B-181138, AUG 27, 1974, 54 COMP GEN 154

B-181138: Aug 27, 1974

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HE IS NOT ENTITLED TO SEVERANCE PAY SINCE NOTICE FAILED TO MEET REQUIREMENTS FOR A GENERAL REDUCTION-IN-FORCE NOTICE UNDER 5 CFR 351.804 AND 550.706(A)(2). NEITHER FAILURE OF AGENCY TO GRANT HIM LEAVE WITHOUT PAY STATUS PRIOR TO RESIGNATION NOR ITS ACTION IN GRANTING SUCH LEAVE TO OTHER EMPLOYEES PROVIDES BASIS FOR HIS ENTITLEMENT TO SEVERANCE PAY IF NOT OTHERWISE ELIGIBLE SINCE GRANTING OF LEAVE WITHOUT PAY IS NOT A MATTER OF RIGHT BUT A MATTER FOR AGENCY'S DISCRETION. THE CLAIM WAS DISALLOWED ON THE GROUND THAT PRIOR TO HIS RESIGNATION ON JULY 27. THE EMPLOYEE HAD NOT RECEIVED EITHER A SPECIFIC NOTICE IN WRITING THAT HE WAS TO BE INVOLUNTARILY SEPARATED OR A GENERAL NOTICE OF REDUCTION IN FORCE BY HIS AGENCY.

B-181138, AUG 27, 1974, 54 COMP GEN 154

OFFICERS AND EMPLOYEES - SEVERANCE PAY - "REDUCTION-IN-FORCE SITUATION" ALTHOUGH EMPLOYEE RESIGNED AFTER RECEIPT OF GENERAL ANNOUNCEMENT BY AGENCY OF PROPOSED REDUCTION-IN-FORCE ACTION AND PUBLICATION OF GENERAL NEWS ITEMS, HE IS NOT ENTITLED TO SEVERANCE PAY SINCE NOTICE FAILED TO MEET REQUIREMENTS FOR A GENERAL REDUCTION-IN-FORCE NOTICE UNDER 5 CFR 351.804 AND 550.706(A)(2), AND HIS SEPARATION MAY NOT BE REGARDED AS INVOLUNTARY WITHIN MEANING OF SECTION 550.706 FOR PURPOSE OF ENTITLEMENT TO SEVERANCE PAY. LEAVES OF ABSENCE - WITHOUT PAY - ADMINISTRATIVE DISCRETION WHERE EMPLOYEE RESIGNED PRIOR TO RECEIPT OF SPECIFIC NOTICE OF INVOLUNTARY SEPARATION OR GENERAL NOTICE OF PROPOSED TRANSFER OR ABOLITION OF ALL POSITIONS IN HIS COMPETITIVE AREA, AS REQUIRED IN APPLICABLE REGULATIONS FOR ENTITLEMENT TO SEVERANCE PAY, NEITHER FAILURE OF AGENCY TO GRANT HIM LEAVE WITHOUT PAY STATUS PRIOR TO RESIGNATION NOR ITS ACTION IN GRANTING SUCH LEAVE TO OTHER EMPLOYEES PROVIDES BASIS FOR HIS ENTITLEMENT TO SEVERANCE PAY IF NOT OTHERWISE ELIGIBLE SINCE GRANTING OF LEAVE WITHOUT PAY IS NOT A MATTER OF RIGHT BUT A MATTER FOR AGENCY'S DISCRETION.

IN THE MATTER OF SEVERANCE PAY, AUGUST 27, 1974:

THIS ACTION CONCERNS A REQUEST FOR RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED FEBRUARY 27, 1974, DISALLOWING A CLAIM FOR SEVERANCE PAY SUBMITTED BY MR. W. MITCHELL ONEY, A FORMER EMPLOYEE OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), LEWIS RESEARCH CENTER, PLUM BROOK STATION, SANDUSKY, OHIO, INCIDENT TO THE TERMINATION OF NASA NUCLEAR PROGRAMS.

THE CLAIM WAS DISALLOWED ON THE GROUND THAT PRIOR TO HIS RESIGNATION ON JULY 27, 1973, THE EMPLOYEE HAD NOT RECEIVED EITHER A SPECIFIC NOTICE IN WRITING THAT HE WAS TO BE INVOLUNTARILY SEPARATED OR A GENERAL NOTICE OF REDUCTION IN FORCE BY HIS AGENCY, ANNOUNCING THAT ALL POSITIONS IN HIS COMPETITIVE AREA WOULD BE ABOLISHED OR TRANSFERRED TO ANOTHER COMMUTING AREA AND THAT ONE OR THE OTHER WAS REQUIRED BY CIVIL SERVICE COMMISSION REGULATIONS CONTAINED IN 5 CFR 550.706 FOR A SEPARATION BY RESIGNATION TO BE REGARDED AS INVOLUNTARY FOR THE PURPOSE OF ENTITLEMENT TO SEVERANCE PAY AUTHORIZED IN 5 U.S.C. 5595. MR. ONEY REQUESTS CONSIDERATION ON THE GROUND THAT NASA ANNOUNCEMENTS CONCERNING THE CLOSING OF PLUM BROOK STATION CONSTITUTED SUCH NOTICE ENTITLING HIM TO SEVERANCE PAY. HE ALSO ALLEGES THAT THREE OTHER EMPLOYEES WERE CARRIED ON LEAVE-WITHOUT-PAY STATUS UNTIL THEY WERE SPECIFICALLY NOTIFIED THEY WERE TO BE SEPARATED IN ORDER TO ENTITLE THEM TO SEVERANCE PAY WHEREAS HE WAS DENIED SUCH LEAVE.

