B-164955, SEPT. 19, 1968

B-164955: Sep 19, 1968

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3 PERCENT OF HIS SALARY IS DEDUCTED FOR DEPOSIT TO HIS INDIVIDUAL ACCOUNT IN THE RETIREMENT AND SURVIVOR ANNUITY FUND. THAT IS. HIS CONTRIBUTIONS TO THE FUND ARE RETURNED TO HIM. ARE ENTITLED TO ANNUITIES IN SPECIFIED AMOUNTS. WILL BECOME ENTITLED. TO ANNUITY BENEFITS PROVIDED BY PARAGRAPH (5) OF THIS SUBSECTION * * * OR (B) THE RIGHT OF ALL PERSONS ENTITLED TO AN ANNUITY UNDER PARAGRAPH (5) OF THIS SUBSECTION BASED ON THE SERVICE OF SUCH JUDGE SHALL TERMINATE BEFORE A VALID CLAIM THEREFOR SHALL HAVE BEEN ESTABLISHED. TO THE BENEFICIARY OR BENEFICIARIES WHOM THE JUDGE MAY HAVE DESIGNATED BY A WRITING RECEIVED BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA PRIOR TO HIS DEATH. THE RELEVANT PORTION OF PARAGRAPH 8 OF SUBSECTION (B) IS AS FOLLOWS: "IN ANY CASE IN WHICH THE ANNUITIES OF ALL PERSONS ENTITLED TO ANNUITY BASED UPON THE SERVICE OF A JUDGE SHALL TERMINATE BEFORE THE AGGREGATE AMOUNT OF ANNUITY PAID (TOGETHER WITH ANY AMOUNTS RECEIVED BY THE JUDGE AS RETIREMENT SALARY) EQUALS THE TOTAL AMOUNT CREDITED TO THE INDIVIDUAL ACCOUNT OF SUCH JUDGE * * * THE DIFFERENCE SHALL BE PAID * * * IN THE ORDER OF PRECEDENCE PRESCRIBED IN PARAGRAPH (7) OF THIS SUBSECTION.'.

B-164955, SEPT. 19, 1968

TO MR. BARNEY FARBER:

WE REFER TO YOUR LETTER AND ENCLOSURES OF JULY 29, 1968, REQUESTING A DECISION WHETHER THE DISTRICT OF COLUMBIA GOVERNMENT MAY REFUND TO JUDGE THOMAS C. SCALLEY A SUM OF MONEY PAID BY HIM INTO THE DISTRICT OF COLUMBIA JUDICIAL RETIREMENT AND SURVIVOR ANNUITY FUND, AND ALSO WHETHER CURRENT DEDUCTIONS FOR SURVIVOR BENEFITS MAY BE TERMINATED.

UNDER SECTION (B) OF THE DISTRICT OF COLUMBIA JUDGES RETIREMENT ACT OF 1964, D.C. CODE SEC. 11-1701, JUDGE SCALLEY ELECTED ON APRIL 13, 1965, TO PURCHASE SURVIVOR BENEFITS FOR HIS WIFE. THEREAFTER, JUDGE SCALLEY PAID INTO THE FUND UNDER THIS ELECTION AN AMOUNT THAT TOTALED $9,025.58 AS OF THE DATE OF YOUR LETTER. ON JUNE 8, 1968, MRS. SCALLEY DIED. THE JUDGE HAS SUBMITTED TO YOU A VOUCHER COVERING THE AMOUNT PAID INTO THE FUND AND HAS REQUESTED THATPAPYROLL DEDUCTIONS FOR SURVIVOR BENEFITS UNDER THIS APRIL 1965 ELECTION BE ELIMINATED.

