B-165282, OCT. 14, 1968

B-165282: Oct 14, 1968

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REQUESTS OUR DECISION ON THE QUESTION OF WHETHER THE SURVIVORS OF AN EMPLOYEE WHO DIES WHILE SERVING UNDER A TEMPORARY APPOINTMENT WITH NO BREAK IN SERVICE FOLLOWING SEPARATION FROM A POSITION WITHOUT TIME LIMITATION ARE ENTITLED UNDER 5 U.S.C. 5595 (E) TO THE SEVERANCE PAY HE WOULD HAVE RECEIVED IF HE HAD BEEN SEPARATED FROM SUCH TEMPORARY POSITION OTHER THAN BY DEATH. THE PAYMENTS OF SEVERANCE PAY WITH RESPECT TO THE EMPLOYEE SHALL BE CONTINUED AS IF THE EMPLOYEE WERE LIVING * * *.- TECHNICALLY IT MIGHT BE ARGUED THAT NO -PERIOD COVERED BY PAYMENTS OF SEVERANCE PAY- IS ESTABLISHED UNTIL THE EMPLOYEE BEGINS TO RECEIVE SEVERANCE PAY. IS THAT THE EMPLOYEE MUST MEET THE CONDITIONS FOR SEVERANCE PAY AT THE TIME OF SEPARATION FROM THE POSITION OF UNLIMITED DURATION.

B-165282, OCT. 14, 1968

TO MR. MACY:

YOUR LETTER OF SEPTEMBER 17, 1968, REQUESTS OUR DECISION ON THE QUESTION OF WHETHER THE SURVIVORS OF AN EMPLOYEE WHO DIES WHILE SERVING UNDER A TEMPORARY APPOINTMENT WITH NO BREAK IN SERVICE FOLLOWING SEPARATION FROM A POSITION WITHOUT TIME LIMITATION ARE ENTITLED UNDER 5 U.S.C. 5595 (E) TO THE SEVERANCE PAY HE WOULD HAVE RECEIVED IF HE HAD BEEN SEPARATED FROM SUCH TEMPORARY POSITION OTHER THAN BY DEATH.

YOUR LETTER READS IN PERTINENT PART AS FOLLOWS: "THE STATUTE IN PROVIDING FOR PAYMENT TO THE SURVIVOR SAYS (5 U.S.C. 5595 (E) ): -IF THE EMPLOYEE DIES BEFORE THE END OF THE PERIOD COVERED BY PAYMENTS OF SEVERANCE PAY, THE PAYMENTS OF SEVERANCE PAY WITH RESPECT TO THE EMPLOYEE SHALL BE CONTINUED AS IF THE EMPLOYEE WERE LIVING * * *.- TECHNICALLY IT MIGHT BE ARGUED THAT NO -PERIOD COVERED BY PAYMENTS OF SEVERANCE PAY- IS ESTABLISHED UNTIL THE EMPLOYEE BEGINS TO RECEIVE SEVERANCE PAY. "WE FIND NO AUTHORITY IN THE STATUTE FOR DENYING THE PAYMENT OF THE SEVERANCE PAY MERELY BECAUSE THE DECEDENT HELD A TEMPORARY APPOINTMENT AT THE TIME OF DEATH. ALSO, THE FACT THAT THE WIDOW AND CHILDREN IF ANY MIGHT BE ENTITLED TO SURVIVOR BENEFITS UNDER THE RETIREMENT STATUTE WHEN SERVICE HAD BEEN CONTINUOUS WOULD NOT APPEAR TO BE RELEVANT. ASIDE FROM THE FACT THAT THE -SURVIVOR- UNDER THE SEVERANCE PAY STATUTE MAY BE A DIFFERENT PERSON FROM WIDOW OR CHILDREN, BENEIFTS UNDER THE RETIREMENT STATUTE MAY ARISE WHEN THE EMPLOYEE HAD BEEN SEPARATED FOR ONE TO THREE DAYS BEFORE A TEMPORARY APPOINTMENT AND HAD BEGUN TO RECEIVE SEVERANCE PAY, IN WHICH CASE IT SEEMS TO BE CLEAR THAT THE REMAINDER OF HIS SEVERANCE PAY WOULD BE PAYABLE UNDER 5 U.S.C. 5595 (E). "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 LINE WITH THIS PRINCIPLE, WE BELIEVE THAT THE -PERIOD- OF SEVERANCE PAY BEGINS AT THAT POINT, THE RECEIPT OF PAYMENTS BEING SUSPENDED OR POSTPONED FOR THE PERIOD OF TEMPORARY EMPLOYMENT; AND THAT THE SURVIVOR IS ENTITLED TO THE UNPAID AMOUNT REGARDLESS OF WHETHER THERE WAS A BREAK BEFORE THE TEMPORARY APPOINTMENT.'

