B-135115, OCTOBER 10, 1968, 48 COMP. GEN. 192

B-135115, OCTOBER 10, 1968, 48 COMP. GEN. 192

COMPENSATION - SEVERANCE PAY - DISCONTINUANCE - REEMPLOYMENT OF SEPARATED EMPLOYEE UPON EMPLOYMENT OF A SEPARATED CIVIL SERVICE EMPLOYEE BY A NONAPPROPRIATED FUNDS INSTRUMENTALITY DESCRIBED IN 5 U.S.C. 2105 (C), THE SEVERANCE PAY THE FORMER EMPLOYEE IS RECEIVING IS NOT REQUIRED TO BE DISCONTINUED, THE PROVISIONS IN 5 U.S.C. 5595 (D) PRESCRIBING THE DISCONTINUANCE OF SEVERANCE PAY APPLYING ONLY WHEN A FORMER EMPLOYEE IS REEMPLOYED BY THE FEDERAL GOVERNMENT. EVEN THOUGH NONAPPROPRIATED FUNDS INSTRUMENTALITIES ARE INTEGRAL PARTS OF THE GOVERNMENT OF THE UNITED STATES, THE EMPLOYEES OF THE INSTRUMENTALITIES ARE NOT CONSIDERED EMPLOYEES OF THE UNITED STATES FOR THE PURPOSE OF LAWS ADMINISTERED BY THE CIVIL SERVICE COMMISSION AND, THEREFORE, THE SEVERANCE PAY OF THE FORMER EMPLOYEE SHOULD NOT BE DISCONTINUED AS A RESULT OF EMPLOYMENT BY A NONAPPROPRIATED FUNDS INSTRUMENTALITY.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 10, 1968:

WE REFER TO YOUR LETTER OF SEPTEMBER 19, 1968, BY WHICH YOU REQUEST OUR DECISION WHETHER SEVERANCE PAY BEING ALLOWED A SEPARATED CIVIL SERVICE EMPLOYEE UNDER THE PROVISIONS OF SUBCHAPTER IX OF CHAPTER 55, TITLE 5, U.S.C. MUST BE DISCONTINUED AT THE TIME SUCH FORMER EMPLOYEE IS EMPLOYED BY A NONAPPROPRIATED FUNDS INSTRUMENTALITY DESCRIBED IN 5 U.S.C. 2105 (C).

THE PROVISIONS OF 5 U.S.C. 5595 (D) REQUIRE THE DISCONTINUANCE OF SEVERANCE PAY WHEN THE FORMER EMPLOYEE CONCERNED IS REEMPLOYED BY THE GOVERNMENT. ALTHOUGH IT HAS BEEN DETERMINED THAT NONAPPROPRIATED FUNDS INSTRUMENTALITIES ARE INTEGRAL PARTS OF THE GOVERNMENT OF THE UNITED STATES, THE EMPLOYEES OF SUCH INSTRUMENTALITIES ARE NOT CONSIDERED TO BE EMPLOYEES OF THE UNITED STATES FOR THE PURPOSES OF LAWS ADMINISTERED BY THE CIVIL SERVICE COMMISSION UNDER THE PROVISIONS OF 5 U.S.C. 2105 (C). THAT PROVISION OF THE CODIFIED TITLE 5 WAS DERIVED FROM SECTION 1 OF THE ACT OF JUNE 19, 1952, CH. 444, 66 STAT. 138, 5 U.S.C. 150K, WHICH WAS ENACTED FOR THE PURPOSE OF EXCLUDING EMPLOYEES OF THE NONAPPROPRIATED FUNDS INSTRUMENTALITIES CONCERNED FROM THE RESTRICTIONS AND REQUIREMENTS APPLICABLE TO CIVIL SERVICE EMPLOYEES TO ENABLE SUCH INSTRUMENTALITIES TO BE OPERATED IN ACCORDANCE WITH METHODS OF PRIVATE COMMERCIAL ENTERPRISE. SEE S. REPT. NO. 1341, 82D CONG., 2D SESS. PAGE 1. THE SEVERANCE PAY PROVISIONS ARE A PART OF THE LAW GOVERNING THE RIGHTS AND BENEFITS OF CIVIL SERVICE EMPLOYEES AND ARE ADMINISTERED BY THE CIVIL SERVICE COMMISSION.

ACCORDINGLY, EMPLOYEES OF NONAPPROPRIATED FUNDS INSTRUMENTALITIES ARE NOT EMPLOYEES OF THE GOVERNMENT FOR THE PURPOSE OF SUBCHAPTER IX, CHAPTER 55 OF TITLE 5, U.S.C. AND ARE NOT ENTITLED TO SEVERANCE PAY UNDER THAT SUBCHAPTER. SINCE SUCH INDIVIDUALS ARE NOT CONSIDERED EMPLOYEES OF THE GOVERNMENT FOR SEVERANCE PAY PURPOSES, A SEPARATED GOVERNMENT EMPLOYEE RECEIVING SEVERANCE PAY IS NOT CONSIDERED TO BE REEMPLOYED BY THE GOVERNMENT WHEN EMPLOYED BY A NONAPPROPRIATED FUNDS INSTRUMENTALITY. THEREFORE, HIS SEVERANCE PAY SHOULD NOT BE DISCONTINUED AS A RESULT OF SUCH EMPLOYMENT.