A-75160, JUNE 15, 1936, 15 COMP. GEN. 1093

A-75160: Jun 15, 1936

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WHO IS REEMPLOYED IN A PERMANENT GOVERNMENT POSITION NOT WITHIN THE PURVIEW OF THE RETIRMENT ACT DOES NOT REACQUIRE A RETIREMENT STATUS UPON SUCH REEMPLOYMENT AND THE MATTER OF RESUMPTION OF RETIREMENT ANNUITY PAYMENTS UPON SUBSEQUENT SEPARATION IS FOR DETERMINATION ON THE BASIS OF THE STATUTES IN FORCE AT THE TIME OF SUCH SEPARATION. IS INVOLUNTARILY SEPARATED FROM THE SERVICE FOR REASONS OTHER THAN HIS MISCONDUCT. 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. IF AND WHEN ANY SUCH ANNUITANT SHALL BE REEMPLOYED IN THE SERVICE OF THE DISTRICT OF COLUMBIA OR THE UNITED STATES (INCLUDING ANY CORPORATION THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES).

A-75160, JUNE 15, 1936, 15 COMP. GEN. 1093

RETIREMENT - CIVILIAN RETIRED AFTER THIRTY YEARS' SERVICE - REEMPLOYMENT IN PERMANENT POSITION AN ANNUITANT INVOLUNTARILY RETIRED AFTER THIRTY YEARS' SERVICE PURSUANT TO SECTION 8/A) OF THE ACT OF JUNE 16, 1933 (48 STAT. 305), WHO IS REEMPLOYED IN A PERMANENT GOVERNMENT POSITION NOT WITHIN THE PURVIEW OF THE RETIRMENT ACT DOES NOT REACQUIRE A RETIREMENT STATUS UPON SUCH REEMPLOYMENT AND THE MATTER OF RESUMPTION OF RETIREMENT ANNUITY PAYMENTS UPON SUBSEQUENT SEPARATION IS FOR DETERMINATION ON THE BASIS OF THE STATUTES IN FORCE AT THE TIME OF SUCH SEPARATION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 15, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MAY 6, 1936, AS FOLLOWS:

SECTION 8 (A) OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1934, APPROVED JUNE 16, 1933, READS 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. IF AND WHEN ANY SUCH ANNUITANT SHALL BE REEMPLOYED IN THE SERVICE OF THE DISTRICT OF COLUMBIA OR THE UNITED STATES (INCLUDING ANY CORPORATION THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES), THE RIGHT TO THE ANNUITY PROVIDED BY THIS SECTION SHALL CEASE AND THE SUBSEQUENT ANNUITY RIGHTS OF SUCH PERSON SHALL BE DETERMINED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF RETIREMENT LAW EXISTING AT THE TIME OF THE SUBSEQUENT SEPARATION OF SUCH PERSON FROM THE SERVICE.'

MR. WILLIAM A. LYONS, A FORMER EMPLOYEE OF THE POST OFFICE DEPARTMENT, WAS RETIRED UNDER THE TERMS OF THE ABOVE SECTION AND GRANTED ANNUITY EFFECTIVE FEBRUARY 1, 1935. THIS ANNUITANT IS DESIROUS OF SECURING THE POSTMASTERSHIP AT CROWLEY, LOUISIANA, A SECOND CLASS OFFICE, BY ENTERING AN OPEN COMPETITIVE EXAMINATION, AND INQUIRES WHAT EFFECT APPOINTMENT AS A RESULT OF SUCH EXAMINATION WOULD HAVE ON HIS RETIREMENT STATUS.

UNDER THE PROVISIONS OF THE ABOVE SECTION AND YOUR DECISIONS OF NOVEMBER 11, 1933 (13 COMP. GEN. 133), AND NOVEMBER 30, 1934 (14 ID. 425), SUCH REEMPLOYMENT WOULD ORDINARILY AGAIN PLACE MR. LYONS WITHIN THE OPERATION OF THE RETIREMENT LAW, AND HIS SUBSEQUENT ANNUITY RIGHTS WOULD BE DEPENDENT UPON THE CIRCUMSTANCES SURROUNDING HIS SEPARATION FROM THE SERVICE AND THE LAW IN EFFECT AT THAT TIME.

A POSSIBLE CONSTRUCTION OF YOUR DECISIONS OF NOVEMBER 11, 1933, AND NOVEMBER 30, 1934, SUPRA, WOULD BE THAT SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, BY ITS TERMS, IN EFFECT, MODIFIED THE PROVISIONS OF SECTION 3 OF THE ACT OF MAY 29, 1930, ADDING THERETO A NEW GROUP OF EMPLOYEES TO WHOM THE CONDITIONS OF THE ACT APPLIES, NAMELY, ANY PERSON HAVING AN ANNUITY STATUS ACQUIRED UNDER SECTION 8 (A) REEMPLOYED IN ANY POSITION IN THE SERVICE OF THE UNITED STATES OR DISTRICT OF COLUMBIA, OR CORPORATION THE MAJORITY OF STOCK OF WHICH IS OWNED BY THE UNITED STATES.

