B-151107, JUN 9, 1971

B-151107, JUN 9, 1971

SEVERANCE PAY - REASSIGNMENT REFUSED AFFIRMING PRIOR DECISION, B-151107, JAN. 7, 1971, WHICH DISALLOWED THE PAYMENT OF SEVERANCE PAY TO AN EMPLOYEE WHO REFUSED TO ACCEPT REASSIGNMENT TO A DIFFERENT GEOGRAPHICAL AREA IN A SITUATION THAT DID NOT INVOLVE A TRANSFER OF FUNCTION OR A REDUCTION IN FORCE. REFERENCE IS MADE TO PATTERSON V UNITED STATES, CT.CL. NO. 197-68 AND PAULEY V UNITED STATES, CT.CL. NO. 142-68; HOWEVER, THESE CASES DEALT WITH CIVIL SERVICE RETIREMENT AND THE STATUTES AND REGULATIONS GOVERNING SEVERANCE PAY CONTAIN BASIC DIFFERENCES. THE DECISION OF JAN. 7, 1971, IS CONSISTENT WITH REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION EXCLUDING PAYMENT OF SEVERANCE PAY TO A PERSON WHO REFUSES TO ACCEPT REASSIGNMENT THAT IS UNRELATED TO A TRANSFER OF FUNCTION OR A REDUCTION IN FORCE.

TO MR. CLYDE E. AHRNSBRAK:

THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF APRIL 23, 1971, REQUESTING ADVICE AS TO WHETHER RECONSIDERATION OF OUR DECISION B 151107, OF JANUARY 7, 1971, IS WARRANTED IN THE LIGHT OF TWO RECENT DECISIONS RENDERED BY THE UNITED STATES COURT OF CLAIMS. WE HELD IN OUR DECISION OF JANUARY 7 THAT THERE WAS NO BASIS UNDER THE LAW, 5 U.S.C. 5595, NOR THE REGULATIONS PROMULGATED PURSUANT THERETO, 5 CFR 550.701-708, FOR THE PAYMENT OF SEVERANCE PAY TO AN EMPLOYEE WHO REFUSED TO ACCEPT REASSIGNMENT TO A DIFFERENT GEOGRAPHICAL AREA IN A SITUATION THAT DID NOT INVOLVE A TRANSFER OF FUNCTION OR A REDUCTION IN FORCE.

THE COURT DECISIONS TO WHICH YOU REFER ARE PATTERSON V UNITED STATES, CT. CL. NO. 142-68, DECIDED JANUARY 22, 1971, AND PAULEY V UNITED STATES, CT. CL. NO. 142-68, DECIDED APRIL 16, 1971. THESE DECISIONS CONCERNED A PROVISION IN THE CIVIL SERVICE RETIREMENT LAW, 5 U.S.C. 8336(D), AUTHORIZING IMMEDIATE ANNUITY FOR AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE OTHER THAN BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT OR DELINQUENCY. THE PLAINTIFFS IN THOSE CASES EACH HAD REFUSED REASSIGNMENT IN DIFFERENT GEOGRAPHICAL AREAS AND THE QUESTION FOR DETERMINATION OF THE COURT WAS WHETHER SUCH REFUSAL DISQUALIFIED THE PLAINTIFFS FROM ENTITLEMENT TO IMMEDIATE ANNUITY. IT WAS THE CONCLUSION OF THE COURT THAT ON THE BASIS OF THE REGULATIONS THEREIN CONSIDERED, AND THE LAW THERE INVOLVED, THAT REFUSAL TO ACCEPT ASSIGNMENTS TO OTHER GEOGRAPHICAL LOCATIONS DID NOT PRECLUDE THE PLAINTIFFS FROM ENTITLEMENT TO AN IMMEDIATE ANNUITY.

THERE ARE BASIC DIFFERENCES IN THE STATUTE AND REGULATIONS GOVERNING CIVIL SERVICE RETIREMENT AND THOSE GOVERNING SEVERANCE PAY AND BECAUSE OF THESE DIFFERENCES WE DO NOT VIEW THE ABOVE-CITED COURT OF CLAIMS DECISIONS AS A GROUND FOR US TO RECONSIDER OUR DECISION OF JANUARY 7, 1971.

THE STATUTE GOVERNING RETIREMENT, 5 U.S.C. 8336, PROVIDES IN PERTINENT PART:

"(D) AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE, EXCEPT FOR REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT OR DELINQUENCY, AFTER COMPLETING 25 YEARS OF SERVICE OR AFTER BECOMING 50 YEARS OF AGE AND COMPLETING 20 YEARS OF SERVICE IS ENTITLED TO A REDUCED ANNUITY."

