Washington DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Washington DC
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/23/2024
Date
The claimant occupies a Social Scientist, GS-0101-13, position with the U.S. Commission on Civil Rights (USCCR) in Washington DC. She requests the U.S. Office of Personnel Management (OPM) reconsider her agency’s denial of her request concerning various pay issues connected to her employment with the USCCR. OPM received the claim on March 14, 2023, and the agency administrative report on March 29, 2023. For reasons discussed herein, the claim is denied.
Incorrect step set upon transfer
When she transferred to USCCR on December 20, 2021, the claimant’s Standard Form (SF) 50 shows her pay was set at the GS-13, step 1 rate with basic pay of $79,468, locality adjustment based on her Washington DC duty station of $24,222, for a total salary of $103,690. The claimant seeks to correct the setting of her pay from the step 1 to step 2 rate based on her previous employment as a Partnership Data Services Coordinator, GG-0301-13, step 2 with the U.S. Census Bureau (Census), U.S. Department of Commerce in Charlotte, North Carolina. She provided the relevant SF 50, dated May 9, 2010, which shows that at the time, her rate of basic pay was $74,063, with a locality adjustment of $10,487, for a total salary of $84,550.
As provided for by section 531.221(a) of title 5, Code of Federal Regulations (CFR), the maximum payable rate (MPR) rule allows an agency to set pay for a GS employee above the rate that would be established using normal rules, based on a higher rate of pay the employee previously received in another Federal job, i.e., his or her highest previous rate (HPR). The MPR rule may be used for various pay actions including reemployment, transfer, reassignment, promotion, demotion, change in appointment type, and movement from a non-GS pay system. The pay set under the MPR rule may not exceed the rate for step 10 of the GS grade of the position in which the employee is being placed or be less than the rate to which the employee would be entitled under normal pay-setting rules.
Regarding the claimant’s request for consideration of HPR, the agency states in its February 23, 2023, decision:
Based on the SF-50 you submitted from [Census]…your [HPR] was $84,550…OPM has a [MPR] rule, which allows an agency, in its sole discretion, to base the new rate of pay on the [HPR] of pay, however your actual pay at [Census] and [Federal Emergency Management Agency] was significantly lower than here at USCCR…Despite having discretion in setting the [MPR], USCCR must also abide by OPM regulations and cannot simply offer employees positions at higher Step levels than is allowed by OPM rules. You were offered and accepted a GS 13/1 at $103,690, which was the appropriate grade and step for the position even when considering HPR.
Because the claimant’s pay rate at Census was under a non-GS pay system, the provisions applicable to determine her MPR are 5 CFR 531.221(d), which state in part:[1]
When an employee’s [HPR] (as provided in §531.222) is based on a rate of basic pay in a non-GS pay system, the agency must determine the [MPR] of basic pay that may be paid to the employee in his or her current GS position of record…
The HPR is to be based on a “rate of basic pay” as defined in 5 CFR 531.203 as:
…the rate of pay fixed by law or administrative action for the position held by a GS employee before any deductions, including a GS rate, [a law enforcement officer] special base rate, a special rate, a locality rate, and a retained rate, but exclusive of additional pay of any other kind. For the purpose of applying the [MPR] rules in §§531.216 and 531.221 using a rate under a non-GS pay system as an employee’s [HPR], rate of basic pay means a rate of pay under other legal authority which is equivalent to a rate of basic pay for GS employees, as described in this definition, excluding a rate under §531.223.
The claimant’s Census-based HPR is $84,550 (total of basic pay and locality adjustment). Since this rate is under a non-GS pay system, provisions under 5 CFR 531.221(d)(in addition to the implementing instructions provided by OPM for pay administration guidance found at https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/fact-sheets/maximum-payable-rate-rule/) are applied to determine her MPR as follows:
Step A: Compare the HPR to the highest applicable rate range in effect at the time and place where the HPR was earned. The highest applicable rate range is determined as if the employee held the current GS position of record (including the grade in which pay is being set) at that time and place. The term “highest applicable rate range” is defined in 5 CFR 531.203 and includes a locality rate or special rate range.
Because the claimant’s HPR was earned in 2010, the highest applicable rate range is the GS-13 rate range on Salary Table 2010-DCB (locality pay area of Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA) (DC locality pay table).
Step B: Identify the lowest step rate in that range that was equal to or higher than the HPR.
The lowest step rate for GS-13 on the Salary Table 2010-DCB that equaled or exceeded the HPR of $84,550 was the rate for GS-13, step 1 ($89,033).
Step C: Convert the step rate identified in step B to a corresponding rate (same step) on the current highest applicable rate range for the employee’s current GS position of record and official worksite. That step rate is the employee’s MPR of basic pay.