IT IS QUESTIONABLE, HOWEVER, WHETHER SUCH A CONSTRUCTION IS SO INTENDED, IN VIEW OF THE FACT THAT SECTION 3 OF THE ACT OF MAY 29, 1930, SPECIFICALLY EXCLUDES CERTAIN EMPLOYEES FROM THE OPERATION OF THE RETIREMENT LAW. FOR INSTANCE, ALL POSTMASTERS, EXCEPT THOSE OF THE FIRST, SECOND, AND THIRD CLASS, WHO HAVE BEEN "PROMOTED, APPOINTED, OR TRANSFERRED FROM THE CLASSIFIED CIVIL SERVICE" ARE SPECIFICALLY EXCLUDED. IN HIS DECISION OF JUNE 26, 1928 (35 OP. 471) THE ATTORNEY GENERAL, IN CONSTRUING AN IDENTICAL PROVISION IN THE PRIOR RETIREMENT ACT OF JULY 3, 1926, HELD THAT THE STATUTE APPLIES TO POSTMASTERS ONLY IF THEY WERE IN THE CLASSIFIED CIVIL SERVICE BEFORE AND UP TO THE TIME OF PROMOTION, APPOINTMENT, OR TRANSFER. THIS HOLDING WAS CONCURRED IN BY YOUR OFFICE ON JUNE 11, 1935 (14 COMP. GEN. 886), BUT IN THE CASE YOU THEN HAD UNDER CONSIDERATION THE POSTMASTER HAD NO RETIREMENT OR ANNUITABLE STATUS AT THE TIME OF HIS APPOINTMENT.

THE QUESTION PRESENTED FOR DETERMINATION IS, THEREFORE, WHETHER A PERSON IN A RETIREMENT STATUS ACQUIRED UNDER SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, WOULD, IF APPOINTED TO THE POSITION OF POSTMASTER AS A RESULT OF COMPETITION IN AN OPEN EXAMINATION, REACQUIRE HIS STATUS UNDER THE RETIREMENT LAW.

WHILE THE DECISIONS OF THIS OFFICE HAVE RECOGNIZED THE PRINCIPLE THAT DURING TEMPORARY REEMPLOYMENT UNDER THE GOVERNMENT IN A CIVILIAN CAPACITY, EMPLOYEES WHO HAD BEEN INVOLUNTARILY SEPARATED FROM THE SERVICE AND IN RECEIPT OF A RETIREMENT ANNUITY UNDER THE TERMS OF SECTION 8 (A) OF THE ACT OF JUNE 16, 1933 (48 STAT. 305), WOULD NOT LOSE THEIR RETIREMENT STATUS WHILE THAT STATUTE WAS IN EFFECT, THAT IS, FROM JULY 1, 1933, TO JUNE 30, 1935--- ALTHOUGH PAYMENT OF THE ANNUITY WAS REQUIRED TO BE SUSPENDED DURING ACTIVE SERVICE--- IS NONE OF THE CITED DECISIONS, OR IN ANY OTHER, HAS THERE BEEN CONSIDERED THE RETIREMENT STATUS OF SUCH EMPLOYEES REINSTATED OR REEMPLOYED IN A PERMANENT POSITION NOT WITHIN THE PURVIEW OF THE RETIREMENT ACT.

THE LAW DOES NOT IN SPECIFIC TERMS FIX THE RETIREMENT STATUS OF SUCH EMPLOYEES, BUT THE PROVISO TO SECTION 8 (A) OF THE ACT OF JUNE 16, 1933, SUPRA (QUOTING FROM 13 COMP. GEN. 133, 134/---

* * * STATES TWO CONDITIONS WITH RESPECT TO REEMPLOYMENT (1) THAT UPON REEMPLOYMENT "THE RIGHT TO ANNUITY PROVIDED BY THIS SECTION SHALL CEASE," AND (2) THAT "THE SUBSEQUENT ANNUITY RIGHTS OF SUCH PERSON SHALL BE DETERMINED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF RETIREMENT LAW EXISTING AT THE TIME OF THE SUBSEQUENT SEPARATION OF SUCH PERSON FROM THE SERVICE.'

IF THE ANNUITANT IS REEMPLOYED IN A PERMANENT POSITION NOT WITHIN THE PURVIEW OF THE RETIREMENT ACT THERE IS NO BASIS ON WHICH THE PROVISIONS OF THE RETIREMENT ACT OF MAY 29, 1930, MAY BE APPLIED; THAT IS TO SAY, NO RETIREMENT DEDUCTIONS WOULD BE REQUIRED UNDER THE TERMS OF THE EXISTING LAW. WHETHER THE OFFICER OR EMPLOYEE WOULD BE ENTITLED TO A RETIREMENT ANNUITY WOULD DEPEND UPON THE TERMS OF THE STATUTES IN FORCE UPON FINAL SEPARATION FROM THE SERVICE UPON REACHING RETIREMENT AGE OR OTHERWISE. THERE ARE NOT INVOLVED HERE OFFICERS OR EMPLOYEES WHO RETAIN A RETIREMENT STATUS BY REASON OF A TRANSFER WITHOUT BREAK IN THE CONTINUITY OF SERVICE FROM A POSITION WITHIN THE PURVIEW OF THE RETIREMENT ACT TO A POSITION NOT WITHIN THE PURVIEW OF THE RETIREMENT ACT.

IF IT HAS BEEN FINALLY DETERMINED BY THE CIVIL SERVICE COMMISSION--- AND IT SO APPEARS TO BE THE CASE--- THAT THE OFFICE OF POSTMASTER FILLED AS THE RESULT OF AN OPEN COMPETITIVE EXAMINATION IS NOT WITHIN THE PURVIEW OF THE EXISTING RETIREMENT ACT, THE ANNUITANT IN QUESTION WOULD NOT APPEAR TO REACQUIRE A RETIREMENT STATUS UPON APPOINTMENT TO SUCH OFFICE. IT IS TO BE UNDERSTOOD, OF COURSE, THAT RETIREMENT BENEFITS MAY NOT BE PAID WHILE THE ANNUITANT IS IN RECEIPT OF COMPENSATION AS A POSTMASTER.