B-229447.2, Dec 6, 1989

B-229447.2: Dec 6, 1989

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CIVILIAN PERSONNEL - Compensation - Retroactive compensation - Eligibility - Discretionary authority DIGEST: Upon reconsideration we affirm our decision that an employee who was appointed to a grade and step lower than that for which he was eligible is not entitled to have his appointment retroactively changed to a higher level with appropriate backpay because the appointment at a higher level would have been discretionary rather than mandatory. Which held that he was not entitled to retroactive backpay from the date of his appointment with the National Security Agency merely because the agency subsequently placed him in a higher step of the grade level after it had determined that his education and experience qualified him for a higher level than he was given when appointed.

B-229447.2, Dec 6, 1989

CIVILIAN PERSONNEL - Compensation - Retroactive compensation - Eligibility - Discretionary authority DIGEST: Upon reconsideration we affirm our decision that an employee who was appointed to a grade and step lower than that for which he was eligible is not entitled to have his appointment retroactively changed to a higher level with appropriate backpay because the appointment at a higher level would have been discretionary rather than mandatory.

Antonio O. Lee - Reconsideration:

Mr. Lee seeks a reconsideration of our decision, Antonio O. Lee, B-229447, Sep. 14, 1988, which held that he was not entitled to retroactive backpay from the date of his appointment with the National Security Agency merely because the agency subsequently placed him in a higher step of the grade level after it had determined that his education and experience qualified him for a higher level than he was given when appointed. Since an appointment at a higher level would have been discretionary rather than mandatory, we held that at the time of Mr. Lee's appointment there was no administrative error depriving him of a legal right to be hired above the grade level in which he was appointed.

Although Mr. Lee concedes that an appointment at a higher level than the one to which he was appointed would have been a discretionary personnel action, he now argues that his appointment at a lower level than the appointment of other similarly situated employees violated the merit system principle of fair and equitable treatment of all applicants for employment set forth at 5 U.S.C. Sec. 2301(b)(2) (1982), and incorporated into his agency's regulations. We have held that unless a law, rule, or regulation implementing or directly concerning the merit system principles is violated, the principles themselves may not be made the basis of a legal action by an employee or agency. Vernon W. Gudkese, B-205641, June 22, 1982. See also Wells v. Harris, 1 MSPB 199, 203 (1980). Pertinent statutes, rules, and implementing regulations are designed to assure that the principle of fair and equitable treatment of all applicants and employees is followed. Matters handled within properly allowed discretionary bounds cannot alone serve to establish that the principle has been violated.

Mr. Lee also cites B-180313, June 5, 1974, for the principle that even discretionary agency actions cannot be sustained if they are arbitrary, capricious, or lacking a rational basis. The question, then, is whether or not hiring at different grade levels for similarly situated applicants is arbitrary, capricious or lacking of rational basis. The answer is that there is a permissible range of negotiation with each applicant as to the level of his or her appointment. Within a range established for the job involved, there is no basis upon which to question an appointment at any level so long as minimum qualification standards for the appointment level are met. There is no requirement that an applicant be appointed at precisely the same level as another applicant with an equivalent set of qualifications.

Since the arguments presented by Mr. Lee on appeal do not provide a basis for overturning our prior decision, it is affirmed.