A-61476, MAY 31, 1935, 14 COMP. GEN. 865

A-61476: May 31, 1935

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NO PERSON WHO WAS RETIRED AFTER HAVING RENDERED AT LEAST 15 YEARS OF CIVILIAN SERVICE AND HAS ATTAINED THE AGE FOR AUTOMATIC RETIREMENT PRESCRIBED BY STATUTE. WAS GRANTED AN ANNUITY OF $1. THIS ANNUITY WAS INCREASED TO $1. HURLEY'S LONG TRAINING AND EXPERIENCE IN SEAMAN'S WORK THE DEPARTMENT IS EXCEEDINGLY ANXIOUS TO AGAIN SECURE HIS SERVICES IN CONNECTION WITH A CONTEMPLATED INVESTIGATION OF ALIEN SEAMEN ALLEGED TO HAVE ENTERED THE UNITED STATES ILLEGALLY. IT IS PROVIDED THAT NO EMPLOYEE SEPARATED BY RETIREMENT ON ACCOUNT OF AGE "SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE. HURLEY WAS INVOLUNTARILY SEPARATED FROM THE SERVICE WITHOUT PREJUDICE AND RETIRED UNDER SECTION 8 (A) OF THE ACT OF JUNE 16.

A-61476, MAY 31, 1935, 14 COMP. GEN. 865

RETIREMENT - REEMPLOYMENT UNDER THE PROVISIONS OF SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932 (47 STAT. 404), NO PERSON WHO WAS RETIRED AFTER HAVING RENDERED AT LEAST 15 YEARS OF CIVILIAN SERVICE AND HAS ATTAINED THE AGE FOR AUTOMATIC RETIREMENT PRESCRIBED BY STATUTE, MAY BE REEMPLOYED REGARDLESS OF THE LAW UNDER WHICH RETIRED, OR THE STATUS OF THE ANNUITY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, MAY 31, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 18, 1935, AS FOLLOWS:

ON AUGUST 10, 1933, THIS DEPARTMENT DISCONTINUED WITHOUT PREJUDICE, ON ACCOUNT OF REDUCTION IN FORCE, MR. JEREMIAH J. HURLEY, A SPECIAL INVESTIGATOR, ENGAGED ON SEAMAN'S WORK WHICH DEALT LARGELY WITH THE ILLEGAL ENTRY OF ALIEN SEAMEN INTO THE UNITED STATES. MR. HURLEY HAD MORE THAN THIRTY YEARS GOVERNMENT SERVICE TO HIS CREDIT AS OF JULY 26, 1933, AND WAS GRANTED AN ANNUITY OF $1,158 PER ANNUM UNDER SECTION 8 (A) OF THE ECONOMY ACT OF JUNE 16, 1933, COMMENCING SEPTEMBER 1, 1933. THIS ANNUITY WAS INCREASED TO $1,200 PER ANNUM ON JUNE 15, 1934, ON WHICH DATE HE BECAME SEVENTY YEARS OF AGE.

BECAUSE OF MR. HURLEY'S LONG TRAINING AND EXPERIENCE IN SEAMAN'S WORK THE DEPARTMENT IS EXCEEDINGLY ANXIOUS TO AGAIN SECURE HIS SERVICES IN CONNECTION WITH A CONTEMPLATED INVESTIGATION OF ALIEN SEAMEN ALLEGED TO HAVE ENTERED THE UNITED STATES ILLEGALLY.

UNDER SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, IT IS PROVIDED THAT NO EMPLOYEE SEPARATED BY 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.'

MR. HURLEY WAS INVOLUNTARILY SEPARATED FROM THE SERVICE WITHOUT PREJUDICE AND RETIRED UNDER SECTION 8 (A) OF THE ACT OF JUNE 16, 1933. YOUR DECISION IS, THEREFORE, REQUESTED AS TO WHETHER HIS CASE FALLS WITHIN THE PURVIEW OF SECTION 204 OF THE ACT OF JUNE 30, 1932, WHICH PRECLUDES THE REEMPLOYMENT OF PERSONS RETIRED FOR AGE, OR WHETHER HE IS ELIGIBLE FOR REEMPLOYMENT UNDER SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, SUBJECT TO AN EXECUTIVE ORDER AUTHORIZING HIS CONTINUANCE IN THE SERVICE.

