B-131457, OCT. 2, 1963
Highlights
- WHICH WAS DEDUCTED FROM THE COMPENSATION EARNED BY YOU AS A CONSULTANT UNDER VARIOUS EMPLOYMENT CONTRACTS WITH THE DEPARTMENT OF THE NAVY. THE DISALLOWANCE WAS PREDICATED UPON 5 U.S.C. 2263 (B) WHICH READS IN PART AS FOLLOWS: "IF AN ANNUITANT UNDER THIS CHAPTER (OTHER THAN * * * (2) AN ANNUITANT WHOSE ANNUITY WAS BASED UPON AN INVOLUNTARY SEPARATION FROM THE SERVICE. 1956 IS SERVING. HIS SERVICE ON AND AFTER THE DATE HE WAS OR IS SO EMPLOYED SHALL BE COVERED BY THIS CHAPTER. A SUM EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT * * *" YOU SAY THAT THE QUOTED SECTION HAS NO APPLICATION TO YOUR CASE BECAUSE THE SEPARATION UPON WHICH YOUR ANNUITY IS BASED WAS "INVOLUNTARY" SO AS TO EXCEPT YOU FROM THE REQUIREMENTS IN THE SECTION FOR REDUCING YOUR COMPENSATION BY THE AMOUNT OF SUCH ANNUITY. 5 U.S.C. 2263 DOES NOT SPECIFY WHAT SHOULD BE DONE WITH THE ANNUITY OR COMPENSATION OF A REEMPLOYED ANNUITANT WHOSE SEPARATION WAS INVOLUNTARY.
B-131457, OCT. 2, 1963
TO MR. THEODORE SPECTOR:
ON AUGUST 19, 1963, YOU REQUESTED REVIEW OF OFFICE SETTLEMENT OF AUGUST 8 WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AGGREGATE AMOUNT--- EQUAL TO THE RETIREMENT ANNUITY ALLOCABLE TO THE PERIODS OF CIVILIAN EMPLOYMENT--- WHICH WAS DEDUCTED FROM THE COMPENSATION EARNED BY YOU AS A CONSULTANT UNDER VARIOUS EMPLOYMENT CONTRACTS WITH THE DEPARTMENT OF THE NAVY.
THE DISALLOWANCE WAS PREDICATED UPON 5 U.S.C. 2263 (B) WHICH READS IN PART AS FOLLOWS:
"IF AN ANNUITANT UNDER THIS CHAPTER (OTHER THAN * * * (2) AN ANNUITANT WHOSE ANNUITY WAS BASED UPON AN INVOLUNTARY SEPARATION FROM THE SERVICE, EXCLUDING A SEPARATION UNDER THE AUTOMATIC SEPARATION PROVISIONS OF THIS CHAPTER * * *) HEREAFTER BECOMES EMPLOYED, OR ON JULY 31, 1956 IS SERVING, IN AN APPOINTIVE OR ELECTIVE POSITION, HIS SERVICE ON AND AFTER THE DATE HE WAS OR IS SO EMPLOYED SHALL BE COVERED BY THIS CHAPTER. NO DEDUCTIONS FOR THE FUND SHALL BE WITHHELD FROM HIS SALARY, BUT THERE SHALL BE DEDUCTED FROM HIS SALARY, EXCEPT FOR LUMP-SUM LEAVE PAYMENT PURPOSES UNDER SECTION 61B OF THIS TITLE, A SUM EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT * * *"
YOU SAY THAT THE QUOTED SECTION HAS NO APPLICATION TO YOUR CASE BECAUSE THE SEPARATION UPON WHICH YOUR ANNUITY IS BASED WAS "INVOLUNTARY" SO AS TO EXCEPT YOU FROM THE REQUIREMENTS IN THE SECTION FOR REDUCING YOUR COMPENSATION BY THE AMOUNT OF SUCH ANNUITY. 5 U.S.C. 2263 DOES NOT SPECIFY WHAT SHOULD BE DONE WITH THE ANNUITY OR COMPENSATION OF A REEMPLOYED ANNUITANT WHOSE SEPARATION WAS INVOLUNTARY. HOWEVER, THE REGULATIONS OF THE COMMISSION PROMULGATED UNDER THE AUTHORITY OF SECTION 16 (A) OF THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2266, SPECIFICALLY PROVIDE THAT AN ANNUITANT WHO WAS INVOLUNTARILY SEPARATED AND THEREAFTER WHO BECOMES EMPLOYED ON OR AFTER NOVEMBER 15, 1958, IN A POSITION WHICH IS EXCLUDED FROM RETIREMENT ACT COVERAGE SHALL HAVE THE AMOUNT OF THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT DEDUCTED FROM HIS SALARY EXCEPT FOR LUMP SUM LEAVE PAYMENT PURPOSES. THUS, UNDER THE SPECIFIC PROVISIONS OF THE STATUTORY REGULATIONS PROMULGATED BY THE COMMISSION, THE AMOUNT OF YOUR ANNUITY WAS REQUIRED TO BE DEDUCTED FROM YOUR CIVILIAN COMPENSATION.
WHILE YOU ALLEGE NO SUPERVISION WAS EXERCISED OVER YOUR WORK YOU DO NOT DEMONSTRATE HOW YOU WERE ANY MORE FREE FROM SUPERVISION THAN YOU WOULD HAVE BEEN HAD YOU RECEIVED A REGULAR APPOINTMENT, OR THAT SUBSTANTIALLY LESS SUPERVISION WAS EXERCISED IN YOUR CASE THAN IN THE CASES OF OTHER LAWYERS EMPLOYED IN THE COUNSEL'S OFFICE. IN VIEW THEREOF AND SINCE YOU WERE PAID COMPENSATION ON A REGULAR 40-HOUR WEEK BASIS AND NOT FOR THE ACCOMPLISHMENT OF A PARTICULAR PROJECT OR OBJECTIVE, WE SEE NO BASIS FOR MODIFYING OUR SETTLEMENT OF AUGUST 8, 1963, WHICH SETTLEMENT HEREBY IS SUSTAINED.