B-148314, MAR. 15, 1962

B-148314: Mar 15, 1962

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YOU CONTEND THAT YOU HAVE A LEGITIMATE CLAIM BASED ON THE FOURTH PARAGRAPH OF OUR OFFICE SETTLEMENT. THAT PARAGRAPH READS AS FOLLOWS: "THERE IS NO VESTED RIGHT IN AN EMPLOYEE UPON REEMPLOYMENT TO RECEIVE THE HIGHEST SALARY RATE PREVIOUSLY PAID. YOU WERE PAID AT THE RATE ADMINISTRATIVELY FIXED. THE RECORD DISCLOSES THAT YOU WERE PAID AT THE SALARY RATE TO WHICH YOU WERE ENTITLED. NO ADDITIONAL COMPENSATION IS DUE YOU.'. YOU ARE CORRECT IN POINTING OUT THAT IF THE CASE WAS AS STATED IN THE UNDERSCORED LANGUAGE YOU WOULD HAVE BEEN ENTITLED TO A RATE HIGHER THAN THE MINIMUM RATE OF THE GRADE. THE DISALLOWANCE OF YOUR CLAIM IN FACT WAS BASED ON SECTION 25.103 (B) OF THE FEDERAL EMPLOYEES PAY REGULATIONS.

B-148314, MAR. 15, 1962

TO MR. HANS E. CLAUSEN:

YOUR LETTER OF FEBRUARY 19, 1962, REQUESTS REVIEW OF OUR OFFICE SETTLEMENT DATED DECEMBER 13, 1961, WHICH DISALLOWED YOUR CLAIM FOR SALARY ADJUSTMENT AS AN EMPLOYEE OF THE UNITED STATES PUBLIC HEALTH SERVICE.

YOU CONTEND THAT YOU HAVE A LEGITIMATE CLAIM BASED ON THE FOURTH PARAGRAPH OF OUR OFFICE SETTLEMENT. THAT PARAGRAPH READS AS FOLLOWS:

"THERE IS NO VESTED RIGHT IN AN EMPLOYEE UPON REEMPLOYMENT TO RECEIVE THE HIGHEST SALARY RATE PREVIOUSLY PAID. THE INITIAL SALARY RATE OF AN EMPLOYEE IN A CLASSIFIED POSITION TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED MAY BE FIXED BY THE ADMINISTRATIVE OFFICE AT ANY RATE ABOVE THE MINIMUM OF THAT GRADE THAT DOES NOT EXCEED THE HIGHEST SALARY RATE PREVIOUSLY RECEIVED IN ANY CLASSIFIED GOVERNMENT POSITION. YOU WERE PAID AT THE RATE ADMINISTRATIVELY FIXED, AND SINCE, WITH RESPECT TO THE PERIOD FROM SEPTEMBER 25, 1951, THE RECORD DISCLOSES THAT YOU WERE PAID AT THE SALARY RATE TO WHICH YOU WERE ENTITLED, NO ADDITIONAL COMPENSATION IS DUE YOU.'

YOU ARE CORRECT IN POINTING OUT THAT IF THE CASE WAS AS STATED IN THE UNDERSCORED LANGUAGE YOU WOULD HAVE BEEN ENTITLED TO A RATE HIGHER THAN THE MINIMUM RATE OF THE GRADE. HOWEVER, THE DISALLOWANCE OF YOUR CLAIM IN FACT WAS BASED ON SECTION 25.103 (B) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, WHICH IN PERTINENT PART READS AS FOLLOWS:

"* * * AN EMPLOYEE WHO IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, REPROMOTED OR DEMOTED, MAY BE PAID AT ANY SCHEDULED RATE FOR HIS GRADE WHICH DOES NOT EXCEED HIS PREVIOUS RATE. * * *"

THUS, THE RATE FIXED UPON TRANSFER MAY INCLUDE THE MINIMUM RATE OF THE GRADE. WE DIRECT YOUR ATTENTION TO THE FACT THAT SALARY MAY BE FIXED BY THE ADMINISTRATIVE OFFICE AT ANY OF THE RATES AUTHORIZED BY SECTION 25.103 (B). THE DISCRETION IS REPOSED EXCLUSIVELY WITH THE ADMINISTRATIVE OFFICE AND THE REASON FOR AN ADMINISTRATIVE DETERMINATION IN SUCH CASES MAY NOT BE QUESTIONED BY US.

THEREFORE, THE CONCLUSION REACHED IN OUR OFFICE SETTLEMENT OF DECEMBER 13, 1961, IS CORRECT AND IT MUST BE AND IS HEREBY SUSTAINED.