B-219931, NOV 5, 1985

B-219931, NOV 5, 1985

RETIREMENT - CIVILIAN - REEMPLOYMENT - ANNUITY DEDUCTION - VALIDITY DIGEST: ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS QUESTIONS WHETHER RETIREMENT BENEFITS AUTHORIZED BY 28 U.S.C. SECS. 611, 627, AND 677 FOR CERTAIN OFFICIALS OF THE JUDICIAL BRANCH MAY BE PAID TO AN ELIGIBLE OFFICIAL WHO ACCEPTS POST-RETIREMENT EMPLOYMENT IN GOVERNMENT SERVICE. THE ADMINISTRATIVE OFFICE IS ADVISED THAT FULL RETIREMENT BENEFITS MAY BE PAID TO SUCH AN OFFICIAL BECAUSE NOTHING IN THE APPLICABLE LEGISLATION REQUIRES SUSPENSION OR REDUCTION OF ANNUITY PAYMENTS IN THE EVENT OF THE ANNUITANT'S REEMPLOYMENT. FURTHERMORE, WE HAVE NO LEGAL OBJECTIONS IF A REEMPLOYED ANNUITANT WISHES TO TEMPORARILY WAIVE THE RETIREMENT BENEFITS PAYABLE TO HIM UNDER 28 U.S.C. SECS. 611, 627, OR 677, DURING THE PERIOD OF REEMPLOYMENT.

THE HONORABLE L. RALPH MECHAM:

DIRECTOR, ADMINISTRATIVE OFFICE OF

THE UNITED STATES COURTS

BY LETTER DATED AUGUST 19, 1985, YOU REQUESTED OUR OPINION CONCERNING THE PAYMENT OF RETIREMENT BENEFITS TO CERTAIN OFFICIALS OF THE JUDICIAL BRANCH WHO HAVE ELECTED COVERAGE BY THE SPECIAL RETIREMENT SYSTEM ESTABLISHED IN 28 U.S.C. SECS. 611, 627, AND 677 (1982). PRINCIPALLY, YOU QUESTION WHETHER THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, CHARGED WITH RESPONSIBILITY FOR ADMINISTERING THE SPECIAL RETIREMENT SYSTEM, MAY PAY AN ANNUITY TO AN ELIGIBLE OFFICIAL WHO ACCEPTS POST-RETIREMENT EMPLOYMENT WITH THE FEDERAL GOVERNMENT. FOR THE REASONS EXPLAINED BELOW, IT IS OUR VIEW THAT THE ADMINISTRATIVE OFFICE MAY PAY AN ELIGIBLE OFFICIAL THE FULL RETIREMENT BENEFITS AUTHORIZED BY 28 U.S.C. SECS. 611, 627, AND 677, NOTWITHSTANDING THE ANNUITANT'S ACCEPTANCE OF ANOTHER POSITION IN GOVERNMENT SERVICE.

AS YOU NOTE IN YOUR LETTER, THE RESPECTIVE PROVISIONS OF 28 U.S.C. SECS. 611, 627, AND 677 AUTHORIZE A SPECIAL RETIREMENT PLAN FOR THE DIRECTOR OF THE ADMINISTRATIVE OFFICE, THE DIRECTOR OF THE FEDERAL JUDICIAL CENTER, AND THE ADMINISTRATIVE ASSISTANT TO THE CHIEF JUSTICE OF THE UNITED STATES. THE TERMS OF THE NONCONTRIBUTORY RETIREMENT PLAN, AS OUTLINED IN 28 U.S.C. SEC. 611 /1/ ARE AS FOLLOWS. WITHIN 6 MONTHS AFTER TAKING OFFICE, AN ELIGIBLE OFFICIAL MAY ELECT COVERAGE UNDER THE SPECIAL RETIREMENT PLAN AND WAIVE COVERAGE BY THE CIVIL SERVICE RETIREMENT SYSTEM. UNDER THE SPECIAL PLAN, AN OFFICIAL WHO HAS PERFORMED AT LEAST 15 YEARS OF QUALIFYING SERVICE AND ATTAINED AGE 65 MAY RETIRE WITH A LIFETIME ANNUITY EQUAL TO 80 PERCENT OF HIS SALARY AT THE TIME OF RETIREMENT. COVERED OFFICIAL WHO HAS SERVED FOR AT LEAST 10 YEARS, BUT HAS NOT MET THE ABOVE-DESCRIBED AGE AND SERVICE REQUIREMENTS, MAY RETIRE WITH A REDUCED ANNUITY BASED ON THE FORMULA SET FORTH IN THE STATUTE. FURTHER PROVISION IS MADE FOR THE RETIREMENT OF COVERED OFFICIALS WHO BECOME DISABLED BEFORE MEETING THE PRESCRIBED AGE AND SERVICE REQUIREMENTS.

