B-196579,(ROP), APR 30, 1980

B-196579,(ROP): Apr 30, 1980

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THOMAS WAS SEPARATED FROM THE POSITION OF DIRECTOR. THOMAS WAS SEPARATED FROM THE INTERNATIONAL ORGANIZATION. THE DECISION OF THE AGENCY DENYING PAYMENT OF AN EQUALIZATION ALLOWANCE TO APPELLANT IS HEREBY REVERSED. TO WHICH HE IS ENTITLED UPON REEMPLOYMENT PURSUANT TO 5 U.S.C. WE HAVE BEEN INFORMALLY ADVISED THAT HEW REINSTATED MR. THOMAS IS NOT ENTITLED TO AN EQUALIZATION ALLOWANCE SINCE HIS ACTUAL EARNINGS EXCEEDED WHAT HE WOULD HAVE BEEN PAID HAD HE BEEN DETAILED TO THE INTERNATIONAL ORGANIZATION. 92 STAT. 1122) PROVIDES THAT THE BOARD WILL HEAR AND ADJUDICATE ALL MATTERS WITHIN ITS JURISDICTION AND TAKE FINAL ACTION ON SUCH MATTERS. 5 U.S.C. THOMAS' APPEAL WAS BROUGHT BEFORE THE BOARD UNDER THE PROVISIONS OF 5 C.F.R.

B-196579,(ROP), APR 30, 1980

OFFICE OF GENERAL COUNSEL

FRANK MOWRY, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE:

THIS CORRESPONDENCE CONFIRMS CONVERSATIONS YOU HAD WITH MESSRS. ROBERT POOL AND MICHAEL VOLPE OF OUR OFFICE IN CONNECTION WITH THE APPEAL OF MR. JOHN F. THOMAS FROM A DETERMINATION OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) DENYING HIM AN EQUALIZATION ALLOWANCE UNDER 5 U.S.C. SEC. 3582(B) (1976).

IT APPEARS THAT EFFECTIVE FEBRUARY 13, 1969, MR. THOMAS WAS SEPARATED FROM THE POSITION OF DIRECTOR, DIVISION OF CUBAN REFUGEE PROGRAM, SOCIAL AND REHABILITATION SERVICE, HEW, AND TRANSFERRED TO THE POSITION OF DIRECTOR OF THE INTERGOVERNMENTAL COMMITTEE FOR EUROPEAN MIGRATION (ICEM), GENEVA, SWITZERLAND, - AN INTERNATIONAL ORGANIZATION WITHIN THE MEANING OF 5 C.F.R. 352.304 - WITH REEMPLOYMENT RIGHTS UNDER THE FEDERAL EMPLOYEES INTERNATIONAL ORGANIZATION SERVICE ACT, 5 U.S.C. SECS. 3581-3584 (1976). EFFECTIVE FEBRUARY 12, 1977, HEW REEMPLOYED MR. THOMAS PURSUANT TO 5 U.S.C. SEC. 3582(B). HOWEVER, IN A DECISION DATED FEBRUARY 27, 1979, THE AGENCY CANCELLED THE REEMPLOYMENT ACTION AND DENIED MR. THOMAS' REQUEST FOR PAYMENT OF AN EQUALIZATION ALLOWANCE ON THE BASIS THAT MR. THOMAS FAILED TO PROVIDE PROOF OF HIS TERMINATION OF EMPLOYMENT BY ICEM.

ON SEPTEMBER 28, 1979, THE MERIT SYSTEMS PROTECTION BOARD (THE BOARD) RENDERED A DECISION ON MR. THOMAS' APPEAL, FINDING ADEQUATE EVIDENCE IN THE RECORD TO ESTABLISH THAT MR. THOMAS WAS SEPARATED FROM THE INTERNATIONAL ORGANIZATION, AND CONCLUDING AS FOLLOWS:

"WE CONCLUDE THAT APPELLANT MET THE REQUIREMENTS OF 5 U.S.C. SEC. 3582 FOR REEMPLOYMENT AFTER SERVICE WITH AN INTERNATIONAL ORGANIZATION. ACCORDINGLY, THE DECISION OF THE AGENCY DENYING PAYMENT OF AN EQUALIZATION ALLOWANCE TO APPELLANT IS HEREBY REVERSED. WE RECOMMEND THAT APPELLANT BE REEMPLOYED RETROACTIVELY TO FEBRUARY 12, 1977, IN THE POSITION OF DIRECTOR, DIVISION OF CUBAN REFUGEE PROGRAMS, GS-0340-16 OR A POSITION OF LIKE SENIORITY, STATUS, AND PAY AND THAT HEW GRANT APPELLANT ALL RIGHTS, INCLUDING THE PAYMENT OF THE EQUALIZATION ALLOWANCE, TO WHICH HE IS ENTITLED UPON REEMPLOYMENT PURSUANT TO 5 U.S.C. SEC. 3582."

