B-180147, OCT 1, 1974, 54 COMP GEN 247

B-180147: Oct 1, 1974

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AMOUNT OF ANNUITY FOR PAY PERIOD RECEIVED BY REEMPLOYED ANNUITANT IS TO BE INCLUDED. IS REEMPLOYED AT A GRADE GS-13. FOR WHICH THE ANNUAL COMPENSATION IS $24. WHICH AMOUNT IS EQUAL TO THE DIFFERENCE BETWEEN THE $24. INSOFAR AS IS PERTINENT HERE. 1956 WAS SERVING. HIS SERVICE ON AND AFTER THE DATE HE WAS OR IS SO EMPLOYED IS COVERED BY THIS SUBCHAPTER. MURRAY RECEIVES FROM THE RETIREMENT FUND IS TO BE CONSIDERED IN COMPUTING HIS GROSS PAY PERIOD EARNINGS FOR PURPOSES OF DETERMINING WHETHER THEY EXCEED THE LIMITATION ESTABLISHED BY 5 U.S.C. 5547. MURRAY'S BIWEEKLY ANNUITY IS EXCLUDED. HIS GROSS EARNINGS ARE COMPUTED AS FOLLOWS: METHOD A 80 HOURS REGULAR AT $11. 144.14 GROSS SO COMPUTED IS LESS THAN THE $1.

B-180147, OCT 1, 1974, 54 COMP GEN 247

COMPENSATION - OVERTIME - AGGREGATE LIMITATION - REEMPLOYED ANNUITANT - COMPUTATION IN COMPUTING AGGREGATE RATE OF PAY FOR DETERMINING MAXIMUM LIMITATION ON PREMIUM PAY UNDER 5 U.S.C. 5547, AMOUNT OF ANNUITY FOR PAY PERIOD RECEIVED BY REEMPLOYED ANNUITANT IS TO BE INCLUDED.

IN THE MATTER OF COMPUTATION OF AGGREGATE RATE OF PAY OF REEMPLOYED ANNUITANT, OCTOBER 1, 1974:

BY LETTER DATED NOVEMBER 13, 1973, A DISBURSING OFFICER FOR THE DEPARTMENT OF THE ARMY HAS REQUESTED AN OPINION CONCERNING THE APPLICATION OF THE LIMITATION ON PAYMENT OF PREMIUM PAY CONTAINED AT 5 U.S.C. 5547 TO THE OVERTIME CLAIM OF MR. D. SLOAN MURRAY, AN ANNUITANT REEMPLOYED BY THE ARMY CORPS OF ENGINEERS.

MR. MURRAY, WHO RECEIVES AN ANNUNITY IN THE AMOUNT OF $13,104, IS REEMPLOYED AT A GRADE GS-13, STEP 7, FOR WHICH THE ANNUAL COMPENSATION IS $24,811. BY VIRTUE OF THE PROVISIONS GOVERNING PAY UPON REEMPLOYMENT OF A RETIRED ANNUITANT CONTAINED AT 5 U.S.C. 8344, MR. MURRAY RECEIVES COMPENSATION PAYABLE BY THE ARMY CORPS OF ENGINEERS IN THE AMOUNT OF $11,707, WHICH AMOUNT IS EQUAL TO THE DIFFERENCE BETWEEN THE $24,811 RATE OF PAY FOR GRADE GS-13, STEP 7, AND THE $13,104 ANNUITY HE RECEIVES FROM THE CIVIL SERVICE RETIREMENT FUND. INSOFAR AS IS PERTINENT HERE, SECTION 8344 OF TITLE 5, U.S. CODE, PROVIDES AS FOLLOWS:

SEC. 8344. ANNUITIES AND PAY ON REEMPLOYMENT

(A) IF AN ANNUITANT 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 LUMP-SUM LEAVE PAYMENT PURPOSES UNDER SECTION 5551 OF THIS TITLE. ***

SPECIFICALLY, THE DISBURSING OFFICER QUESTIONS WHETHER THE BIWEEKLY ANNUITY WHICH MR. MURRAY RECEIVES FROM THE RETIREMENT FUND IS TO BE CONSIDERED IN COMPUTING HIS GROSS PAY PERIOD EARNINGS FOR PURPOSES OF DETERMINING WHETHER THEY EXCEED THE LIMITATION ESTABLISHED BY 5 U.S.C. 5547. SECTION 5547 SETS A LIMIT ON PAYMENT OF PREMIUM PAY AS FOLLOWS:

SEC. 5547. LIMITATION ON PREMIUM PAY.

AN EMPLOYEE MAY BE PAID PREMIUM PAY UNDER SECTIONS 5542, 5545 (A) - (C), AND 5546 (A), (B) OF THIS TITLE ONLY TO THE EXTENT THAT THE PAYMENT DOES NOT CAUSE HIS AGGREGATE RATE OF PAY FOR ANY PAY PERIOD TO EXCEED THE MAXIMUM RATE FOR GS-15. ***

TO EXEMPLIFY THE DIFFERENCE WHICH RESULTS FROM EITHER INCLUDING OR EXCLUDING THE EMPLOYEE'S RETIRED PAY FOR THE PURPOSES OF COMPUTING HIS AGGREGATE RATE OF PAY FOR ANY PAY PERIOD, THE DISBURSING OFFICER FURNISHES ALTERNATIVE COMPUTATIONS OF MR. MURRAY'S PAY FOR THE PAY PERIOD ENDING NOVEMBER 3, 1973, DURING WHICH HE PERFORMED 62 HOURS OF OVERTIME WORK COMPENSABLE AT THE RATE OF $9.65 PER HOUR.

