B-58911, B-177806, MAR 11, 1974, 53 COMP GEN 654

B-177806,B-58911: Mar 11, 1974

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RETIREMENT - CIVILIAN - REEMPLOYED ANNUITANT - ANNUITY DEDUCTION - MANDATORY A RETIRED ANNUITANT WHO IS A MEMBER OF THE TECHNOLOGY ASSESSMENT ADVISORY COUNCIL IS NOT EXEMPT FROM THE REQUIREMENTS OF 5 U.S.C. 8344(A) THAT AN AMOUNT EQUAL TO THE ANNUITY ALLOCABLE TO A PERIOD OF EMPLOYMENT BE DEDUCTED FROM THE PAY OF AN ANNUITANT. OPERATES TO LIMIT THE AMOUNT OF PAY FIXED FOR MEMBERS AND THAT FIXED RATE MAY NOT VARY BECAUSE A COUNCIL MEMBER WILL RECEIVE LESS PAY BY VIRTUE OF THE RESTRICTION IN 5 U.S.C. 8344(A). (2 U.S.C. 471 NOTE) SUBMITS FOR DECISION THE QUESTION WHETHER A CIVIL SERVICE ANNUITANT WHO IS APPOINTED AS ONE OF THE TEN PUBLIC MEMBERS OF THE TECHNOLOGY ASSESSMENT ADVISORY COUNCIL IS SUBJECT TO THE PROVISION IN 5 U.S.C. 8344(A) REQUIRING THAT THE PAY OF A REEMPLOYED ANNUITANT BE REDUCED BY THE AMOUNT OF HIS ANNUITY.

B-58911, B-177806, MAR 11, 1974, 53 COMP GEN 654

RETIREMENT - CIVILIAN - REEMPLOYED ANNUITANT - ANNUITY DEDUCTION - MANDATORY A RETIRED ANNUITANT WHO IS A MEMBER OF THE TECHNOLOGY ASSESSMENT ADVISORY COUNCIL IS NOT EXEMPT FROM THE REQUIREMENTS OF 5 U.S.C. 8344(A) THAT AN AMOUNT EQUAL TO THE ANNUITY ALLOCABLE TO A PERIOD OF EMPLOYMENT BE DEDUCTED FROM THE PAY OF AN ANNUITANT, BECAUSE THAT PROVISION COVERS ALL POSITIONS NOT SPECIFICALLY EXEMPTED, AND CONGRESS HAS NOT EXEMPTED COUNCIL MEMBERS. COMPENSATION - BOARDS, COMMITTEES, AND COMMISSIONS - TECHNOLOGY ASSESSMENT ADVISORY COUNCIL MEMBERS - REEMPLOYED ANNUITANT THE LIMITATION ON THE PAY OF PUBLIC MEMBERS OF THE TECHNOLOGY ASSESSMENT ADVISORY COUNCIL CONTAINED IN SECTION 7(E)(2), PUBLIC LAW 92 484, OPERATES TO LIMIT THE AMOUNT OF PAY FIXED FOR MEMBERS AND THAT FIXED RATE MAY NOT VARY BECAUSE A COUNCIL MEMBER WILL RECEIVE LESS PAY BY VIRTUE OF THE RESTRICTION IN 5 U.S.C. 8344(A).

IN THE MATTER OF THE PAY OF AN EMPLOYED ANNUITANT, MARCH 11, 1974:

THE OFFICE OF TECHNOLOGY ASSESSMENT (OTA), AN ARM OF CONGRESS ESTABLISHED UNDER THE TECHNOLOGY ASSESSMENT ACT OF 1972, PUBLIC LAW 92 484, 86 STAT. 797, OCTOBER 13, 1972, (2 U.S.C. 471 NOTE) SUBMITS FOR DECISION THE QUESTION WHETHER A CIVIL SERVICE ANNUITANT WHO IS APPOINTED AS ONE OF THE TEN PUBLIC MEMBERS OF THE TECHNOLOGY ASSESSMENT ADVISORY COUNCIL IS SUBJECT TO THE PROVISION IN 5 U.S.C. 8344(A) REQUIRING THAT THE PAY OF A REEMPLOYED ANNUITANT BE REDUCED BY THE AMOUNT OF HIS ANNUITY. THE REQUEST POINTS TO THE FACT THAT THE COUNCIL IS A BODY ESTABLISHED UNDER THE CONGRESS WHICH MIGHT CONSTITUTE AN ADEQAUTE BASIS FOR DISTINGUISHING IT FROM SIMILAR BODIES IN THE EXECUTIVE BRANCH INSOFAR AS CONCERNS THE APPLICATION OF THE AFORE-SAID REQUIREMENT. SECTION 7(E)(2) OF THAT PUBLIC LAW (2 U.S.C. 476 (E)(2)) IS AS FOLLOWS:

