B-173815, FEB 2, 1973

B-173815: Feb 2, 1973

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ESTRADA WAS REEMPLOYED BY THE SAN ANTONIO AIR MATERIEL AREA. THE ESTABLISHMENT OF AN EMPLOYEE'S RATE OF PAY UPON REEMPLOYMENT IS WITHIN THE ADMINISTRATIVE DISCRETION OF THE EMPLOYING AGENCY AND THE EMPLOYEE HAS NO VESTED RIGHT TO RECEIVE THE HIGHEST SALARY RATE PREVIOUSLY PAID TO HER. PROVIDED THE SETTING OF SUCH RATE WAS CONSISTENT WITH THE IMPLEMENTING REGULATIONS OF THE AGENCY. 31 COMP. ESTRADA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17. REQUESTING A DECISION ON THE CORRECTNESS OF THE RATE OF PAY AT WHICH YOU WERE REEMPLOYED BY HEADQUARTERS. CLERK STENOGRAPHER WAS ACCEPTED ON OCTOBER 28. YOU WERE EVENTUALLY OFFERED A TEMPORARY POSITION WHICH YOU ACCEPTED ON MARCH 29. THIS TEMPORARY POSITION WAS CONVERTED TO A PERMANENT POSITION AND YOUR RATE OF PAY WAS SET AT GS-4.

B-173815, FEB 2, 1973

CIVILIAN PERSONNEL - REEMPLOYMENT - RATE OF PAY DECISION SUSTAINING THE CORRECTNESS OF THE RATE OF PAY AT WHICH NIEVES M. ESTRADA WAS REEMPLOYED BY THE SAN ANTONIO AIR MATERIEL AREA, KELLY AFB, TEX. THE ESTABLISHMENT OF AN EMPLOYEE'S RATE OF PAY UPON REEMPLOYMENT IS WITHIN THE ADMINISTRATIVE DISCRETION OF THE EMPLOYING AGENCY AND THE EMPLOYEE HAS NO VESTED RIGHT TO RECEIVE THE HIGHEST SALARY RATE PREVIOUSLY PAID TO HER, PROVIDED THE SETTING OF SUCH RATE WAS CONSISTENT WITH THE IMPLEMENTING REGULATIONS OF THE AGENCY. 31 COMP. GEN. 15 (1951).

TO MRS. NIEVES M. ESTRADA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17, 1972, REQUESTING A DECISION ON THE CORRECTNESS OF THE RATE OF PAY AT WHICH YOU WERE REEMPLOYED BY HEADQUARTERS, SAN ANTONIO AIR MATERIEL AREA (SAAMA), KELLY AIR FORCE BASE, TEXAS.

THE INFORMATION SUPPLIED BY YOU INDICATES YOU HAD BEEN EMPLOYED BY THE ARMED FORCES RADIO AND TELEVISION SERVICE IN LOS ANGELES, CALIFORNIA, AS A GS-4, STEP 7, CLERK-STENOGRAPHER WITH A SALARY OF $6,626 PER ANNUM AT THE TIME OF YOUR VOLUNTARY RESIGNATION ON JANUARY 9, 1970. SUBSEQUENTLY YOU APPLIED FOR REINSTATEMENT AT KELLY AIR FORCE BASE, TEXAS, AND YOUR APPLICATION FOR A POSITION AS A GS-4, CLERK STENOGRAPHER WAS ACCEPTED ON OCTOBER 28, 1970, AND PLACED IN THE APPLICANT SUPPLY FILE. YOU WERE EVENTUALLY OFFERED A TEMPORARY POSITION WHICH YOU ACCEPTED ON MARCH 29, 1971. ON APRIL 25, 1971, THIS TEMPORARY POSITION WAS CONVERTED TO A PERMANENT POSITION AND YOUR RATE OF PAY WAS SET AT GS-4, STEP 1, WITH A SALARY OF $6,202 PER ANNUM.

IT IS YOUR POSITION THAT PURSUANT TO CIVIL SERVICE COMMISSION REGULATIONS YOU WERE ENTITLED TO PAY AT THE GS-4, STEP 7 LEVEL UNDER THE HIGHEST PREVIOUS RATE RULE, INASMUCH AS YOU REQUESTED REEMPLOYMENT WITHIN ONE YEAR FROM THE DATE OF YOUR VOLUNTARY RESIGNATION ON JANUARY 9, 1970. FURTHER YOU CONTEND THAT SUPPLEMENTAL REGULATIONS GOVERNING ESTABLISHMENT OF PAY RATES FOR CIVILIAN PERSONNEL, PROMULGATED BY HEADQUARTERS AIR FORCE LOGISTICS COMMAND (AFLC), AND APPLICABLE TO KELLY AIR FORCE BASE, ARE TOO RESTRICTIVE AND CONFLICT WITH CIVIL SERVICE COMMISSION AND DEPARTMENT OF THE AIR FORCE REGULATIONS ON THE SAME SUBJECT. IN THIS CONNECTION YOU POINT OUT THAT THESE SUPPLEMENTAL REGULATIONS RESTRICT APPLICATION OF THE HIGHEST PREVIOUS RATE RULE TO EMPLOYEES REINSTATED WITHIN 90 DAYS OF VOLUNTARY SEPARATION WHICH YOU ASSERT IS CONTRARY TO CIVIL SERVICE COMMISSION REGULATIONS. YOU STATE IT IS YOUR UNDERSTANDING THAT CIVIL SERVICE COMMISSION REGULATIONS DIRECT MANDATORY APPLICATION OF THE RULE TO EMPLOYEES REINSTATED WITHIN ONE YEAR OF THEIR VOLUNTARY SEPARATION.

