A-59588, JANUARY 31, 1935, 14 COMP. GEN. 586

A-59588: Jan 31, 1935

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WHILE THE ANNUITANT IS RECEIVING A SALARY AS A TEMPORARY EMPLOYEE IN A CIVIL-SERVICE POSITION. UPON WHICH AN OPINION IS REQUESTED. SMITH WAS SEPARATED INVOLUNTARILY AND WITHOUT PREJUDICE FROM HIS POSITION WITH THE PANAMA RAILROAD COMPANY UNDER DATE OF DECEMBER 31. AT THE TIME OF HIS SEPARATION HE WAS 57 YEARS OF AGE. ANNUITY WAS AWARDED HIM UNDER THE TERMS OF SECTION 5 OF THE PANAMA ZONE RETIREMENT ACT. WHICH APPOINTMENT WAS EFFECTIVE JULY 25. SMITH WAS SUSPENDED. FROM THAT ACTION HE COMPLAINS AND THE CASE IS NOW BEFORE THE COMMISSION ON APPEAL. SMITH WAS GRANTED. IN VIEW OF THE FACT THAT HIS REEMPLOYMENT WAS NOT IN ANY POSITION INCLUDED IN THE PROVISIONS OF THE PANAMA ZONE RETIREMENT ACT.

A-59588, JANUARY 31, 1935, 14 COMP. GEN. 586

RETIREMENT - PANAMA CANAL - REEMPLOYMENT IN THE CONTINENTAL UNITED STATES THE ANNUITY OF AN EMPLOYEE OF THE PANAMA CANAL RETIRED UNDER SECTION 5 OF THE PANAMA CANAL RETIREMENT ACT BECAUSE OF INVOLUNTARY SEPARATION FROM THE SERVICE, MUST BE SUSPENDED DURING PERIOD OF TEMPORARY EMPLOYMENT IN A CIVILIAN POSITION UNDER THE GOVERNMENT IN THE CONTINENTAL UNITED STATES.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 31, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 5, 1935, AS FOLLOWS:

THE COMMISSION HAS BEFORE IT A CASE WHICH INVOLVES THE PAYMENT OF RETIREMENT ANNUITY GRANTED UNDER THE PROVISIONS OF SECTION 5 OF THE PANAMA ZONE RETIREMENT ACT, APPROVED MARCH 2, 1931, WHILE THE ANNUITANT IS RECEIVING A SALARY AS A TEMPORARY EMPLOYEE IN A CIVIL-SERVICE POSITION, UPON WHICH AN OPINION IS REQUESTED.

SHERIDAN A. SMITH WAS SEPARATED INVOLUNTARILY AND WITHOUT PREJUDICE FROM HIS POSITION WITH THE PANAMA RAILROAD COMPANY UNDER DATE OF DECEMBER 31, 1932, AFTER HAVING COMPLETED SIXTEEN YEARS AND FOUR MONTHS OF ALLOWABLE SERVICE. AT THE TIME OF HIS SEPARATION HE WAS 57 YEARS OF AGE. ANNUITY WAS AWARDED HIM UNDER THE TERMS OF SECTION 5 OF THE PANAMA ZONE RETIREMENT ACT, APPROVED MARCH 2, 1931, IN THE AMOUNT OF SIX HUNDRED FORTY-FOUR DOLLARS AND FORTY-EIGHT CENTS ($644.48) PER ANNUM, EFFECTIVE FROM JANUARY 1, 1933. UNDER DATE OF AUGUST 31, 1934, THE WAR DEPARTMENT ADVISED OF THE TEMPORARY APPOINTMENT OF MR. SMITH IN ITS SUPPLY AND REPAIR DEPARTMENT AT MEMPHIS, TENNESSEE, A POSITION UNDER THE CIVIL SERVICE, WHICH APPOINTMENT WAS EFFECTIVE JULY 25, 1934. UPON RECEIPT OF THIS INFORMATION THE ANNUITY AWARD IN FAVOR OF MR. SMITH WAS SUSPENDED, AND FROM THAT ACTION HE COMPLAINS AND THE CASE IS NOW BEFORE THE COMMISSION ON APPEAL.

