Skip to main content

B-175167, MAR 28, 1972

B-175167 Mar 28, 1972
Jump To:
Skip to Highlights

Highlights

IS THAT AN EMPLOYEE IS ONLY ENTITLED TO SEVERANCE PAY AT THE TERMINATION OF AN EMPLOYMENT WITH A DEFINITE TIME LIMITATION. IF HIS SEPARATION FROM A PRIOR INDEFINITE APPOINTMENT WAS INVOLUNTARY. IT IS SIGNIFICANT THAT NEITHER THE ACT ITSELF NOR ITS LEGISLATIVE HISTORY CLEARLY REFLECT THE INTENT OF CONGRESS IN THIS REGARD. IT IS THE OPINION OF THE COMP. REPRESENT AN EXERCISE OF REASONABLENESS WITHIN THE SCOPE OF THE AUTHORITY DELEGATED AND ARE CONSISTENT WITH THE PURPOSES AND INTENT OF THE SEVERANCE PAY PROVISIONS OF LAW. COOKE & GOTTLIEB: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2. THE CLAIM WAS DISALLOWED BECAUSE MRS. LYDON WAS NOT INVOLUNTARILY SEPARATED FROM THE INDEFINITE APPOINTMENT SHE HELD IMMEDIATELY PRECEDING HER APPOINTMENT ON A TERM BASIS AND THEREFORE COULD NOT QUALIFY FOR SEVERANCE PAY UNDER THE REGULATIONS OF THE CIVIL SERVICE COMMISSION.

View Decision

B-175167, MAR 28, 1972

CIVILIAN EMPLOYEE - VOLUNTARY SEPARATION - SEVERANCE PAY - ENTITLEMENT STATUTORY INTERPRETATION DECISION SUSTAINING THE DISALLOWANCE OF A CLAIM OF MARY J. LYDON FOR SEVERANCE PAY UNDER THE PROVISIONS OF SECTION 9, PUB. L. 89-301. THE POSITION OF THE CIVIL SERVICE COMMISSION, PURSUANT TO 5 CFR 550.704(B)(4)(I), IS THAT AN EMPLOYEE IS ONLY ENTITLED TO SEVERANCE PAY AT THE TERMINATION OF AN EMPLOYMENT WITH A DEFINITE TIME LIMITATION, IF HIS SEPARATION FROM A PRIOR INDEFINITE APPOINTMENT WAS INVOLUNTARY. ALTHOUGH IT COULD BE ARGUED THAT THE STATUTORY PROVISIONS UPON WHICH CLAIMANT RELIES MIGHT BE CONSTRUED IN HER FAVOR, IT IS SIGNIFICANT THAT NEITHER THE ACT ITSELF NOR ITS LEGISLATIVE HISTORY CLEARLY REFLECT THE INTENT OF CONGRESS IN THIS REGARD. IT IS THE OPINION OF THE COMP. GEN. THAT THE REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION PURSUANT TO THE DELEGATION OF AUTHORITY GIVEN BY THE PRESIDENT UNDER EXECUTIVE ORDER NO. 11257 OF NOVEMBER 13, 1965, REPRESENT AN EXERCISE OF REASONABLENESS WITHIN THE SCOPE OF THE AUTHORITY DELEGATED AND ARE CONSISTENT WITH THE PURPOSES AND INTENT OF THE SEVERANCE PAY PROVISIONS OF LAW. ACCORDINGLY, THE PRIOR DISALLOWANCE OF MRS. LYDON'S CLAIM MUST BE SUSTAINED.

TO GOTTLIEB, COOKE & GOTTLIEB:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1972, IN WHICH YOU REQUEST REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED JANUARY 19, 1972, WHICH DISALLOWED THE CLAIM OF YOUR CLIENT, MRS. MARY J. LYDON, FOR SEVERANCE PAY UNDER SECTION 9, PUBLIC LAW 89-301, OCTOBER 29, 1965 (5 U.S.C. 5595(A)(2)(B)(II) AND (B)(1) AND (2)).

