B-108621, APRIL 10, 1952, 31 COMP. GEN. 505

B-108621: Apr 10, 1952

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THE TERMS "RETIRE" AND "RETIREMENT" ARE DEFINED TO INCLUDE RETIREMENT. SO THAT IT IS IMMATERIAL. - AS FAR AS A JUDGE'S RETIREMENT RIGHTS BASED UPON SERVICE ARE CONCERNED. IS NOT PROHIBITED BY THE DUAL COMPENSATION AND EMPLOYMENT STATUTES FROM ACCEPTING COMPENSATION AS AN EMPLOYEE OF A STATE OR MUNICIPAL GOVERNMENT OR AGENCY HAVING NO CONNECTION WITH THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENTS. 1952: REFERENCE IS MADE TO YOUR LETTER OF MARCH 18. THE QUESTIONS PRESENTED WILL BE STATED AND ANSWERED IN THE ORDER PRESENTED. IN VIEW OF THE FOREGOING STATUTORY DEFINITION IT IS IMMATERIAL. - SO FAR AS A JUDGE'S RETIREMENT RIGHTS BASED UPON SERVICE ARE CONCERNED. IF AFTER RESIGNING OR RETIRING A JUDGE SHOULD ACCEPT EMPLOYMENT WITH THE FEDERAL GOVERNMENT IN A POSITION PAYING A SALARY LOWER THAN THE RETIREMENT SALARY PAYABLE UNDER THE ACT WOULD HE HAVE THE RIGHT TO ELECT TO FOREGO OR WAIVE SUCH LOWER SALARY AND CONTINUE TO RECEIVE THE RETIREMENT SALARY DUE UNDER THE MUNICIPAL COURT ACT?

B-108621, APRIL 10, 1952, 31 COMP. GEN. 505

RETIREMENT - DISTRICT OF COLUMBIA JUDGES - CONCURRENT RETIRED SALARY AND REEMPLOYMENT COMPENSATION UNDER THE ACT OF APRIL 1, 1942, PROVIDING FOR THE RETIREMENT OF JUDGES OF THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA, THE TERMS "RETIRE" AND "RETIREMENT" ARE DEFINED TO INCLUDE RETIREMENT, RESIGNATION, OR FAILURE OF REAPPOINTMENT UPON THE EXPIRATION OF THE TERM OF OFFICE OF AN INCUMBENT, SO THAT IT IS IMMATERIAL--- AS FAR AS A JUDGE'S RETIREMENT RIGHTS BASED UPON SERVICE ARE CONCERNED--- WHETHER HE VACATES HIS OFFICE BY RESIGNATION OR RETIREMENT. IN VIEW OF THE DUAL COMPENSATION RESTRICTION IN THE ACT OF AUGUST 29, 1916, AS AMENDED, A JUDGE OF THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA WHO RECEIVES THE RETIREMENT SALARY PROVIDED UNDER THE ACT OF APRIL 1, 1942, MAY NOT IN ADDITION THERETO RECEIVE THE COMPENSATION ATTACHING TO A POSITION OR OFFICE WITH THE FEDERAL GOVERNMENT NOR MAY HE WAIVE THE RETIREMENT SALARY FOR THE PURPOSE OF ACCEPTING SAID COMPENSATION. A JUDGE OF THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA, WHO RECEIVES THE RETIREMENT SALARY PROVIDED UNDER THE ACT OF APRIL 1, 1942, IS NOT PROHIBITED BY THE DUAL COMPENSATION AND EMPLOYMENT STATUTES FROM ACCEPTING COMPENSATION AS AN EMPLOYEE OF A STATE OR MUNICIPAL GOVERNMENT OR AGENCY HAVING NO CONNECTION WITH THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENTS. IN VIEW OF THE DUAL COMPENSATION RESTRICTION IN THE ACT OF AUGUST 29, 1916, AS AMENDED, A JUDGE OF THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA WHO RECEIVES THE RETIREMENT SALARY PROVIDED UNDER THE ACT OF APRIL 1, 1942, MAY NOT IN ADDITION THERETO RECEIVE THE COMPENSATION OF A POSITION OR OFFICE WITH A TERRITORIAL GOVERNMENT SUCH AS ALASKA, THE VIRGIN ISLANDS, PUERTO RICO OR HAWAII. A JUDGE OF THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA WHO RECEIVES THE RETIREMENT SALARY PROVIDED UNDER THE ACT OF APRIL 1, 1942, MAY ACCEPT COMPENSATION AS AN EMPLOYEE OF AN INTERNATIONAL AGENCY, SUCH AS THE UNITED NATIONS, INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT OR THE INTERNATIONAL LABOR ORGANIZATION, WITHOUT VIOLATING THE DUAL COMPENSATION AND EMPLOYMENT STATUTES. THE PROVISION IN THE ACT OF APRIL 1, 1942, THAT A JUDGE OF THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA RECEIVING RETIREMENT SALARY THEREUNDER MAY BE REQUIRED TO SERVE ON ACTIVE DUTY FOR 90 DAYS DURING ANY CALENDAR YEAR, APPEARS TO BE A LIMITATION UPON THE MANDATORILY REQUIRED SERVICE RATHER THAN THE QUALIFICATION OF A RETIRED JUDGE, AND THEREFORE, HE MAY SERVE IN EXCESS OF THE 90 DAYS SHOULD HE SO DESIRE. IN COMPUTING THE RATE OF RETIREMENT COMPENSATION OF JUDGES OF THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA PURSUANT TO THE PROVISIONS OF THE ACT OF APRIL 1, 1942, CONFINING THE CREDIT FOR RETIREMENT PURPOSES TO THE "TOTAL OF HIS AGGREGATE YEARS," A FRACTIONAL YEAR'S SERVICE MAY NOT BE COUNTED.

