A-60762, APRIL 25, 1935, 14 COMP. GEN. 791

A-60762: Apr 25, 1935

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HE WILL BE INELIGIBLE FOR REAPPOINTMENT AFTER TERMINATION OF SERVICE UNDER THE EXISTING APPOINTMENT. 1935: THERE WAS RECEIVED YOUR LETTER OF MARCH 7. HENRY IRWIN WAS APPOINTED UNITED STATES COMMISSIONER BY THIS COURT ON DECEMBER 4TH. HE WAS RETIRED ON ACCOUNT OF HIS AGE AS AN EMPLOYEE OF THE MONTGOMERY POST OFFICE. IN WHICH THE FOLLOWING LANGUAGE IS USED: "IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME.'. AS HE IS NOW DOING. HERETOFORE I HAVE UNDERSTOOD THIS WAS PERMISSIBLE WHERE THE EMPLOYEE WAS APPOINTED TO THE CIVILIAN POSITION PRIOR TO THE ACTS OF 1932. IRWIN IS ELIGIBLE TO CONTINUE TO RECEIVE BOTH OF THESE CLASSES OF COMPENSATION.

A-60762, APRIL 25, 1935, 14 COMP. GEN. 791

RETIRED EMPLOYEE SERVING AS UNITED STATES COMMISSIONER A FEDERAL EMPLOYEE, RETIRED FOR AGE, MAY CONTINUE TO SERVE AS A UNITED STATES COMMISSIONER UNDER APPOINTMENT MADE PRIOR TO JUNE 30, 1932, BUT UNDER THE TERMS OF SECTION 204 OF THE ECONOMY ACT OF THAT DATE, HE WILL BE INELIGIBLE FOR REAPPOINTMENT AFTER TERMINATION OF SERVICE UNDER THE EXISTING APPOINTMENT.

COMPTROLLER GENERAL MCCARL TO C. B. KENNAMER, UNITED STATES DISTRICT JUDGE, APRIL 25, 1935:

THERE WAS RECEIVED YOUR LETTER OF MARCH 7, 1935, AS FOLLOWS:

MR. HENRY IRWIN WAS APPOINTED UNITED STATES COMMISSIONER BY THIS COURT ON DECEMBER 4TH, 1931. AT THE TIME OF HIS APPOINTMENT HE DREW, AND HE NOW DRAWS, RETIREMENT ANNUITY AS A CIVIL SERVICE EMPLOYEE. HE WAS RETIRED ON ACCOUNT OF HIS AGE AS AN EMPLOYEE OF THE MONTGOMERY POST OFFICE.

I WISH TO DIRECT YOUR ATTENTION TO YOUR RULING (A-54174) ON PAGE 270, VOLUME 13 OF DECISIONS OF THE COMPTROLLER GENERAL, AND DECISION (A-50660, PAGES 54 AND 56 OF THE SAME VOLUME), IN WHICH THE FOLLOWING LANGUAGE IS USED: "IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME.'

THIS LANGUAGE WOULD SEEM TO RENDER MR. IRWIN INELIGIBLE TO DRAW BOTH KINDS OF COMPENSATION, AS HE IS NOW DOING.

HERETOFORE I HAVE UNDERSTOOD THIS WAS PERMISSIBLE WHERE THE EMPLOYEE WAS APPOINTED TO THE CIVILIAN POSITION PRIOR TO THE ACTS OF 1932, 1933, AND 1934.

I WOULD APPRECIATE IF YOU WOULD ADVISE ME WHETHER NOW MR. IRWIN IS ELIGIBLE TO CONTINUE TO RECEIVE BOTH OF THESE CLASSES OF COMPENSATION.

IN DECISION OF OCTOBER 6, 1934, 14 COMP. GEN. 285, 288, REFERENCE WAS MADE TO THE RULE ANNOUNCED IN 13 COMP. GEN. 54, THAT "IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME" AND IT WAS STATED:

THIS PRINCIPLE IS APPLICABLE TO ANY REEMPLOYMENT IN ANY CAPACITY IN THE GOVERNMENT CIVIL SERVICE WHICH MAY BE COUNTED TOWARD LONGEVITY IN COMPUTING RETIREMENT ANNUITY, INCLUDING SERVICE WITH GOVERNMENT-OWNED CORPORATIONS. * * *

SEE ALSO DECISION OF JANUARY 31, 1935, A-59588, 14 COMP. GEN. 586, APPLYING THE SAME PRINCIPLE WHERE THE EMPLOYEE WAS RECEIVING ANNUITY UNDER THE PANAMA CANAL ZONE RETIREMENT ACT.