(2) THE MEMBERS OF THE COUNCIL APPOINTED UNDER SUBSECTION (A)(1) SHALL RECEIVE COMPENSATION FOR EACH DAY ENGAGED IN THE ACTUAL PERFORMANCE OF DUTIES VESTED IN THE COUNCIL AT RATES OF PAY NOT IN EXCESS OF THE DAILY EQUIVALENT OF THE HIGHEST RATE OF BASIC PAY SET FORTH IN THE GENERAL SCHEDULE OF SECTION 5332(A) OF TITLE 5, U.S.C. AND IN ADDITION SHALL BE REIMBURSED FOR TRAVEL, SUBSISTENCE, AND OTHER NECESSARY EXPENSES IN THE MANNER PROVIDED FOR OTHER MEMBERS OF THE COUNCIL UNDER PARAGRAPH (1) OF THIS SUBSECTION.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 92-484 SHEDS NO LIGHT ON THIS MATTER AND HENCE AFFORDS NO ASSISTANCE IN RESOLVING THE ISSUE BEFORE US.

ANNUITIES AND PAY ON REEMPLOYMENT OF ANNUITANTS IS GOVERNED BY 5 U.S.C. 8344(A) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 8344. ANNUITIES AND PAY ON REEMPLOYMENT.

(A) IF AN ANNUITANT RECEIVING ANNUITY FROM THE FUND, EXCEPT -

(1) A DISABILITY ANNUITANT WHOSE ANNUITY IS TERMINATED BECAUSE OF HIS RECOVERY OR RESTORATION OF EARNING CAPACITY;

(2) AN ANNUITANT WHOSE ANNUITY IS BASED ON AN INVOLUNTARY SEPARATION FROM THE SERVICE OTHER THAN AN AUTOMATIC SEPARATION; OR

(3) A MEMBER RECEIVING ANNUITY FROM THE FUND; BECOMES EMPLOYED AFTER SEPTEMBER 30, 1956, OR ON JULY 31, 1956 WAS SERVING, IN AN APPOINTIVE OR ELECTIVE POSITION, HIS SERVICE ON AND AFTER THE DATE HE WAS OR IS SO EMPLOYED IS COVERED BY THIS SUBCHAPTER. DEDUCTIONS FOR THE FUND MAY NOT BE WITHHELD FROM HIS PAY. AN AMOUNT EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT SHALL BE DEDUCTED FROM HIS PAY, EXCEPT FOR LUMPSUM LEAVE PAYMENT PURPOSES UNDER SECTION 5551 OF THIS TITLE. ***

UNDER AUTHORITY CONTAINED IN 5 U.S.C. 8347, THE CIVIL SERVICE COMMISSION HAS PROMULGATED IMPLEMENTING REGULATIONS FOR THE ABOVE QUOTED STATUTE, PUBLISHED IN 5 CFR 831.801(D), WHICH READ IN PERTINENT PART AS FOLLOWS:

(D) WHEN AN ANNUITANT, OTHER THAN AN ANNUITANT DESCRIBED IN THE FIRST SENTENCE OF PARAGRAPH (C) OF THIS SECTION, BECOMES EMPLOYED AFTER SEPTEMBER 30, 1956, IN AN APPOINTIVE OR ELECTIVE POSITION:

(1) THE COMMISSION SHALL CONTINUE HIS ANNUITY:

(2) THE DEPARTMENT OR AGENCY SHALL NOT TAKE RETIREMENT DEDUCTIONS FROM HIS PAY; AND

(3) THE DEPARTMENT OR AGENCY SHALL DEDUCT FROM HIS PAY, EXCEPT FOR LUMPSUM LEAVE PURPOSES, AN AMOUNT EQUAL TO THE ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT.

