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B-159029, JUN. 17, 1966, 45 COMP. GEN. 811

B-159029 Jun 17, 1966
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OFFICERS AND EMPLOYEES - SEVERANCE PAY - VOLUNTARY SEPARATION A CIVILIAN EMPLOYEE AFFECTED BY AN ORGANIZATIONAL CHANGE WHO DECLINES TO ACCEPT A TRANSFER TO A POSITION AT THE SAME GRADE AND PAY TO ANOTHER GEOGRAPHIC AREA TO WHICH THE FUNCTIONS HE HAD BEEN PERFORMING WERE NOT TRANSFERRED AND HE THEREFORE IS SEPARATED FROM THE SERVICE. IS NOT ENTITLED TO THE SEVERANCE PAY PROVIDED BY SECTION 9 (C) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965. OFFICERS AND EMPLOYEES - SEVERANCE PAY - RESIGNATION THE RESIGNATION OF AN EMPLOYEE FROM A CIVILIAN POSITION IN ANTICIPATION OF A REMOVAL FOR CAUSE IS NOT THE INVOLUNTARY SEPARATION CONTEMPLATED BY SECTION 550.706 (A) OF THE CIVIL SERVICE REGULATIONS PROVIDING FOR THE SEPARATION OF AN EMPLOYEE BY RESIGNATION ONLY AFTER RECEIPT BY THE EMPLOYEE OF SPECIFIC NOTICE IN WRITING THAT THE SEPARATION IS NOT FOR CAUSE.

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B-159029, JUN. 17, 1966, 45 COMP. GEN. 811

OFFICERS AND EMPLOYEES - SEVERANCE PAY - VOLUNTARY SEPARATION A CIVILIAN EMPLOYEE AFFECTED BY AN ORGANIZATIONAL CHANGE WHO DECLINES TO ACCEPT A TRANSFER TO A POSITION AT THE SAME GRADE AND PAY TO ANOTHER GEOGRAPHIC AREA TO WHICH THE FUNCTIONS HE HAD BEEN PERFORMING WERE NOT TRANSFERRED AND HE THEREFORE IS SEPARATED FROM THE SERVICE, WITHOUT RESIGNATION, IS NOT ENTITLED TO THE SEVERANCE PAY PROVIDED BY SECTION 9 (C) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, THE EMPLOYEE NOT HAVING BEEN SEPARATED FOR FAILURE TO ACCOMPANY HIS POSITION TO ANOTHER COMMUTING AREA IN A TRANSFER OF FUNCTION SO AS TO CONSTITUTE IN INVOLUNTARY SEPARATION WITHIN THE MEANING OF SECTION 550.705 OF THE CIVIL SERVICE REGULATIONS, BUT HAVING BEEN REMOVED FOR CAUSE BY REASON OF NOT REPORTING FOR DUTY UPON REASSIGNMENT TO A DIFFERENT POSITION AT ANOTHER LOCATION. OFFICERS AND EMPLOYEES - SEVERANCE PAY - RESIGNATION THE RESIGNATION OF AN EMPLOYEE FROM A CIVILIAN POSITION IN ANTICIPATION OF A REMOVAL FOR CAUSE IS NOT THE INVOLUNTARY SEPARATION CONTEMPLATED BY SECTION 550.706 (A) OF THE CIVIL SERVICE REGULATIONS PROVIDING FOR THE SEPARATION OF AN EMPLOYEE BY RESIGNATION ONLY AFTER RECEIPT BY THE EMPLOYEE OF SPECIFIC NOTICE IN WRITING THAT THE SEPARATION IS NOT FOR CAUSE, GENERAL NOTICE OF REDUCTION IN FORCE, NOTICE PROPOSING SEPARATION FOR DECLINING TO ACCOMPANY A POSITION MOVED TO ANOTHER COMMUTING AREA, BUT IS A RESIGNATION THAT UNRELATED TO THE ISSUANCE OF ONE OF THE NOTICES PRESCRIBED UNDER SECTION 550.706 (A) CONSTITUTES THE VOLUNTARY RESIGNATION REFERRED TO IN SECTION 550.706 (B) AND, THEREFORE, THE EMPLOYEE RESIGNING IN ANTICIPATION OF A REMOVAL FOR CAUSE IS NOT ENTITLED TO THE SEVERANCE PAY AUTHORIZED BY SECTION 9 (C) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965.

