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Pay & Leave Claim Decisions

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Office of the General Counsel

S9700423

Dear Ms. [xxx]:

This concerns your request for severance pay in view of your involuntary separation through a reduction-in-force. We cannot grant your request for the reasons stated below.

You state that you have been employed with the [agency] for over thirteen years. You also state that your notice of involuntary separation advised that you were not entitled to severance pay because you are over the age of 55 and have ten years of service.

Section 5595(a)(2)(B)(iv) of title 5, United States Code (U.S.C.), and the Office of Personnel Managements regulation at 5 C.F.R. 550.704(b)(5), exclude from eligibility for severance pay employees who, at the time of their involuntary separation from Federal service, have fulfilled the requirements to receive an immediate annuity. According to 5 U.S.C. 8412(g)(1), an employee is entitled to an immediate annuity under the Federal Employees Retirement System if the employee is separated from the service after attaining the minimum retirement age specified in section 8412(h) and completing ten years of service. Section 8412(h)(1)(A) specifies that 55 years of age is the applicable minimum retirement age for an individual who was born before January 1, 1948. Therefore, you would not be eligible for severance pay if your separation became effective after you reached 55 years of age and completed ten years of service.

You also state that, prior to the reduction-in-force, your personnel office advised on two occasions that you would qualify for severance pay if a reduction-in-force occurred. You suggest that you would have accepted an early buy out offer or applied for another position if you had not received erroneous advice regarding your eligibility for severance pay. Payments of money from the Federal Treasury are limited to those authorized by law, and erroneous advice or information provided by a government employee cannot bar the government from denying benefits that are not otherwise permitted by law. Office of Personnel Management v. Richmond, 496 U.S. 414 (1990).

Finally, you suggest that your involuntary separation was the result of discrimination on the basis of your age. The Office of Personnel Management does not have the authority to consider or adjudicate complaints of employment discrimination allegedly committed by the employees of another Federal agency. If you wish to pursue this matter, you should contact equal employment opportunity officials at the [agency].

Sincerely,

Jo-Ann Chabot

Attorney Advisor

Control Panel