A-82828, JANUARY 27, 1937, 16 COMP. GEN. 688

A-82828: Jan 27, 1937

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MAKES NULL AND VOID ADMINISTRATIVE ACTION UNDERTAKING TO TRANSFER AN EMPLOYEE TO A POSITION THE AUTOMATIC RETIREMENT AGE FOR WHICH IS LESS THAN THE AGE OF THE EMPLOYEE. ANY SERVICE RENDERED AFTER SUCH TRANSFER IS INVALID. WHERE THE ILLEGAL TRANSFER OF AN EMPLOYEE FROM A POSITION IN A HIGHER AGE GROUP TO ANOTHER POSITION IN A LOWER AGE GROUP IN THE SAME OR DIFFERENT DEPARTMENT OR ESTABLISHMENT AFTER REACHING THE AUTOMATIC RETIREMENT AGE PRESCRIBED BY THE RETIREMENT ACT FOR THE LOWER AGE GROUP IS NOT CORRECTED BY SUBSEQUENT ADMINISTRATIVE ACTION. THE PURPORTED TRANSFER IS IN EFFECT EITHER AN INVOLUNTARY SEPARATION FROM SERVICE FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION UNDER SECTION 7 OF THE RETIREMENT ACT OR A VOLUNTARY SEPARATION ENTITLING TO NO ANNUITY UNLESS THE EMPLOYEE IS QUALIFIED FOR DISABILITY RETIREMENT UNDER SECTION 6 OF THE ACT.

A-82828, JANUARY 27, 1937, 16 COMP. GEN. 688

CIVILIAN RETIREMENT - TRANSFERS OF EMPLOYEES TO HIGHER OR LOWER AGE GROUPS SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 404, PROVIDING FOR AUTOMATIC SEPARATION FROM SERVICE OF CIVILIAN EMPLOYEES UPON ATTAINING THE APPLICABLE RETIREMENT AGE AND PROHIBITING SUBSEQUENT APPOINTMENTS OF SUCH RETIRED PERSONNEL, MAKES NULL AND VOID ADMINISTRATIVE ACTION UNDERTAKING TO TRANSFER AN EMPLOYEE TO A POSITION THE AUTOMATIC RETIREMENT AGE FOR WHICH IS LESS THAN THE AGE OF THE EMPLOYEE, AND ANY SERVICE RENDERED AFTER SUCH TRANSFER IS INVALID, THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, NOT VALIDATING SUCH SERVICE FOR THE REMAINDER OF THE MONTH AFTER TRANSFER. WHERE THE ILLEGAL TRANSFER OF AN EMPLOYEE FROM A POSITION IN A HIGHER AGE GROUP TO ANOTHER POSITION IN A LOWER AGE GROUP IN THE SAME OR DIFFERENT DEPARTMENT OR ESTABLISHMENT AFTER REACHING THE AUTOMATIC RETIREMENT AGE PRESCRIBED BY THE RETIREMENT ACT FOR THE LOWER AGE GROUP IS NOT CORRECTED BY SUBSEQUENT ADMINISTRATIVE ACTION, THE PURPORTED TRANSFER IS IN EFFECT EITHER AN INVOLUNTARY SEPARATION FROM SERVICE FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION UNDER SECTION 7 OF THE RETIREMENT ACT OR A VOLUNTARY SEPARATION ENTITLING TO NO ANNUITY UNLESS THE EMPLOYEE IS QUALIFIED FOR DISABILITY RETIREMENT UNDER SECTION 6 OF THE ACT. THERE IS NO PRESENT PROHIBITION AGAINST THE TRANSFER OF AN EMPLOYEE FROM ONE POSITION TO ANOTHER IN DIFFERENT AGE GROUPS AT ANY TIME PRIOR TO THE EMPLOYEE ATTAINING THE AGE FOR AUTOMATIC RETIREMENT FROM EITHER GROUP, AND THE CIVIL SERVICE COMMISSION IS NOT AUTHORIZED TO REFUSE TO CONSIDER A CLAIM FOR ANNUITY IN SUCH CASE BASED ON AUTOMATIC RETIREMENT SOLELY BECAUSE THE EMPLOYEE HAD BEEN SO TRANSFERRED ONLY A SHORT TIME PRIOR TO REACHING RETIREMENT AGE, BUT, IF SUCH TRANSFERS ARE NOT FOR THE BEST INTERESTS OF THE SERVICE AND EMPLOYEES, THE MATTER IS FOR CORRECTION BY LEGISLATION OR APPROPRIATE REGULATION APPROVED BY THE PRESIDENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 27, 1937:

YOUR LETTER OF DECEMBER 29, 1936, IS AS FOLLOWS:

IN ADMINISTERING THE RETIREMENT ACT AS IT APPLIES TO EMPLOYEES IN DEPARTMENTS HAVING POSITIONS IN THE THREE RETIREMENT AGE GROUPS OF SIXTY- TWO, SIXTY-FIVE, AND SEVENTY YEARS, RESPECTIVELY, THE COMMISSION IS OFTEN FACED WITH THE PROBLEM OF ADJUDICATING THE RETIREMENT CLAIM OF AN EMPLOYEE WHO HAS BEEN REASSIGNED BY THE DEPARTMENT FROM A POSITION IN A HIGHER AGE GROUP TO ANOTHER POSITION IN A LOWER AGE GROUP, EITHER AFTER THE EMPLOYEE HAS REACHED THE RETIREMENT AGE FOR THE POSITION TO WHICH REASSIGNED OR WITHIN A VERY SHORT PERIOD OF TIME PRIOR TO HIS REACHING SUCH RETIREMENT AGE.