YOU NOTE THAT THE STATUTORY PROVISIONS DESCRIBED ABOVE DO NOT ADDRESS THE SITUATION OF A COVERED OFFICIAL WHO, FOLLOWING RETIREMENT, ACCEPTS EMPLOYMENT IN ANOTHER GOVERNMENT POSITION. ANTICIPATING THAT THIS SITUATION MAY ARISE, YOU POSE THE FOLLOWING QUESTIONS: (1) MAY THE ADMINISTRATIVE OFFICE PAY THE FULL RETIREMENT BENEFITS AUTHORIZED BY 28 U.S.C. SEC. 611 TO AN ANNUITANT WHO ACCEPTS EMPLOYMENT IN ANOTHER GOVERNMENT POSITION; AND (2) IF SO, MAY THE RETIRED OFFICIAL WAIVE HIS ENTITLEMENT TO AN ANNUITY DURING THE PERIOD OF CONTINUED GOVERNMENT SERVICE, WITH THE PROVISO THAT ANNUITY PAYMENTS WILL RESUME UPON TERMINATION OF THAT SERVICE?

BY WAY OF BACKGROUND TO A DISCUSSION OF YOUR FIRST QUESTION, WE NOTE THAT THERE ARE A NUMBER OF DIFFERENT PROGRAMS GOVERNING THE RETIREMENT OF FEDERAL EMPLOYEES. THE STATUTES UNDERLYING SOME OF THESE PROGRAMS, SUCH AS THE CIVIL SERVICE RETIREMENT SYSTEM, SPECIFICALLY PROVIDE THAT A REEMPLOYED ANNUITANT MAY NOT RECEIVE BOTH RETIREMENT BENEFITS AND SALARY DURING THE PERIOD OR REEMPLOYMENT. THUS, FOR EXAMPLE, UNDER THE PROVISIONS OF 5 U.S.C. SEC. 8344 (1982), AN AGENCY OR DEPARTMENT REEMPLOYING AN ANNUITANT UNDER THE CIVIL SERVICE RETIREMENT SYSTEM MUST DEDUCT AN AMOUNT EQUAL TO THE RETIREE'S ANNUITY PAYMENTS FROM HIS SALARY, AND THEN DEPOSIT THIS AMOUNT INTO THE TREASURY FOR CREDIT TO THE CIVIL SERVICE RETIREMENT FUND. SIMILARLY, A PERSON RECEIVING AN ANNUITY UNDER THE FOREIGN SERVICE RETIREMENT SYSTEM WILL, UPON REEMPLOYMENT IN GOVERNMENT SERVICE, HAVE THE ANNUITY REDUCED BASED UPON THE FORMULA SET FORTH IN 22 U.S.C. SEC. 4064 (1982).

OTHER RETIREMENT STATUTES LIKE THE PROVISIONS PERTAINING TO THESE JUDICIAL OFFICIALS DO NOT REQUIRE THE WITHHOLDING OR REDUCTION OF RETIREMENT BENEFITS IN THE EVENT AN ANNUITANT BECOMES REEMPLOYED, AND WE HAVE BEEN CONFRONTED WITH THE QUESTION WHETHER RETIREMENT BENEFITS MUST BE SUSPENDED DURING AN ANNUITANT'S REEMPLOYMENT. WE HAVE NOTED THAT THERE IS NO INDEPENDENT RESTRICTION ON THE PAYMENT OF RETIREMENT BENEFITS CONCURRENTLY WITH SALARY IMPOSED BY THE DUAL EMPLOYMENT AND DUAL COMPENSATION LAWS CODIFIED IN 5 U.S.C. SECS. 5531-5537 (1982), BECAUSE A CIVILIAN RETIREE DOES NOT HOLD A POSITION OR RECEIVE COMPENSATION WITHIN THE MEANING OF THOSE LAWS. SEE GENERALLY B-144579, FEBRUARY 1, 1961, AND BRUNSWICK V. UNITED STATES, 90 CT.CL. 285 (1940), DISCUSSED BELOW.

WE RECENTLY HELD THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY REQUIRING REDUCTION OR DISCONTINUANCE OF AN ANNUITY, RETIREMENT BENEFITS WOULD NOT BE REDUCED OR SUSPENDED WHEN THE ANNUITANT IS REEMPLOYED IN GOVERNMENT SERVICE. SEE B-204071, JULY 29, 1981. IN B-204071, WE REEXAMINED PRIOR DECISIONS AND CONCLUDED WE WOULD NO LONGER FOLLOW THOSE DECISIONS HOLDING THAT EVEN IN THE ABSENCE OF SPECIFIC LEGISLATION, DUAL PAYMENTS OF ANNUITY AND SALARY WERE INCONSISTENT WITH FEDERAL RETIREMENT POLICY. SEE 16 COMP.GEN. 121 (1936); AND 14 COMP.GEN. 586 (1935).

