1997,
an employee with the CPO at [xxx] advised OPM that the claimant was
a member of a bargaining unit and that the claimant was subject to
a collective bargaining agreement. In accordance with this
information, on October 16, 1997, OPM informed the claimant that
OPM lacked authority to consider her back pay claim.
Two months later, however, on December 29, 1997, OPM received a
memorandum from the CPO at [xxx] which explained that at the time
of the claimant's appointment, her position was not covered by a
collective bargaining agreement. In accordance with this revised
information, we have reviewed the employee's claim that she is
entitled to back pay under the highest previous rate rule. For the
reasons discussed herein, the employee's claim is denied.
As reported by the claimant, prior to her appointment on January
6, 1992, she had been advised by both the selecting official and by
personnel with the CPO at [xxx], the servicing personnel office for
the Recruiting Squadron at the time of the claimant's appointment,
that her salary would be set in accordance with the highest
previous rate rule at GS-5, step 10, but that her salary had, in
fact, been set at GS-5, step 2. The claimant asserts that the
Request for Personnel Action (Standard Form 52) was improper in
that it did not include the supervisor's signature.
In addition to informing OPM that the claimant had not been
covered by a collective bargaining agreement, the memorandum
received from the [xxx] CPO on December 29, 1997, explained that
the pay setting determination was appropriate. The memorandum noted
that although the local supervisor appeared to have indicated that
step 10 could be given, the next level supervisor had decided to
set the claimant's pay at step 2, an action, as explained in the
memorandum, that did not contradict agency guidelines. The agency
provided OPM with a supplement to its pay setting regulations dated
September 1, 1988, which explained that the Affirmative Employment
Branch, rather than the selecting or operating official, would make
the final determination concerning the setting of the employee's
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 OPM 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 lawfully 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. An employee has no vested
right to receive the highest salary rate previously paid to him or
her; 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 authority that mandates that the employee's
supervisor sign the Standard Form 52. Indeed, we find no evidence
that by setting the claimant's pay at step two of the applicable
grade, there was an abuse of administrative discretion. See Rutt, supra, and Morvitz, supra. Accordingly, we find that
the employee is not entitled to have her pay set at a higher