ACTING COMPTROLLER GENERAL YATES TO THE CHIEF JUDGE, MUNICIPAL COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, APRIL 10, 1952:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1952, REQUESTING DECISION UPON CERTAIN QUESTIONS THEREIN PROPOUNDED PERTAINING TO THE RETIREMENT OF JUDGES OF THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. THE QUESTIONS PRESENTED WILL BE STATED AND ANSWERED IN THE ORDER PRESENTED.

QUESTION 1

IF A JUDGE ELIGIBLE UNDER THE ACT OF APRIL 1, 1942, 56 STAT. 190, SUPRA, FOR RETIREMENT SHOULD DECIDE TO LEAVE THE BENCH WOULD THERE BE ANY DIFFERENCE WHETHER HE "RESIGNED" OR "RETIRED" IN VIEW OF THE FACT THAT EITHER ACTION WOULD CREATE A VACANCY ON THE BENCH AND LEAVE THE RETIRING JUDGE AVAILABLE FOR RECALL IN DUTY FOR 90 DAYS' SERVICE A YEAR PURSUANT TO SECTION 11-776 (A), D.C. CODE, 1940, SUPP. VII?

TITLE 11, SECTION 776 (A) OF THE DISTRICT OF COLUMBIA CODE, AUTHORIZING THE RETIREMENT OF JUDGES OF THE MUNICIPAL COURT AND MUNICIPAL COURT OF APPEALS CONTAINS THE FOLLOWING PROVISION:

* * * THE TERMS "RETIRE" AND "RETIREMENT" AS USED IN THIS SECTION SHALL MEAN AND INCLUDE RETIREMENT, RESIGNATION, OR FAILURE OF REAPPOINTMENT UPON THE EXPIRATION OF THE TERM OF OFFICE OF AN INCUMBENT.