WE HAVE BEEN INFORMALLY ADVISED THAT HEW REINSTATED MR. THOMAS PURSUANT TO THE BOARD'S DECISION BUT THAT HEW HAS DETERMINED THAT MR. THOMAS IS NOT ENTITLED TO AN EQUALIZATION ALLOWANCE SINCE HIS ACTUAL EARNINGS EXCEEDED WHAT HE WOULD HAVE BEEN PAID HAD HE BEEN DETAILED TO THE INTERNATIONAL ORGANIZATION. HOWEVER, THE AGENCY HAS REQUESTED OUR REVIEW OF THE BOARD'S DECISION.

THE CIVIL SERVICE REFORM ACT OF 1978 (PUB. L. NO. 95-454, 92 STAT. 1122) PROVIDES THAT THE BOARD WILL HEAR AND ADJUDICATE ALL MATTERS WITHIN ITS JURISDICTION AND TAKE FINAL ACTION ON SUCH MATTERS. 5 U.S.C. SEC. 1205(A)(1). SECTION 352.313(C) OF TITLE 5, CODE OF FEDERAL REGULATIONS, EMPOWERS THE BOARD TO ACCEPT APPEALS ALLEGING A VIOLATION OF SECTION 3343, OR 3581-3584 OF TITLE 5, U.S.C. OR OF SUBPART C OF 5 C.F.R. PART 352. THESE PROVISIONS GOVERN DETAILS AND TRANSFERS TO INTERNATIONAL ORGANIZATIONS AND REEMPLOYMENT AFTER SERVICE WITH SUCH ORGANIZATION. NOTE THAT MR. THOMAS' APPEAL WAS BROUGHT BEFORE THE BOARD UNDER THE PROVISIONS OF 5 C.F.R. SEC. 352.313(C), AND THAT DECISIONS OF THE BOARD ARE DEEMED FINAL UNLESS A PETITION FOR REVIEW OR RECONSIDERATION IS FILED UNDER 5 C.F.R. SECS. 1201.113-1201.117 OR JUDICIAL REVIEW IS SOUGHT UNDER 5 U.S.C. SEC. 7703. IT IS NOT WITHIN THE JURISDICTION OF OUR OFFICE TO REVIEW DECISIONS OF THE BOARD, AND, THEREFORE, WE WILL NOT CONSIDER THE AGENCY'S REQUEST THAT WE REVIEW THIS ACTION OF THE BOARD.

IN YOUR DISCUSSION WITH MR. VOLPE, YOU INDICATED THAT YOUR AGENCY IS INTERESTED IN OBTAINING INFORMATION ON OUR PRIOR DECISIONS IN THIS ISSUE AREA AND GUIDANCE IN REGARD TO CONDITIONS AND REQUIREMENTS WHICH DEFINE AN INDIVIDUAL'S "SEPARATION" FROM AN INTERNATIONAL ORGANIZATION WITHIN THE MEANING OF 5 U.S.C. SEC. 3582(B).

THE RIGHTS OF FEDERAL EMPLOYEES WHO TRANSFER TO AN INTERNATIONAL ORGANIZATION ARE SET FORTH IN SECTION 3582, TITLE 5, U.S.C. (1976). FOR THE MOST PART OUR DECISIONS CONCERNING THE RIGHTS RESERVED TO AN INDIVIDUAL INCIDENT TO SERVICE WITH AN INTERNATIONAL ORGANIZATION HAVE ADDRESSED SUBSTANTIVE ISSUES INVOLVED IN DETERMINING SPECIFIC ENTITLEMENTS IN CONNECTION WITH THE PAYMENT OF AN EQUALIZATION ALLOWANCE UNDER 5 U.S.C. SEC. 3582(B). SEE, FOR EXAMPLE, EDWARD NAPOLIELLO, B-193771, DECEMBER 17, 1979, AND DECISIONS CITED THEREIN. WE HAVE ALSO NOTED THAT A DISTINCTION IS MADE BETWEEN EMPLOYEES WHO ARE DETAILED TO INTERNATIONAL ORGANIZATIONS AND THOSE WHO ARE TRANSFERRED TO SUCH ORGANIZATIONS. DETAILED EMPLOYEES REMAIN ON THE GOVERNMENT ROLLS AND RECEIVE PAY AS BEING IN THE SERVICE OF THE UNITED STATES. THOSE TRANSFERRED ARE GUARANTEED THAT THEIR PAY WILL NOT BE LESS THAN IF THEY HAD REMAINED ON THE GOVERNMENT ROLLS, BUT SUCH GUARANTEE IS EFFECTIVE ONLY UPON CONDITION OF REEMPLOYMENT. IF AN EMPLOYEE EARNS AS MUCH AS OR MORE WHILE SERVING WITH AN INTERNATIONAL ORGANIZATION THAN HE WOULD HAVE EARNED AS A FEDERAL EMPLOYEE, NO PAYMENT UNDER THE GUANANTEE IS REQUIRED. 50 COMP.GEN. 173 (1970). ALSO, IF AN INDIVIDUAL SHOULD FAIL TO EXERCISE HIS REEMPLOYMENT RIGHT WITHIN THE STATED TIME PERIOD, THEN ALL ENTITLEMENTS BETWEEN HIM AND THE UNITED STATES GOVERNMENT ARE SEVERED. SEE MICHAEL B. MCCLELLAN, B-181853, AUGUST 23, 1976.

