Office of the General Counsel

S9600944

Attorney

Re: [xxx] - Claim for increased voluntary separation incentive Payment

Dear Mr. [xxx]:

We have reviewed the claim that you filed on behalf of Dr. [xxx] for an increased voluntary separation incentive payment (VSIP). For the reasons expressed herein, the Office of Personnel Management (OPM) denies Dr. [xxx]'s claim.

The administrative record documents that on October 27, 1994, Dr. [xxx] requested that her work schedule as a Mathematical Statistician at [agency] be changed from full-time to a part-time schedule of two days or 16 hours per week, and that the Center granted Dr. [xxx]'s request effective November 6, 1994. The record continues that effective March 1, 1995, Dr. [xxx] resigned in order to receive a VSIP. It is undisputed that at the time of her separation, Dr. [xxx] was on a part-time schedule of two days per week. The Center authorized a VSIP payment to Dr. [xxx] in the amount of $4,750.00.

By letter to the Office of Civilian Personnel Management, Eastern Region, Department of the Navy, dated March 23, 1995, you appealed the Center's determination. You stated in your appeal letter that the Center did not calculate Dr. [xxx]'s VSIP in accordance with one of the instructions on the worksheet which stated, in pertinent part, that "the hourly rate is then multiplied by the average number of hours worked per week over the last 52 weeks." Based on this instruction, you continued that the Center should have calculated Dr. [xxx]'s VSIP based on the average number of hours that she had worked over the last 52 weeks prior to her separation which you calculated to be 32.15 hours rather than 16 hours. Based on this revised calculation, you concluded that Dr. [xxx] should have been authorized a payment of $9,445.71.

On April 14, 1995, the Office of [xxx] responded that Dr.[xxx]'s VSIP had been correctly computed and advised you that an appeal could be filed with the General Accounting Office (GAO). By letter dated May 17, 1995, you appealed to GAO. It should be noted that effective June 30, 1996, the relevant claims adjudication responsibility was transferred from GAO to the Office of Personnel Management (OPM).

Section 5597(d)(2) of title 5 of the United States Code provides that a VSIP will be either the amount that the employee would be entitled to receive under the severance pay provision, 5 U.S.C.  5595(c), or $25,000, whichever is less. Section 5595(c)(1) provides, in pertinent part, that severance pay consists of:

a basic severance allowance computed on the basis of 1 week's basic pay at the rate received immediately before separation for each year of civilian service ....

(Emphasis added.)

Accord

, Robert G. Joyce, 66 Comp. Gen. 164, 165 (1986) and John L. Gibson, 61 Comp. Gen. 529, 529 (1982).

While there are instances where severance pay is computed based on the average number of hours that the separating employee had worked over the last 52 weeks, this provision, as explained in OPM's severance pay regulations, is applicable only where the employee had a variable work schedule or rate of pay. As such, it was not applicable to Dr.[xxx]. 5 C.F.R. 550.707(b). We also note that while the worksheet may have been confusing, the doctrine of estoppel is inapplicable where Congress has not authorized the claimed benefit. See OPM v. Richmond, 496 U.S. 414 (1990), reh'g denied, 497 U.S. 1046 (1990).

Sincerely yours,

Murray M. Meeker
Senior Attorney

cc: [agency]