THE LAST PARAGRAPH OF SECTION 5 OF THE PANAMA ZONE RETIREMENT ACT, UNDER WHICH ANNUITY TO MR. SMITH WAS GRANTED, READS AS FOLLOWS:

"SHOULD AN ANNUITANT UNDER THE PROVISIONS OF THIS SECTION HE REEMPLOYED IN ANY POSITION INCLUDED IN THE PROVISIONS OF THIS ACT, PAYMENT OF ANNUITY SHALL NOT BE ALLOWED COVERING THE PERIOD OF SUCH REEMPLOYMENT, AND AN ANNUITY BASED UPON INVOLUNTARY SEPARATION SHALL NOT BE ALLOWED UPON SUBSEQUENT SEPARATION FROM THE SERVICE UNLESS THE SUBSEQUENT SEPARATION SHALL BE INVOLUNTARY.'

FOLLOWING THE ENACTMENT OF THE PANAMA ZONE RETIREMENT ACT, THE VETERANS' ADMINISTRATION, UNDER DATE OF JULY 1, 1931, ISSUED A CIRCULAR CONTAINING REGULATIONS AND PROCEDURE TO BE FOLLOWED IN ADMINISTERING THAT ACT, AND AFTER CALLING ATTENTION TO THE DIFFERENCE IN THE PROVISIONS OF THE PANAMA ZONE RETIREMENT ACT FROM THOSE IN THE CIVIL SERVICE RETIREMENT ACT, THE REGULATIONS STATE:

"BENEFICIARIES UNDER THIS SECTION RETAIN THEIR RIGHTS TO ANNUITY EVEN THOUGH THEY SECURE EMPLOYMENT IN THE GOVERNMENT SERVICE ELSEWHERE.'

MR. SMITH CONTENDS, IN VIEW OF THE FACT THAT HIS REEMPLOYMENT WAS NOT IN ANY POSITION INCLUDED IN THE PROVISIONS OF THE PANAMA ZONE RETIREMENT ACT, THAT UNDER THE INTERPRETATION GIVEN IT BY THE VETERANS' ADMINISTRATION HE SHOULD NOT BE DEPRIVED OF HIS ANNUITY WHILE RECEIVING HIS SALARY IN A POSITION NOT INCLUDED IN THAT ACT.

SECTION 7 OF THE CIVIL SERVICE RETIREMENT ACT, APPROVED MAY 29, 1930, ALSO PROVIDES FOR THE RETIREMENT OF EMPLOYEES TO WHOM THE ACT APPLIES, WHO ARE 55 YEARS OF AGE OR OVER, AND WHO HAVE SERVED FOR A TOTAL PERIOD OF NOT LESS THAN FIFTEEN YEARS, AND WHO, BEFORE BECOMING ELIGIBLE FOR RETIREMENT ON ACCOUNT OF AGE AS PROVIDED IN THE ACT, ARE INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT OR DELINQUENCY. THIS SECTION CONTAINS THE FOLLOWING PROVISION:

"SHOULD AN ANNUITANT UNDER THE PROVISIONS OF THIS SECTION BE REEMPLOYED IN A POSITION INCLUDED IN THE PROVISIONS OF THIS ACT, OR IN ANY OTHER POSITION IN THE GOVERNMENT SERVICE, THE ANNUITY SHALL CEASE AND ALL RIGHTS AND BENEFITS UNDER THE PROVISIONS OF THIS SECTION SHALL TERMINATE FROM AND AFTER THE DATE OF SUCH EMPLOYMENT.'

IT WILL BE OBSERVED THAT THE WORDS UNDERSCORED ARE OMITTED FROM THE LAST PARAGRAPH OF SECTION 5 OF THE PANAMA ZONE RETIREMENT ACT. SINCE THE PANAMA ZONE RETIREMENT ACT WAS PASSED SUBSEQUENTLY TO THE ACT OF MAY 29, 1930, IT WOULD SEEM THAT THE OMISSION OF THE WORDS "OR IN ANY OTHER POSITION IN THE GOVERNMENT SERVICE" WAS INTENTIONAL AND FOR THE PURPOSE OF PERMITTING REEMPLOYMENT IN OTHER POSITIONS IN THE GOVERNMENT SERVICE WITHOUT LOSS OF ANNUITY UNDER THE PANAMA ZONE RETIREMENT ACT.