THE RECORD INDICATES THAT A MEMORANDUM DATED JANUARY 5, 1973, WAS ISSUED TO LEWIS EMPLOYEES BY THE DIRECTOR OF THE NASA-LEWIS RESEARCH CENTER IN CLEVELAND, WHICH WAS ENTITLED "TERMINATION OF NASA NUCLEAR PROGRAMS AND PLANS FOR THE PLUM BROOK STATION" WHICH READS IN PERTINENT PART AS FOLLOWS:

MORE SPECIFICALLY FOR US HERE AT LEWIS, ESSENTIALLY ALL OF OUR CURRENT NUCLEAR PROPULSION AND NUCLEAR POWER PROGRAMS WILL BE TERMINATED AS SOON AS POSSIBLE IN AN ORDERLY FASHION. FURTHER, SOME OF OUR MAJOR FACILITIES THAT WILL NOT BE UTILIZED IN NASA'S RESTRUCTURED PROGRAM WILL BE PLACED IN A STANDBY CONDITION. AS REGARDS THE PLUM BROOK STATION, THIS MEANS THAT THE REACTOR FACILITY WILL BE PLACED IN A STANDBY CONDITION BY THE END OF THIS FISCAL YEAR AND THE REMAINDER OF THE STATION, WHICH IS PRINCIPALLY DEVOTED TO THE DEVELOPMENT OF THE TITAN-CENTAUR SHROUD, WILL BE PLACED IN STANDBY BY THE END OF FISCAL YEAR 1974.

IT WILL, OF COURSE, ALSO BE NECESSARY TO SEPARATE MANY LEWIS EMPLOYEES ASSOCIATED WITH THESE PROGRAMS, BOTH DURING THE REST OF THIS FISCAL YEAR AND AT THE END OF FISCAL YEAR 1974. PLANS TO DEVELOP THE EXACT NUMBER TO BE SEPARATED, THE PROFESSIONAL AND SUPPORT GROUPS INVOLVED AND THE SPECIFIC PHASING OF THESE REDUCTIONS ARE NOW BEING PREPARED. FURTHER INFORMATION ON THESE MATTERS WILL BE PASSED ON TO YOU AS SOON AS IT IS AVAILABLE TO ME.

SPEAKING FOR BOTH NASA SENIOR MANAGEMENT AND THE MANAGEMENT OF THIS CENTER, I CAN ASSURE YOU THAT THESE VERY SIGNIFICANT REDUCTIONS IN OUR PROGRAM AND STAFF IS IN NO WAY A REFLECTION ON THE HIGH LEVEL OF COMPETENCE AND DEDICATION WITH WHICH WE HAVE PURSUED THESE PROGRAMS. IS, INSTEAD, SIMPLY A MATTER OF RELATING CURRENT FISCAL CONSTRAINTS TO OUR NATION'S ANTICIPATED NEEDS IN SPACE FOR THE REST OF THIS DECADE OR LONGER.

THE MEMORANDUM INDICATES ONLY THAT THE PLUM BROOK STATION WOULD BE PLACED IN A STANDBY CONDITION BY THE END OF FISCAL 1974 AND THAT, ALTHOUGH IT WOULD BE NECESSARY TO SEPARATE MANY EMPLOYEES, PLANS TO DEVELOP THE EXACT NUMBER WERE STILL IN THE PREPARATION STAGE AND WOULD BE ANNOUNCED WHEN THEY HAD BECOME FINALIZED. THIS INTERPRETATION OF THE LANGUAGE IS SUPPORTED BY THE FOLLOWING STATEMENT IN AN ADMINISTRATIVE REPORT DATED DECEMBER 14, 1973 - 5 MONTHS AFTER MR. ONEY'S RESIGNATION:

*** IN MATTER OF FACT, ALTHOUGH IT IS NOW CLEAR THAT A VAST MAJORITY OF EMPLOYEES AT THE PLUM BROOK STATION WILL BE SEPARATED, IT REMAINS UNCERTAIN WHAT NUMBER OF EMPLOYEES WILL BE RETAINED TO OPERATE THE FACILITIES OF THE STATION FOR THE PURPOSES OF OTHER GOVERNMENT AGENCIES AND FOR MAINTENANCE OF THE FACILITIES IN A STANDBY STATUS.

