B-172221, JUN 30, 1971

B-172221, JUN 30, 1971

CIVILIAN EMPLOYEE - SEVERANCE PAY - REASSIGNMENT REFUSED ADVISING THAT THE AWARD OF SEVERANCE PAY FOLLOWING HIS DISCHARGE FROM EMPLOYMENT WITH THE MARSHALL SPACE FLIGHT CENTER AS A RESULT OF A FAILURE TO ACCEPT RE-ASSIGNMENT TO HUNTSVILLE, ALABAMA, AFTER HIS POSITION HAD BEEN ABOLISHED, WAS CORRECT. SEVERANCE PAY IS AUTHORIZED BY 5 U.S.C. 5595B WHICH READS IN PART, "... AN EMPLOYEE ... WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ... IS ENTITLED TO BE PAID SEVERANCE PAY ... " THE PERTINENT CIVIL SERVICE COMMISSION REGULATION PROVIDES THAT A SEPARATION WHICH OCCURS AS A RESULT OF A FAILURE TO ACCEPT A TRANSFER IN A REDUCTION OF FORCE SITUATION IS AN INVOLUNTARY SEPARATION WITHIN THE DEFINITION OF SECTION 5595(B)(2). SINCE THIS SEPARATION OCCURED IN CONNECTION WITH A REDUCTION IN FORCE, THE COMP. GEN. AGREES THAT THE ALLOWANCE OF SEVERANCE PAY WAS PROPER.

TO MR. LEON F. ANCESTY:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 12 AND MAY 7, 1971, AND ENCLOSURES, IN WHICH YOU STATE THAT YOU WERE SEPARATED FROM THE FEDERAL SERVICE UNDER AN ADVERSE ACTION FOR FAILURE TO ACCEPT A REASSIGNMENT TO HUNTSVILLE, ALABAMA, OCCASIONED BY THE ABOLISHMENT OF YOUR POSITION AS A CONTRACT SPECIALIST, GS-1102-12, AT SEAL BEACH, CALIFORNIA. YOU WERE EMPLOYED BY THE MARSHALL SPACE FLIGHT CENTER (MSFC), NATIONAL AERONAUTICS AND SPACE ADMINISTRATION.

YOU INDICATE THAT ALTHOUGH YOU HAVE BEEN RECEIVING SEVERANCE PAY YOU MAY NOT BE ENTITLED TO SUCH BENEFIT. IT IS YOUR CONTENTION THAT SINCE YOUR POSITION AT SEAL BEACH WAS ABOLISHED NO TRANSFER OF FUNCTION WAS INVOLVED. IN ADDITION, YOU STATE THAT THE STANDARD FORM 50 (NOTIFICATION OF PERSONNEL ACTION) UNDER WHICH YOU WERE SEPARATED CLEARLY STATES THAT YOU ARE ENTITLED TO SEVERANCE PAY AND, THEREFORE, YOU CONSIDERED THE ACTION TAKEN BY THE AGENCY AS A REDUCTION IN FORCE. YOU POINT OUT THAT YOUR SEPARATION HAS BEEN SUSTAINED BY THE CIVIL SERVICE COMMISSION'S REGIONAL OFFICE IN SAN FRANCISCO, CALIFORNIA, AND BY THE BOARD OF APPEALS AND REVIEW OF THE COMMISSION IN WASHINGTON, D.C. APPARENTLY, YOU DESIRE A DECISION BY OUR OFFICE AS TO THE LEGALITY OF THE SEVERANCE PAY IN YOUR CASE.

AT THIS POINT, A BRIEF RECITATION OF THE FACTS AND CIRCUMSTANCES RELATING TO YOUR EMPLOYMENT AND SEPARATION APPEARS TO BE IN ORDER. BY MEMORANDUM DATED FEBRUARY 26, 1970, A DECISION WAS MADE BY THE DIRECTOR, MSFC, DUE TO A GREATLY REDUCED BUDGET, TO PHASE DOWN THE SATURN/APOLLO PROGRAM, POSTPONE THE SATURN FOLLOW-ON PROGRAM, AND INSTITUTE A MORE GRADUAL BUILDUP OF THE AAP, SPACE SHUTTLE AND SPACE STATION PROGRAMS. IT WAS STATED THAT IN ORDER TO STREAMLINE AND BETTER UTILIZE THE ENGINEERING AND MANAGEMENT PERSONNEL OF THE AGENCY, THERE WOULD BE A PHASING OUT OF CERTAIN PERSONNEL FROM THE WEST COAST RESIDENT OFFICES AT MICHOUD ASSEMBLY FACILITY AND THAT SUCH PERSONNEL WOULD BE TRANSFERRED TO OTHER MSFC LOCATIONS. THE DIRECTOR POINTED OUT THAT POSITIONS COMMENSURATE WITH GRADES AS THEY EXISTED - PRINCIPALLY IN THE HUNTSVILLE, ALABAMA, AREA - HAD BEEN IDENTIFIED AND WOULD BE OFFERED TO THOSE INDIVIDUALS AFFECTED IN THE FORM OF REASSIGNMENTS, TRANSFERS, RELOCATIONS, ETC.