IN VIEW OF THE FOREGOING STATUTORY DEFINITION IT IS IMMATERIAL--- SO FAR AS A JUDGE'S RETIREMENT RIGHTS BASED UPON SERVICE ARE CONCERNED--- WHETHER HE VACATES HIS OFFICE BY RESIGNATION OR RETIREMENT.

QUESTIONS 2 AND 3

IF AFTER RESIGNING OR RETIRING A JUDGE SHOULD ACCEPT EMPLOYMENT WITH THE FEDERAL GOVERNMENT IN A POSITION PAYING A SALARY EQUAL TO OR HIGHER THAN HIS RETIREMENT SALARY UNDER THE ACT, WHAT WOULD BE THE STATUS OF HIS RETIREMENT SALARY? COULD THE RETIREMENT SALARY BE TEMPORARILY WAIVED BY SUCH JUDGE WITH THE PRIVILEGE OF HAVING IT RESTORED UPON THE TERMINATION OF SUCH OTHER EMPLOYMENT?

IF AFTER RESIGNING OR RETIRING A JUDGE SHOULD ACCEPT EMPLOYMENT WITH THE FEDERAL GOVERNMENT IN A POSITION PAYING A SALARY LOWER THAN THE RETIREMENT SALARY PAYABLE UNDER THE ACT WOULD HE HAVE THE RIGHT TO ELECT TO FOREGO OR WAIVE SUCH LOWER SALARY AND CONTINUE TO RECEIVE THE RETIREMENT SALARY DUE UNDER THE MUNICIPAL COURT ACT?

TITLE 11, SECTION 776 (B) PROVIDES AS FOLLOWS:

ANY JUDGE RECEIVING RETIREMENT SALARY UNDER THE PROVISIONS OF THIS SECTION MAY BE CALLED UPON BY THE CHIEF JUDGE OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA OR THE CHIEF JUDGE OF THE MUNICIPAL COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA TO PERFORM SUCH JUDICIAL DUTIES AS MAY BE REQUESTED OF HIM IN EITHER OF SAID COURTS, OR IN THE JUVENILE COURT OF THE DISTRICT OF COLUMBIA, BUT IN ANY EVENT NO SUCH RETIRED JUDGE SHALL BE REQUIRED TO RENDER SUCH SERVICE FOR MORE THAN NINETY DAYS IN ANY CALENDAR YEAR AFTER SUCH RETIREMENT. IN CASE OF ILLNESS OR DISABILITY PRECLUDING THE RENDERING OF SUCH SERVICE SUCH RETIRED JUDGE SHALL BE FULLY RELIEVED OF ANY SUCH DUTY DURING SUCH ILLNESS OR DISABILITY. ( ITALICS SUPPLIED.) NUMEROUS DECISIONS OF THIS OFFICE HAVE HELD THAT RETIREMENT ANNUITY AND COMPENSATION FOR ACTIVE SERVICE IN A CIVILIAN POSITION MAY NOT BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME, SUCH HOLDINGS BEING PREDICATED UPON THE VIEW THAT THE EVIDENCE PURPOSE AND INTENT OF CIVILIAN RETIREMENT LEGISLATION IS WHOLLY INCONSISTENT WITH THE DUAL PAYMENT OF ACTIVE SERVICE COMPENSATION AND RETIREMENT ANNUITY TO THE SAME PERSON. 16 COMP. GEN. 121; 14 ID. 285; 10 ID. 309.

