B-143814, SEPTEMBER 14, 1960, 40 COMP. GEN. 166

B-143814: Sep 14, 1960

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THE FORMER REQUIREMENT THAT ONLY FULL YEARS OF SERVICE BE COUNTED WILL NOT LONGER BE INSISTED UPON IN THE COMPUTATION OF RETIREMENT SALARY. 31 COMP. IS SUBMITTED WITH THE APPROVAL OF THE CHIEF JUDGE. YOUR SPECIFIC QUESTION IS. THAT IS TO SAY. THERE IS NOTHING THEREIN TO SHOW WHETHER SUCH LANGUAGE INCLUDES OR EXCLUDES A FRACTIONAL PART OF A YEAR OF SERVICE. WE NO LONGER WILL INSIST THAT THE RETIREMENT PAY OF JUDGES OF THE MUNICIPAL COURT OF THE DISTRICT OF COLUMBIA BE COMPUTED ONLY ON THE BASIS OF FULL YEARS OF SERVICE. YOUR SPECIFIC QUESTION SET FORTH ABOVE IS ANSWERED IN THE AFFIRMATIVE.

B-143814, SEPTEMBER 14, 1960, 40 COMP. GEN. 166

DISTRICT OF COLUMBIA JUDGES - RETIREMENT - SERVICE CREDITS - FRACTIONAL YEARS FRACTIONAL PARTS OF A YEAR'S SERVICE PERFORMED BY JUDGES OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA MAY BE COUNTED IN DETERMINING THE TOTAL AGGREGATE YEARS OF SERVICE FOR COMPUTATION OF RETIREMENT SALARY UNDER SECTION 11-776 (A), DISTRICT OF COLUMBIA CODE, THERE BEING NO BASIS FOR EXCLUDING FRACTIONAL YEARS OF SERVICE IN THE ABSENCE OF ANY INDICATION IN THE LEGISLATIVE HISTORY OF THE PROVISION TO INDICATE THE INTENDED MEANING OF THE PHRASE "THE TOTAL OF HIS AGGREGATE YEARS OF SERVICE; " THEREFORE, THE FORMER REQUIREMENT THAT ONLY FULL YEARS OF SERVICE BE COUNTED WILL NOT LONGER BE INSISTED UPON IN THE COMPUTATION OF RETIREMENT SALARY. 31 COMP. GEN. 505, MODIFIED.

TO THE HONORABLE GEORGE D. NEILSON, ASSOCIATE JUDGE, MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA, SEPTEMBER 14, 1960:

YOUR LETTER OF AUGUST 22, 1960, WHICH, YOU SAY, IS SUBMITTED WITH THE APPROVAL OF THE CHIEF JUDGE, REQUESTS OUR DECISION CONCERNING THE COMPUTATION OF THE RETIREMENT SALARY OF JUDGES OF THE MUNICIPAL COURT UNDER SUBSECTION 11-776 (A) OF THE DISTRICT OF COLUMBIA CODE, 1951 EDITION. YOUR SPECIFIC QUESTION IS---

MAY A FRACTION OF A YEAR BE COUNTED IN DETERMINING THE "AGGREGATE YEARS OF SERVICE" OF A JUDGE OF THE MUNICIPAL COURT IN RELATION TO THE PERIOD OF THIRTY YEARS FOR PURPOSES OF COMPUTING HIS RETIREMENT SALARY?

THAT QUESTION, YOU SAY, ARISES FROM YOUR RETIREMENT AS AN ASSOCIATE JUDGE OF THE SAID COURT, EFFECTIVE FROM AND AFTER AUGUST 18, 1960, ON WHICH DATE YOU HAD COMPLETED 20 YEARS 3 MONTHS AND 18 DAYS OF SERVICE BEGINNING MAY 1, 1940, UNDER YOUR ORIGINAL APPOINTMENT OF APRIL 29, 1940.

