B-175384, APR 20, 1972

B-175384: Apr 20, 1972

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WHILE IT APPEARS THAT THE PROVISIONS OF 5 U.S.C. 5595(D) RELATE ONLY TO THE SITUATION WHERE THERE IS NO BREAK IN SERVICE BETWEEN RECEIPT OF SEVERANCE PAY AND REEMPLOYMENT. GAO DOES NOT BELIEVE ANY DIFFERENT TREATMENT WAS INTENDED BY CONGRESS OR THE COMMISSION FOR AN EMPLOYEE WHO ACTUALLY HAS A BREAK IN SERVICE BETWEEN THE LAST DAY HIS SEVERANCE PAY ENDS AND THE DATE OF HIS REEMPLOYMENT. PRITCHARD BASED ON TOTAL SERVICES AT THE TIME OF HER INVOLUNTARY SEPARATION IS AUTHORIZED. SECRETARY: REFERENCE IS MADE TO A LETTER DATED MARCH 6. 20 DAYS SERVICE" IT IS MRS. PRITCHARD'S POSITION THAT YOUR AGENCY WAS IN ERROR IN DETERMINING THAT SHE WAS ENTITLED TO ONLY 4 WEEKS SEVERANCE PAY UPON HER RESIGNATION ON OCTOBER 2.

B-175384, APR 20, 1972

CIVILIAN EMPLOYEE - BREAK IN SERVICE - SEVERANCE PAY - ENTITLEMENT - METHOD OF COMPUTATION - STATUTORY INTERPRETATION DECISION ALLOWING THE CLAIM OF ROSETTA B. PRITCHARD FOR ADDITIONAL SEVERANCE PAY ALLEGEDLY DUE HER AS A FORMER EMPLOYEE OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD). WHILE IT APPEARS THAT THE PROVISIONS OF 5 U.S.C. 5595(D) RELATE ONLY TO THE SITUATION WHERE THERE IS NO BREAK IN SERVICE BETWEEN RECEIPT OF SEVERANCE PAY AND REEMPLOYMENT, THE REGULATIONS OF THE CIVIL SERVICE COMMISSION DO REQUIRE THE COMPUTATION OF SEVERANCE PAY IN A SUBSEQUENT SEPARATION TO BE BASED ON ALL OF THE CREDITABLE SERVICE WITH APPROPRIATE REDUCTION OF THE WEEKS OF SEVERANCE PAY PREVIOUSLY RECEIVED. GAO DOES NOT BELIEVE ANY DIFFERENT TREATMENT WAS INTENDED BY CONGRESS OR THE COMMISSION FOR AN EMPLOYEE WHO ACTUALLY HAS A BREAK IN SERVICE BETWEEN THE LAST DAY HIS SEVERANCE PAY ENDS AND THE DATE OF HIS REEMPLOYMENT. ACCORDINGLY, THE PAYMENT OF ADDITIONAL SEVERANCE PAY TO MRS. PRITCHARD BASED ON TOTAL SERVICES AT THE TIME OF HER INVOLUNTARY SEPARATION IS AUTHORIZED.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED MARCH 6, 1972, WITH ENCLOSURES, REFERENCE APF, FROM MR. HARRY T. MORLEY, YOUR ACTING ASSISTANT SECRETARY, REQUESTING OUR DECISION ON THE AMOUNT OF SEVERANCE PAY DUE MRS. ROSETTA B. PRITCHARD, A FORMER EMPLOYEE OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD), REGION IV, MODEL CITIES STAFF, CHICAGO, ILLINOIS, IN VIEW OF THE CIRCUMSTANCES HEREINAFTER DESCRIBED.