HOWEVER, THE RETIREMENT STATUTE FOR JUDGES OF THE MUNICIPAL COURT OF APPEALS FINDS NO COUNTERPART IN THE SEVERAL RETIREMENT STATUTES FOR OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT OR OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, EITHER WITH RESPECT TO CIVILIAN OR MILITARY PERSONNEL. IT IS NOVEL IN THAT IT PROVIDES FOR THE RECEIPT BY SUCH JUDGES OF RETIREMENT SALARY, THE WORD,"SALARY," CONNOTING COMPENSATION APPARENTLY AT LEAST IN PARTIAL CONSIDERATION OF THE REQUIREMENT THAT JUDGES RETIRED UNDER THE STATUTE HOLD THEMSELVES AVAILABLE FOR 90 DAYS' ACTIVE JUDICIAL DUTY IN ANY CALENDAR YEAR UPON RECALL BY THE CHIEF JUDGES, RESPECTIVELY, OF THE MUNICIPAL COURT OF APPEALS OR OF THE MUNICIPAL COURT. ACCORDINGLY, ASIDE FROM THE REASONS STATED ABOVE IT WOULD APPEAR THAT PAYMENT OF BOTH RETIRED SALARY AND THE COMPENSATION ATTACHING TO SOME POSITION OR OFFICE WITH THE FEDERAL GOVERNMENT WOULD BE PRECLUDED BY THE DUAL COMPENSATION ACT OF 1916 AS AMENDED, 39 STAT. 582, WHICH READS IN PERTINENT PART AS FOLLOWS:

THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM * * *.

THE QUESTION RAISED AS TO WHETHER RETIREMENT SALARY MAY BE WAIVED IN WHOLE OR IN PART IF A RETIRED JUDGE DESIRES TO ACCEPT APPOINTMENT TO AN OFFICE OR POSITION IN THE FEDERAL GOVERNMENT AND DRAW THE COMPENSATION THEREOF--- SO FAR AS THIS OFFICE IS AWARE--- IS WITHOUT PRECEDENT UNDER THE RETIREMENT LAWS APPERTAINING TO THE FEDERAL JUDICIARY OR THE STATUTE HERE UNDER CONSIDERATION. IN THE ABSENCE OF ANY PROVISION IN TITLE 11, SECTION 776, OF THE DISTRICT OF COLUMBIA CODE AUTHORIZING THE WAIVING OF RETIREMENT SALARY, AND IN VIEW OF THE POSSIBILITY OF A JUDGE'S DISQUALIFYING HIMSELF FOR THE REQUIRED JUDICIAL SERVICE BECAUSE OF THE NATURE OF HIS DUTIES WITH THE FEDERAL GOVERNMENT, IT IS THE VIEW OF THIS OFFICE THAT THE AUTHORIZED RETIREMENT SALARY MAY NOT BE WAIVED FOR THE PURPOSE OF ACCEPTING AN OFFICE, AND THE SALARY THEREOF, WITH THE UNITED STATES.

QUESTION 4

IF A JUDGE RETIRED UNDER THE ACT SHOULD ACCEPT EMPLOYMENT WITH A STATE OR MUNICIPAL GOVERNMENT OR AGENCY HAVING NO CONNECTION WITH THE FEDERAL OR DISTRICT OF COLUMBIA GOVERNMENTS WOULD THERE BE ANY LEGAL PROHIBITION AGAINST HIS ACCEPTING COMPENSATION OF SUCH EMPLOYMENT WHILE STILL RECEIVING RETIREMENT SALARY UNDER THE MUNICIPAL COURT ACT?

THIS QUESTION IS ANSWERED IN THE NEGATIVE.

QUESTION 5

IF A JUDGE RETIRED UNDER THE ACT SHOULD ACCEPT EMPLOYMENT WITH A TERRITORIAL GOVERNMENT SUCH AS ALASKA, THE VIRGIN ISLANDS, PUERTO RICO OR HAWAII, WOULD THERE BY ANY LEGAL PROHIBITION AGAINST HIS ACCEPTING COMPENSATION FOR SUCH EMPLOYMENT WHILE STILL RECEIVING RETIRED PAY UNDER THE MUNICIPAL COURT ACT?

THE ANSWERS TO QUESTION 2 AND 3 ARE EQUALLY APPLICABLE HERE.

