B-163506, MAR. 8, 1968

B-163506, MAR. 8, 1968

COMPENSATION - SEVERANCE PAY DECISION TO CLAIMANT, FORMER EMPLOYEE OF AIR FORCE DENYING CLAIM FOR SEVERANCE PAY. EMPLOYEE WHO FOLLOWING REDUCTION-IN-FORCE NOTICE FROM POSITION "ACCOUNTING TECHNICIAN" WAS OFFERED POSITION SECRETARY-STENOGRAPHER AT HIGHER RATE OF PAY WITH NO CHANGE IN TENURE GROUP WAS OFFERED EQUIVALENT POSITION AND SINCE EMPLOYEE RESIGNED INSTEAD THERE IS NO ENTITLEMENT TO SEVERANCE PAY. DECISION EXPLAINS TERMS "SENIORITY" AND "TENURE".

TO MRS. ILAH S. DAVENPORT:

THIS IS IN REPLY TO YOUR LETTER DATED JANUARY 28, 1968, APPEALING FROM OUR OFFICE SETTLEMENT OF SEPTEMBER 27, 1967, DENYING YOUR CLAIM FOR SEVERANCE PAY IN THE AMOUNT OF $2,244.

THE RECORD INDICATES THAT ON JULY 22, 1966, WHILE SERVING AS AN ACCOUNTING TECHNICIAN, GS-6, AT $6,857 PER ANNUM, AT LINCOLN AIR FORCE BASE, LINCOLN, NEBRASKA, YOU WERE NOTIFIED OF A REDUCTION-IN-FORCE (RIF) AND OFFERED A POSITION OF SECRETARY (STENO), GS-5, AT $6,915 PER ANNUM, IN THE COMMANDER'S OFFICE. YOU CHOSE TO RESIGN RATHER THAN ACCEPT THE POSITION OFFERED.

INITIALLY ON AUGUST 1, 1966, THE PERSONNEL OFFICER INDICATED ON A STANDARD FORM 50 THAT YOU WERE ENTITLED TO $2,244 SEVERANCE PAY. SUBSEQUENTLY, YOU WERE ADVISED THAT YOUR ENTITLEMENT TO SEVERANCE PAY WAS QUESTIONABLE AND PAYMENT WAS BEING WITHHELD. IN A LETTER DATED OCTOBER 3, 1966, HEADQUARTERS, DEPARTMENT OF THE AIR FORCE, DETERMINED THAT YOU WERE NOT ENTITLED TO SEVERANCE PAY ON THE GROUND THAT YOU HAD BEEN OFFERED AN EQUIVALENT POSITION IN THE SAME COMMUTING AREA AND HAD DECLINED THE POSITION. THE CIVIL SERVICE COMMISSION IN A LETTER OF THE SAME DATE TO SENATOR ROMAN L. HRUSKA LIKEWISE INDICATED THAT THE OFFER OF A HIGHER PAYING GS-5 POSITION WAS IN EFFECT THE OFFER OF AN EQUIVALENT POSITION.

IT IS YOUR VIEW THAT THE POSITION OFFERED WAS NOT AN EQUIVALENT POSITION IN THE SENSE OF HAVING LIKE SENIORITY AND TENURE WITHIN THE MEANING OF THE CIVIL SERVICE COMMISSION REGULATIONS EVEN THOUGH THE PAY EXCEEDED THAT OF YOUR EXISTING JOB AND, THEREFORE, YOU WERE ENTITLED TO SEVERANCE PAY AS ONE RESIGNING IN CONTEMPLATION OF AN INVOLUNTARY SEPARATION BY RIF. YOU ALSO ASK HOW A GOVERNMENT ACTION TAKEN IN GOOD FAITH, SUCH AS THE ONE INDICATING THAT YOU WERE ENTITLED TO SEVERANCE PAY, CAN BE DECLARED VOID AND REPLACED BY ANOTHER ACTION.

WITH RESPECT TO THE PAYMENT OF SEVERANCE PAY SECTION 9 (C) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, APPROVED OCTOBER 29, 1965, PUBLIC LAW 89- 201, 79 STAT. 1111, 1118, PROVIDES AS FOLLOWS:

"AN OFFICER OR EMPLOYEE TO WHOM THIS SECTION APPLIES WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE, ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, SHALL, UNDER RULES AND REGULATIONS PRESCRIBED BY THE PRESIDENT OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS BY THE DEPARTMENT, INDEPENDENT ESTABLISHMENT, CORPORATION, OR OTHER GOVERNMENTAL UNIT, FROM WHICH SEPARATED.'

IN EXECUTIVE ORDER NO. 11257, THE PRESIDENT DESIGNATED THE CIVIL SERVICE COMMISSION AS THE AGENCY TO PRESCRIBE THE IMPLEMENTING REGULATIONS. THESE REGULATIONS, 550.701 TO 550.708, PROVIDE IN PERTINENT PART AS FOLLOWS:

"SEC. 550.701 COVERAGE. (A) DEPARTMENTS. THIS SUBPART APPLIES TO: (I) THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT * * *

"/B) EMPLOYEES. (1) EXCEPT AS PROVIDED BY SUBPARAGRAPH (2) OF THIS PARAGRAPH AND SECTION 9 (B) OF THE ACT, THIS SUBPART APPLIES TO EACH FULL- TIME AND PART-TIME OFFICER AND EMPLOYEE OF A DEPARTMENT * * *

"/2) THIS SUBPART DOES NOT APPLY TO AN EMPLOYEE WHO, AT THE TIME OF SEPARATION FROM THE SERVICE, IS OFFERED AND DECLINES TO ACCEPT AN EQUIVALENT POSITION IN HIS DEPARTMENT IN THE SAME COMMUTING AREA, INCLUDING A DEPARTMENT TO WHICH THE EMPLOYEE WITH HIS FUNCTION IS TRANSFERRED IN A TRANSFER OF FUNCTIONS BETWEEN DEPARTMENTS. FOR PURPOSES OF THIS SUBPARAGRAPH, AN EQUIVALENT POSITION IS ONE OF LIKE SENIORITY, TENURE, AND PAY OTHER THAN A RETAINED RATE.