The GS-13, step 1 rate is $103,690 on the 2021 DC locality pay table.
The maximum rate of pay the claimant could have been offered by the USCCR based on her Census pay rate was GS-13, step 1 ($103,690). Therefore, the claimant’s assertion that her pay should have been set at the step 2 rate is unsupported and the claim is denied.
Locality pay
The claimant describes two of her four pay issues in the claim request as follows:
(1) My W-2 shows I was paid in North Carolina wages, even though [human resources (HR)] said it is based on my DC duty station.
(2) When I moved to Maryland, I was not given locality pay (based on the GS-13 step 1), even though I sent a change of address in a letter to HR and added my new address in the [Employee Personal Page] system on 3/16/2022.[2]
The record shows that upon transferring to the USCCR in December 2021, the claimant physically resided in North Carolina. After moving to Maryland on/around March 2022, she asserts she was not provided the appropriate locality pay for that location, which is covered by the DC locality pay table.
The agency states in its February 2023 decision:
Your new address was updated in the system in March 2022, however, there was no need to update the locality pay because the duty station of Washington DC did not change. Therefore, the DC locality pay continued before or after your move to Maryland.
The claimant submitted her W-2, Wage and Tax Statement, for 2022; however, we note the document identifies her earnings and paid tax withholdings but it does not nor would it specifically identify the locality pay portion of her earnings. Consequently, we considered the SF-50s on record including her December 20, 2021, transfer to the USCCR; January 2, 2022, general pay adjustment; and January 1, 2023, within-grade increase. All SF 50s identify the Washington DC duty station and reflect pay commensurate with the grade and step from the DC locality pay table. In addition, we reviewed the January 13, 2022, and December 29, 2022, statements of earnings and leave on record, which identify an annual salary consistent with the GS-13, step 1 rate from the DC locality pay table in effect at the time, i.e., $103,690 and $106,823 respectively. Therefore, the claimant’s assertion that she did not receive the appropriate locality pay upon moving to Maryland is unsupported.
Under 5 CFR 178.105, the burden is upon the claimant to establish the liability of the United States and the claimant’s right to payment. She has provided no documentation or statements to the contrary to show her pay was not set in accordance with the DC locality pay table. Since an agency decision made in accordance with established regulations, as is evident in the present case, cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision. Accordingly, this part of the claim is denied.
State income tax withholdings
When she relocated from North Carolina to Maryland, the claimant states the agency stopped deducting State income tax from her pay for North Carolina but failed to withhold the requisite State income tax for Maryland. In its February 2023 decision, the agency explains in part:
When the address was changed from North Carolina to Maryland, the system automatically stopped taking out North Carolina taxes because the change of address indicated that you were no longer living in that state. A new State withholding certificate needed to be inputted for Maryland taxes to be taken out…
Since neither Maryland taxes nor North Carolina taxes were coming out (i.e., being withheld) of your paycheck since March of 2022, you were receiving a higher net pay each pay period and those monies should have been going towards your State tax liability.
The claimant does not state any disagreement with the agency’s explanation, specifically relating to her receipt of the higher net pay each pay period. Because a reasonable and prudent person would have questioned the correctness of receipt of salary payment, the claimant was not entirely without fault in this matter as she failed to effectively examine earnings statements that would have alerted her to the error. See B-233047, February 22, 1989. Moreover, OPM adjudicates compensation and leave claims for Federal employees under 31 U.S.C. 3702(a)(2). This authority is narrow and limited to consideration of whether monies are owed the claimant for the stated claim under the applicable statute and implementing regulations. Since the record supports the agency’s assertion that the claimant was already paid monies owed to her for work performed, OPM has no authority to confer additional payment or benefit not permitted by law, regulation, or agency policy. Therefore, this portion of the claim is denied for failure to state a claim for which relief can be granted.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.
[1] The “GG” pay plan is the Census employee-equivalent of the GS pay plan and parallels GS rates. However, the “GG” plan is considered administratively determined since authority for its use is derived from Section 23 of Title 13. Because the “GG” plan is not established under chapter 51 of title 5, United States Code (U.S.C.) and subchapter III of chapter 53, we conclude the claimant’s “GG” position falls under a non-GS pay system for purposes of determining her MPR.
[2] The claimant provides no further explanation regarding the pay issues in her claim request, instead copying the agency’s written response to each issue from its February 2023 decision. We are unable to discern an actual claim from the first issue as it states neither a claim nor the remedy sought. Because the first and second issues appear indistinguishable, we will respond collectively to the issues as both seemingly relate to the assertion that she was not provided the appropriate locality pay.