THE RECORD SHOWS THAT YOU WERE MADE A WRITTEN OFFER ON MARCH 13, 1970, PROVIDING FOR PROPOSED ACTIONS TO EFFECT YOUR REASSIGNMENT FROM SEAL BEACH, CALIFORNIA, TO HUNTSVILLE, ALABAMA, AT THE SAME GRADE, SALARY, AND COMPETITIVE LEVEL. BY MEMORANDUM OF APRIL 17, 1970, YOU WERE IN EFFECT ASSIGNED TO HUNTSVILLE, EFFECTIVE MAY 10, 1970. IT WAS STATED THAT YOUR POSITION AT SEAL BEACH HAD BEEN ABOLISHED, THAT YOUR SKILLS AND EXPERIENCE COULD BE MORE EFFECTIVELY UTILIZED AT HUNTSVILLE, AND THAT YOUR REASSIGNMENT HAD BEEN DETERMINED TO BE IN THE BEST INTEREST OF THE FEDERAL SERVICE.

IN A LETTER DATED MAY 22, 1970, YOU WERE INFORMED THAT ADVERSE ACTION WAS BEING PROPOSED TO SEPARATE YOU FROM THE ROLLS OF THE CENTER FOR FAILURE TO ACCEPT ASSIGNMENT TO HUNTSVILLE. IT WAS REPORTED, IN PERTINENT PART, THAT FORMAL REDUCTION-IN-FORCE PROCEDURES HAD NOT BEEN UTILIZED AS EMPLOYEES WERE BEING OFFERED REASSIGNMENT TO VACANT POSITIONS WITHIN MSFC. THE STANDARD FORM 50 TO WHICH YOU REFER STATES, IN PERTINENT PART, UNDER NATURE OF ACTION, THE FOLLOWING: "SEPARATION DECL ASSIGN (MSFC, ALABAMA)."

INITIALLY, WE MUST POINT OUT THAT THE FUNCTION AND RESPONSIBILITY OF DETERMINING THE BASIS FOR A SEPARATION ACTION AND THE TAKING OF SUCH ACTION ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE CIVIL SERVICE COMMISSION AND THE AGENCY CONCERNED.

SEVERANCE PAY IS AUTHORIZED BY 5 U.S.C. 5595(B) WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"(B) UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT OR SUCH OFFICER OR AGENCY AS HE MAY DESIGNATE, AN EMPLOYEE WHO --

"(2) IS INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY;

IS ENTITLED TO BE PAID SEVERANCE PAY IN REGULAR PAY PERIODS BY THE AGENCY FROM WHICH SEPARATED."

THE PRESIDENT FORMALLY DELEGATED BY EXECUTIVE ORDER 11257, DATED NOVEMBER 17, 1965, THE AUTHORITY TO THE CIVIL SERVICE COMMISSION TO ISSUE REGULATIONS TO IMPLEMENT THE ABOVE PROVISIONS OF LAW.

THE REGULATION ISSUED BY THE CIVIL SERVICE COMMISSION COVERING SEVERANCE PAY PERTINENT TO YOUR SITUATION (PUBLISHED IN 5 CFR 550.705) IS AS FOLLOWS:

"WHEN AN EMPLOYEE IS SEPARATED BECAUSE HE DECLINES TO ACCEPT ASSIGNMENT TO ANOTHER COMMUTING AREA AND THE PROPOSED ASSIGNMENT IS THE RESULT OF, OR IN CONNECTION WITH, A TRANSFER OF FUNCTION OR A REDUCTION IN-FORCE SITUATION, THE SEPARATION IS AN INVOLUNTARY SEPARATION NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY FOR PURPOSES OF ENTITLEMENT TO SEVERANCE PAY."

WE HAVE DISCUSSED THE SITUATION HERE INVOLVED WITH A REPRESENTATIVE OF THE CIVIL SERVICE COMMISSION, AND IT IS OUR UNDERSTANDING THAT IT IS THE COMMISSION'S POSITION THAT A "REDUCTION-IN-FORCE SITUATION" MAY EXIST FOR PURPOSES OF SEVERANCE PAY UNDER ITS SEVERANCE PAY REGULATIONS, BUT THAT NEVERTHELESS UNDER OTHER OF ITS REGULATIONS AN AGENCY IS NOT REQUIRED TO FOLLOW REDUCTION-IN-FORCE PROCEDURES WHEN IT IS POSSIBLE TO PLACE EMPLOYEES AT OTHER LOCATIONS IN THE SAME GRADES AND SALARY RATES SUCH AS HERE INVOLVED. WE SEE NO REASON TO DISAGREE WITH THAT POSITION, PARTICULARLY SO FAR AS ENTITLEMENT TO SEVERANCE PAY IS CONCERNED. HOWEVER, AS PREVIOUSLY INDICATED, WE HAVE NO AUTHORITY TO DECIDE WHAT REGULATIONS OR PROCEDURES SHOULD BE USED IN THE SEPARATION OF AN EMPLOYEE FROM AN AGENCY OTHER THAN OUR OWN.

TO SUMMARIZE, OUR VIEW IS THAT THE ALLOWANCE OF SEVERANCE PAY IN YOUR CASE WAS PROPER AS BEING IN CONNECTION WITH A REDUCTION-IN-FORCE SITUATION.

YOUR PERSONAL FILE IN THIS MATTER IS RETURNED HEREWITH AS REQUESTED.