[Comments on Request for Reconsideration of Claims Group's Settlement of Claim for Severance Pay]

B-217158.2, Mar 22, 1989, Office of General Counsel

CIVILIAN PERSONNEL - Compensation - Severance pay - Eligibility CIVILIAN PERSONNEL - Compensation - Severance pay - Eligibility - Involuntary separation - Determination DIGEST: An employee who was involuntarily discharged from his federal position and denied severance pay by his agency under 5 U.S.C. Sec. 5595(b) (1982) based on inefficiency, seeks review of our Claims Group settlement which sustained that agency action. Based on rulings by the Merit Systems Protection Board and Court of Appeals for the Federal Circuit rendered in the claimant's case, the finding of inefficiency is reasonably based and we conclude that our Claims Group action is correct.

Alan Duckterman, Esq:

We refer to your letter of October 6, 1988, written on behalf of Mr. [redacted], in which you renew your request that we review our Claims Group Settlement Z-2851884, July 3, 1984, and reconsider Mr. [redacted]'s entitlement to severance pay. That settlement sustained the Department of the Navy's action disallowing such pay based on the Navy finding that Mr. [redacted]'s separation was due to his inability to perform his assigned tasks -- inefficiency.

The facts are that Mr. [redacted] was indicted by a federal grand jury on three counts of willful and deliberate federal income tax evasion for the years 1976, 1977, and 1978. He pled guilty to the charge for the year 1978, and on July 9, 1982, he was sentenced to 2 years in prison (actual confinement - 60 days), supervised probation for 3 years, a $5,000 fine, and 100 hours of community service. As a result of that conviction, his employer, the Department of the Navy, revoked his security clearance. Since there were no nonsensitive positions available to him, Mr. [redacted] was discharged from federal service on June 15, 1983. Mr. [redacted] filed a challenge to that action with the Merit Systems Protection Board (MSPB). The issues considered by the MSPB were whether Mr. [redacted]'s security clearance should have been revoked and whether the basis for discharge inability to perform assigned tasks-- inefficiency-- was proper. Based on its examination of all the evidence, the MSPB sustained the agency finding that a nexus existed between Mr. [redacted]'s conviction of the off-duty crime and revocation of his security clearance. The Board also concluded that since there were no other nonsecurity clearance positions available, his removal promoted the efficiency of the federal civil service and was proper. /1/ Those findings by the MSPB were affirmed by the United States Court of Appeals for the Federal Circuit on August 17, 1988. /2/

Notwithstanding the above, you argue that Mr. [redacted] should receive severance pay because the reason for his separation, i.e., loss of security clearance, is not an event described in 5 U.S.C. Sec. 5595(b) as constituting cause. Further, you point out that had Mr. [redacted]'s position not required a security clearance he would not have been dismissed from federal service.

The statute governing severance pay clearly precludes payment to an employee who is removed for cause on charges of misconduct, delinquency, or inefficiency. 5 U.S.C. Sec. 5595(b)(1). The court opinion you cited, Sullivan v. United States, speaks to the issue of what constitutes an involuntary separation when an employee is removed from the federal service at the expiration of a limited-term appointment. /3/ The court in Sullivan does not suggest that there is any discretion with regard to the payment of severance pay to individuals removed for cause. In view of the ruling of the MSPB and the Court of Appeals for the Federal Circuit, it is our position that the finding of inefficiency is reasonably based. Therefore, we conclude that the action of our Claims Group disallowing Mr. [redacted]'s claim for severance pay is proper.

/1/ MSPB Docket No. DC07528310774, initial decision, Oct. 13, 1983, affirmed as modified, July 12, 1984.

/2/ [redacted] v. Department of the Navy, No. 85-542, slip op. at 3 (Fed.Cir. Aug. 17, 1988).

/3/ 4 Cl.Ct. 70 (1983); aff'd, 742 F.2d 628 (Fed.Cir. 1984),