TO ILLUSTRATE: THE COMMISSION NOW HAS FOR ADJUDICATION THE CASE OF AN EMPLOYEE WHO HAS SERVED THE MAJOR PORTION OF HIS TIME IN A POSITION IN THE 70 YEAR GROUP AND AT NO TIME SINCE THE RETIREMENT LAW BECAME EFFECTIVE HAS HE SERVED IN ANY POSITION IN THE SIXTY-TWO OR SIXTY-FIVE YEAR GROUP. AFTER HE HAD PASSED THE AGE OF SIXTY-FIVE YEARS AND BEFORE REACHING THE AGE OF 70 YEARS THE DEPARTMENT TRANSFERRED HIM TO A POSITION IN THE 65 YEAR GROUP. ANOTHER INSTANCE IS THAT OF AN EMPLOYEE AFTER SERVING FOR A LONG PERIOD OF TIME, SAY TWENTY YEARS, IN A POSITION FOR WHICH THE RETIREMENT AGE IS SIXTY-TWO OR SIXTY-FIVE, IS TRANSFERRED OR PROMOTED BEFORE REACHING SUCH AGE TO ANOTHER POSITION FOR WHICH THE RETIREMENT AGE IS SEVENTY. BEFORE HE REACHES SEVENTY YEARS OF AGE BUT AFTER HE HAS PASSED SIXTY-TWO OR SIXTY-FIVE, AS THE CASE MAY BE, THE DEPARTMENT RETRANSFERS HIM TO A POSITION OF THE SAME AGE GROUP, SIXTY-TWO OR SIXTY- FIVE, AS THAT WHICH HE FORMERLY OCCUPIED. UNDER THESE CIRCUMSTANCES THE EMPLOYEE HAVING REACHED THE RETIREMENT AGE FOR THE POSITION TO WHICH HE WAS RETRANSFERRED MUST BE SEPARATED FOR SUPERANNUATION AT THE END OF THE MONTH IN WHICH THE RETRANSFER TAKES PLACE (SECTION 204, ACT OF JUNE 30, 1932; ACT OF APRIL 23, 1930).

THE QUESTIONS ARISING OUT OF THIS SITUATION ARE:

1. IN VIEW OF THE PROVISIONS OF SECTION 204 OF THE ACT OF JUNE 30, 1932, WHICH WOULD PRECLUDE THE POSSIBILITY OF THE EMPLOYEE'S RENDERING SERVICE FOR ANY APPRECIABLE LENGTH OF TIME (IN THE ABSENCE OF PRESIDENTIAL OR CONGRESSIONAL CONTINUANCE), IS IT LEGALLY COMPETENT FOR A DEPARTMENT TO TRANSFER AN EMPLOYEE TO A POSITION FOR WHICH HE HAS ALREADY REACHED THE RETIREMENT AGE?

2. WHAT GENERAL PRINCIPLE MAY BE ESTABLISHED AS A GUIDE FOR ADJUDICATING RETIREMENT CLAIMS OF EMPLOYEES WHO HAVE BEEN TRANSFERRED FROM A POSITION IN A HIGHER AGE GROUP TO ANOTHER POSITION IN A LOWER AGE GROUP, AFTER OR JUST BEFORE REACHING THE RETIREMENT AGE FOR THE POSITION TO WHICH RETRANSFERRED?

IT MAY BE POINTED OUT THAT TRANSFERS OF THIS KIND HAVE THE EFFECT GENERALLY OF CREATING A RIGHT TO IMMEDIATE OR NEARLY IMMEDIATE RETIREMENT, OR OF INCREASING THE ANNUITY PAYABLE. TWO INTER-OFFICE MEMORANDA WHICH DISCUSS THE CONSIDERATIONS AND LEGAL DECISIONS INVOLVED IN THIS MATTER ARE ENCLOSED FOR SUCH AID AS THEY MAY BE TO YOUR OFFICE IN STUDYING THE QUESTIONS PRESENTED.

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

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.

UNDER THIS STATUTE ANY PERSON EITHER IN OR OUT OF THE FEDERAL SERVICE IS DISQUALIFIED FOR EMPLOYMENT BY APPOINTMENT, REINSTATEMENT, TRANSFER, OR OTHERWISE, IN A POSITION THE AUTOMATIC SEPARATION FROM WHICH IS REQUIRED BY THE RETIREMENT ACT TO BE AT AN AGE LESS THAN THE AGE OF THE APPLICANT FOR THE POSITION. 12 COMP. GEN. 341; 14 ID. 527; ID. 865; 15 ID. 55.