ATTENTION IS ALSO CALLED TO THE LAST PARAGRAPH OF SECTION 2 OF THE CIVIL SERVICE RETIREMENT ACT, HAVING REFERENCE TO SUPERANNUATION RETIREMENT, WHICH READS AS FOLLOWS:

"NO PERSON SEPARATED FROM THE SERVICE WHO IS RECEIVING AN ANNUITY UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT SHALL BE EMPLOYED AGAIN IN ANY POSITION WITHIN THE PURVIEW OF THIS ACT.'

IT SHOULD BE OBSERVED THAT THIS CLAUSE IS OMITTED IN THE PANAMA ZONE RETIREMENT ACT, INVOLVING THE RETIREMENT OF THOSE FOR SUPERANNUATION AS PROVIDED IN SECTION 2 OF THAT ACT.

IN THE LETTER OF YOUR OFFICE TO THE ADMINISTRATOR OF THE NATIONAL RECOVERY ADMINISTRATION, DATED AUGUST 23, 1933 (13 C.G. 54), WHICH IS SUBSEQUENT TO THE PASSAGE OF THE PANAMA ZONE RETIREMENT ACT, YOU STATE THAT "IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME," AND YOU CITE SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, AND SECTION 8 (A) AND 8 (B) OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1934, IN SUPPORT OF THE CONCLUSION REACHED. SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, APPLIES ONLY TO THOSE "WHO HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE.' SECTION 8 (A) OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1934 APPLIES ONLY TO THOSE WHO HAVE HAD "AN AGGREGATE PERIOD OF SERVICE OF AT LEAST 30 YEARS COMPUTED AS PRESCRIBED IN SECTION 5" OF THE CIVIL SERVICE RETIREMENT ACT, WHILE SECTION 8 (B) APPLIES ONLY TO THOSE WHO HAVE HAD "AN AGGREGATE PERIOD OF SERVICE OF AT LEAST THIRTY YEARS COMPUTED AS PRESCRIBED IN SECTION 7" OF THE PANAMA ZONE RETIREMENT ACT.

UNDER SECTION 3 (C) OF THE CIVIL SERVICE RETIREMENT ACT THERE WERE INCLUDED

"ALL EMPLOYEES OF THE PANAMA CANAL ON THE ISTHMUS OF PANAMA WHO ARE CITIZENS OF THE UNITED STATES AND WHOSE TENURE OF EMPLOYMENT IS NOT INTERMITTENT NOR OF UNCERTAIN DURATION.'

THE CONGRESS TOOK THESE EMPLOYEES FROM THE CONTROL OF THE CIVIL SERVICE RETIREMENT ACT, AND INCLUDED THEM WITH QUALIFIED EMPLOYEES OF THE PANAMA RAILROAD COMPANY ON THE ISTHMUS OF PANAMA WITHIN THE PURVIEW OF THE PANAMA ZONE RETIREMENT ACT, WHICH ACT IS DISSIMILAR IN MANY RESPECTS TO THE CIVIL SERVICE RETIREMENT ACT, PARTICULARLY IN THE OMISSION OF A PROHIBITION OF REEMPLOYMENT OF ANNUITANTS UNDER IT IN OTHER BRANCHES OF THE GOVERNMENT SERVICE WITHOUT LOSS OF ANNUITY.

SECTION 17 OF THE PANAMA ZONE RETIREMENT ACT PROVIDES:

"THIS ACT SHALL TAKE EFFECT JULY 1, 1931, AND FROM AND AFTER THAT DATE THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 22, 1920, AS AMENDED, SHALL NOT APPLY TO EMPLOYEES OF THE PANAMA CANAL ON THE ISTHMUS OF PANAMA OR TO ANY OTHER EMPLOYEES COMING WITHIN THE PROVISIONS OF THIS ACT.'

