B-207872, AUG 16, 1982

B-207872, AUG 16, 1982

DIGEST: AN EMPLOYEE WHO IS ELIGIBLE FOR A CIVIL SERVICE RETIREMENT ANNUITY ON THE DATE OF INVOLUNTARY SEPARATION FROM SERVICE IS NOT ENTITLED TO SEVERANCE PAY UNDER 5 U.S.C. SEC. 5595 (1970). FOR THE PURPOSES OF THAT SECTION, THE TERM "EMPLOYEE" DOES NOT INCLUDE INDIVIDUALS WHO ARE ELIGIBLE FOR AN IMMEDIATE ANNUITY ON THE DATE OF SEPARATION. 5 U.S.C. SEC. 5595(A)(2)(IV) (1970). CLAIM FOR SEVERANCE PAY IS DENIED.

THOMAS J. CAMPBELL - SEVERANCE PAY - ANNUITY ENTITLEMENT:

THOMAS J. CAMPBELL HAS APPEALED SETTLEMENT CERTIFICATE Z-2834005 ISSUED BY OUR CLAIMS GROUP ON MARCH 18, 1982, DENYING HIS CLAIM FOR SEVERANCE PAY. WE SUSTAIN THE DENIAL BECAUSE, UNDER 5 U.S.C. SEC. 5595 (1970), THE TERM "EMPLOYEE" FOR PURPOSES OF SEVERANCE PAY DOES NOT INCLUDE AN INDIVIDUAL WHO IS ELIGIBLE FOR AN IMMEDIATE ANNUITY ON THE DATE OF SEPARATION. SEE 5 U.S.C. SEC. 5595(A)(2)(IV).

MR. THOMAS J. CAMPBELL WAS INVOLUNTARILY SEPARATED FROM THE DEPARTMENT OF THE AIR FORCE ON AUGUST 31, 1969. AT THAT TIME, HE WAS ENTITLED TO SEVERANCE PAY. PAYMENTS WERE POSTPONED BECAUSE MR. CAMPBELL ACCEPTED A TEMPORARY POSITION, EFFECTIVE SEPTEMBER 1, 1969, AS STAFF DIRECTOR OF THE SELECT COMMITTEE ON HOUSE RESTAURANTS, HOUSE OF REPRESENTATIVES. MR. CAMPBELL HELD A NUMBER OF "EXCEPTED APPOINTMENTS", WHICH WERE TEMPORARY IN NATURE, FROM SEPTEMBER 1, 1969 UNTIL JANUARY 31, 1979, WHEN HE WAS INVOLUNTARILY SEPARATED FROM CONGRESSMAN FARY'S OFFICE.

BEFORE RECEIVING SEVERANCE PAY, AN EMPLOYEE MUST MEET THE CONDITIONS SET FORTH IN 5 U.S.C. SEC. 5595 (1970). UNDER SUBCHAPTER 7-6DB) OF BOOK 550, FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2 (1969 ED. FEBRUARY 28, 1973), SEVERANCE PAYMENTS TO EMPLOYEES ARE POSTPONED IF, WITHOUT A BREAK IN SERVICE EXCEEDING THREE DAYS, THE EMPLOYEE ACCEPTS ONE OR MORE TEMPORARY PART-TIME OR TEMPORARY INTERMITTENT APPOINTMENTS. WHEN THE TEMPORARY EMPLOYMENT TERMINATES, PAYMENTS ARE TO CONTINUE AS PRESCRIBED BY SECTION 5595 OF TITLE 5, UNITED STATES CODE. FEDERAL PERSONNEL MANUAL, CHAPTER 550-53, SUBCHAPTER 7-6DB), (1969 ED. FEBRUARY 28, 1973). SINCE MR. CAMPBELL ACCEPTED A GOVERNMENT POSITION IMMEDIATELY AFTER HE WAS INVOLUNTARILY SEPARATED FROM THE DEPARTMENT OF THE AIR FORCE, PAYMENTS OF SEVERANCE PAY WERE POSTPONED. UPON THE TERMINATION OF HIS EMPLOYMENT IN 1979, MR. CAMPBELL BECAME ENTITLED TO SEVERANCE PAY ONLY IF THE CONDITIONS OF SECTION 5595 WERE MET ON THAT DATE.

SECTION 5595 AUTHORIZES SEVERANCE PAY FOR EMPLOYEES WHO ARE INVOLUNTARILY SEPARATED FOR REASONS OTHER THAN MISCONDUCT, DELINQUENCY, OR INEFFICIENCY AFTER BEING EMPLOYED FOR AT LEAST 12 CONTINUOUS MONTHS. THE PURPOSE OF PROVIDING SEVERANCE PAY TO THESE EMPLOYEES IS TO "BRIDGE THE GAP BETWEEN EMPLOYMENT AND REEMPLOYMENT." JOHN BROSKY, JR., B-187854, FEBRUARY 24, 1977. RECEIVING SEVERANCE PAY AND AN ANNUITY SIMULTANEOUSLY WOULD NOT SERVE THIS PURPOSE. NATIONAL GUARD TECHNICIAN, 54 COMP.GEN. 905 (1975). CONGRESS, THEREFORE, LIMITED THE DEFINITION OF "EMPLOYEE." FOR THE PURPOSES OF SEVERANCE PAY, THE TERM DOES NOT INCLUDE INDIVIDUALS WHO ARE ENTITLED TO AN IMMEDIATE ANNUITY ON THE DATE OF SEPARATION FROM SERVICE. 5 U.S.C. SEC. 5595(A)(2)(IV).

THE FEDERAL PERSONNEL MANUAL STATES THAT THE SEVERANCE PAY PROVISION OF SECTION 5595 DOES NOT APPLY TO "AN EMPLOYEE WHO IS SUBJECT TO ANY RETIREMENT LAW OR RETIREMENT SYSTEM APPLICABLE TO FEDERAL EMPLOYEES, AND WHO, AT THE TIME OF SEPARATION FROM THE SERVICE, IS ENTITLED TO AN IMMEDIATE ANNUITY." FEDERAL PERSONNEL MANUAL, CHAPTER 550, SUBCHAPTER 7- 3B(2)(IV), (1969 ED. MAY 7, 1981).

ACCORDING TO THE INFORMATION WE HAVE BEEN GIVEN, MR. CAMPBELL WAS ELIGIBLE FOR AN IMMEDIATE ANNUITY UNDER THE CIVIL SERVICE RETIREMENT SYSTEM AT THE TIME OF HIS SEPARATION ON JANUARY 31, 1979. HIS ELIGIBILITY FOR AN IMMEDIATE ANNUITY BARS THE RECEIPT OF SEVERANCE PAY. THE DENIAL OF HIS CLAIM BY OUR CLAIMS GROUP IS SUSTAINED.