B-135515, MAY 12, 1958

B-135515: May 12, 1958

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THE ACT OF 1918 (33 U.S.C. 763) PROVIDES IN PERTINENT PART THAT THE ANNUAL COMPENSATION OF OFFICERS AND EMPLOYEES OF THE FORMER LIGHTHOUSE SERVICE WHO ARE RETIRED UNDER THAT ACT SHALL BE A SUM EQUAL TO ONE FORTIETH OF THE "AVERAGE ANNUAL PAY RECEIVED FOR THE LAST FIVE YEARS OF SERVICE" FOR EACH YEAR OF ACTIVE SERVICE IN THE LIGHTHOUSE SERVICE. ARE NOT REGARDED BY US AS CONTROLLING FOR PURPOSES OF COMPUTING THE BASE FOR RETIREMENT PAY OF PERSONNEL RETIRED UNDER THE PROVISIONS OF 33 U.S.C. 763. AS FOLLOWS: "THE HEAD OF THE DEPARTMENT IN WHICH THE COAST GUARD IS OPERATING. IT APPEARS PROPER TO CONCLUDE THAT CONGRESS INTENDS THAT THE ADMINISTRATIVE REGULATIONS OF THE RETIRED PAY OF SUCH EMPLOYEES MAY ADAPT THERETO ONLY SUCH ANALOGOUS PROVISIONS OF OTHER CIVIL RETIREMENT LAWS AS ARE FOUND TO BE CONSISTENT WITH THE FORMULA PROVIDED IN SECTION 6 OF THE LIGHTHOUSE RETIREMENT ACT.

B-135515, MAY 12, 1958

TO THE SECRETARY OF THE TREASURY:

ON MARCH 12, 1958, THE ACTING SECRETARY OF THE TREASURY REQUESTED OUR DECISION CONCERNING THE PRACTICE FOLLOWED BY THE COAST GUARD IN COMPUTING THE BASE FOR RETIREMENT PAY OF FORMER LIGHTHOUSE SERVICE PERSONNEL RETIRED UNDER THE PROVISION OF SECTION 6 OF THE ACT OF JUNE 20, 1918, AS AMENDED AND SUPPLEMENTED, 33 U.S.C. 763, 765.

THE ACT OF 1918 (33 U.S.C. 763) PROVIDES IN PERTINENT PART THAT THE ANNUAL COMPENSATION OF OFFICERS AND EMPLOYEES OF THE FORMER LIGHTHOUSE SERVICE WHO ARE RETIRED UNDER THAT ACT SHALL BE A SUM EQUAL TO ONE FORTIETH OF THE "AVERAGE ANNUAL PAY RECEIVED FOR THE LAST FIVE YEARS OF SERVICE" FOR EACH YEAR OF ACTIVE SERVICE IN THE LIGHTHOUSE SERVICE, OR IN A DEPARTMENT OR BRANCH OF THE GOVERNMENT HAVING A RETIREMENT SYSTEM, NOT TO EXCEED IN ANY CASE THIRTY-FORTIETHS OF SUCH AVERAGE ANNUAL PAY RECEIVED.

REGARDING THE ACTING SECRETARY'S REFERENCE TO THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND TO THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED, IN OUR DECISION OF OCTOBER 25, 1954, B-120604, WE HELD THAT THE RULES PROVIDED IN SECTION 604 (D) OF THE 1945 PAY ACT FOR COMPUTATION OF SALARIES DID NOT REQUIRE ANY CHANGE IN THE PROCEDURE ESTABLISHED FOR COMPUTATION OF ANNUITIES OF EMPLOYEES RETIRED IN ACCORDANCE WITH THE 1930 RETIREMENT ACT. HOWEVER, SECTION 3 (A) OF THE 1930 ACT (5 U.S.C. 693) AS AMENDED JULY 31, 1956--- SEE SECTION 2 (B), 70 STAT. 745, 5 U.S.C. 2252--- PROVIDES "THIS ACT SHALL NOT APPLY * * * TO ANY EMPLOYEE OF THE GOVERNMENT SUBJECT TO ANOTHER RETIREMENT SYSTEM FOR GOVERNMENT EMPLOYEES.' HENCE, THE CONCLUSIONS REACHED IN OUR DECISION OF OCTOBER 25, 1954, B-120604, ARE NOT REGARDED BY US AS CONTROLLING FOR PURPOSES OF COMPUTING THE BASE FOR RETIREMENT PAY OF PERSONNEL RETIRED UNDER THE PROVISIONS OF 33 U.S.C. 763.