IT IS TO BE NOTED, HOWEVER, THAT IN NONE OF THESE CASES WAS THE REEMPLOYMENT IN A POSITION THE COMPENSATION OF WHICH WAS BASED ON FEES.

THE ACT OF MAY 28, 1896, 29 STAT. 184, PROVIDES FOR APPOINTMENT OF UNITED STATES COMMISSIONERS BY THE UNITED STATES DISTRICT COURTS FOR A TERM OF 4 YEARS SUBJECT TO REMOVAL BY THE COURT. THE COMMISSIONERS ARE OFFICERS OF THE UNITED STATES DISTRICT COURT AND ARE NOT WITHIN THE PURVIEW OF THE CIVIL RETIREMENT ACT. AS COMPENSATION IS PROVIDED FOR THE COMMISSIONERS IN THE FORM OF FEES ONLY, SERVICE AS A UNITED STATES COMMISSIONER, EVEN UNDER AN APPOINTMENT IMMEDIATELY FOLLOWING SERVICE WITHIN THE PURVIEW OF THE RETIREMENT ACT COULD NOT BE COUNTED TOWARD LONGEVITY IN COMPUTING RETIREMENT ANNUITY. ACCORDINGLY, THE GENERAL PRINCIPLE STATED IN THE CITED DECISIONS IS NOT APPLICABLE TO RENDER MR. IRWIN INELIGIBLE TO DRAW BOTH HIS RETIREMENT ANNUITY AND FEES AS UNITED STATES COMMISSIONER UNDER HIS PRESENT APPOINTMENT WHICH IT IS UNDERSTOOD WILL TERMINATE NOT LATER THAN DECEMBER 3, 1935.

SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 404, PROVIDES AS FOLLOWS:

ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE, APPLICABLE TO SUCH PERSON, SHALL BE CONTINUED IN SUCH SERVICE, NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY: PROVIDED, THAT THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM THE PROVISIONS OF THIS SECTION ANY PERSON WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES: PROVIDED FURTHER, THAT NO SUCH PERSON HERETOFORE OR HEREAFTER SEPARATED FROM THE SERVICE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA UNDER ANY PROVISION OF LAW OR REGULATION PROVIDING FOR SUCH RETIREMENT ON ACCOUNT OF AGE SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO ANY PERSON NAMED IN ANY ACT OF CONGRESS PROVIDING FOR THE CONTINUANCE OF SUCH PERSON IN THE SERVICE.

THE OFFICE OF UNITED STATES COMMISSIONER WOULD APPEAR TO BE AN "APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES" WITHIN THE PURVIEW OF THAT SECTION. YOU WILL NOTE, HOWEVER, THAT THE PROHIBITION OF THE SECOND PROVISO OF SAID SECTION IS AGAINST THE "APPOINTMENT" OF EMPLOYEES RETIRED FOR AGE AND DOES NOT PROHIBIT RETIRED EMPLOYEES FROM CONTINUING TO HOLD POSITIONS TO WHICH LEGALLY APPOINTED PRIOR TO JULY 1, 1932. SEE DECISION OF JANUARY 12, 1934, A 51431.

WHILE THE ACT OF MAY 28, 1896, PROHIBITS FEDERAL OFFICERS AND EMPLOYEES, WITH CERTAIN EXCEPTIONS AND LIMITATIONS, FROM SERVING AS UNITED STATES COMMISSIONER, THERE IS NO PROHIBITION IN THE STATUTE AGAINST RETIRED FEDERAL CIVIL EMPLOYEES SERVING AS UNITED STATES COMMISSIONER. THE LAST PARAGRAPH OF SECTION 2 OF THE ACT OF MAY 29, 1930, 46 STAT. 470, IN EFFECT DECEMBER 4, 1931, WHEN MR. IRWIN WAS APPOINTED COMMISSIONER, PROVIDED 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.

AS PREVIOUSLY STATED, THE OFFICE OF UNITED STATES COMMISSIONER WAS NOT, AND IS NOT NOW, A POSITION WITHIN THE PURVIEW OF THE RETIREMENT ACT. HENCE, THE APPOINTMENT OF MR. IRWIN, A RETIRED POSTAL CLERK, AS UNITED STATES COMMISSIONER ON DECEMBER 4, 1931, WAS LEGAL AND PROPER, BUT UNDER THE PROVISIONS OF SECTION 204 OF THE ACT OF JUNE 30, 1932, SUPRA, HE WILL BE INELIGIBLE FOR REAPPOINTMENT AFTER TERMINATION OF HIS SERVICE UNDER THAT APPOINTMENT.