A-14959, JULY 23, 1926, 6 COMP. GEN. 71

A-14959: Jul 23, 1926

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THERE IS AN AUTOMATIC SEPARATION FROM THE SERVICE AND THERE IS NO AUTHORITY WHEREBY THE EMPLOYEE MAY THEREAFTER BE RESTORED TO A DUTY STATUS AND RETAINED IN THE SERVICE. 1926: I HAVE YOUR LETTER OF JUNE 24. AARONS WAS A STOREKEEPER IN THE CUSTOMS SERVICE. HE WAS BORN AUGUST 5. NO ADMINISTRATIVE ACTION RELATIVE TO HIS RETIREMENT OR RETENTION IN SERVICE BEYOND RETIREMENT AGE WAS TAKEN UNTIL THE ERROR WAS DISCOVERED SEVERAL MONTHS AFTER AUGUST 5. WHEN THE ERROR WAS DISCOVERED THE EMPLOYEE'S ADMINISTRATIVE SUPERIOR REPORTED THE FACTS TO THE HEAD OF THE DEPARTMENT WITH A RECOMMENDATION THAT THE EMPLOYEE BE RETAINED IN THE SERVICE AND STATED THAT "THE SERVICES OF THE EMPLOYEE ARE ESPECIALLY ADVANTAGEOUS.'.

A-14959, JULY 23, 1926, 6 COMP. GEN. 71

RETIREMENT, CIVILIAN - RETENTION BEYOND AGE LIMIT WHEN A CIVILIAN EMPLOYEE OF THE GOVERNMENT REACHES THE AGE OF RETIREMENT, AS PROVIDED IN THE ACT OF MAY 22, 1920, 41 STAT. 614, WITHOUT HAVING BEEN CERTIFIED FOR RETENTION AS PROVIDED IN SECTION 6 OF SAID ACT, THERE IS AN AUTOMATIC SEPARATION FROM THE SERVICE AND THERE IS NO AUTHORITY WHEREBY THE EMPLOYEE MAY THEREAFTER BE RESTORED TO A DUTY STATUS AND RETAINED IN THE SERVICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JULY 23, 1926:

I HAVE YOUR LETTER OF JUNE 24, 1926, REQUESTING DECISION WHETHER BENJAMIN AARONS MAY BE RESTORED TO A DUTY STATUS AND CONTINUED IN THE SERVICE UNDER CIRCUMSTANCES AS FOLLOWS:

MR. AARONS WAS A STOREKEEPER IN THE CUSTOMS SERVICE. HE WAS BORN AUGUST 5, 1855, AND, THEREFORE, REACHED RETIREMENT AGE AUGUST 5, 1925. THROUGH AN ADMINISTRATIVE ERROR, OR ERRONEOUS ASSUMPTION AS TO THE DATE OF HIS ATTAINING RETIREMENT AGE, NO ADMINISTRATIVE ACTION RELATIVE TO HIS RETIREMENT OR RETENTION IN SERVICE BEYOND RETIREMENT AGE WAS TAKEN UNTIL THE ERROR WAS DISCOVERED SEVERAL MONTHS AFTER AUGUST 5, 1925. WHEN THE ERROR WAS DISCOVERED THE EMPLOYEE'S ADMINISTRATIVE SUPERIOR REPORTED THE FACTS TO THE HEAD OF THE DEPARTMENT WITH A RECOMMENDATION THAT THE EMPLOYEE BE RETAINED IN THE SERVICE AND STATED THAT "THE SERVICES OF THE EMPLOYEE ARE ESPECIALLY ADVANTAGEOUS.' IN THE MEANTIME, THE EMPLOYEE WAS PLACED IN THE STATUS OF LEAVE WITHOUT PAY ON APRIL 22, 1926. UNDER DATE OF JUNE 3, 1926, THE HEAD OF THE DEPARTMENT APPROVED THE RECOMMENDATION OF THE SUBORDINATE AND FORWARDED SAME TO THE CIVIL SERVICE COMMISSION REQUESTING CERTIFICATION FOR CONTINUANCE OF THE EMPLOYEE IN THE SERVICE FOR A PERIOD OF TWO YEARS FROM AUGUST 5, 1925. THE CIVIL SERVICE COMMISSION THEREUPON ISSUED THE USUAL CERTIFICATE FOR RETENTION EFFECTIVE AUGUST 5, 1925.

THE QUESTION PRESENTED IS WHETHER UNDER THE CERTIFICATE THUS ISSUED THE EMPLOYEE MAY BE RESTORED TO DUTY AND CONTINUE IN THE SERVICE.

SECTION 6 OF THE ACT OF MAY 22, 1920, 41 STAT. 617, PROVIDES:

THAT ALL EMPLOYEES TO WHOM THIS ACT APPLIES SHALL, UPON THE EXPIRATION OF NINETY DAYS NEXT SUCCEEDING ITS PASSAGE, IF OF RETIREMENT AGE, OR THEREAFTER ON ARRIVING AT RETIREMENT AGE AS DEFINED IN SECTION 1 HEREOF, BE AUTOMATICALLY SEPARATED FROM THE SERVICE, AND ALL SALARY, PAY, OR COMPENSATION SHALL CEASE FROM THAT DATE, AND IT SHALL BE THE DUTY OF THE HEAD OF EACH DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE OF THE GOVERNMENT TO NOTIFY SUCH EMPLOYEES UNDER HIS DIRECTION OF THE DATE OF SUCH SEPARATION FROM THE SERVICE AT LEAST SIXTY DAYS IN ADVANCE THEREOF: * * * PROVIDED, THAT IF WITHIN SIXTY DAYS AFTER THE PASSAGE OF THIS ACT OR NOT LESS THAN THIRTY DAYS BEFORE THE ARRIVAL OF AN EMPLOYEE AT THE AGE OF RETIREMENT, THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE OF THE GOVERNMENT IN WHICH HE OR SHE IS EMPLOYED CERTIFIES TO THE CIVIL SERVICE COMMISSION THAT BY REASON OF HIS OR HER EFFICIENCY AND WILLINGNESS TO REMAIN IN THE CIVIL SERVICE OF THE UNITED STATES THE CONTINUANCE OF SUCH EMPLOYEE THEREIN WOULD BE ADVANTAGEOUS TO THE PUBLIC SERVICE, SUCH EMPLOYEE MAY BE RETAINED FOR A TERM NOT EXCEEDING TWO YEARS UPON APPROVAL AND CERTIFICATION BY THE CIVIL SERVICE COMMISSION, * * *.