SECTION 8 (A) OF THE ACT OF JUNE 16, 1933 (48 STAT. 305), PURSUANT TO WHICH MR. HURLEY WAS INITIALLY GRANTED A RETIREMENT ANNUITY BECAUSE OF INVOLUNTARY SEPARATION FROM THE SERVICE AFTER HAVING SERVED MORE THAN 30 YEARS, PROVIDES IN PART AS FOLLOWS:

WHENEVER AT ANY TIME HEREAFTER PRIOR TO JULY 1, 1935, ANY EMPLOYEE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA TO WHOM THE CIVIL SERVICE RETIREMENT ACT, APPROVED MAY 29, 1930 (U.S.C., SUPP. VI, TITLE 5, CHAP. 14), APPLIES, WHO HAS AN AGGREGATE PERIOD OF SERVICE OF AT LEAST THIRTY YEARS COMPUTED AS PRESCRIBED IN SECTION 5 OF SUCH ACT, IS INVOLUNTARILY SEPARATED FROM THE SERVICE FOR REASONS OTHER THAN HIS MISCONDUCT, SUCH EMPLOYEE SHALL BE ENTITLED TO AN ANNUITY COMPUTED AS PROVIDED IN SECTION 4 OF SUCH ACT PAYABLE FROM THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND LESS A SUM EQUAL TO 3 1/2 PERCENTUM OF SUCH ANNUITY: PROVIDED, THAT WHEN AN ANNUITANT HEREUNDER ATTAINS THE AGE WHICH WOULD HAVE BEEN THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE APPLICABLE TO SUCH ANNUITANT HAD HE CONTINUED IN THE SERVICE TO SUCH RETIREMENT AGE, SUCH DEDUCTION FROM THE ANNUITY SHALL CEASE. * * *

SECTION 2 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930 (46 STAT. 470), PROVIDES IN PART AS FOLLOWS:

NO PERSON SEPARATED FROM THE SERVICE WHO IS RECEIVING AN ANNUITY UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT, (RETIREMENT FOR AGE) SHALL BE EMPLOYED AGAIN IN ANY POSITION WITHIN THE PURVIEW OF THIS ACT.

SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932 (47 STAT. 404), PROVIDES IN PART 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 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: * * *

THE DISTINCTION IN THE STATUS BETWEEN AN ANNUITANT UNDER SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, SUPRA, PRIOR TO ATTAINING RETIREMENT AGE, AND AN ANNUITANT WHO HAD RECEIVED THE SAME SALARY AND HAD SERVED THE SAME PERIOD BUT WHO HAD BEEN RETIRED FOR AGE UNDER SECTION 1 OF THE CIVIL RETIREMENT ACT, IS THAT IN THE FORMER CASE THERE IS REQUIRED TO BE DEDUCTED 3 1/2 PERCENT FROM THE AMOUNT OF THE ANNUITY AND THE ANNUITANT MAY BE REEMPLOYED. THE PROVISO IN SAID SECTION 8 OF THE ACT OF JUNE 16, 1933, HEREINBEFORE QUOTED, ELIMINATES THE FIRST DISTINCTION WHEN THE ANNUITANT UNDER THAT STATUTE ATTAINS RETIREMENT AGE. THEREAFTER THE TWO CLASSES OF ANNUITANTS ARE IN EXACTLY THE SAME STATUS INSOFAR AS ANNUITY IS CONCERNED AND THERE IS NOTHING TO SUGGEST THAT THE STATUTORY PROVISIONS PROHIBITING REEMPLOYMENT, CONTAINED IN SECTION 2 OF THE CIVIL RETIREMENT ACT AND SECTION 204 OF THE ECONOMY ACT, SUPRA, WOULD NOT BE AS APPLICABLE TO AN ANNUITANT INITIALLY GRANTED ANNUITY UNDER SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, WHO HAS REACHED RETIREMENT AGE AND IS RECEIVING FULL ANNUITY UNDER THE CIVIL RETIREMENT ACT, AS TO AN ANNUITANT WHO WAS INITIALLY GRANTED HIS FULL ANNUITY FOR AGE. IN OTHER WORDS, CONSIDERING THE QUOTED THREE STATUTES TOGETHER, THE CONCLUSION IS REQUIRED THAT IT IS THE FACT THE ANNUITANT HAS ATTAINED THE AGE PRESCRIBED BY THE CIVIL RETIREMENT ACT FOR AUTOMATIC SEPARATION FROM THE SERVICE WHICH PRECLUDES REEMPLOYMENT, AND NOT ALONE THE CHARACTER OF THE SEPARATION FROM THE SERVICE.

THE PROVISO IN SECTION 204 OF THE ACT OF JUNE 30, 1932, RELATIVE TO EXEMPTION BY EXECUTIVE ORDER RELATES ONLY TO THE CONTINUANCE IN SERVICE OF PERSONS ALREADY EMPLOYED AND HAS NO APPLICATION TO THE INHIBITION IN THE FURTHER PROVISO WHICH FOLLOWS IT RELATIVE TO REEMPLOYMENTS. UNDER THE PROVISIONS OF SAID SECTION 204, NO PERSON WHO HAS HAD 15 YEARS OF SERVICE AND ATTAINED THE AGE FOR AUTOMATIC RETIREMENT MAY BE REEMPLOYED, REGARDLESS OF HIS ANNUITY STATUS.