Bell v. United States

23 Cl. Ct. 73, 1991 U.S. Claims LEXIS 168, 1991 WL 73596
CourtUnited States Court of Claims
DecidedMay 8, 1991
DocketNos. 687-88C, 688-88C and 689-88C
StatusPublished
Cited by19 cases

This text of 23 Cl. Ct. 73 (Bell v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bell v. United States, 23 Cl. Ct. 73, 1991 U.S. Claims LEXIS 168, 1991 WL 73596 (cc 1991).

Opinion

[75]*75OPINION AND ORDER

TURNER, Judge.

In these civilian pay cases, three former federal employees claim entitlement to severance pay under 5 U.S.C. § 5595 following their resignation from employment with the Federal Aviation Administration at Memphis, Tennessee. The allegations of fact and law in each case are identical.

This opinion addresses cross-motions for summary judgment.1 Two issues are presented by the parties. The government asserts that this court lacks jurisdiction to decide cases involving employee resignations which are alleged to be involuntary separations from federal service; defendant posits that such claims must first be brought before the Merit Systems Protection Board. On the merits, plaintiffs assert that under controlling legislation and case law, their resignations qualify as involuntary separations for purposes of entitlement to severance pay.

We conclude that the Claims Court has jurisdiction over plaintiffs’ claims and that each plaintiff is entitled to receive severance pay under 5 U.S.C. § 5595. Accordingly, plaintiffs’ motions for summary judgment filed on October 31, 1989 should be granted and defendant’s cross-motions for summary judgment filed on January 16, 1990 should be denied.

I

Plaintiffs Bell, Benabe and Sallie are former FAA employees. At the time of their termination, Bell had 18 years, 8 months of service with the government, Benabe had 14 years, 6 months of service and Sallie had 13 years, 3 months of service.

On April 4, 1986, a memorandum was issued by the FAA Administrator to the en route automation and training staff at Memphis which included the three plaintiffs. In the memorandum, FAA announced its decision to eliminate the en route automation and training staff and to contract for its function with private contractors. This decision was made in order to comply with Congressional mandates requiring a reduction in total air traffic employment while at the same time providing for an increase in the controller work force.

On June 23, 1986, the plaintiffs received general redjiction-in-force (RIF) notices informing them that their positions with the en route automation and training staff would be abolished no later than September 30, 1986. The general RIF notices stated that the plaintiffs would be separated from their positions and either reassigned, demoted, or separated from service. According to usual RIF procedures, the plaintiffs would then receive specific notices informing them of the personnel action taken in their individual cases. See 5 C.F.R. §§ 351.801-351.807.

After the general RIF notices but prior to receipt of specific RIF notices, the plaintiffs were advised by the agency to resign. Robert F. Langen, Jr., Assistant Manager of Automation, told the plaintiffs that their resignation in lieu of RIF separation would spare the FAA time and effort during the RIF process. He also advised them that resignation would assure that they would be available to assume a position with the new contractor and that it would not affect their receipt of severance pay.

Relying on this advice, plaintiffs Bell, Benabe and Sallie submitted letters of resignation effective September 13, 1986. FAA denied plaintiffs’ subsequent requests for severance pay. Their appeal of FAA’s denial was likewise denied by the Comptroller General of the United States. Thereafter plaintiffs filed these actions claiming entitlement to severance pay under 5 U.S.C. § 5595 based upon their “involuntary” separations from service. Plaintiff Bell claims entitlement to $36,949.36 for severance pay, attorneys fees and costs. Plaintiff Benabe claims entitlement to $10,-323.55 for the same items, and plaintiff Sallie claims entitlement to $9,199.04.

II

Plaintiffs allege that their resignations, submitted at the request of their agency [76]*76supervisor after receipt of general RIF notices, should be deemed to constitute involuntary separations from service. Plaintiffs claim that their “voluntary” resignations were involuntary because they resulted from misinformation by an agency official who assured plaintiffs that resignation in lieu of separation under the RIF procedures would not affect their entitlement to severance pay. In affidavits attached to plaintiffs’ proposed findings of uncontro-verted facts, the plaintiffs state that but for the assurance of the agency official that resignation would not affect their entitlement to severance pay, they would not have resigned.

Ill

The Severance Pay Act, 5 U.S.C. § 5595(b), provides that a federal employee involuntarily separated after more than one year of service is entitled to severance pay. The Tucker Act, 28 U.S.C. § 1491, grants the Claims Court jurisdiction over claims brought under this provision since 5 U.S.C. § 5595(b) is clearly a money-mandating statute.

Defendant contends that the Merit Systems Protection Board (MSPB), not the Claims Court, has jurisdiction to review a claim that a resignation from government service is actually an involuntary separation. The MSPB clearly has jurisdiction to review such a claim when it arises in the context of an adverse personnel action resulting in alleged right to reinstatement and/or back pay. See Covington v. Department of Health and Human Services, 750 F.2d 937 (Fed.Cir.1984); Scharf v. Department of the Air Force, 710 F.2d 1572, 1574 (Fed.Cir.1983).

In Sammt v. United States, 780 F.2d 31, 33 (Fed.Cir.1985), a military pay case, the Federal Circuit indicated that the Claims Court lacks jurisdiction over claims involving an employee’s voluntary resignation. Although phrased as a jurisdictional decision, Sammt really establishes a rule of law that the exercise of an option to retire from the military is not rendered involuntary by the accurate knowledge of eminent imposition of less desirable alternatives. Recently, in an en banc proceeding, the Federal Circuit reached the same conclusion with respect to MSPB jurisdiction in a case of voluntary resignation where the plaintiff would have faced charges of serious misconduct if he had not resigned. See Cruz v. Department of Navy, 934 F.2d 1240 (Fed.Cir.1991) (en banc). In contrast, here the pivotal issue in each case is whether a voluntary resignation was an involuntary separation within the meaning of the Severance Pay Act and implementing regulations.

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