B-172729, JUL 20, 1971, 51 COMP GEN 50

B-172729: Jul 20, 1971

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COMPENSATION - RATES - HIGHEST PREVIOUS RATE - APPLICABILITY - FOREIGN SERVICE SALARY RATES EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE WHO COMPLETED SERVICE IN OVERSEAS POSITIONS UNDER 22 U.S.C. 2385(D)(1) AND ARE ENTITLED TO THE SAME BENEFITS AS PROVIDED BY 22 U.S.C. 928 FOR PERSONS APPOINTED TO THE FOREIGN SERVICE RESERVE. MAY HAVE THEIR SALARIES SET UNDER THE HIGHEST PREVIOUS RATE RULE IN ACCORDANCE WITH 5 U.S.C. 5334(A) AND SECTION 531.203(C) OF THE CIVIL SERVICE REGULATIONS RATHER THAN ON THE BASIS THEY ARE ONLY ELIGIBLE TO RECEIVE THE STEP INCREASES THEY WOULD HAVE EARNED HAD THEY REMAINED IN THE POSITIONS IN WHICH REGULARLY EMPLOYED. AS INDICATED IN THE LETTER THAT SECTION ENTITLES EMPLOYEES COVERED THEREBY TO THE SAME BENEFITS AS ARE PROVIDED BY 22 U.S.C. 928 FOR PERSONS APPOINTED TO THE FOREIGN SERVICE RESERVE.

B-172729, JUL 20, 1971, 51 COMP GEN 50

COMPENSATION - RATES - HIGHEST PREVIOUS RATE - APPLICABILITY - FOREIGN SERVICE SALARY RATES EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE WHO COMPLETED SERVICE IN OVERSEAS POSITIONS UNDER 22 U.S.C. 2385(D)(1) AND ARE ENTITLED TO THE SAME BENEFITS AS PROVIDED BY 22 U.S.C. 928 FOR PERSONS APPOINTED TO THE FOREIGN SERVICE RESERVE, UPON REINSTATEMENT TO THEIR FORMER POSITIONS, MAY HAVE THEIR SALARIES SET UNDER THE HIGHEST PREVIOUS RATE RULE IN ACCORDANCE WITH 5 U.S.C. 5334(A) AND SECTION 531.203(C) OF THE CIVIL SERVICE REGULATIONS RATHER THAN ON THE BASIS THEY ARE ONLY ELIGIBLE TO RECEIVE THE STEP INCREASES THEY WOULD HAVE EARNED HAD THEY REMAINED IN THE POSITIONS IN WHICH REGULARLY EMPLOYED, AS THE HIGHEST PREVIOUS RATE RULE HAS NEVER BEEN CONSTRUED AS EXCLUDING SALARY RATES ATTAINED IN THE FOREIGN SERVICE.

TO THE SECRETARY OF AGRICULTURE, JULY 20, 1971:

WE REFER FURTHER TO THE LETTER OF APRIL 22, 1971, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION CONCERNING THE SETTING OF SALARY FOR EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE REINSTATED AFTER HAVING COMPLETED SERVICE IN OVERSEAS POSITIONS UNDER AUTHORITY OF 22 U.S.C. 2385(D)(1).

AS INDICATED IN THE LETTER THAT SECTION ENTITLES EMPLOYEES COVERED THEREBY TO THE SAME BENEFITS AS ARE PROVIDED BY 22 U.S.C. 928 FOR PERSONS APPOINTED TO THE FOREIGN SERVICE RESERVE. THE LATTER SECTION PROVIDES FOR REINSTATEMENT RIGHTS TO "THE SAME POSITION HE OCCUPIED AT THE TIME OF ASSIGNMENT, OR IN A CORRESPONDING OR HIGHER POSITION. UPON REINSTATEMENT HE SHALL RECEIVE THE WITHIN-GRADE SALARY ADVANCEMENTS HE WOULD HAVE BEEN ENTITLED TO RECEIVE HAD BE REMAINED IN THE POSITION IN WHICH HE IS REGULARLY EMPLOYED. *** ."