IF MR. MURRAY'S BIWEEKLY ANNUITY IS EXCLUDED, HIS GROSS EARNINGS ARE COMPUTED AS FOLLOWS:

METHOD A

80 HOURS REGULAR AT $11,707 P/A $450.40

62 HOURS OVERTIME AT $9.65 P/H 598.30

8 HOURS HOLIDAY AT $11.93 P/H 95.44

GROSS EARNINGS (EXCLUDING ANNUITY) $1,144.14

THE $1,144.14 GROSS SO COMPUTED IS LESS THAN THE $1,384.80 AMOUNT PAYABLE FOR ONE PAY PERIOD AT THE MAXIMUM RATE FOR GRADE GS-15 AND BY THIS METHOD OF COMPUTATION THE EMPLOYEE WOULD BE ENTITLED TO RECEIVE THE FULL $598.30 AMOUNT PAYABLE FOR THE 62 HOURS OF OVERTIME WHICH HE PERFORMED. IF, ON THE OTHER HAND, THE EMPLOYEE'S ANNUITY IS INCLUDED IN COMPUTING HIS GROSS PAY PERIOD EARNINGS, HIS PAYMENT FOR OVERTIME WILL BE REDUCED BY THE $263.34 AMOUNT BY WHICH HIS GROSS PAY EXCEEDS THE $1,384.80 STATUTORY MAXIMUM. THE COMPUTATION OF MR. MURRAY'S PAY FOR THE PAY PERIOD ENDING NOVEMBER 3, 1973, BASED ON THE INCLUSION OF HIS FAMILY, IS AS FOLLOWS:

METHOD B

80 HOURS REGULAR AT $11,707 P/A $450.40

62 HOURS OVERTIME AT $9.65 P/H 598.30

8 HOURS HOLIDAY AT $11.93 P/H 95.44

BIWEEKLY ANNUITY $13,104 P/A DIVIDED BY 2080X80 HRS 504.00

GROSS EARNINGS (INCLUDING ANNUITY) $1,648.14

LESS - STATUTORY LIMITATION (5 U.S.C. 5547) 1,384.80

GROSS EARNINGS FOR PAY PERIOD IN EXCESS OF STATUTORY

LIMITATION $263.34

THE DISBURSING OFFICER REFERS TO OUR DECISIONS 28 COMP. GEN. 693 (1949) AND 32 ID. 146 (1952) AS AUTHORITY FOR ESTABLISHING THE CORRECT RATE OF OVERTIME PAY PAYABLE TO A REEMPLOYED ANNUITANT. AS HE HAS INDICATED, OUR DECISION 28 COMP. GEN. 693, AT PAGE 697, DOES ADDRESS THE QUESTION OF THE RATE OF OVERTIME COMPENSATION PAYABLE TO A REEMPLOYED ANNUITANT AS FOLLOWS:

WITH RESPECT TO THE DOUBT EXPRESSED IN YOUR LETTER AS TO THE METHOD OF COMPUTING OVERTIME COMPENSATION IN THE CASE OF A REEMPLOYED ANNUITANT, YOU ARE ADVISED THAT *** OVERTIME COMPENSATION OTHERWISE PROPER MAY BE PAID TO THE ANNUITANT INVOLVED UPON THE SAME BASIS AND AT THE SAME RATE AUTHORIZED BY LAW TO BE PAID OTHER EMPLOYEES WHO OCCUPY SIMILAR POSITIONS.

HOWEVER, IN 32 COMP. GEN. 146 WE DID IN FACT ADDRESS THE PRECISE QUESTION HERE PRESENTED. IN THAT CASE WE WERE SPECIFICALLY ASKED WHETHER OVERTIME COMPENSATION COULD BE PAID TO AN ANNUITANT REEMPLOYED IN A REGULAR CIVILIAN POSITION AT THE ANNUAL SALARY RATE EQUAL TO $5,400. AT THE DATE OF THAT DECISION, THE PREDECESSOR SECTION TO 5 U.S.C. 5547, SUBSECTION 943A, OF TITLE 5, U.S. CODE, 1952 REVISION, PROVIDED:

SEC. 943A. LIMITATIONS ON INCREASES IN COMPENSATION.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT, NO OFFICER OR EMPLOYEE SHALL, BY REASON OF THE ENACTMENT OF SAID SECTIONS, BE PAID WITH RESPECT TO ANY PAY PERIOD, BASIC COMPENSATION, OR BASIC COMPENSATION PLUS ANY ADDITIONAL COMPENSATION PROVIDED BY THIS CHAPTER, AT A RATE IN EXCESS OF $10,330 PER ANNUM. (MAY 24, 1946, CH. 270, SEC. 7(B), 60 STAT. 218; JULY 3, 1948, CH. 830, TITLE III, SEC. 303(B), 62 STAT. 1268.)

WE THERE HELD THAT CONSISTENT WITH 28 COMP. GEN. 693, ABOVE, THE ANNUITY SHOULD BE DEDUCTED ONLY FROM THE BASIC SALARY COVERING THE 5 DAYS PER WEEK AND OVERTIME WOULD BE PAYABLE UPON THE GROSS PER ANNUM RATE. SPECIFICALLY, THIS MEANS THAT THE REGULAR SALARY RATE OF THE POSITION, WITHOUT DEDUCTION OF THE ANNUITY, IS TO BE USED IN COMPUTING THE AGGREGATE RATE OF PAY UNDER 5 U.S.C. 5547. OR, TO STATE IT DIFFERENTLY, THE EMPLOYEE'S ANNUITY IS TO BE INCLUDED IN COMPUTING HIS GROSS PAY PERIOD EARNINGS FOR THAT PURPOSE.

THUS, THE COMPUTATION IN METHOD B, SET FORTH ABOVE, SHOULD BE USED IN COMPUTING THE OVERTIME CLAIM OF MR. MURRAY.