AS A PRACTICAL MATTER IT WOULD APPEAR THAT SEPARATION FROM AN INTERNATIONAL ORGANIZATION, AS WELL AS ENTRY ON DUTY, WOULD BE MATTERS OF FORM APPROPRIATELY COVERED BY THE TERMS AND CONDITIONS OF AN INDIVIDUAL'S SERVICE AGREEMENT WITH THE INTERNATIONAL ORGANIZATION. UNDER THE AUTHORITY OF SECTION 3584 OF TITLE 5, U.S.C. AND EXECUTIVE ORDER NO. 11552, AS AMENDED, THE OFFICE OF PERSONNEL MANAGEMENT (OPM) HAS PROMULGATED REGULATIONS CONTAINED AT 5 C.F.R. PART 352, SUBPART C (1979), WHICH IMPLEMENT THE STATUTORY PROVISIONS OF 5 U.S.C. SECS. 3581, ET SEQ. (1976). PROCEDURAL REQUIREMENTS IN REGARD TO REEMPLOYMENT ARE ADDRESSED IN SECTIONS 352.311 AND 352.312 OF TITLE 5, CODE OF FEDERAL REGULATIONS. HOWEVER, WE FIND NO EXPRESS REQUIREMENT, NOR ARE WE AWARE OF ANY INTERPRETIVE ANALYSIS OF 5 U.S.C. SECS. 3581 ET SEQ., AND THE IMPLEMENTING REGULATIONS, SUGGESTING THAT AN INTERNATIONAL ORGANIZATION PROVIDE ANY PARTICULAR FORM OR NOTICE TO DOCUMENT AN INDIVIDUAL'S SEPARATION. THOSE CASES INVOLVING TRANSFERS TO INTERNATIONAL ORGANIZATIONS WHICH HAVE BEEN CONSIDERED BY THIS OFFICE HAVE HERETOFORE NOT PRESENTED ANY DIFFICULTIES IN TERMS OF ESTABLISHING SEPARATION WITHIN THE MEANING OF 5 U.S.C. SEC. 3582(B). SIMILARLY, WE HAVE NOT HAD OCCASION TO CONSIDER ANY CASES UNDER 5 U.S.C. SEC. 3582(B) WHERE AN INDIVIDUAL ATTEMPTED TO SECURE DUAL EMPLOYMENT BY NOT SEPARATING FROM THE INTERNATIONAL ORGANIZATION PRIOR TO COMMENCING DUTIES IN CONNECTION WITH HIS REEMPLOYMENT WITH HIS FEDERAL AGENCY.

IN THE ABSENCE OF A MORE DEFINITIVE INTERPRETATION IN THIS ISSUE AREA, OUR GUIDANCE IS NECESSARILY LIMITED TO SUGGESTING THAT REPRESENTATIVES OF YOUR AGENCY MIGHT CONSIDER THE POSSIBILITY OF MEETING WITH OFFICIALS AT OPM OR COUNTERPARTS AT THE DEPARTMENT OF STATE, FOR THE PURPOSE OF DISCUSSING THE POTENTIAL FOR ADOPTING MORE DEFINITIVE REGULATIONS IN LINE WITH YOUR CONCERNS AS TYPIFIED BY MR. THOMAS' CASE.

WE HAVE ENCLOSED COPIES OF THE DECISIONS CITED ABOVE, AND WE TRUST THAT THIS INFORMATION IS RESPONSIVE TO YOUR INQUIRY.