IT HAS BEEN HELD THAT THE FAILURE OF THE HEAD OF THE DEPARTMENT TO SERVE THE 60 DAYS' NOTICE OF SEPARATION AS DIRECTED BY SAID SECTION CAN NOT OPERATE TO CONTINUE AN EMPLOYEE IN THE SERVICE OR IN A PAY STATUS BEYOND THE AGE OF RETIREMENT, SINCE THE PROVISION SPECIFICALLY PROVIDES THAT THE EMPLOYEE SHALL BE AUTOMATICALLY SEPARATED FROM THE SERVICE AND THAT ALL SALARY, PAY, OR COMPENSATION SHALL CEASE UPON REACHING THE AGE OF RETIREMENT. SEE 26 COMP. DEC. 1079.

IN DECISION OF APRIL 5, 1921, 26 COMP. DEC. 858, 861, THE COMPTROLLER OF THE TREASURY SAID THAT IF EMPLOYEES WERE PERMITTED TO REACH RETIREMENT AGE WITHOUT THE CERTIFICATION DIRECTED BY THE ACT, NO AUTHORITY WAS FOUND BY WHICH THIS FAILURE MIGHT BE OVERCOME.

IN BLACK ON INTERPRETATION OF LAWS, PAGE 435, THE GENERAL RULE GOVERNING CONSTRUCTION OF PROVISOS IS STATED TO BE AS FOLLOWS, CITING UNITED STATES V. DICKSON, 15 PETERS 141:

WHERE THE ENACTING CLAUSE IS GENERAL IN ITS LANGUAGE AND OBJECTS, AND A PROVISO IS AFTERWARDS INTRODUCED, THAT PROVISO IS CONSTRUED STRICTLY, AND TAKES NO CASE OUT OF THE ENACTING CLAUSE WHICH DOES NOT FALL FAIRLY WITHIN ITS TERMS. IN SHORT, A PROVISO CARRIES SPECIAL EXCEPTIONS ONLY OUT OF THE ENACTING CLAUSE AND THOSE WHO SET UP ANY SUCH EXCEPTION, MUST ESTABLISH IT AS BEING WITHIN THE WORDS AS WELL AS WITHIN THE REASON THEREOF.

THE ENACTING CLAUSE IN THE INSTANT CASE PROVIDES THAT ALL EMPLOYEES TO WHOM THE ACT APPLIES, ON ARRIVING AT RETIREMENT AGE, SHALL BE AUTOMATICALLY SEPARATED FROM THE SERVICE. THE PROVISO EXCEPTS FROM THE OPERATION OF SAID CLAUSE AN EMPLOYEE WITH REFERENCE TO WHOM THE HEAD OF THE DEPARTMENT HAS CERTIFIED TO THE CIVIL SERVICE COMMISSION "NOT LESS THAN THIRTY DAYS BEFORE THE ARRIVAL" OF THE EMPLOYEE AT THE AGE OF RETIREMENT "THAT BY REASON OF HIS OR HER EFFICIENCY AND WILLINGNESS TO REMAIN IN THE CIVIL SERVICE OF THE UNITED STATES THE CONTINUANCE OF SUCH EMPLOYEE THEREIN WOULD BE ADVANTAGEOUS TO THE PUBLIC SERVICE.' NOT ONLY WAS THERE NO SUCH CERTIFICATION BY THE HEAD OF THE DEPARTMENT IN THIS INSTANCE, BUT SUCH ACTION AS WAS TAKEN BY THE DEPARTMENT CONCERNED WAS NOT TAKEN WITHIN THE TIME SPECIFICALLY STIPULATED IN THE STATUTE, TO WIT,"NOT LESS THAN THIRTY DAYS BEFORE THE ARRIVAL OF AN EMPLOYEE AT THE AGE OF RETIREMENT.' THEREFORE, THE PROVISO DOES NOT OPERATE TO TAKE THE CASE OUT OF THE ENACTING CLAUSE AND IT MUST BE HELD THE EMPLOYEE WAS AUTOMATICALLY SEPARATED FROM THE SERVICE ON ARRIVING AT THE AGE OF RETIREMENT.

THE EMPLOYEE MAY RETAIN THE COMPENSATION HERETOFORE RECEIVED FOR SERVICE ACTUALLY PERFORMED AFTER ARRIVING AT RETIREMENT AGE ON THE GROUND THAT HE WAS A DE FACTO EMPLOYEE AND THE COMPENSATION PAID WAS THE REASONABLE VALUE OF HIS SERVICE. SEE 5 COMP. GEN. 570. BUT IN ANSWER TO THE SPECIFIC QUESTION PRESENTED, I HAVE TO ADVISE THAT THE EMPLOYEE MAY NOT BE RESTORED TO A DUTY STATUS AND RETAINED IN THE SERVICE.