WITH THE EXCEPTION CONTAINED IN 5 U.S.C. 8344(A) AND ONE OTHER CONTAINED IN SUBSECTION (C) OF THAT SECTION, THE STATUTE AND REGULATIONS ARE APPLICABLE TO ALL ANNUITANTS REEMPLOYED IN FEDERAL POSITIONS REGARDLESS BY WHICH AGENCY OR IN WHICH BRANCH OF THE GOVERNMENT THEY ARE REEMPLOYED. THE EXCEPTION IN SUBSECTION (C) THAT CONGRESS HAS SEEN FIT TO MAKE IN THE COVERAGE OF THE LAW PROVIDES:

(C) THIS SECTION DOES NOT APPLY TO AN INDIVIDUAL APPOINTED TO SERVE AS A GOVERNOR OF THE BOARD OF GOVERNORS OF THE UNITED STATES POSTAL SERVICE.

IT IS A CARDINAL RULE OF STATUTORY CONSTRUCTION THAT WHERE A STATUTE SPECIFICALLY DESIGNATES THOSE WHO ARE TO BE EXCLUDED FROM ITS OPERATION, THE MAXIM "EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS" GIVES RISE TO AN INFERENCE THAT ALL THOSE NOT SPECIFICALLY MENTIONED BY THE STATUTE WERE INTENTIONALLY OMITTED BY THE CONGRESS. UNITED STATES V ROBINSON, 359 F. SUPP. 52, 58 (SD. FLA., 1973); KNOWLES V. HOLLY, 513 P.2D 18, 22 (1973); GEOHAGAN V. GENERAL MOTORS CORP., 279 S. 2D 436 (1973).

APPLYING THIS RULE OF STATUTORY CONSTRUCTION, WE MUST CONCLUDE THAT SINCE CONGRESS HAS NOT SPECIFICALLY EXEMPTED THE PUBLIC MEMBERS OF THE COUNCIL FROM THE OPERATION OF 5 U.S.C. 8344, IT DID NOT INTEND THAT THEY SHOULD BE EXCLUDED FROM THE OPERATION OF THE STATUTE.

ACCORDINGLY, IT IS DETERMINED THAT A MEMBER OF THE TECHNOLOGY ASSESSMENT ADVISORY COUNCIL WHO IS RECEIVING AN ANNUITY FROM THE CIVIL SERVICE RETIREMENT FUND MUST HAVE HIS PAY IN THAT POSITION REDUCED AS REQUIRED BY 5 U.S.C. 8344(A).

THERE MAY BE SOME QUESTION WHETHER THE LIMITATION ON THE DAILY RATE OF PAY CONTAINED IN SECTION 7(E)(2) APPLIES ONLY TO THE PAY ACTUALLY RECEIVED BY THE COUNCIL MEMBER OR WHETHER IT APPLIES TO RESTRICT THE RATE OF PAY THAT MAY BE FIXED FOR THE POSITION OF COUNCIL MEMBER.

IN THE ABSENCE OF SOME CLEAR EXPRESSION OF LEGISLATIVE INTENT TO THE CONTRARY IT IS OUR OPINION THAT THE BETTER VIEW IS THAT THE LIMITATION IS INTENDED TO PRESCRIBE A CEILING ON THE PAY THAT MAY BE FIXED FOR THE POSITION OF COUNCIL MEMBER AND THAT SUCH CEILING IS NOT INTENDED TO VARY DEPENDING UPON THE ACTUAL PAY THE MEMBER OTHERWISE MAY BE ENTITLED TO RECEIVE. THUS, PAY FIXED FOR A COUNCIL MEMBER SHOULD NOT BE INCREASED ON THE BASIS THAT THE PAY HE WILL RECEIVE MUST BE REDUCED UNDER 5 U.S.C. 8344(A).