TO THE SECRETARY OF THE INTERIOR, JUNE 17, 1966:

THIS IS IN REPLY TO THE LETTER OF YOUR DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION DATED APRIL 22, 1966, CONCERNING ENTITLEMENT OF MR. JOHN E. CRAWFORD, A FORMER EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR, TO SEVERANCE PAY UNDER THE PROVISIONS OF SECTION 9 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, APPROVED OCTOBER 29, 1965, PUBLIC LAW 89 301, 79 STAT. 1118, 5 U.S.C. 1117.

THE FACTS BRIEFLY SUMMARIZED ARE AS FOLLOWS: MR. CRAWFORD, A GS 15, WAS UNTIL RECENTLY PROGRAM COORDINATOR OF THE MARINE MINERALS TECHNOLOGY CENTER (MMTC) AT TIBURON, CALIFORNIA. IN NOVEMBER 1965 THERE WAS AN ORGANIZATIONAL CHANGE IN THE BUREAU OF MINES TRANSFERRING THE CENTER FROM THE MINERAL RESOURCE UNIT TO THE MINERALS RESEARCH UNIT. THIS RESULTED IN A CHANGE IN EMPHASIS IN THE PROGRAM AT MMTC, WHICH COUPLED WITH INDICATIONS OF OTHER ADMINISTRATIVE NEEDS, LET THE DIRECTOR, BUREAU OF THE MINES ON FEBRUARY 7, 1966, TO ORDER MR. CRAWFORD TRANSFERRED TO A POSITION AS PHYSICAL SCIENTIST AT THE SAME GRADE AND SALARY IN THE OFFICE OF THE ASSISTANT DIRECTOR, MINERAL RESOURCE DEVELOPMENT, WASHINGTON, D.C., EFFECTIVE FEBRUARY 26, 1966. FOLLOWING A PROTEST BY MR. CRAWFORD THE DIRECTOR, BY TELEGRAM DATED FEBRUARY 25, 1966, DIRECTED HIM TO REPORT FOR DUTY IN WASHINGTON, D.C., ON FEBRUARY 28, 1966. HE WAS FURNISHED A PERSONNEL ACTION AND A TRAVEL AUTHORIZATION AND THE TRANSFER WAS EFFECTED.

ON FEBRUARY 28, 1966, MR. CRAWFORD ADVISED THE BUREAU THAT HE COULD NOT ACCEPT A POSITION OUTSIDE THE SAN FRANCISCO, CALIFORNIA, AREA FOR PERSONAL REASONS. MR. CRAWFORD WAS NOTIFIED ON MARCH 2, 1966, BY TELEGRAM AND ON MARCH 11, 1966, BY DETAILED MEMORANDUM THAT IT WAS PROPOSED TO SEPARATE HIM FROM THE SERVICE NO EARLIER THAN APRIL 9, 1966, FOR FAILURE TO REPORT FOR DUTY IN WASHINGTON, D.C., AS DIRECTED. ON MARCH 4, 1966, THE POSITION OF RESEARCH DIRECTOR AT MMTC WAS FILLED AND THE POSITION OF PROGRAM COORDINATOR, PREVIOUSLY FILLED BY MR. CRAWFORD, WAS ABOLISHED. MR. CRAWFORD WAS PROVIDED TEMPORARY DUTIES ON DETAIL IN SAN FRANCISCO BY THE ASSISTANT DIRECTOR, MINERAL RESOURCE DEVELOPMENT, WASHINGTON, D.C., UNTIL HIS SEPARATION ON APRIL 22, 1966.

YOU HAVE ASKED THE FOLLOWING QUESTIONS IN CONNECTION WITH THE FOREGOING FACTS.

1. MAY A RESIGNATION BE CONSIDERED AN INVOLUNTARY SEPARATION FOR ENTITLEMENT TO SEVERANCE PAY IF THE EMPLOYEE DECLINES TO ACCEPT A TRANSFER IN THE SAME GRADE AND PAY TO ANOTHER GEOGRAPHIC AREA WITHOUT TRANSFER OF THE FUNCTION FROM THE AREA IN WHICH HE WAS SERVING?