THE CLAIM WAS DISALLOWED BECAUSE MRS. LYDON WAS NOT INVOLUNTARILY SEPARATED FROM THE INDEFINITE APPOINTMENT SHE HELD IMMEDIATELY PRECEDING HER APPOINTMENT ON A TERM BASIS AND THEREFORE COULD NOT QUALIFY FOR SEVERANCE PAY UNDER THE REGULATIONS OF THE CIVIL SERVICE COMMISSION.

UNDER 5 U.S.C. 5595(A)(2)(B)(II) THE ALLOWANCE OF SEVERANCE PAY TO AN EMPLOYEE SERVING UNDER AN APPOINTMENT WITH A DEFINITE TIME LIMITATION IS PRECLUDED, UNLESS SUCH APPOINTMENT FOLLOWS (WITHOUT A BREAK IN SERVICE OF MORE THAN 3 DAYS) AN APPOINTMENT WITHOUT TIME LIMITATION; ALSO, UNDER 5 U.S.C. 5595(B)(2) AN EMPLOYEE IS ENTITLED TO SEVERANCE PAY ONLY IF INVOLUNTARILY SEPARATED FROM THE SERVICE NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY.

IT IS YOUR BASIC CONTENTION THAT MRS. LYDON'S ENTITLEMENT TO SEVERANCE PAY FALLS SQUARELY WITHIN THE PURVIEW OF THE AFOREMENTIONED STATUTORY PROVISIONS, NOTWITHSTANDING THE REGULATIONS OF THE CIVIL SERVICE COMMISSION TO THE CONTRARY. SUCH REGULATIONS, 5 CFR 550.704(B)(4)(I), ARE TO THE EFFECT THAT WHEN AN EMPLOYEE IS SEPARATED FROM AN INDEFINITE APPOINTMENT WHICH IS FOLLOWED BY AN APPOINTMENT WITH A DEFINITE TIME LIMITATION, THE SEPARATION FROM THE INDEFINITE APPOINTMENT MUST HAVE BEEN INVOLUNTARY IN ORDER FOR HIM TO QUALIFY FOR ENTITLEMENT TO SEVERANCE PAY AT THE TIME THE LIMITED APPOINTMENT EXPIRES.

IN OUR DECISION B-157753, DECEMBER 20, 1965, COPY ENCLOSED, WE STATED IN PERTINENT PART AS FOLLOWS:

"IT COULD BE ARGUED REASONABLY THAT THE EFFECT OF THE EXCEPTION APPEARING IN SECTION 9(B)(2) (NOW 5 U.S.C. 5595(A)(2)(B)(II)) IS TO MAKE AN EMPLOYEE SERVING UNDER A LIMITED APPOINTMENT, UNDER THE CONDITIONS SPECIFIED IN SUCH EXCEPTION, SUBJECT TO ALL OF THE PROVISIONS OF SECTION 9 OF THE ACT AND THAT WHEN SUCH AN EMPLOYEE IS INVOLUNTARILY SEPARATED FROM SUCH POSITION HIS ENTITLEMENT TO SEVERANCE PAY IS BASED UPON THAT SEPARATION AND HIS SEVERANCE PAY IS TO BE COMPUTED UPON THE RATE OF COMPENSATION APPLICABLE TO HIM IMMEDIATELY PRIOR TO THAT SEPARATION - NOT UPON HIS FORMER SEPARATION FROM THE POSITION OF UNLIMITED DURATION.