THIS PROHIBITION OF THE APPLICATION OF THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT TO THE EMPLOYEES WITHIN THE PURVIEW OF THE PANAMA ZONE RETIREMENT ACT WOULD LOGICALLY SEEM TO PRECLUDE THE APPLICATION OF THOSE PROVISIONS IN THE CIVIL SERVICE RETIREMENT ACT, WHICH DENY ANNUITANTS UNDER THAT ACT THE PRIVILEGE OF REEMPLOYMENT IN OTHER GOVERNMENT POSITIONS WITHOUT LOSS OF ANNUITY, WHICH PROVISIONS ARE OMITTED FROM THE PANAMA ZONE RETIREMENT ACT.

THE STATEMENT IN YOUR LETTER TO THE ADMINISTRATOR OF THE NATIONAL RECOVERY ADMINISTRATION (13 G.O. 54) THAT "IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME" APPEARS TO BE SUFFICIENTLY BROAD TO INCLUDE ANNUITANTS UNDER THE PANAMA ZONE RETIREMENT ACT, BUT THERE IS A QUESTION WHETHER IT WAS SO INTENDED.

THE DOUBLE-COMPENSATION STATUTE DOES NOT APPEAR TO BE INVOLVED IN THIS CASE BECAUSE IT DOES NOT APPEAR THAT MR. SMITH'S RETIREMENT ANNUITY, IF CONSIDERED AS A SALARY, AND THE SALARY PAID HIM IN HIS TEMPORARY POSITION, ARE IN EXCESS OF THAT ALLOWED UNDER THE DOUBLE COMPENSATION LAW.

YOUR OPINION IS REQUESTED AS TO WHETHER SHERIDAN A. SMITH, THE APPELLANT IN THIS CASE, IS ENTITLED TO RECEIVE THE ANNUITY GRANTED HIM UNDER SECTION 5 OF THE PANAMA ZONE RETIREMENT ACT FOR THE PERIOD IN WHICH HE WAS TEMPORARILY EMPLOYED IN A POSITION IN THE CIVIL SERVICE WITHIN THE UNITED STATES.

THERE IS NO PROVISION OF LAW EITHER IN THE PANAMA CANAL RETIREMENT ACT OR IN ANY OTHER STATUTE WHICH AUTHORIZES THE RECEIPT OF RETIREMENT ANNUITY AND ACTIVE CIVILIAN COMPENSATION BY THE SAME PERSON FOR THE SAME PERIOD OF TIME.

INDEPENDENTLY OF THE TERMS OF THE PANAMA CANAL RETIREMENT ACT CITED BY YOU AND NOTWITHSTANDING THAT THE PROVISIONS OF THE CIVIL RETIREMENT ACT MORE SPECIFICALLY SAFEGUARD AGAINST SUCH DUAL PAYMENTS BY THE GOVERNMENT-- - PAYMENT OF RETIREMENT ANNUITY AT THE SAME TIME THE ANNUITANT IS DRAWING PAY FOR ACTIVE SERVICE--- SUCH DUAL PAYMENTS WOULD BE WHOLLY INCONSISTENT WITH THE BASIC PURPOSE UNDERLYING CIVIL RETIREMENT LEGISLATION AND WOULD VIOLATE A BROAD PRINCIPAL LONG RECOGNIZED IN GOVERNMENTAL AFFAIRS. COMP. GEN. 309; 13 ID. 54; 14 ID. 285, 288; ID. 425, 426.

YOU ARE ADVISED, THEREFORE, THAT THE ACTION WAS CORRECT IN SUSPENDING THE ANNUITY PAYMENT TO MR. SMITH DURING THE PERIOD OF HIS TEMPORARY EMPLOYMENT WITH THE WAR DEPARTMENT AT MEMPHIS, TENN.

THE QUESTION IS NOT INVOLVED AND IT IS NOT INTENDED TO DECIDE THAT HIS RIGHT TO ANNUITY UNDER THE PANAMA CANAL RETIREMENT ACT HAS BEEN FINALLY TERMINATED BY SUCH TEMPORARY EMPLOYMENT IN THE CONTINENTAL UNITED STATES.