THE ACTION OF AN ADMINISTRATIVE OFFICER UNDERTAKING TO TRANSFER FROM A POSITION IN THE GROUP FOR WHICH 70 YEARS IS PRESCRIBED AS THE AUTOMATIC RETIREMENT AGE, TO A POSITION IN THE GROUP FOR WHICH 65 OR 62 YEARS IS PRESCRIBED AS THE AUTOMATIC RETIREMENT AGE, AN EMPLOYEE WHO HAS ATTAINED THE AUTOMATIC RETIREMENT AGE FIXED FOR THE POSITION TO WHICH THE TRANSFER IS PROPOSED, IS NULL AND VOID AND ANY SERVICE RENDERED BY THE EMPLOYEE AFTER TRANSFER IS INVALID, THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, CITED BY YOU, NOT HAVING THE EFFECT OF VALIDATING SUCH SERVICE FOR THE REMAINDER OF THE MONTH AFTER TRANSFER. QUESTION 1 IS ANSWERED IN THE NEGATIVE.

REFERRING TO QUESTION 2, THERE APPEARS NO AUTHORITY IN THE UNITED STATES CIVIL SERVICE COMMISSION UNDER THE RETIREMENT ACT TO ENTERTAIN A CLAIM FOR AN ANNUITY BASED ON AUTOMATIC RETIREMENT BY AN EMPLOYEE PURPORTED TO BE TRANSFERRED FROM A POSITION IN A HIGHER AGE GROUP TO ANOTHER POSITION IN A LOWER AGE GROUP IN THE SAME OR DIFFERENT DEPARTMENT OR ESTABLISHMENT AFTER REACHING THE AUTOMATIC RETIREMENT AGE PRESCRIBED BY THE RETIREMENT ACT FOR THE POSITION TO WHICH THE TRANSFER IS PURPORTED TO HAVE BEEN MADE. IF THE ILLEGAL ACTION BE NOT CORRECTED ADMINISTRATIVELY BY REINSTATEMENT OR OTHERWISE, THE PURPORTED TRANSFER IS IN EFFECT EITHER AN INVOLUNTARY SEPARATION FROM THE SERVICE FOR CONSIDERATION UNDER THE TERMS OF SECTION 7 OF THE RETIREMENT ACT, OR A VOLUNTARY SEPARATION WITH NO RIGHT TO AN ANNUITY- - ASSUMING, OF COURSE, THAT THE EMPLOYEE DOES NOT QUALIFY FOR DISABILITY RETIREMENT UNDER THE TERMS OF SECTION 6 OF THE RETIREMENT ACT. IF THE EMPLOYEE HAS REACHED THE AGE FOR VOLUNTARY RETIREMENT FROM THE HIGHER AGE GROUP IT IS PRESUMED THE QUESTION WOULD NOT ARISE.

IT IS UNDERSTOOD THAT UNDER EXISTING LAWS AND REGULATIONS THERE IS NO PROHIBITION AGAINST TRANSFER OF AN EMPLOYEE FROM ONE POSITION TO ANOTHER IN DIFFERENT AGE GROUPS AT ANY TIME PRIOR TO THE TIME THE EMPLOYEE REACHES THE AGE PRESCRIBED FOR AUTOMATIC RETIREMENT FROM THE POSITION IN EITHER GROUP. THIS HAS PERMITTED ADMINISTRATIVE OFFICERS TO RETARD OR TO ACCELERATE RETIREMENT OF EMPLOYEES EITHER FOR THE BENEFIT OF THE SERVICE OR THE EMPLOYEE. IF THIS CONDITION HAS NOT BEEN FOR THE BEST INTERESTS OF THE SERVICE AND EMPLOYEES, IT WOULD APPEAR TO BE FOR CORRECTION BY LEGISLATION OR BY APPROPRIATE REGULATION APPROVED BY THE PRESIDENT. BUT IN THE ABSENCE OF A LAW OR A REGULATION APPROVED BY THE PRESIDENT PROHIBITING TRANSFERS BETWEEN POSITIONS IN THE DIFFERENT AGE GROUPS WITHIN A PRESCRIBED PERIOD BEFORE THE EMPLOYEE WOULD REACH RETIREMENT AGE IN THE POSITION IN WHICH SERVING, IT IS THE VIEW OF THIS OFFICE THAT THE CIVIL SERVICE COMMISSION WOULD NOT BE AUTHORIZED TO REFUSE TO CONSIDER A CLAIM FOR AN ANNUITY BASED ON AUTOMATIC RETIREMENT SOLELY BECAUSE THE EMPLOYEE HAD BEEN TRANSFERRED TO THE POSITION IN A PARTICULAR AGE GROUP WITHIN A SHORT PERIOD PRIOR TO THE TIME HE REACHED SUCH AGE. QUESTION 2 IS ANSWERED ACCORDINGLY.