"IT IS SIGNIFICANT, HOWEVER, THAT NEITHER SECTION 9 OF THE ACT NOR ITS LEGISLATIVE HISTORY CLEARLY REFLECTS THE INTENT OF CONGRESS IN THIS REGARD BUT THAT SUCH SECTION PROVIDES FOR PAYMENT OF SEVERANCE PAY UNDER RULES AND REGULATIONS TO BE PROMULGTGED BY THE PRESIDENT OR HIS DESIGNEE. VIEW THEREOF WE WOULD NOT BE WARRANTED IN INTERPOSING ANY LEGAL OBJECTION TO THE CONSTRUCTION GIVEN SECTIONS 9(B)(2) AND (D) OF THE ACT BY SUCH REGULATION. *** "

THE CIVIL SERVICE COMMISSION IN DEFINING ITS POSITION AND CLARIFYING THE SITUATION REFERRED TO IN SECTION 9(B)(2) IN A LETTER TO THIS OFFICE DATED SEPTEMBER 17, 1968, STATES IN PERTINENT PART THAT:

"THE COMMISSION'S POSITION, REFLECTED IN SECTION 550.704(B)(4)(I) OF ITS REGULATIONS, IS THAT THE EMPLOYEE MUST MEET THE CONDITIONS FOR SEVERANCE PAY AT THE TIME OF SEPARATION FROM THE POSITION OF UNLIMITED DURATION, AND THAT IT IS AT THAT POINT THAT ENTITLEMENT IS ESTABLISHED. THAT SEPARATION ESTABLISHES THAT THE EMPLOYEE WILL RECEIVE SEVERANCE PAY UPON SEPARATION FROM THE TEMPORARY APPOINTMENT, WHETHER HE RESIGNS, IS SEPARATED FOR DISCIPLINARY REASONS, OR WHATEVER THE REASON FOR SEPARATION FROM THE TEMPORARY APPOINTMENT MIGHT BE."

IN THE INSTANT CASE, ON AUGUST 1, 1965, MRS. LYDON ACCEPTED A POSITION WITH THE DEPARTMENT OF DEFENSE, DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, UNDER A CAREER CONDITIONAL APPOINTMENT WITHOUT TIME LIMITATION. HOWEVER, ON MARCH 6, 1966, SHE VOLUNTARILY RELINQUISHED SUCH POSITION AND ON MARCH 7, 1966, ACCEPTED A TERM APPOINTMENT NOT TO EXCEED DECEMBER 31, 1968, WITH THE DEPARTMENT OF THE ARMY, BOSTON ARMY BASE HEADQUARTERS, WHICH WAS EXTENDED UNTIL HER SERVICES WERE TERMINATED ON MARCH 22, 1970.

WE POINT OUT THAT THE REGULATIONS OF THE COMMISSION SERVE TO PRECLUDE AN EMPLOYEE WHO HAS BEEN SEPARATED FROM A POSITION NOT COVERED BY THE STATUTE FROM RECEIVING SEVERANCE PAY BY IMMEDIATELY OBTAINING A TEMPORARY APPOINTMENT FROM WHICH HE WILL INEVITABLY BE INVOLUNTARILY SEPARATED. OTHER WORDS SUCH REGULATIONS INSURE THAT AN EMPLOYEE WILL NOT OBTAIN SEVERANCE PAY BY RESIGNING FROM A PERMANENT APPOINTMENT TO TAKE A TEMPORARY POSITION FROM WHICH HE WILL BE INVOLUNTARILY SEPARATED.

IT IS OUR VIEW THAT THE AFOREMENTIONED REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION PURSUANT TO THE DELEGATION OF AUTHORITY GIVEN BY THE PRESIDENT UNDER EXECUTIVE ORDER NO. 11257 OF NOVEMBER 13, 1965, REPRESENT AN EXERCISE OF REASONABLENESS WITHIN THE SCOPE OF THE AUTHORITY DELEGATED AND ARE CONSISTENT WITH THE PURPOSES AND INTENT OF THE SEVERANCE PAY PROVISIONS OF LAW.

ACCORDINGLY, WE MUST SUSTAIN THE ACTION TAKEN IN OUR SETTLEMENT OF JANUARY 19, 1972, WHICH DISALLOWED THE CLAIM OF YOUR CLIENT FOR SEVERANCE PAY.

GAO Contacts

Office of Public Affairs