QUESTION 6

IF UNDER THE CIRCUMSTANCES STATED WITH RESPECT TO QUESTIONS 4 AND 5 A JUDGE SHOULD ACCEPT EMPLOYMENT ON A TEMPORARY OR ANNUAL BASIS WITH SOME INTERNATIONAL ORGANIZATION, SUCH AS THE UNITED NATIONS, INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT OR THE INTERNATIONAL LABOR ORGANIZATION, WOULD HE LEGALLY BE PERMITTED TO ACCEPT COMPENSATION FOR HIS SERVICES TO SUCH ORGANIZATIONS WHILE ALSO RECEIVING HIS RETIREMENT SALARY?

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. 27 COMP. GEN. 12.

QUESTION 7

MAY A RETIRED JUDGE UPON RECALL FOR JUDICIAL ASSIGNMENT VOLUNTARILY SERVE FOR A PERIOD IN EXCESS OF THE STATUTORY PERIOD OF 90 DAYS IN ANY ONE YEAR?

AS THE PROVISIONS OF TITLE 11, SECTION 776 (B) OF THE DISTRICT CODE DO NOT AUTHORIZE A CHANGE IN COMPENSATION OF A RETIRED JUDGE WHEN RECALLED TO DUTY, THIS QUESTION WOULD GO ONLY TO THE LEGALITY OF ANY JUDGMENT, DECISION, OR ACTION BY THE JUDGE IF CONTINUED ON ACTIVE DUTY FOR MORE THAN 90 DAYS, WHICH QUESTION PROPERLY IS NOT FOR DECISION BY THIS OFFICE. HOWEVER, BEARING IN MIND THAT THE LANGUAGE OF THE SAID SECTION APPEARS TO BE THE LIMITATION UPON THE MANDATORILY REQUIRED SERVICE RATHER THAN UPON THE QUALIFICATION OF A RETIRED JUDGE, IT IS THE OPINION OF THIS OFFICE THAT A RETIRED JUDGE PROPERLY MAY SERVE IN EXCESS OF 90 DAYS SHOULD HE SO DESIRE.

QUESTION 8

WHAT SHOULD BE THE RETIRED SALARY OF A JUDGE OR CHIEF JUDGE RESPECTIVELY, OF THE MUNICIPAL COURT OF APPEALS, WHO RETIRED AFTER THE COMPLETION OF 25 YEARS OF AGGREGATE SERVICE ON TWO OR MORE OF THE THREE COURTS NAMED IN SECTION 11 (A) OF THE ACT ABOVE REFERRED TO (THE JUVENILE COURT, THE MUNICIPAL COURT, AND THE MUNICIPAL COURT OF APPEALS) BUT BEFORE COMPLETING A 26TH YEAR OF SERVICE?

WHILE THE LANGUAGE OF SECTION 776 (A) OF THE DISTRICT CODE DEFINES THE CREDIT FOR RETIREMENT PURPOSES TO THE "TOTAL OF HIS AGGREGATE YEARS" THE COURT OF CLAIMS IN CONSIDERING A SIMILAR STATUTE HELD THAT CREDIT SHOULD BE ALLOWED FOR BOTH WHOLE AND FRACTIONAL YEARS IN THE COMPUTATION OF RETIRED PAY OF A FEDERAL DISTRICT COURT JUDGE, COOPER V. UNITED STATES, 81 F.1SUPP. 734. IN THAT REGARD ATTENTION IS INVITED TO OFFICE DECISION OF DECEMBER 8, 1947, B-70956, 27 COMP. GEN. 320, TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, A COPY OF WHICH IS ENCLOSED FOR YOUR CONVENIENCE. UNDER THE RULE OF THIS OFFICE AND OF THE FORMULA SET FORTH IN SECTION 776 (A), SUPRA, THE RETIREMENT SALARY OF A JUDGE WHOSE AGGREGATE YEARS OF SERVICE EXCEEDED 25 BUT DID NOT ATTAIN 26, WOULD BE 25/30 OF HIS ANNUAL SALARY RATE UPON THE DATE OF HIS RETIREMENT.