B-143221, DEC 9, 1971

B-143221, DEC 9, 1971

CIVILIAN EMPLOYEES - DEMOTION - SAVED PAY DECISION AFFIRMING DENIAL OF THE CLAIM OF MISS IRMA M. BEAUREGARD, EMPLOYEE OF THE DEPARTMENT OF THE NAVY, TO SAVED PAY RESULTING FROM HER DEMOTION FROM GS-7 TO GS-4 WHEN SHE ELECTED NOT TO ACCOMPANY THE TRANSFER OF THE FUNCTION OF HER OFFICE FROM WASHINGTON, D.C. TO PHILADELPHIA, PA. ALTHOUGH THE FACT PATTERNS OF BROWNING V UNITED STATES, 373 F.2D 915 (1967), AND PATTERSON V UNITED STATES, 436, F.2D 438 (1971), CITED TO SUPPORT RECONSIDERATION, ARE SIMILAR TO THAT OF CLAIMANT, THEY DIFFER IN THAT THEY INVOLVED ADJUSTMENTS TO RETIREMENT ANNUITIES, NOT SAVED PAY WHERE AN EMPLOYEE WAS DEMOTED. THEREFORE, THEY ARE NOT CONTROLLING AND THE CLAIM IS AGAIN DENIED.

TO MISS IRMA M. BEAUREGARD:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 20, 1971, WHEREIN YOU ARE REQUESTING RECONSIDERATION OF YOUR CLAIM IN LIGHT OF THE RULINGS OF THE UNITED STATES COURT OF CLAIMS IN BROWNING V UNITED STATES, 373 F. 2D 915 (1967), AND PATTERSON V UNITED STATES, 436 F. 2D 438 (1971).

THE RECORD SHOWS THAT ON AUGUST 15, 1954, YOU WERE DEMOTED FROM GRADE GS- 7 TO GRADE GS-4 AS A RESULT OF YOUR ELECTION NOT TO ACCOMPANY THE TRANSFER OF FUNCTION (PUBLICATIONS DIVISION) OF YOUR OFFICE, BUREAU OF AERONAUTICS, DEPARTMENT OF THE NAVY, FROM WASHINGTON, D.C., TO PHILADELPHIA, PENNSYLVANIA. THEREAFTER, YOU FILED A CLAIM WITH THIS OFFICE FOR SAVED PAY UNDER PUBLIC LAW 594, AS AMENDED BY PUBLIC LAW 85 737, APPROVED AUGUST 23, 1958, 72 STAT. 830. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT CERTIFICATE DATED MAY 25, 1960, ON THE GROUND THAT YOU HAD NOT SERVED THE 2-YEAR PERIOD OF TIME IN GRADE GS-7 AS REQUIRED BY PUBLIC LAW 85-737. JUNE 7, 1960, YOU APPEALED THE SETTLEMENT BY OUR CLAIMS DIVISION AND ASKED FOR RECONSIDERATION THEREOF IN LIGHT OF THE PENDING DECISION BY THE UNITED STATES COURT OF CLAIMS IN WILLIAM E. COLBATH V UNITED STATES, 169 CT. CL. 414 (1965), AND ON EQUITABLE GROUNDS. YOUR APPEAL WAS DENIED ON JUNE 28, 1960, FOR THE REASON THAT THE JURISDICTION OF OUR OFFICE DOES NOT EXTEND TO CLAIMS BASED SOLELY ON EQUITABLE CONSIDERATIONS UNDER THE BUDGET AND ACCOUNTING ACT OF 1921, 42 STAT. 24, 31 U.S.C. 71, AND BECAUSE THE COLBATH CASE, SUPRA, HAD NOT BEEN DETERMINED AS OF THAT TIME. IN THE COLBATH CASE IT WAS LATER HELD THAT IT WAS PROPER UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT AND CERTAIN REGULATIONS OF THE CIVIL SERVICE COMMISSION TO DISMISS AN EMPLOYEE WHO REFUSED TO ACCEPT A TRANSFER WITHIN HIS AGENCY WHERE THE FUNCTIONS OF HIS DEPARTMENT ARE BEING TRANSFERRED TO ANOTHER DEPARTMENT IN THE SAME AGENCY BUT AT A DIFFERENT LOCATION (NEW HAMPSHIRE TO PENNSYLVANIA).

