[Question Concerning Eligibility for Severance Pay]

B-213346, AUG 21, 1985, OFFICE OF GENERAL COUNSEL

COMPENSATION - SEVERANCE PAY - ELIGIBILITY - INVOLUNTARY SEPARATION - RESIGNATION TO TAKE TEMPORARY POSITION DIGEST: EMPLOYEE VOLUNTARILY RESIGNED FROM A PERMANENT POSITION TO ACCEPT A TEMPORARY APPOINTMENT WITH ANOTHER AGENCY. WHEN THE TEMPORARY APPOINTMENT EXPIRED, HE WAS SEPARATED AND RECEIVED NO SEVERANCE PAY. WE INITIALLY ADVISED THE INTERESTED CONGRESSMAN THAT THE EMPLOYEE WAS NOT ELIGIBLE FOR SEVERANCE PAY UNDER 5 U.S.C. SEC. 5595, BECAUSE IMPLEMENTING REGULATIONS IN 5 C.F.R. SEC. 550.704(B)(4)(I) REQUIRE THAT AN EMPLOYEE MUST HAVE BEEN INVOLUNTARILY SEPARATED FROM THE PERMANENT POSITION PRECEDING HIS TEMPORARY SERVICE. THE CONGRESSMAN IS NOW ADVISED THAT, IN VIEW OF A RECENT COURT DECISION HOLDING THAT 5 C.F.R. SEC. 550.704(B)(4)(I) IS INVALID, THE EMPLOYEE'S CLAIM FOR SEVERANCE PAY MAY HAVE LEGAL MERIT.

THE HONORABLE STAN PARRIS: MEMBER, UNITED STATES HOUSE OF REPRESENTATIVES 6901 OLD KEENE MILL ROAD SPRINGFIELD, VIRGINIA 22150

BY LETTER DATED SEPTEMBER 29, 1983, COPY ENCLOSED, YOU REQUESTED OUR OPINION CONCERNING MR. FRANKLIN L. MUSSER'S ELIGIBILITY FOR SEVERANCE PAY FOLLOWING THE TERMINATION OF HIS TEMPORARY LIMITED APPOINTMENT WITH THE FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION. ALTHOUGH WE ADVISED YOU THAT MR. MUSSER WAS NOT ELIGIBLE FOR SEVERANCE PAY IN OUR LETTER DATED DECEMBER 8, 1983, COPY ENCLOSED, SUBSEQUENT LEGAL DEVELOPMENTS MAY PROVIDE A BASIS FOR GRANTING HIS CLAIM. WE ARE APPRISING YOU OF THESE DEVELOPMENTS IN CASE MR. MUSSER WISHES TO RENEW HIS CLAIM FOR SEVERANCE PAY.

THE RELEVANT FACTS, PRESENTED IN YOUR CORRESPONDENCE OF SEPTEMBER 29, 1983, ARE AS FOLLOWS. EFFECTIVE MAY 12, 1979, MR. MUSSER RESIGNED FROM A TENURED POSITION WITH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC). THE NEXT DAY, HE WAS APPOINTED TO THE TEMPORARY POSITION OF PARALEGAL SPECIALIST, GRADE GS-11, IN THE FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION ("THE COMMISSION"). ALTHOUGH THE INITIAL TEMPORARY APPOINTMENT WAS FOR A PERIOD NOT TO EXCEED MAY 12, 1980, THAT APPOINTMENT ULTIMATELY WAS EXTENDED UNTIL MAY 12, 1981, WHEN THE POSITION WAS TERMINATED. MR. MUSSER RECEIVED A LUMP-SUM PAYMENT FOR ANNUAL LEAVE, BUT WAS NOT AWARDED SEVERANCE PAY.

MR. MUSSER DISPUTED THE COMMISSION'S DETERMINATION NOT TO AWARD HIM SEVERANCE PAY. IN CORRESPONDENCE ACCOMPANYING YOUR LETTER OF SEPTEMBER 29, 1983, MR. MUSSER INDICATED THAT HE SERVED IN THE TEMPORARY POSITION WITH THE HOPE THAT HE WOULD BE GIVEN A PERMANENT APPOINTMENT, AND THAT, AT THE TIME OF HIS SEPARATION, HE HAD BEEN EMPLOYED BY THE GOVERNMENT FOR MORE THAN 20 YEARS.