IN OUR VIEW, THE ADVICE CONTAINED IN THE JANUARY 5 MEMORANDUM MAY NOT REASONABLY BE CONSIDERED AS TANTAMOUNT TO AN ANNOUNCEMENT THAT ALL POSITIONS IN MR. ONEY'S COMPETITIVE AREA WOULD BE ABOLISHED OR TRANSFERRED TO ANOTHER AREA WHICH IS REQUIRED BY 5 CFR 550.706(A)(II) IF RESIGNATION BASED ON A GENERAL NOTICE IS TO BE REGARDED AS INVOLUNTARY FOR THE PURPOSE OF ENTITLEMENT TO SEVERANCE PAY.

FURTHERMORE, ADDITIONAL CRITERIA FOR THE CONTENT OF A VALID GENERAL NOTICE WITH RESPECT TO REDUCTION-IN-FORCE ACTIONS ARE CONTAINED IN 5 CFR 351.804 WHICH READS AS FOLLOWS:

A GENERAL NOTICE SHALL INFORM THE EMPLOYEE THAT ACTION UNDER THIS PART MAY BE NECESSARY BUT THAT THE AGENCY HAS DETERMINED NO SPECIFIC ACTION IN HIS CASE. THE NOTICE SHALL STATE THAT AS SOON AS THE AGENCY DETERMINES WHAT ACTION, IF ANY, WILL BE TAKEN UNDER THIS PART THE EMPLOYEE WILL RECEIVE SPECIFIC NOTICE OF THE ACTION TO BE TAKEN. THE GENERAL NOTICE SHALL STATE THAT IT WILL EXPIRE AS STATED THEREIN UNLESS, ON OR BEFORE THE EXPIRATION DATE, IT IS RENEWED OR SUPPLEMENTED BY A SPECIFIC NOTICE. GENERAL NOTICE SHALL INFORM THE EMPLOYEE THAT HE SHOULD NOT APPEAL TO THE COMMISSION BEFORE HE RECEIVES A SPECIFIC NOTICE, AND IT MAY INCLUDE ANY OTHER INFORMATION SPECIFIED IN SEC. 351.802.

SINCE THE JANUARY 5 MEMORANDUM DOES NOT CONTAIN THE LAST TWO ITEMS REQUIRED BY THE ABOVE REGULATION, IT DOES NOT SATISFY THE CONTENT REQUIREMENTS FOR A GENERAL NOTICE UNDER 5 CFR 351.804. THE PAPERS SUBMITTED BY MR. ONEY INCLUDE COPIES OF SUCH AGENCY PUBLICATIONS AS NASA ACTIVITIES AND LEWIS NEWS, AS WELL AS PRESS RELEASES BY NASA TO THE PUBLIC PRESS WITH RESPECT TO DECREASED NASA ACTIVITY. THE ANNOUNCEMENTS THEREIN ARE GENERAL INFORMATION AND ALSO DO NOT MEET THE NOTICE REQUIREMENTS OF THE REGULATION.

SINCE THE GENERAL NOTICE PROVISIONS OF THE REGULATIONS WERE NOT MET AND MR. ONEY DID NOT RECEIVE A SPECIFIC NOTICE, HIS RESIGNATION MUST BE CONSIDERED TO BE VOLUNTARY. 45 COMP. GEN. 784 (1966).

AS NOTED ABOVE, MR. ONEY ALLEGES THAT THREE OTHER EMPLOYEES IN HIS UNIT WERE GRANTED LEAVE WITHOUT PAY IN MAY 1973 AND WERE CARRIED IN SUCH STATUS UNTIL MARCH 14, 1974, SO THAT THEY COULD RECEIVE THEIR SEVERANCE PAY - APPARENTLY ON SPECIFIC NOTICE OF REDUCTION-IN-FORCE ACTION - WHEREAS HIS REQUEST FOR SUCH STATUS WAS ADMINISTRATIVELY DENIED.

WITH REGARD TO MR. ONEY'S ALLEGATION OF DENIAL OF HIS REQUEST FOR LEAVE WITHOUT PAY, WE POINT OUT THAT THE AUTHORIZATION OF SUCH LEAVE IS A MATTER OF ADMINISTRATIVE DISCRETION AND NOT A MATTER OF RIGHT EXCEPT IN CERTAIN SITUATIONS NOT HERE INVOLVED. FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, SUBCHAPTER S12-2. IN ANY EVENT THE AUTHORIZATION OF SUCH LEAVE STATUS TO OTHER EMPLOYEES COULD PROVIDE NO VALID BASIS FOR THE PAYMENT OF SEVERANCE PAY TO AN EMPLOYEE WHO IS NOT FOUND ENTITLED THERETO UNDER THE LAW AND REGULATIONS PERTAINING TO SEVERANCE PAY ENTITLEMENT.

IN VIEW OF THE ABOVE THE SETTLEMENT DISALLOWING MR. ONEY'S CLAIM FOR SEVERANCE PAY IS SUSTAINED.