AS SUMMARIZED BY THE LETTER OF MARCH 6, 1972, THE RECORD INDICATES THAT THE FOLLOWING PERSONNEL ACTIONS TOOK PLACE CONCERNING MRS. PRITCHARD'S EMPLOYMENT WITH THE FEDERAL GOVERNMENT:

"RESIGNATION - DECLINED RELOCATION

EFFECTIVE 04-07-67, DEPARTMENT OF THE ARMY,

HEADQUARTERS FIFTH U.S. ARMY, CHICAGO

PAID 8 WEEKS SEVERANCE PAY BASED ON 8 YEARS,

1 MONTH, 21 DAYS SERVICE

"REINSTATEMENT - CAREER - 07-09-67

DEPT. OF HOUSING AND URBAN DEVELOPMENT

FEDERAL NATIONAL MORTGAGE ASSOCIATION

CHICAGO

RESIGNATION 07-25-67

"REINSTATEMENT - CAREER - 07-30-67

GENERAL SERVICES ADMINISTRATION

PUBLIC BUILDINGS SERVICE

CHICAGO

"TRANSFER - CAREER - 06-23-68 - TO:

DEPT. OF HOUSING AND URBAN DEVELOPMENT

REGION IV

CHICAGO

"RESIGNATION - DECLINED ASSIGNMENT TO

MINNEAPOLIS-ST. PAUL, MINNESOTA - 10-02-71

PAID 4 WEEKS SEVERANCE PAY BASED ON 4 YEARS

2 MONTHS, 20 DAYS SERVICE"

IT IS MRS. PRITCHARD'S POSITION THAT YOUR AGENCY WAS IN ERROR IN DETERMINING THAT SHE WAS ENTITLED TO ONLY 4 WEEKS SEVERANCE PAY UPON HER RESIGNATION ON OCTOBER 2, 1971. RATHER, SHE HAS INDICATED THAT SHE SHOULD HAVE RECEIVED "AN ADDITIONAL 2 WEEKS (OR A TOTAL OF 6 WEEKS) SEVERANCE PAY BASED ON HER CUMULATIVE TOTAL OF OVER 12 YEARS SERVICE, SUBTRACTING FROM A TOTAL ENTITLEMENT OF 14 WEEKS, THE 8 WEEKS SEVERANCE PAY SHE RECEIVED IN 1967."

IN SUPPORT OF MRS. PRITCHARD'S CONTENTION, WE NOTE A LETTER DATED FEBRUARY 2, 1972, FROM MR. RAYMOND C. WEISSENBORN, CHIEF, PAY POLICY DIVISION, UNITED STATES CIVIL SERVICE COMMISSION, STATING IN PERTINENT PART THAT:

" *** MRS. PRITCHARD IS CORRECT IN HER CONTENTION THAT SHE IS ENTITLED TO TWO ADDITIONAL WEEKS OF SEVERANCE PAY. WE HAVE INTERPRETED 5 U.S.C. 5595(D) AND SECTION 550.704(C) OF THE COMMISSION'S REGULATIONS AS MEANING THAT THE EMPLOYEE HAS HIS SEVERANCE PAY FUND COMPUTED ON HIS AGE AND YEARS OF SERVICE AT THE TIME OF SEPARATION, SUBJECT TO THE 52 WEEK LIFETIME LIMITATION; BUT THAT WEEKS OF SEVERANCE PAY PREVIOUSLY RECEIVED MUST BE DEDUCTED FROM THE EMPLOYEE'S SEVERANCE PAY FUND COMPUTED AT THE TIME OF HIS SEPARATION. IN OTHER WORDS, IN THE CASE AT HAND, SINCE MRS. PRITCHARD HAS 12 YEARS TOTAL SERVICE, SHE IS ENTITLED TO 14 WEEKS SEVERANCE PAY, LESS 8 WEEKS SEVERANCE PAY PREVIOUSLY PAID HER, OR 6 WEEKS SEVERANCE PAY."