IN OUR LETTER TO YOU DATED DECEMBER 8, 1983, WE NOTED THAT 5 U.S.C. SEC. 5595 AUTHORIZES SEVERANCE PAY FOR AN "EMPLOYEE" WHO IS INVOLUNTARILY SEPARATED FOR REASONS OTHER THAN MISCONDUCT, DELINQUENCY, OR INEFFICIENCY AFTER BEING EMPLOYED FOR AT LEAST 12 CONTINUOUS MONTHS. THE TERM "EMPLOYEE," AS DEFINED IN SECTION 5595(A)(2)(II), INCLUDES AN INDIVIDUAL SERVING UNDER AN APPOINTMENT WITH A DEFINITE TIME LIMITATION, PROVIDED THAT HE WAS APPOINTED FOR FULL TIME EMPLOYMENT WITHOUT A BREAK IN SERVICE OF MORE THAN 3 DAYS FOLLOWING AN APPOINTMENT WITHOUT TIME LIMITATION.

ALTHOUGH MR. MUSSER'S TEMPORARY APPOINTMENT WAS IMMEDIATELY PRECEDED BY TENURED SERVICE WITHOUT TIME LIMITATION, AS REQUIRED BY 5 U.S.C. SEC. 5595(A)(2)(II), WE NOTED THAT THE IMPLEMENTING REGULATIONS IN 5 C.F.R. SEC. 550.704(B)(4)(I) IMPOSE AN ADDITIONAL REQUIREMENT: THE EMPLOYEE'S SEPARATION FROM THE PRIOR TENURED SERVICE MUST HAVE BEEN INVOLUNTARY. FOUND THAT MR. MUSSER WAS NOT INVOLUNTARILY SEPARATED FROM HIS TENURED POSITION WITH FERC BECAUSE THE NOTIFICATION OF PERSONNEL ACTION ACCOMPLISHING HIS SEPARATION SHOWED THAT HE VOLUNTARILY RESIGNED IN ORDER TO ACCEPT AN APPOINTMENT WITH THE COMMISSION. SINCE MR. MUSSER DID NOT MEET THE REQUIREMENTS OF 5 C.F.R. SEC. 550.704(B)(4)(I), WE CONCLUDED THAT HE WAS NOT ELIGIBLE FOR SEVERANCE PAY UNDER 5 U.S.C. SEC. 5595.

AFTER WE ISSUED OUR LETTER TO YOU, THE CLAIMS COURT ADDRESSED SIMILAR FACTS AND DECIDED TO ALLOW SEVERANCE PAY IN SULLIVAN V. UNITED STATES, 4 CL.CT. 70 (1983), COPY ENCLOSED. IN SULLIVAN, THE PLAINTIFF HAD VOLUNTARILY RELINQUISHED HER TENURED POSITION IN ORDER TO ACCEPT A TEMPORARY APPOINTMENT. WHEN THE TEMPORARY APPOINTMENT ENDED, SHE WAS DENIED SEVERANCE PAY BASED ON 5 C.F.R. SEC. 550.704(B)(4)(I), DISCUSSED ABOVE. THE COURT FOUND THAT SECTION 550.704(B)(4)(I) WAS INCONSISTENT WITH THE GOVERNING STATUTORY PROVISIONS IN 5 U.S.C. SEC. 5595, AND, THEREFORE, IT HELD THAT THE REGULATION WAS INVALID. APPLYING THE ELIGIBILITY CRITERIA IN 5 U.S.C. SEC. 5595, THE COURT FOUND THAT THE PLAINTIFF QUALIFIED FOR SEVERANCE PAY BECAUSE: (1) HER TEMPORARY APPOINTMENT WAS IMMEDIATELY PRECEDED BY AN APPOINTMENT WITHOUT TIME LIMITATION, AS REQUIRED BY 5 U.S.C. SEC. 5595(A)(2)(II); AND (2) HER SEPARATION FROM THE TEMPORARY APPOINTMENT WAS INVOLUNTARY, AS REQUIRED BY 5 U.S.C. SEC. 5595(B).

IN SEPTEMBER 1984, THE COURT OF APPEALS FOR THE FEDERAL CIRCUIT ISSUED A PER CURIAM OPINION AFFIRMING THE SULLIVAN DECISION. SULLIVAN V. UNITED STATES, 742 P.2D 628 (FED. CIR. 1984), COPY ENCLOSED. RECENTLY, THE OFFICE OF PERSONNEL MANAGEMENT ADVISED US THAT IT IS IN THE PROCESS OF AMENDING 5 C.F.R. SEC. 704(B)(4)(I) TO DELETE THE REQUIREMENT THAT AN EMPLOYEE MUST HAVE BEEN INVOLUNTARILY SEPARATED FROM THE PERMANENT POSITION PRECEDING HIS TEMPORARY SERVICE.

WE HOPE THAT THIS INFORMATION WILL BE HELPFUL TO YOUR CONSTITUENT. IF, AFTER CONSIDERING THIS INFORMATION, MR. MUSSER WISHES TO PURSUE HIS CLAIM FOR SEVERANCE PAY, HE MAY DO SO BY REQUESTING OUR DECISION.