THE STATUTORY SCHEME UNDER WHICH THE CASE ARISES PROVIDES IN SUBSECTION (B) THAT SPECIFIED DISTRICT OF COLUMBIA JUDGES, WITHIN STATED TIME PERIODS, MAY ELECT IN WRITING TO BE COVERED BY THE SUBSECTION. IF A JUDGE ELECTS COVERAGE, 3 PERCENT OF HIS SALARY IS DEDUCTED FOR DEPOSIT TO HIS INDIVIDUAL ACCOUNT IN THE RETIREMENT AND SURVIVOR ANNUITY FUND; IN ADDITION, HE MUST MAKE A PAYMENT OR SERIES OF PAYMENTS COMPUTED UPON THE AMOUNT OF PRIOR SERVICE RENDERED. IF A JUDGE RESIGNS FROM OFFICE OTHERWISE THAN AS PROVIDED IN SUBSECTION (A), THAT IS, UNDER CIRCUMSTANCES IN WHICH HE WOULD NOT BE ENTITLED TO A RETIREMENT ANNUITY, HIS CONTRIBUTIONS TO THE FUND ARE RETURNED TO HIM. IF A JUDGE DIES IN ACTIVE SERVICE OR DURING RETIREMENT UNDER SUBSECTION (A), AFTER A STATED MINIMUM OF CREDITABLE SERVICE AND AFTER AT LEAST 5 YEARS' WORTH OF DEPOSITS IN THE FUND, HIS WIDOW AND DEPENDENT CHILDREN, AS DEFINED LATER IN SUBSECTION (B), ARE ENTITLED TO ANNUITIES IN SPECIFIED AMOUNTS. THE SUBSECTION FURTHER PROVIDES FOR THE TERMINATION OF AN ANNUITY UPON THE OCCURRENCE OF CERTAIN EVENTS.

PARAGRAPH 7 OF SUBSECTION (B) PROVIDES IN RELEVANT PART:

"IN ANY CASE IN WHICH (A) A JUDGE WHO HAS ELECTED TO BRING HIMSELF WITHIN THE PURVIEW OF THIS SUBSECTION SHALL DIE (I) WHILE IN REGULAR ACTIVE SERVICE AFTER HAVING RENDERED FIVE YEARS OF CIVILIAN SERVICE COMPUTED AS PRESCRIBED IN PARAGRAPH (13) OF THIS SUBSECTION, OR WHILE RECEIVING RETIREMENT SALARY UNDER THIS SECTION, BUT WITHOUT A SURVIVOR OR SURVIVORS ENTITLED OR WHO, UPON ATTAINING THE AGE OF FIFTY, WILL BECOME ENTITLED, TO ANNUITY BENEFITS PROVIDED BY PARAGRAPH (5) OF THIS SUBSECTION * * * OR (B) THE RIGHT OF ALL PERSONS ENTITLED TO AN ANNUITY UNDER PARAGRAPH (5) OF THIS SUBSECTION BASED ON THE SERVICE OF SUCH JUDGE SHALL TERMINATE BEFORE A VALID CLAIM THEREFOR SHALL HAVE BEEN ESTABLISHED, THE TOTAL AMOUNT CREDITED TO AN INDIVIDUAL ACCOUNT OF SUCH JUDGE UNDER THIS SECTION * * * TO THE DATE OF THE DEATH OF SUCH JUDGE, SHALL BE PAID, UPON THE ESTABLISHMENT OF A VALID CLAIM THEREFOR, TO THE PERSON OR PERSONS SURVIVING AT THE DATE TITLE TO THE PAYMENT ARISES, IN THE FOLLOWING ORDER OF PRECEDENCE, AND SUCH PAYMENT SHALL BE A BAR TO RECOVERY BY ANY OTHER PERSON:

"FIRST, TO THE BENEFICIARY OR BENEFICIARIES WHOM THE JUDGE MAY HAVE DESIGNATED BY A WRITING RECEIVED BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA PRIOR TO HIS DEATH;

"SECOND, IF THERE BE NO SUCH BENEFICIARY, TO THE WIDOW OF SUCH JUDGE;

"THIRD, IF NONE OF THE ABOVE, TO THE CHILD OR CHILDREN OF SUCH JUDGE AND THE DESCENDANTS OF ANY DECEASED CHILDREN BY REPRESENTATION;

"FOURTH, IF NONE OF THE ABOVE, TO THE PARENTS OF SUCH JUDGE OR THE SURVIVOR OF THEM;

"FIFTH, IF NONE OF THE ABOVE, TO THE DULY APPOINTED EXECUTOR OR ADMINISTRATOR OF THE ESTATE OF SUCH JUDGE;

"SIXTH, IF NONE OF THE ABOVE, TO SUCH OTHER NEXT OF KIN OF SUCH JUDGE AS MAY BE DETERMINED BY THE COMMISSIONERS TO BE ENTITLED UNDER THE LAWS OF THE DOMICILE OF SUCH JUDGE AT THE TIME OF HIS DEATH.'