2. IS AN EMPLOYEE WHO IS SEPARATED, WITHOUT RESIGNATION, FROM THE FEDERAL SERVICE BECAUSE OF HIS FAILURE TO REPORT TO ANOTHER GEOGRAPHIC AREA FOR DUTY, WITHOUT CHANGE IN GRADE OR PAY AND WHEN THERE IS NO TRANSFER OF FUNCTION, ENTITLED TO SEVERANCE PAY?

SECTION 9 (C) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, 5 U.S.C. 1117 (C), PROVIDES AS FOLLOWS:

AN OFFICER OR EMPLOYEE TO WHOM THIS SECTION APPLIES WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE, ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, SHALL, UNDER RULES AND REGULATIONS PRESCRIBED BY THE PRESIDENT OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS BY THE DEPARTMENT, INDEPENDENT ESTABLISHMENT, CORPORATION, OR OTHER GOVERNMENTAL UNIT, FROM WHICH SEPARATED.

IN EXECUTIVE ORDER NO. 11257, THE PRESIDENT DESIGNATED THE CIVIL SERVICE COMMISSION AS THE AGENCY TO PRESCRIBE THE IMPLEMENTING REGULATIONS. THESE REGULATIONS, 550.701 TO 550.708, PROVIDE IN PERTINENT PART AS FOLLOWS:

SEC. 550.701 COVERAGE. (A) DEPARTMENTS. THIS SUBPART APPLIES TO: (I) THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT * * *

(B) EMPLOYEES. (1) EXCEPT AS PROVIDED BY SUBPARAGRAPH (2) OF THIS PARAGRAPH AND SECTION 9 (B) OF THE ACT, THIS SUBPART APPLIES TO EACH FULL- TIME AND PART-TIME OFFICER AND EMPLOYEE OF A DEPARTMENT * * *

(2) THIS SUBPART DOES NOT APPLY TO AN EMPLOYEE WHO, AT THE TIME OF SEPARATION FROM THE SERVICE, IS OFFERED AND DECLINES TO ACCEPT AN EQUIVALENT POSITION IN HIS DEPARTMENT IN THE SAME COMMUTING AREA, INCLUDING A DEPARTMENT TO WHICH THE EMPLOYEE WITH HIS FUNCTION IS TRANSFERRED IN A TRANSFER OF FUNCTIONS BETWEEN DEPARTMENTS. FOR PURPOSES OF THIS SUBPARAGRAPH, AN EQUIVALENT POSITION IS ONE OF LIKE SENIORITY, TENURE, AND PAY OTHER THAN A RETAINED RATE.

SEC. 550.702 ENTITLEMENT. THIS SUBPART AND SECTION (9) OF THE ACT APPLY TO THE COMPUTATION AND PAYMENT OF SEVERANCE PAY TO AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY.

SEC. 550.705 FAILURE TO ACCOMPANY ACTIVITY. THE SEPARATION OF AN EMPLOYEE BY A DEPARTMENT WHEN THE EMPLOYEE DECLINES TO ACCOMPANY HIS POSITION WHEN IT IS MOVED TO ANOTHER COMMUTING AREA BECAUSE OF A TRANSFER OF FUNCTION IS DEEMED TO BE AN INVOLUNTARY SEPARATION NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, FOR PURPOSES OF ENTITLEMENT TO SEVERANCE PAY.

