Office of the General Counsel

OPM Ref. # 1996-01109

Dear Messrs. [xxx]:

This replies to your January 12, 1996 claim for back pay that you assert is owed to you because of errors you allege your employing agency, the [agency component] made when converting your positions as Examiners-In-Chief (EIC) to a new pay system in 1991.

As a result of the enactment of the Federal Employees Pay Comparability Act of 1990 (FEPCA), the [agency] developed a new pay system for EICs that included seven steps. This pay plan was implemented in December, 1991. Before the agency implemented that pay plan, the pay for EICs was based on the General Schedule (GS), and you we paid at the GS-17, step 5 level. Under the new plan, you and several of your colleagues were placed at the step 5 rate, while other EICs initially were placed at step 6 of the new plan. The reason for this distinction, according to the agency, was that you and the other EICs at the step 5 level had received your increases from step 4 to step 5 within the past 12 months and placing you and the other EICs at step 6 would have resulted in larger pay raises for your group than the EICs who were placed at the step 6 level. In brief, the essence of your claim is that you should have been placed at the step 6 level in December 1991, when the agency first implemented the new pay plan.

OPM may settle claims only on the basis of the legal liability of the United States. In this case, you have not asserted a statute or regulation that entitles you to the payment you claim. As you noted, pay rates for the EICs are set administratively by the Secretary of [agency]. At the time Congress enacted FEPCA, the Senate Appropriations committee asked the Office of Personnel Management (OPM) to review the pay plan for EICs. That report, issued January 13, 1993, noted that the Secretary had the discretion to approve any pay plan that provided for pay rates within the boundaries set by FEPCA. The OPM report did not find any conflict between the agencys play plan and FEPCA, and you make no such allegation in your claim. Rather, your claim challenges the fairness and equity of the pay plan adopted by the agency. For the reason stated above, OPM may not set aside an agencys determination that is within the agencys discretion to make.

Accordingly, your claim is denied.

Very Truly Yours,

Paul Britner

Attorney-Advisor