OUR OPINION IS REQUESTED AS TO WHETHER AN EMPLOYEE RETURNING TO HIS FORMER POSITION IS ENTITLED ONLY TO THOSE STEP INCREASES HE WOULD HAVE EARNED HAD HE REMAINED IN THAT POSITION, OR WHETHER THAT RIGHT IS ONLY A MINIMUM GUARANTEE SO THAT THE HIGHEST PREVIOUS RATE RULE COULD BE INVOKED TO PROVIDE A HIGHER RATE.

SUBSECTION 5334(A) OF TITLE 5, U.S. CODE, IN PERTINENT PART PROVIDES:

(A) THE RATE OF BASIC PAY TO WHICH AN EMPLOYEE IS ENTITLED IS GOVERNED BY REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION IN CONFORMITY WITH THIS SUBCHAPTER AND CHAPTER 51 OF THIS TITLE WHEN

(1) HE IS TRANSFERRED FROM A POSITION IN THE LEGISLATIVE, JUDICIAL, OR EXECUTIVE BRANCH TO WHICH THIS SUBCHAPTER DOES NOT APPLY;

(2) HE IS TRANSFERRED FROM A POSITION IN THE LEGISLATIVE, JUDICIAL, OR EXECUTIVE BRANCH TO WHICH THIS SUBCHAPTER APPLIES TO ANOTHER SUCH POSITION;

(3) HE IS DEMOTED TO A POSITION IN A LOWER GRADE;

(4) HE IS REINSTATED, REAPPOINTED, OR REEMPLOYED IN A POSITION TO WHICH THIS SUBCHAPTER APPLIES FOLLOWING SERVICE IN ANY POSITION IN THE LEGISLATIVE, JUDICIAL, OR EXECUTIVE BRANCH;

(5) HIS TYPE OF APPOINTMENT IS CHANGED;

(6) HIS EMPLOYMENT STATUS IS OTHERWISE CHANGED; OR

(7) HIS POSITION IS CHANGED FROM ONE GRADE TO ANOTHER GRADE.

SECTION 531.203(C) OF THE CIVIL SERVICE REGULATIONS PROVIDES:

POSITION OR APPOINTMENT CHANGES. SUBJECT TO SECS 531.204, 531.515, 539.201 OF THIS CHAPTER, AND SECTION 5334(A) OF TITLE 5, U.S.C. WHEN AN EMPLOYEE IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, OR DEMOTED, THE AGENCY MAY PAY HIM AT ANY RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE; HOWEVER, IF HIS HIGHEST PREVIOUS RATE FALLS BETWEEN TWO RATES OF HIS GRADE, THE AGENCY MAY PAY HIM AT THE HIGHER RATE. WHEN AN EMPLOYEE'S TYPE OF APPOINTMENT IS CHANGED IN THE SAME POSITION, THE AGENCY MAY CONTINUE TO PAY HIM AT HIS EXISTING RATE OR MAY PAY HIM AT ANY HIGHER RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE; HOWEVER, IF HIS HIGHEST PREVIOUS RATE FALLS BETWEEN TWO RATES OF HIS GRADE, THE AGENCY MAY PAY HIM AT THE HIGHER RATE.

THE HIGHEST PREVIOUS RATE RULE HAS NEVER BEEN CONSTRUED AS EXCLUDING SALARY RATES ATTAINED IN THE FOREIGN SERVICE. SEE 34 COMP. GEN. 380 (1955). ACCORDINGLY, OUR VIEW IS THAT UNDER THE LAW AND REGULATIONS QUOTED ABOVE THE APPLICATION OF THE HIGHEST PREVIOUS RATE RULE TO REINSTATEMENT ACTIONS SUCH AS HERE INVOLVED IS PROPER.