THE CIVIL SERVICE COMMISSION DEFINES "INVOLUNTARY SEPARATION" FOR THE PURPOSES OF THE ABOVE PROVISION IN SUBCHAPTER S11-2 OF THE FEDERAL PERSONNEL MANUAL SUPPLEMENT 831-1 AS:

"A. DEFINITION OF TERM. THE TERM INVOLUNTARY SEPARATION MEANS ANY SEPARATION AGAINST THE WILL AND WITHOUT THE CONSENT OF THE EMPLOYEE, OTHER THAN SEPARATION FOR CAUSE ON CHARGES OF MISCONDUCT OR DELINQUENCY. ***

"B. REASSIGNMENT; RECLASSIFICATION. THE RIGHT OF AN ADMINISTRATIVE OFFICER TO DIRECT REASSIGNMENT OF AN EMPLOYEE FOR THE GOOD OF THE SERVICE IS WELL ESTABLISHED. REFUSAL BY AN EMPLOYEE TO ACCEPT THE REASSIGNMENT ORDINARILY RESULTS IN REMOVAL FOR CAUSE OR VOLUNTARY RESIGNATION. *** "

IN THE PAULEY DECISION THE COURT POINTED OUT THAT THE COMMISSION'S REGULATIONS WERE FLEXIBLE. YOU SAY IN THIS CONNECTION THAT THE DEPARTMENT OF COMMERCE DOES NOT HAVE REGULATIONS RELATING TO THIS MATTER. IT IS CONTENDED, THEREFORE, THAT SINCE THE COURT HAS HELD THAT THE COMMISSION'S REGULATIONS DO NOT NECESSARILY REQUIRE THE CONCLUSION THAT INVOLUNTARY SEPARATION IN CASES WHERE REASSIGNMENT IS REFUSED FOR PERSONAL REASONS MUST BE DEEMED TO BE A REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT OR DELINQUENCY, YOU BELIEVE THAT SUCH A HOLDING WOULD BE APPROPRIATE IN THE INSTANT SEVERANCE PAY CASE.

THE FLEXIBILITY AS REFERRED TO ABOVE DOES NOT APPEAR TO EXIST IN THE COMMISSION'S REGULATIONS GOVERNING SEVERANCE PAY. SUCH REGULATIONS WERE ISSUED UNDER AUTHORITY OF 5 U.S.C. 5595(B), WHICH READS IN PERTINENT PART AS FOLLOWS:

"(B) UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, AN EMPLOYEE WHO -

"(2) IS INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY; IS ENTITLED TO BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS BY THE AGENCY FROM WHICH SEPARATED."

THE PRESIDENT FORMALLY DELEGATED BY EXECUTIVE ORDER 11257, DATED NOVEMBER 17, 1965, THE AUTHORITY TO MAKE IMPLEMENTING REGULATIONS TO THE CIVIL SERVICE COMMISSION. THE CHAIRMAN OF THE COMMISSION, IN HIS LETTER TO OUR OFFICE DATED JUNE 11, 1969, PROPOSED AMENDMENTS OF THE REGULATIONS SET FORTH IN SECTIONS 550.701(B)(2) AND 550.705 AND STATED AS FOLLOWS:

" *** THE REGULATIONS WILL STILL EXCLUDE FROM SEVERANCE-PAY ENTITLEMENT AN EMPLOYEE WHO REFUSES TO ACCEPT A REASSIGNMENT THAT IS UNRELATED TO A TRANSFER OF FUNCTION OR REDUCTION IN FORCE."

A COPY OF OUR LETTER DATED JUNE 13, 1969, B-157753, ADVISING THAT WE HAD NO OBJECTION TO THE PROPOSED AMENDMENTS IS ENCLOSED. THE STATEMENT OF THE COMMISSIONER QUOTED ABOVE WAS NOTED IN OUR LETTER.

OUR DECISION OF JANUARY 7, 1971, IS CONSISTENT WITH THE ABOVE STATEMENT OF THE COMMISSIONER THAT THE REGULATIONS EXCLUDE PAYMENT OF SEVERANCE PAY TO A PERSON WHO REFUSES TO ACCEPT A REASSIGNMENT THAT IS UNRELATED TO A TRANSFER OF FUNCTION OR A REDUCTION IN FORCE.

FOR THE FOREGOING REASONS, THE COURT OF CLAIMS DECISIONS CONCERNING THE CIVIL SERVICE RETIREMENT PROVISIONS OF LAW AND REGULATIONS ARE CONSIDERED INAPPLICABLE TO SEVERANCE PAY CASES.