THE LAW GOVERNING THE RATE OF PAY TO WHICH AN EMPLOYEE IS ENTITLED UPON REINSTATEMENT OR REEMPLOYMENT IS CONTAINED IN 5 U.S.C. 5334(A), WHICH PERMITS AN EXCEPTION TO THE BASIC LEGISLATIVE POLICY SET FORTH IN 5 U.S.C. 5333(A) THAT NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE. SECTION 5334(A) PROVIDES IN PERTINENT PART:

"SEC 5334. RATE ON CHANGE OF POSITION OR TYPE OF APPOINTMENT; REGULATIONS

"(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

"(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; ***"

THE IMPLEMENTING REGULATIONS OF THE CIVIL SERVICE COMMISSION, 5 CFR 531.203(C), PROVIDE WITH CERTAIN EXCEPTIONS NOT HERE RELEVANT AS FOLLOWS:

"*** 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. ***"

THE DEPARTMENT OF THE AIR FORCE REGULATION, AFR 40-521, DATED NOVEMBER 2, 1965, IMPLEMENTS THE CIVIL SERVICE COMMISSION REGULATIONS WITH SIMILAR LANGUAGE AND IN PARAGRAPH 4B(8) FURTHER PROVIDES THAT "*** THE PAY OF AN EMPLOYEE WHO IS REEMPLOYED AFTER A BREAK IN SERVICE MAY BE ESTABLISHED AT ANY STEP RATE OF THE GRADE WHICH DOES NOT EXCEED THE STEP RATE PERMITTED UNDER THE HIGHEST PREVIOUS RATE RULE ***"

CONTRARY TO YOUR ALLEGATIONS, A REVIEW OF THESE REGULATIONS INDICATES THAT NEITHER DIRECTS THE MANDATORY APPLICATION OF THE HIGHEST PREVIOUS RATE RULE IN THE REINSTATEMENT OF AN EMPLOYEE WHO HAS BEEN VOLUNTARILY SEPARATED FOR LESS THAN ONE YEAR. RATHER THESE REGULATIONS ARE PERMISSIVE IN NATURE WITH RESPECT TO THE APPLICATION OF THE RULE IN SITUATIONS AS DESCRIBED IN YOUR CASE. IN EFFECT THE HIGHEST PREVIOUS RATE RULE ESTABLISHES A CEILING THAT THE APPOINTING AGENCY MAY NOT EXCEED IN SETTING THE SALARY RATE OF A REINSTATED EMPLOYEE. IN INTERPRETING THESE REGULATIONS, WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF AN EMPLOYEE'S RATE OF PAY UPON REEMPLOYMENT IS WITHIN THE ADMINISTRATIVE DISCRETION OF THE APPOINTING AGENCY AND AN EMPLOYEE, UPON REEMPLOYMENT HAS NO VESTED RIGHT TO RECEIVE THE HIGHEST SALARY RATE PREVIOUSLY PAID TO HIM. 31 COMP. GEN. 15 (1951); ID. 367 (1952); B-171885, APRIL 26, 1972; B -175347, APRIL 21, 1972.

FROM THE FACTS PRESENTED BY YOU, IT APPEARS THAT THE REQUIREMENTS OF 5 CFR 531.203(C) AND AFR 40-521 AS SUPPLEMENTED WERE SATISFIED IN SETTING YOUR RATE OF PAY AT GS-4, STEP 1. THE AFLC SUPPLEMENT TO AFR 40-521 IS ENTIRELY CONSISTENT WITH THE CIVIL SERVICE COMMISSION AND DEPARTMENT OF THE AIR FORCE REGULATIONS ON WHICH IT IS BASED, IN THAT IT EXPLICITLY DIRECTS HOW DISCRETION CONCERNING APPLICATION OF THE RULE WILL BE EXERCISED BY SUBORDINATE COMMANDS.

ACCORDINGLY, OUR VIEW IS THAT THE ACTION OF HEADQUARTERS, SAAMA, KELLY AIR FORCE BASE, TEXAS, IN SETTING YOUR SALARY RATE WAS PROPER AND IN ACCORDANCE WITH THE STATUTE AND ALL APPLICABLE REGULATIONS.