B-175020, MAR 31, 1972

B-175020, MAR 31, 1972

CIVILIAN EMPLOYEE - TRANSFER OF AGENCY FUNCTION - ENTITLEMENT TO SEVERANCE PAY - FEDERAL EMPLOYEES SALARY ACT OF 1965 - RETROACTIVE APPLICATION DECISION SUSTAINING PRIOR DISALLOWANCE OF A CLAIM OF HAZEL M. MILLER FOR SEVERANCE PAY IN CONNECTION WITH HER INVOLUNTARY SEPARATION FOLLOWING THE TRANSFER IN FUNCTION OF THE PHOENIX CONTRACT MANAGEMENT DISTRICT TO LOS ANGELES, CALIF. THE REFERENCED POLICY REVISION TO PART 550.705 OF THE CIVIL SERVICE REGULATIONS IS INAPPLICABLE TO A TRANSFER OF FUNCTION AND, AS PREVIOUSLY STATED, THE PROVISIONS OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, PUB. L. 89-301, WHICH WOULD OTHERWISE SERVE AS A BASIS FOR MRS. MILLER'S CLAIM, ARE NOT FOR RETROACTIVE APPLICATION. ACCORDINGLY, THE PRIOR DISALLOWANCE MUST BE SUSTAINED.

TO MRS. HAZEL M. MILLER:

WE REFER TO YOUR UNDATED LETTER RECEIVED IN OUR CLAIMS DIVISION DECEMBER 21, 1971, IN WHICH YOU REQUEST REVIEW OF OUR OFFICE SETTLEMENT OF SEPTEMBER 18, 1968, WHICH DENIED YOUR CLAIM FOR SEVERANCE PAY IN CONNECTION WITH YOUR INVOLUNTARY SEPARATION FROM CIVILIAN SERVICE WITH THE DEPARTMENT OF THE AIR FORCE ON AUGUST 27, 1965.

IT APPEARS FROM THE INFORMATION BEFORE US, AS SHOWN BY THE FILE OF THE CLAIM SUBMITTED BY YOU IN 1968, THAT YOU WERE ISSUED A NOTICE OF SEPARATION AFTER DECLINING RELOCATION WITH YOUR ACTIVITY, HEADQUARTERS, PHOENIX CONTRACT MANAGEMENT DISTRICT, WHEN ITS FUNCTIONS WERE OFFICIALLY TRANSFERRED FROM PHOENIX, ARIZONA, TO LOS ANGELES, CALIFORNIA. AT THE TIME OF YOUR SEPARATION, YOU WERE PAID A LUMP SUM FOR 239 HOURS OF ANNUAL LEAVE PLUS 8 HOURS OF HOLIDAY LEAVE AND HAD ACCRUED 540 HOURS OF SICK LEAVE TO YOUR CREDIT. YOUR PREVIOUS CLAIM WAS DENIED ON THE BASIS THAT YOU WERE SEPARATED PRIOR TO THE EFFECTIVE DATE OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, PUBLIC LAW 89-301, 79 STAT. 1111, WHICH CONSTITUTES THE STATUTORY AUTHORITY FOR THE PAYMENT OF SEVERANCE PAY TO FEDERAL EMPLOYEES. YOUR RECENT LETTER INCLUDED A NEWS CLIPPING WHICH REFERS TO A REVISION OF POLICY BY THE CIVIL SERVICE COMMISSION REGARDING THE PAYMENT OF SEVERANCE PAY BENEFITS TO EMPLOYEES WHO DECLINE TO ACCEPT JOB TRANSFERS TO OTHER CITIES, AND YOU QUESTION WHETHER THIS CHANGE IN POLICY AFFECTS YOUR ELIGIBILITY TO SEVERANCE PAY.

THE POLICY REVISION MENTIONED IN THE NEWS ITEM APPEARS TO BE IN REFERENCE TO AN AMENDMENT TO PART 550.705 OF THE CIVIL SERVICE REGULATIONS RELATING TO SEVERANCE PAY AND THE SUBJECT OF FEDERAL PERSONNEL MANUAL LETTER NO. 550-59 DATED JULY 1, 1971. THAT CHANGE NOW PERMITS, UNDER CERTAIN CIRCUMSTANCES, EMPLOYEES REASSIGNED TO ANOTHER POSITION IN A DIFFERENT COMMUTING AREA TO DECLINE TO ACCEPT THE TRANSFER AND STILL REMAIN ELIGIBLE FOR THE BENEFITS OF SEVERANCE PAY. THE CIRCUMSTANCES THEREIN INVOLVED, HOWEVER, ARE TO BE DISTINGUISHED FROM A TRANSFER OF FUNCTION SITUATION AS INVOLVED IN YOUR SEPARATION. IN THOSE INSTANCES, THE SEPARATION HAS CONSISTENTLY BEEN VIEWED AS INVOLUNTARY, THUS ENTITLING AN EMPLOYEE TO SEVERANCE PAY IF OTHERWISE QUALIFIED.

HOWEVER, AS WE POINTED OUT IN OUR SETTLEMENT LETTER, SECTION 17 OF PUBLIC LAW 89-301 PROVIDES THAT SECTION 9, WHICH CONCERNS SEVERANCE PAY, WOULD BECOME EFFECTIVE ON THE DATE OF ENACTMENT OF THE ACT, OCTOBER 29, 1965. SINCE YOUR SEPARATION BECAME EFFECTIVE ON AUGUST 27, 1965, THERE IS NO STATUTORY OR OTHER BASIS UNDER WHICH YOU ARE ENTITLED TO THE SEVERANCE PAY BENEFITS OF THE 1965 ACT. NOR, AS PREVIOUSLY NOTED, IS THERE ANY LEGAL BASIS FOR APPLYING YOUR LUMP-SUM LEAVE PAYMENT OR YOUR ACCRUED SICK LEAVE AS CREDITABLE SERVICE FOR THE PURPOSE OF EXTENDING YOUR SEPARATION DATE IN ORDER TO MAKE YOU ELIGIBLE UNDER THE ACT. SEE IN THIS CONNECTION OUR DECISION B-163640, JULY 11, 1969, COPY ENCLOSED.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.