Office of the General Counsel

Date: February 25, 1998
Matter of: [xxx]
File Number: s9701099.2

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 pay rate.

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 rate.