WITH REGARD TO THE CASE HERE INVOLVED, IT WAS STATED IN THE HUD LETTER OF MARCH 6, 1972, AS FOLLOWS:

"IT IS OUR POSITION THAT SECTION 5595(D), TITLE 5, US CODE, PROVIDES THAT ENTITLEMENT TO RECREDIT OF SERVICE APPLIES ONLY WHEN THE PERSON IS REEMPLOYED BEFORE THE END OF A PERIOD COVERED BY PAYMENTS OF SEVERANCE PAY. WHERE THERE IS A BREAK IN SERVICE EXTENDING BEYOND THE END OF THE PERIOD COVERED BY PAYMENTS OF SEVERANCE PAY, THE SERVICE AFTER REEMPLOYMENT IS NOT EMPLOYMENT CONTINUOUS WITH THAT OF SERVICE FOR WHICH SEVERANCE PAYMENTS PREVIOUSLY HAD BEEN MADE AND MUST BE TREATED SEPARATELY FOR FUTURE SEVERANCE PAY COMPUTATION, SUBJECT TO THE 52 WEEK LIFETIME LIMITATION."

5 U.S.C. 5595 PROVIDES IN PERTINENT PART:

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

"(1) HAS BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF AT LEAST 12 MONTHS; AND

"(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.

"(C) SEVERANCE PAY CONSISTS OF -

"(1) A BASIC SEVERANCE ALLOWANCE COMPUTED ON THE BASIS OF 1 WEEK'S BASIC PAY AT THE RATE RECEIVED IMMEDIATELY BEFORE SEPARATION FOR EACH YEAR OF CIVILIAN SERVICE UP TO AND INCLUDING 10 YEARS FOR WHICH SEVERANCE PAY HAS NOT BEEN RECEIVED UNDER THIS OR ANY OTHER AUTHORITY AND 2 WEEKS' BASIC PAY AT THAT RATE FOR EACH YEAR OF CIVILIAN SERVICE BEYOND 10 YEARS FOR WHICH SEVERANCE PAY HAS NOT BEEN RECEIVED UNDER THIS OR ANY OTHER AUTHORITY; AND

"(2) AN AGE ADJUSTMENT ALLOWANCE COMPUTED ON THE BASIS OF 10 PERCENT OF THE TOTAL BASIC SEVERANCE ALLOWANCE FOR EACH YEAR BY WHICH THE AGE OF THE RECIPIENT EXCEEDS 40 YEARS AT THE TIME OF SEPARATION.

TOTAL SEVERANCE PAY UNDER THIS SECTION MAY NOT EXCEED 1 YEAR'S PAY AT THE RATE RECEIVED IMMEDIATELY BEFORE SEPARATION. FOR THE PURPOSE OF THIS SUBSECTION, BASIC PAY INCLUDES PREMIUM PAY UNDER SECTION 5545(C)(1) OF THIS TITLE.

"(D) IF AN EMPLOYEE IS REEMPLOYED BY THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA BEFORE THE END OF THE PERIOD COVERED BY PAYMENTS OF SEVERANCE PAY, THE PAYMENTS SHALL BE DISCONTINUED BEGINNING WITH THE DATE OF REEMPLOYMENT AND THE SERVICE REPRESENTED BY THE UNEXPIRED PORTION OF THE PERIOD SHALL BE RECREDITED TO THE EMPLOYEE FOR USE IN ANY LATER COMPUTATIONS OF SEVERANCE PAY. FOR THE PURPOSE OF SUBSECTION (B)(1) OF THIS SECTION, REEMPLOYMENT THAT CAUSES SEVERANCE PAY TO BE DISCONTINUED IS DEEMED EMPLOYMENT CONTINUOUS WITH THAT SERVING AS THE BASIS FOR SEVERANCE PAY."