SUBSECTION 11 (A) OF THE ACT OF APRIL 1, 1942, 56 STAT. 190, 197, CODIFIED AS SUBSECTION 11-776 (A) OF THE DISTRICT OF COLUMBIA CODE, SUPRA, PROVIDES IN PART AS FOLLOWS:

(A) ANY JUDGE OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA * * * MAY HEREINAFTER RETIRE AFTER HAVING SERVED AS A JUDGE OF SUCH COURT FOR A PERIOD OR PERIODS AGGREGATING TWENTY YEARS OR MORE, WHETHER CONTINUOUSLY OR NOT. ANY JUDGE WHO SO RETIRES SHALL RECEIVE ANNUALLY IN EQUAL MONTHLY INSTALLMENTS, DURING THE REMAINDER OF HIS LIFE, A SUM EQUAL TO SUCH PROPORTION OF THE SALARY RECEIVED BY SUCH JUDGE AT THE DATE OF SUCH RETIREMENT AS THE TOTAL OF HIS AGGREGATE YEARS OF SERVICE BEARS TO THE PERIOD OF THIRTY YEARS, THE SAME TO BE PAID IN THE SAME MANNER AS THE SALARY OF SUCH JUDGE. IN NO EVENT SHALL THE SUM RECEIVED BY ANY SUCH JUDGE HEREUNDER BE IN EXCESS OF THE SALARY OF SUCH JUDGE AT THE DATE OF SUCH RETIREMENT. IN COMPUTING THE YEARS OF SERVICE UNDER THIS SECTION, SERVICE IN EITHER THE POLICE COURT * * * THE MUNICIPAL COURT * * * OR THE JUVENILE COURT OF THE DISTRICT OF COLUMBIA, AS HERETOFORE CONSTITUTED, SHALL BE INCLUDED WHETHER OR NOT SUCH SERVICE BE CONTINUOUS. 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.

AS YOUR LETTER SUGGESTS, THE LEGISLATIVE HISTORY OF THE 1942 ACT DOES NOT CONTAIN ANY INDICATION OF THE INTENDED MEANING OF THE LANGUAGE "THE TOTAL OF HIS AGGREGATE YEARS OF SERVICE.' THAT IS TO SAY, THERE IS NOTHING THEREIN TO SHOW WHETHER SUCH LANGUAGE INCLUDES OR EXCLUDES A FRACTIONAL PART OF A YEAR OF SERVICE. HOWEVER, IT DOES NOT SEEM REASONABLE THAT THE CONGRESS INTENDED TO DENY CREDIT FOR A FRACTIONAL PART OF A YEAR IN COMPUTING THE RETIREMENT PAY OF A JUDGE OF THE MUNICIPAL COURT OF THE DISTRICT OF COLUMBIA, PARTICULARLY, WHEN SUCH FRACTIONAL SERVICE COULD EXTEND TO AS MUCH AS 11 MONTHS AND 29 DAYS. WE NOTE THAT UNDER SECTION 11 -753 OF THE CODE (SECTION 2 OF THE ACT) ALL JUDGES SHALL CONTINUE IN OFFICE UNTIL THEIR SUCCESSORS SHALL BE APPOINTED AND QUALIFIED. SUCH PROVISION OF THE ACT DOUBTLESS CONTEMPLATES THAT SOME FRACTIONAL PART OF A YEAR'S SERVICE MIGHT ACCRUE AFTER THE EXPIRATION OF A JUDGE'S USUAL TEN- YEAR APPOINTMENT OR REAPPOINTMENT.

BY REASON OF THE FOREGOING COMMENTS, AND IN VIEW OF THE RULING IN THE SOMEWHAT SIMILAR CASE OF COOPER V. UNITED STATES, DECIDED JANUARY 3, 1949, 112 CT.1CL. 559, 81 F.SUPP. 734, WE NO LONGER WILL INSIST THAT THE RETIREMENT PAY OF JUDGES OF THE MUNICIPAL COURT OF THE DISTRICT OF COLUMBIA BE COMPUTED ONLY ON THE BASIS OF FULL YEARS OF SERVICE. RATHER, A FRACTIONAL PART OF A YEAR SHOULD BE INCLUDED IN SUCH COMPUTATION ALONG THE LINES OF COOPER V. UNITED STATES, SUPRA. IN ARRIVING AT THE ABOVE DECISION OF APRIL 10, 1952, 31 COMP. GEN. 505.

THEREFORE, YOUR SPECIFIC QUESTION SET FORTH ABOVE IS ANSWERED IN THE AFFIRMATIVE.