SEC. 550.706 RESIGNATION IN LIEU OF INVOLUNTARY SEPARATION. (A) EXCEPT AS PROVIDED FOR IN PARAGRAPH (B) OF THIS SECTION, AN EMPLOYEE WHO IS SEPARATED BECAUSE OF RESIGNATION IS DEEMED TO HAVE BEEN INVOLUNTARILY SEPARATED FOR PURPOSES OF ENTITLEMENT TO SEVERANCE PAY, IF HE HAS NOT DECLINED AN OFFER OF AN EQUIVALENT POSITION UNDER SECTION 550.701 (B) (2), WHEN HE IS SEPARATED BECAUSE OF RESIGNATION (I) AFTER RECEIVING A SPECIFIC NOTICE IN WRITING BY HIS DEPARTMENT THAT HE IS TO BE INVOLUNTARILY SEPARATED NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY, (II) AFTER RECEIPT OF A GENERAL NOTICE OF REDUCTION IN FORCE BY HIS DEPARTMENT WHICH ANNOUNCES THAT ALL POSITIONS IN HIS COMPETITIVE AREA WILL BE ABOLISHED OR TRANSFERRED TO ANOTHER COMMUTING AREA AND HIS RESIGNATION IS EFFECTIVE ON A DATE WHICH IS NOT MORE THAN ONE YEAR BEFORE THE ABOLITION OR TRANSFER, AND (III) AFTER RECEIPT OF A NOTICE BY HIS DEPARTMENT PROPOSING TO SEPARATE HIM FOR DECLINING TO ACCOMPANY HIS POSITION WHEN IT IS TO BE MOVED TO ANOTHER COMMUTING AREA BECAUSE OF A TRANSFER OF FUNCTION AND WHEN ALL POSITIONS IN HIS COMPETITIVE AREA ARE TO BE ABOLISHED OR TRANSFERRED TO ANOTHER COMMUTING AREA WITHIN A PERIOD OF NOT MORE THAN ONE YEAR.

(B) WHEN THE FACTS AND CIRCUMSTANCES AVAILABLE TO A DEPARTMENT SHOW THAT A RESIGNATION UNDER PARAGRAPH (A) OF THIS SECTION IS UNRELATED TO THE ISSUANCE OF ONE OF THE NOTICES SPECIFIED IN THAT PARAGRAPH, SEPARATION OF THE EMPLOYEE BY RESIGNATION IS A VOLUNTARY SEPARATION UNDER THE ACT.

MR. CRAWFORD'S SEPARATION DID NOT FOLLOW A FAILURE TO ACCOMPANY HIS POSITION TO ANOTHER COMMUTING AREA IN A TRANSFER OF FUNCTION SO AS TO CONSTITUTE AN INVOLUNTARY SEPARATION WITHIN THE MEANING OF SECTION 550.705 OF THE ABOVE REGULATIONS. HE WAS SEPARATED BECAUSE HE FAILED TO REPORT FOR DUTY UPON REASSIGNMENT TO A DIFFERENT POSITION AT ANOTHER LOCATION AFTER HAVING BEEN DIRECTED TO DO SO. SINCE THIS CONSTITUTED REMOVAL FOR CAUSE HE WOULD NOT BE INCLUDED AMONG THOSE EMPLOYEES "INVOLUNTARILY SEPARATED NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY" WITHIN THE SCOPE OF THE ENTITLEMENT PROVISIONS OF SECTIONS 550.702, 550.705 AND 550.706 (A) (I) ABOVE. SEE SCHMIDT V. UNITED STATES, 153 CT.CL. 407 (1961).

A RESIGNATION IN ANTICIPATION OF A REMOVAL FOR CAUSE IS NOT AN INVOLUNTARY SEPARATION OF THE THREE TYPES OUTLINED IN SECTION 550.706 (A) ABOVE BUT RATHER WOULD CONSTITUTE A VOLUNTARY SEPARATION OF THE TYPE REFERRED TO IN SECTION 550.706 (B) AND THEREFORE NO ENTITLEMENT TO SEVERANCE PAY WOULD EXIST.

SPECIFICALLY, IN REPLY TO YOUR TWO QUESTIONS, SO LONG AS THE REFUSAL TO ACCEPT THE TRANSFER IS A GOOD CAUSE FOR REMOVAL, OUR OPINION, AS INDICATED ABOVE, IS THAT SUCH A SEPARATION IS NOT WITHIN THE COVERAGE OF THE SEVERANCE PAY STATUTE AND THE CIVIL SERVICE REGULATIONS ISSUED THEREUNDER. THEREFORE, ON THAT BASIS, THE QUESTIONS PRESENTED ARE ANSWERED IN THE NEGATIVE.

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