THE PERTINENT PART OF THE REGULATIONS, 5 CFR 550.704(C), PROMULGATED BY THE CIVIL SERVICE COMMISSION PURSUANT TO THE ABOVE-QUOTED PROVISIONS OF LAW, STATES:

"(C) RECREDIT OF SERVICE. WHEN AN EMPLOYEE IS REEMPLOYED AND ENTITLED TO A RECREDIT OF SERVICE UNDER SECTION 5595(D) OF TITLE 5, U.S.C. THE AGENCY WHICH REEMPLOYS HIM NEED ONLY RECORD THE NUMBER OF WEEKS OF SEVERANCE PAY HITHERTO RECEIVED. SHOULD THE EMPLOYEE BECOME ENTITLED TO SEVERANCE PAY UPON A SUBSEQUENT SEPARATION, THE AGENCY SHALL COMPUTE HIS SEVERANCE PAY FUND AT THE TIME OF THE SUBSEQUENT SEPARATION ON THE BASIS OF ALL HIS CREDITABLE SERVICE AND HIS CURRENT AGE AND SHALL DEDUCT FROM THE NUMBER OF WEEKS IT WILL TAKE TO EXHAUST THE SEVERANCE PAY FUND, AS RECOMPUTED AT THE TIME OF HIS SUBSEQUENT SEPARATION, THE NUMBER OF WEEKS FOR WHICH THE EMPLOYEE PREVIOUSLY RECEIVED SEVERANCE PAY."

WE AGREE THAT THE PROVISIONS OF 5 U.S.C. 5595(D) ABOVE RELATE ONLY TO THE SITUATION WHERE THERE IS NO BREAK IN SERVICE BETWEEN THE PERIOD AN EMPLOYEE IS IN RECEIPT OF SEVERANCE PAY AND THE DATE OF HIS REEMPLOYMENT. HOWEVER, IN THAT SITUATION THE REGULATIONS OF THE COMMISSION REQUIRE THE COMPUTATION OF SEVERANCE PAY IN A SECOND OR SUBSEQUENT SEPARATION TO BE BASED ON ALL OF THE CREDITABLE SERVICE WITH APPROPRIATE REDUCTION OF THE WEEKS OF SEVERANCE PAY PREVIOUSLY RECEIVED. THE REGULATIONS APPEAR REASONABLE SINCE COMPUTATION OF SEVERANCE PAY WOULD BE ON THE SAME BASIS REGARDLESS OF WHETHER AN EMPLOYEE HAS 12 YEARS OF CONTINUOUS SERVICE OR 12 YEARS OF BROKEN SERVICE WITH PARTIAL SEVERANCE PAY INTERVENING BETWEEN THE BROKEN SERVICE.

ALTHOUGH THE REGULATIONS REFER ONLY TO THE SITUATION SPECIFIED IN 5 U.S.C. 5595(D), WE DO NOT BELIEVE ANY DIFFERENT TREATMENT WAS INTENDED EITHER BY THE CONGRESS OR THE CIVIL SERVICE COMMISSION FOR AN EMPLOYEE WHO ACTUALLY HAS A BREAK IN SERVICE BETWEEN THE LAST DAY HIS SEVERANCE PAY ENDS AND THE DATE OF HIS REEMPLOYMENT. OTHERWISE, AN EMPLOYEE SEPARATED AFTER 12 YEARS OF CONTINUOUS SERVICE WOULD RECEIVE 14 WEEKS OF SEVERANCE PAY, WHEREAS AN EMPLOYEE INVOLUNTARILY SEPARATED AFTER YEARS OF SERVICE WHO IS REEMPLOYED AFTER A BREAK IN SERVICE BETWEEN THE END OF SEVERANCE PAY AND DATE OF REEMPLOYMENT AND AGAIN SEPARATED INVOLUNTARILY AFTER 4 MORE YEARS OF SERVICE WOULD ONLY BE ENTITLED TO 12 WEEKS OF SEVERANCE PAY; THAT IS, 8 WEEKS OF SEVERANCE PAY FOR THE FIRST SEPARATION AND 4 WEEKS FOR THE SECOND SEPARATION. THE LAST SITUATION, OF COURSE, RESULTS FROM COUNTING ONLY THE YEARS OF SERVICE AFTER REEMPLOYMENT FOR SUBSEQUENT SEVERANCE PAY PURPOSES INSTEAD OF TOTAL SERVICE.

ACCORDINGLY, THE PAYMENT OF ADDITIONAL SEVERANCE PAY TO MRS. PRITCHARD BASED ON TOTAL SERVICE AT ..END :