B-125145, AUG. 23, 1955

B-125145: Aug 23, 1955

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GEORGE FINKELSTEIN: REFERENCE IS MADE TO YOUR LETTER OF JULY 29. YOU WOULD HAVE TO YOUR CREDIT 49 YEARS. YOU ALSO SAY THAT AFTER YOU EXECUTED THE NECESSARY FORMS FOR RETIREMENT THE CHIEF OF YOUR OFFICE WAS VERBALLY NOTIFIED THAT YOUR EXTENSION OF EMPLOYMENT HAD BEEN GRANTED. UPON YOUR LATER INQUIRY AS TO THE LUMP-SUM PAYMENT FOR THE 480 HOURS OF ANNUAL LEAVE TO YOUR CREDIT AT THE TIME OF RETIREMENT YOU WERE ADVISED THAT WHEN YOU LEFT THE SERVICE YOU WOULD BE PAID FOR THE LEAVE AT THE DIFFERENCE BETWEEN YOUR SALARY IN THE TEMPORARY POSITION AND THE AMOUNT OF YOUR ANNUITY OR AT THE RATE OF $1. THE INFORMATION FURNISHED BY YOU INDICATES THAT YOU WERE RETIRED ACCORDING TO LAW. WERE GIVEN A TEMPORARY APPOINTMENT UNDER CIVIL SERVICE REGULATION 2.304.

B-125145, AUG. 23, 1955

TO MR. GEORGE FINKELSTEIN:

REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1955, IN WHICH YOU SAY THAT ON DECEMBER 14, 1954, YOU REQUESTED THAT YOUR MANDATORY RETIREMENT ON MAY 31, 1955, AFTER REACHING AGE 70 ON MAY 30, BE EXTENDED SO THAT YOU COULD COMPLETE 50 YEARS OF FEDERAL SERVICE, SINCE ON MAY 31, 1955, YOU WOULD HAVE TO YOUR CREDIT 49 YEARS, 11 MONTHS, AND 5 DAYS OF SERVICE. YOU ALSO SAY THAT AFTER YOU EXECUTED THE NECESSARY FORMS FOR RETIREMENT THE CHIEF OF YOUR OFFICE WAS VERBALLY NOTIFIED THAT YOUR EXTENSION OF EMPLOYMENT HAD BEEN GRANTED. SUBSEQUENTLY, YOU RECEIVED A PERSONNEL ACTION SHOWING YOUR RETIREMENT AND ANOTHER SUCH ACTION SHOWING YOUR TEMPORARY APPOINTMENT NOT TO EXCEED JULY 31, 1955. UPON YOUR LATER INQUIRY AS TO THE LUMP-SUM PAYMENT FOR THE 480 HOURS OF ANNUAL LEAVE TO YOUR CREDIT AT THE TIME OF RETIREMENT YOU WERE ADVISED THAT WHEN YOU LEFT THE SERVICE YOU WOULD BE PAID FOR THE LEAVE AT THE DIFFERENCE BETWEEN YOUR SALARY IN THE TEMPORARY POSITION AND THE AMOUNT OF YOUR ANNUITY OR AT THE RATE OF $1,391 PER ANNUM. THIS ACTION, YOU SAY, WOULD RESULT IN THE LOSS OF AT LEAST $700 BASED UPON YOUR CALCULATIONS. THE INFORMATION FURNISHED BY YOU INDICATES THAT YOU WERE RETIRED ACCORDING TO LAW, AND WERE GIVEN A TEMPORARY APPOINTMENT UNDER CIVIL SERVICE REGULATION 2.304, Z1 227, FEDERAL PERSONNEL MANUAL. THAT REGULATION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/A) AGENCY AUTHORITY.--- ANY PERSON WHO IS ELIGIBLE AND SELECTED FOR EMPLOYMENT IN A CONTINUING POSITION UNDER ANY REGULATION OF THE COMMISSION AND WHO ENTERS ON DUTY ON OR AFTER HIS SEVENTIETH (70TH) BIRTHDAY SHALL BE GIVEN A TEMPORARY REVIEWABLE APPOINTMENT FOR A PERIOD NOT TO EXCEED ONE YEAR. * * *"

IT IS INFORMALLY UNDERSTOOD, FROM A DISCUSSION OF YOUR CASE WITH THE CIVIL SERVICE COMMISSION, RETIREMENT DIVISION, THAT YOUR TEMPORARY APPOINTMENT UNDER THE ABOVE-QUOTED REGULATION WAS FORTHCOMING ONLY AFTER THE REQUIREMENTS OF SECTION 2 (B), QUOTED BELOW, WERE MET ADMINISTRATIVELY, THAT IS, THAT YOU WERE POSSESSED OF SPECIAL QUALIFICATIONS. SECTION 2 (B) OF THE ACT OF FEBRUARY 28, 1948, 62 STAT. 49, PROVIDES THAT:

"NO PERSON WHO IS RECEIVING AN ANNUITY UNDER THE PROVISIONS OF THIS ACT AND WHO HAS REACHED THE AGE OF SIXTY YEARS SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE GOVERNMENT OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, UNLESS THE APPOINTING AUTHORITY DETERMINES THAT HE IS POSSESSED OF SPECIAL QUALIFICATIONS: PROVIDED, THAT NO DEDUCTIONS FOR THE RETIRMENT FUND SHALL BE WITHHELD FROM THE SALARY, PAY, OR COMPENSATION OF SUCH PERSON, BUT THERE SHALL BE DEDUCTED FROM HIS SALARY, PAY, OR COMPENSATION OTHERWISE PAYABLE A SUM EQUAL TO THE RETIREMENT ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT: PROVIDED FURTHER, THAT THE ANNUITY IN SUCH CASE SHALL NOT BE REDETERMINED UPON SUCH PERSON'S SUBSEQUENT SEPARATION FROM THE SERVICE.'

UPON THE FOREGOING FACTS AND CIRCUMSTANCES YOUR CASE FALLS WITHIN THE PURVIEW OF OUR DECISION OF JUNE 20, 1955, B-119962 (34 COMP. GEN. 685), WHICH HELD AS FOLLOWS, QUOTING THE SYLLABUS:

"AN EMPLOYEE WHO WAS RETIRED AT THE MANDATORY RETIREMENT AGE AND IMMEDIATELY REEMPLOYED PURSUANT TO SECTION 2 (B) OF THE ACT OF FEBRUARY 28, 1948, IS ENTITLED TO A LUMP-SUM LEAVE PAYMENT COMPUTED ON THE RATE OF COMPENSATION HE WAS RECEIVING AT TERMINATION OF HIS SECOND EMPLOYMENT, LESS DEDUCTION FOR HIS RETIREMENT ANNUITY, AS REQUIRED BY SAID ACT.'

A COPY OF THAT DECISION IS ENCLOSED. SINCE THAT DECISION FULLY STATES THE BASIS FOR THE CONCLUSION SO REACHED IT WOULD BE NEEDLESS REPETITION TO RESTATE THAT BASIS HERE. IT THUS APPEARS UPON THE FACTS RELATED BY YOU THAT THE ADMINISTRATIVE OFFICE HAS CORRECTLY ADVISED YOU IN THE MATTER.