SUBSEQUENTLY, IN A LETTER RECEIVED IN THIS OFFICE ON FEBRUARY 13, 1963, YOU ASKED FOR OUR INTERPRETATION OF AN AMENDMENT TO SECTION 507 OF THE CLASSIFICATION ACT OF 1949, WHICH WAS PROMULGATED BY THE 1962 FEDERAL SALARY REFORM ACT, AND ITS APPLICATION TO THE FACTS IN YOUR CASE AS RELATED ABOVE.

IN OUR DECISION B-143221, MARCH 6, 1963, YOU WERE INFORMED THAT SECTION 605 OF PUBLIC LAW 87-793, 76 STAT. 832, AMENDED PARAGRAPH 1 OF SUBSECTION A OF SECTION 507 OF THE CLASSIFICATION ACT OF 1949. SINCE YOUR CLAIM WAS DISALLOWED UNDER SUBSECTION B OF SECTION 507, OUR SETTLEMENT OF MAY 25, 1960, WAS SUSTAINED.

YOUR PRESENT REQUEST FOR RECONSIDERATION OF YOUR CLAIM STEMS FROM THE RULINGS OF THE UNITED STATES COURT OF CLAIMS IN THE BROWNING AND PATTERSON CASES, SUPRA. THESE CASES, AS WELL AS THE CASE OF PAULEY V UNITED STATES, 440 F. 2D 426 (1971), INVOLVED THE INTERPRETATION OF REGULATIONS, IT BEING HELD THEREUNDER THAT THE REFUSAL OF AN EMPLOYEE TO ACCEPT A REASSIGNMENT DUE TO TRANSFER OF FUNCTION OF HIS OFFICE, WHICH IS FOLLOWED BY THE SEPARATION OF THE EMPLOYEE FROM THE SERVICE, SHOULD BE CONSIDERED AN INVOLUNTARY SEPARATION FOR PURPOSE OF A REDUCED CIVIL SERVICE RETIREMENT ANNUITY.

THE RULINGS IN THESE CASES PROMPTED THE UNITED STATES CIVIL SERVICE COMMISSION TO AMEND ITS REGULATIONS, EFFECTIVE JULY 1, 1971. UNDER THE NEW REGULATIONS, REFUSAL OF AN EMPLOYEE TO ACCEPT AN ASSIGNMENT TO A DIFFERENT COMMUTING AREA, INCLUDING A TRANSFER OF FUNCTION ASSIGNMENT, IS CONSIDERED AN INVOLUNTARY SEPARATION FOR SEVERANCE PAY PURPOSES AS WELL AS FOR ENTITLEMENT TO DISCONTINUED CIVIL SERVICE RETIREMENT ANNUITY, UNLESS THE POSITION DESCRIPTION OR ANOTHER WRITTEN AGREEMENT OR UNDERSTANDING PROVIDES OTHERWISE. SEE FPM LETTER 550-59 AND 36 F.R. 12729.

ALTHOUGH THERE ARE SIMILARITIES IN THE FACTUAL SITUATION OF YOUR CASE AND THE ABOVE-CITED CASES, WITH RESPECT TO THE REFUSAL TO ACCEPT REASSIGNMENT TO A DIFFERENT COMMUTING AREA, NEVERTHELESS, IN THE BROWNING, PATTERSON, AND PAULEY CASES THE COURT WAS CONCERNED ONLY WITH THE ISSUE OF ENTITLEMENT TO DISCONTINUED CIVIL SERVICE RETIREMENT ANNUITY. YOUR CASE INVOLVES QUESTIONS OF DEMOTION AND SAVED PAY ENTITLEMENT UNDER A CONTINUED EMPLOYMENT SITUATION.

WE THEREFORE CONCLUDE THAT THE BROWNING, PATTERSON, AND PAULEY CASES ARE NOT AT POINT IN THE RECONSIDERATION OF YOUR CASE AND OUR DECISION OF MARCH 6, 1963, IS HEREBY SUSTAINED.

MOREOVER, EVEN IF THE CIVIL SERVICE REGULATIONS WERE APPLICABLE TO THE FACTS OF YOUR CASE, THEY COULD NOT BE APPLIED RETROACTIVELY. SEE B 166666, APRIL 24, 1970, COPY ENCLOSED, AND CASES CITED THEREIN.