"SEC. 550.702 ENTITLEMENT. THIS SUBPART AND SECTION (9) OF THE ACT APPLY TO THE COMPUTATION AND PAYMENT OF SEVERANCE PAY TO AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY.

"SEC. 550.706 RESIGNATION IN LIEU OF INVOLUNTARY SEPARATION. (A) EXCEPT AS PROVIDED FOR IN PARAGRAPH (B) OF THIS SECTION, AN EMPLOYEE WHO IS SEPARATED BECAUSE OF RESIGNATION IS DEEMED TO HAVE BEEN INVOLUNTARILY SEPARATED FOR PURPOSES OF ENTITLEMENT TO SEVERANCE PAY, IF HE HAS NOT DECLINED AN OFFER OF AN EQUIVALENT POSITION UNDER SECTION 550.701 (B) (2), WHEN HE IS SEPARATED BECAUSE OF RESIGNATION (I) AFTER RECEIVING A SPECIFIC NOTICE IN WRITING BY HIS DEPARTMENT THAT HE IS TO BE INVOLUNTARILY SEPARATED NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY * * *

"/B) WHEN THE FACTS AND CIRCUMSTANCES AVAILABLE TO A DEPARTMENT SHOW THAT A RESIGNATION UNDER PARAGRAPH (A) OF THIS SECTION IS UNRELATED TO THE ISSUANCE OF ONE OF THE NOTICES SPECIFIED IN THAT PARAGRAPH, SEPARATION OF THE EMPLOYEE BY RESIGNATION IS A VOLUNTARY SEPARATION UNDER THE ACT.'

WITH RESPECT TO THE TERM "SENIORITY" AS USED IN THE ABOVE REGULATIONS WE UNDERSTAND THAT SUCH TERM RELATES PRIMARILY TO THE POSTAL SERVICE. SEE IN THIS REGARD 39 U.S.C. 3334 AND 3337, AND 5 U.S.C. 3502. WE HAVE BEEN INFORMALLY ADVISED THAT THE CIVIL SERVICE COMMISSION CONCURS IN THAT UNDERSTANDING.

"TENURE" AS THAT TERM IS USED IN THE REGULATIONS DENOTES THE RELATION BETWEEN THE EMPLOYEE AND THE GOVERNMENT INSOFAR AS THE PERMANENCY OF HIS EMPLOYMENT, SUCH AS SERVICE UNDER A CAREER OR A TEMPORARY APPOINTMENT IS CONCERNED, WITH PARTICULAR REFERENCE TO RETENTION RIGHTS. IT IS DEFINED IN 5 CFR 210.101 (15) AS FOLLOWS:

"-TENURE- MEANS THE PERIOD OF TIME AN EMPLOYEE MAY REASONABLY EXPECT TO SERVE UNDER HIS CURRENT APPOINTMENT. IT IS GRANTED AND GOVERNED BY THE TYPE OF APPOINTMENT UNDER WHICH AN EMPLOYEE IS CURRENTLY SERVING WITHOUT REGARD TO WHETHER HE HAS A COMPETITIVE STATUS OR WHETHER HIS APPOINTMENT IS IN A COMPETITIVE POSITION OR IN AN EXCEPTED POSITION.'

WE HAVE BEEN ADVISED THAT THE OFFERED POSITION WAS OF LIKE TENURE WITH YOUR FORMER JOB INSOFAR AS ITS CONTINUING NATURE OR YOUR RETENTION RIGHTS WERE CONCERNED. CONSEQUENTLY, THAT PROVISION OF THE REGULATIONS WAS SATISFIED.

THE REGULATIONS PRESCRIBE NO REQUIREMENT THAT THE POSITION OFFERED BE OF A LIKE "STATUS.' SEE 5 CFR 212.301 FOR DEFINITION OF "COMPETITIVE STATUS.' AND THERE IS NO QUESTION BUT THAT THE PAY INVOLVED EXCEEDED THAT OF THE PRIOR POSITION. MOREOVER, WE REGARD THE WORD "PAY" AS RELATING ONLY TO SALARY RATES AT THE TIME THE OFFER IS MADE AND NOT TO POTENTIAL INCREASES IN THE SALARY RATES OF POSITIONS BEING COMPARED FOR EQUIVALENT PURPOSES.

UNDER THE FOREGOING CIRCUMSTANCES, IT APPEARS THAT THE OFFER OF A CONTINUING JOB AT A HIGHER RATE OF PAY WITH NO CHANGE IN YOUR TENURE GROUP SATISFIED THE REQUIREMENTS AS TO AN EQUIVALENT POSITION. HAVING RESIGNED FOLLOWING THE OFFER OF AN EQUIVALENT POSITION YOU WERE NOT ENTITLED TO SEVERANCE PAY.

WITH RESPECT TO BEING INITIALLY ADVISED THAT YOU WERE ENTITLED TO SEVERANCE PAY, IT IS A WELL-ESTABLISHED RULE THAT IN THE ABSENCE OF SPECIFIC AUTHORITY, THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 19 COMP. GEN. 503; 22 ID. 221.

IN VIEW OF THE ABOVE, OUR PRIOR SETTLEMENT DENYING YOUR CLAIM FOR SEVERANCE PAY MUST BE AND IS SUSTAINED.