THE ACTING SECRETARY SAYS THE PRACTICE INITIATED BY THE FORMER LIGHTHOUSE SERVICE HAS BEEN CONTINUED BY THE COAST GUARD UNDER AUTHORITY CONTAINED IN THE ACT OF AUGUST 4, 1949, 63 STAT. 526, AS AMENDED, 14 U.S.C. 432 (G), AS FOLLOWS:

"THE HEAD OF THE DEPARTMENT IN WHICH THE COAST GUARD IS OPERATING, UNDER REGULATIONS PRESCRIBED BY HIM, MAY REGULATE THE HOURS OF DUTY AND THE PAY OF CIVILIAN KEEPERS OF LIGHTHOUSES AND CIVILIANS EMPLOYED ON LIGHTSHIPS AND OTHER VESSELS OF THE COAST GUARD * * *. THE EXISTING SYSTEM GOVERNING THE PAY OF SUCH EMPLOYEES MAY BE CONTINUED OR CHANGED * * *.'

THUS, UPON A COMPARISON OF THE BRIEF TEXT OF THE LIGHTHOUSE RETIREMENT ACT WITH THE COMPREHENSIVE AND DETAILED TEXT OF THE CIVIL SERVICE RETIREMENT ACT, IT APPEARS PROPER TO CONCLUDE THAT CONGRESS INTENDS THAT THE ADMINISTRATIVE REGULATIONS OF THE RETIRED PAY OF SUCH EMPLOYEES MAY ADAPT THERETO ONLY SUCH ANALOGOUS PROVISIONS OF OTHER CIVIL RETIREMENT LAWS AS ARE FOUND TO BE CONSISTENT WITH THE FORMULA PROVIDED IN SECTION 6 OF THE LIGHTHOUSE RETIREMENT ACT, 33 U.S.C. 763. IN THAT REGARD, THE LANGUAGE,"AVERAGE ANNUAL PAY RECEIVED FOR THE LAST FIVE YEARS OF SERVICE," IS SUSCEPTIBLE OF A CONSTRUCTION OTHER THAN AS HAVING THE SAME MEANING AS AN "AVERAGE SALARY" RATE AS DEFINED IN THE CURRENT CIVIL SERVICE RETIREMENT ACT. SEE 5 U.S.C. 2259 (A) AND 2251 (E). MOREOVER, IT APPEARS THAT THE PAY RECEIVED IN THE LIGHTHOUSE SERVICE FOR ANY GIVEN YEAR--- WHEN COMPUTED IN ACCORDANCE WITH THE FORMULA OF THE FEDERAL EMPLOYEES PAY ACT, 5 U.S.C. 944, WHICH IS APPLICABLE TO SUCH SERVICE--- WILL NOT BE THE SAME AMOUNT AS A "BASIC SALARY" AS DEFINED IN 5 U.S.C. 2251 (D). COMPARE THE PROVISIONS OF 14 U.S.C. 432 (G), LAST PARAGRAPH, WHICH PROVIDES THAT THE ADDITIONAL COMPENSATION AUTHORIZED THEREIN SHALL BE INCLUDED IN ANY COMPUTATION OF COMPENSATION FOR PURPOSES OF THE LIGHTHOUSE SERVICE RETIREMENT ACT.

AS STATED BY THE ACTING SECRETARY THERE ARE VARIOUS UNRECONCILABLE FEATURES BETWEEN THE TWO RETIREMENT SYSTEMS, AND AUTHORITY IS VESTED IN THE COAST GUARD TO CONTINUE OR CHANGE THE EXISTING SYSTEM OF PAY FOR CIVILIAN KEEPERS OF LIGHTHOUSES AND CIVILIAN ATTENDANTS OF LIGHTSHIPS AND OTHER VESSELS OF THE COAST GUARD.

THEREFORE, AND IN LIGHT OF THE RETIRED EMPLOYEE-EXAMPLE DISCUSSED IN THE ACTING SECRETARY'S LETTER, WE ARE NOT REQUIRED UNDER THE STATUTES GOVERNING OUR JURISDICTION IN THE MATTER TO OBJECT TO CONTINUATION OF THE PRESENT METHOD OF COMPUTATION OF THE AVERAGE "PAY RECEIVED" FOR THE LAST FIVE-YEAR PERIOD ON WHICH THE RESULTANT RETIREMENT PAY IS BASED.