THE RELEVANT PORTION OF PARAGRAPH 8 OF SUBSECTION (B) IS AS FOLLOWS:

"IN ANY CASE IN WHICH THE ANNUITIES OF ALL PERSONS ENTITLED TO ANNUITY BASED UPON THE SERVICE OF A JUDGE SHALL TERMINATE BEFORE THE AGGREGATE AMOUNT OF ANNUITY PAID (TOGETHER WITH ANY AMOUNTS RECEIVED BY THE JUDGE AS RETIREMENT SALARY) EQUALS THE TOTAL AMOUNT CREDITED TO THE INDIVIDUAL ACCOUNT OF SUCH JUDGE * * * THE DIFFERENCE SHALL BE PAID * * * IN THE ORDER OF PRECEDENCE PRESCRIBED IN PARAGRAPH (7) OF THIS SUBSECTION.'

NOWHERE DOES THE ACT SPECIFICALLY PROVIDE FOR THE SITUATION PRESENTED BY JUDGE SCALLEY'S CLAIM. GENERALLY SPEAKING, THE STATUTE SEEMS TO BE ADDRESSED TO THE TYPICAL SITUATION WHERE THE JUDGE'S WIFE WILL SURVIVE HIM.

THE CONGRESS SEEMS EITHER NOT TO HAVE ANTICIPATED THE POSSIBILITY THAT HAS COME TO PASS OR NOT TO HAVE CONSIDERED IT SUFFICIENTLY LIKELY TO HAVE MADE SPECIFIC PROVISION FOR IT. THE LEGISLATIVE HISTORY OF THIS PARTICULAR ACT THROWS NO ILLUMINATION ON THE PROBLEM. THE ONLY PROVISION DIRECTED TO THE POSSIBILITY THAT NO POTENTIAL ANNUITANT WILL SURVIVE THE JUDGE IS PARAGRAPH 7, ABOVE. SUBPART A OF PARAGRAPH 7 CONCERNS A SITUATION IN WHICH THE JUDGE HAS DIED WITHOUT BEING SURVIVED BY A POTENTIAL ANNUITANT. SUBPART B APPEARS TO RELATE TO A CASE WHERE, EVEN THOUGH A POTENTIAL ANNUITANT SURVIVES THE JUDGE, THE ANNUITY TERMINATES BEFORE IT IS CLAIMED. NOTE IN THIS CONNECTION THAT A REFERS TO A FAILURE BY ANYONE TO BECOME "ENTITLED" TO AN ANNUITY, WHILE B REFERS TO A FAILURE BY THOSE WHO ARE IN FACT "ENTITLED" TO AN ANNUITY TO MAKE A VALID CLAIM THEREFOR. IS INDICATED BY SEC. 11 1701 (B) (5), NO ONE IS ENTITLED TO AN ANNUITY UNTIL THE JUDGE HAS DIED. THEREFORE, IT WOULD APPEAR THAT SUBPART B, LIKE SUBPART A, CONCERNS A SITUATION IN WHICH THE JUDGE IS DECEASED.

WE NOTE THAT WHERE PARAGRAPH 7 COMMENCES ITS OUTLINE OF THE DISPOSITIVE SCHEME THERE APPEARS THE FOLLOWING LANGUAGE: "THE TOTAL AMOUNT CREDITED * * * TO THE DATE OF THE DEATH OF SUCH JUDGE.' THIS APPARENTLY ENVISIONS THAT EVEN WHERE ALL POTENTIAL ANNUITANTS HAVE PREDECEASED THE JUDGE, THE REGULAR PAYROLL DEDUCTIONS WILL CONTINUE TO BE MADE TO THE JUDGE'S DEATH. INFERENTIALLY, THEREFORE, THE JUDGE WOULD HAVE NO RIGHT TO WITHDRAW HIS CONTRIBUTIONS TO THE FUND EVEN THOUGH ALL POTENTIAL ANNUITANTS ARE DEAD.

MOREOVER, THERE IS SOME INDICATION IN THE LEGISLATIVE HISTORY OF THE JUDICIAL SURVIVORS ANNUITY ACT (28 U.S.C. 376) UPON WHICH THE ACT HERE INVOLVED WAS PATTERNED THAT NO REFUND OF PAST DEDUCTIONS OR CANCELLATION OF CURRENT DEDUCTIONS WAS INTENDED UNDER THE RELATED CIRCUMSTANCES. SEE THE HEARINGS (PARTICULARLY PAGES 11, 12 AND 22) ON H.R. 6974, BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY, DATED FEBRUARY 6, 1956, 84TH CONGRESS, 2ND SESSION.

ACCORDINGLY, THE QUESTIONS YOU PRESENT ARE ANSWERED IN THE NEGATIVE AND THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.