SECTION 5595 (E) QUOTED IN YOUR LETTER PROVIDES FOR THE CONTINUANCE OF PAYMENTS OF SEVERANCE PAY TO THE SURVIVOR OF A FORMER EMPLOYEE WHO DIES WHILE IN RECEIPT OF SEVERANCE PAY. THE STATUTORY LANGUAGE IS TO THE EFFECT THAT THE "PAYMENTS OF SEVERANCE PAY * * * SHALL BE CONTINUED AS IF THE EMPLOYEE WERE LIVING.'

AN EMPLOYEE WHO CONTINUES EMPLOYMENT IN A TEMPORARY POSITION WITHOUT A BREAK IN SERVICE FOLLOWING THE TERMINATION OF HIS PERMANENT POSITION AND WHO THEREAFTER DIES WAS NEITHER RECEIVING NOR ENTITLED TO RECEIVE SEVERANCE PAY AT THE TIME OF HIS DEATH, SINCE ENTITLEMENT TO SEVERANCE PAY IS CONTINGENT UPON A VALID SEPARATION. THUS, IF SUCH AN EMPLOYEE HAD CONTINUED TO LIVE HE WOULD NOT HAVE BEEN ENTITLED TO SEVERANCE PAY AT LEAST UNTIL THE DATE OF HIS SEPARATION AND IF AT THAT TIME HE WOULD BE ELIGIBLE FOR AN IMMEDIATE ANNUITY OR WAS APPOINTED TO ANOTHER POSITION WITHOUT TIME LIMITATION HE COULD NOT THEN QUALIFY FOR SEVERANCE PAY BENEFITS.

MOREOVER, IN OUR DECISION B-162646, DECEMBER 6, 1967, WE HELD THAT THE COVERAGE OF THE STATUTE IS FOR DETERMINATION AT THE TIME OF FINAL SEPARATION FROM THE TEMPORARY APPOINTMENT. IN PRESENTING THE QUESTION FOR OUR DETERMINATION IN THAT CASE YOU STATED IN YOUR LETTER OF OCTOBER 5, 1967: "IT APPEARS TO US THAT THE STATUTE APPLIED WHEN THE ACTUAL SEPARATION FROM THE SERVICE (THAT IS, THE SEPARATION FROM THE LAST TEMPORARY APPOINTMENT) OCCURRED ON OR AFTER THE EFFECTIVE DATE OF THE STATUTE, AS ACTUAL SEPARATION IS A PREREQUISITE TO ENTITLEMENT TO SEVERANCE PAY.'

ACCORDINGLY, THE PRINCIPLE ENUNCIATED IN THE DECEMBER 6, 1967, DECISION AND THE PROVISION IN THE CONTROLLING STATUTE FOR CONTINUING PAYMENTS OF SEVERANCE PAY "AS IF THE EMPLOYEE WERE LIVING"CLEARLY WOULD PRECLUDE THE PAYMENT OF SEVERANCE PAY TO SURVIVORS UNDER THE CIRCUMSTANCES RELATED IN YOUR LETTER.