ADDRESSING YOUR FIRST QUESTION AGAINST THIS BACKGROUND, WE FIND NOTHING IN THE PROVISIONS OF 28 U.S.C. SEC. 611 WHICH WOULD REQUIRE DISCONTINUANCE OR REDUCTION OF A RETIRED JUDICIAL OFFICIAL'S ANNUITY IN THE EVENT HE BECOMES REEMPLOYED IN A POSITION WITH ANOTHER FEDERAL AGENCY UNDER A DIFFERENT PAY SYSTEM. THEREFORE, IN LINE WITH B-204071 AND THE DECISION IN BRUNSWICK, WE CONCLUDE THAT THE ADMINISTRATIVE OFFICE MAY CONTINUE TO PAY FULL RETIREMENT BENEFITS DURING THE PERIOD OF AN ANNUITANT'S REEMPLOYMENT.

REGARDING YOUR SECOND QUESTION, WE ARE AWARE OF NO LEGAL AUTHORITY WHICH WOULD PROHIBIT A REEMPLOYED OFFICIAL FROM TEMPORARILY WAIVING HIS ENTITLEMENT TO THE ANNUITY PAYMENTS AUTHORIZED BY 28 U.S.C. SEC. 611. ALTHOUGH WE HAVE GENERALLY RULED THAT AN INDIVIDUAL MAY NOT WAIVE THE SALARY FIXED FOR HIS POSITION BY STATUTE, THE PURPOSE OF THAT RULE IS TO ENFORCE 31 U.S.C. SEC. 1342 (1982) (FORMERLY 31 U.S.C. SEC. 665B), WHICH PROHIBITS THE GOVERNMENT FROM RECEIVING VOLUNTARY SERVICES. SEE GENERALLY 54 COMP.GEN. 393 (1974); AND 27 COMP.GEN 194 (1947). SINCE THE ANNUITY PAYMENTS AUTHORIZED BY 28 U.S.C. SEC. 611 ARE PAID IN RECOGNITION OF AN OFFICIAL'S PAST SERVICE, RATHER THAN AS COMPENSATION FOR CURRENT OR FUTURE SERVICES, THE PROHIBITION AGAINST VOLUNTARY SERVICES WOULD NOT APPLY TO A RETIRED JUDICIAL OFFICIAL DESIRING TO WAIVE ANNUITY PAYMENTS DURING A PERIOD OF REEMPLOYMENT. COMPARE 31 COMP.GEN. 505 (1952), INVOLVING THE RETIREMENT SALARY OF A DISTRICT OF COLUMBIA JUDGE WHO WAS SUBJECT TO RECALL FOR DUTY EACH YEAR.

THE SITUATION OF THESE JUDICIAL OFFICIALS IS ALSO DISTINGUISHABLE FROM THAT OF RETIRED MEMBERS OF THE ARMED SERVICES, WHO MAY WAIVE THE RECEIPT OF BUT NOT THE RIGHT TO MILITARY RETIRED PAY. SEE 28 COMP.GEN. 675 (1949); AND MASTER SERGEANT WALTER E. NOLAN, USAF, RETIRED, B-196839, APRIL 24, 1980. A RETIRED MEMBER RETAINS A LEGAL CLAIM TO ALL THE RETIRED PAY WHICH ACCRUES DURING HIS LIFETIME BECAUSE HE IS ENTITLED TO SUCH PAY BY VIRTUE OF HIS CONTINUING STATUS AS A MEMBER OF THE MILITARY SERVICE. SEE GENERALLY 53 COMP.GEN. 753 (1974); AND 41 COMP.GEN. 715 (1962). SEE ALSO UNITED STATES V. TYLER, 105 U.S. 244 (1881). IN CONTRAST, AS NOTED PREVIOUSLY, RETIRED CIVILIAN EMPLOYEES GENERALLY ARE REGARDED AS HAVING RELINQUISHED THEIR OFFICES AT THE TIME OF RETIREMENT.

ACCORDINGLY, WE SEE NO LEGAL BARRIER TO A JUDICIAL OFFICIAL TEMPORARILY WAIVING AN ANNUITY UNDER 28 U.S.C. SEC. 611. WE SUGGEST THAT YOUR OFFICE ADVISE THE OFFICIAL UNDER SUCH CIRCUMSTANCES THAT PAYMENT OF THE ANNUITY WAIVED WOULD NOT BE MADE FOR THE PERIOD DURING WHICH THE WAIVER WAS IN EFFECT. SEE, FOR EXAMPLE 5 U.S.C. SEC. 8345(D) AND 22 U.S.C. SEC. 4047(C).

/1/ HEREINAFTER, WE WILL REFER TO SECTION 611 AS THE STATUTE GOVERNING THE SPECIAL RETIREMENT PLAN FOR ALL THREE OFFICIALS. ALTHOUGH THE TERMS OF SECTION 611 EXPRESSLY APPLY ONLY TO THE DIRECTOR OF THE ADMINISTRATIVE OFFICE, SECTION 627 AUTHORIZES THE SAME RETIREMENT PLAN FOR THE DIRECTOR OF THE FEDERAL JUDICIAL CENTER. SECTION 677 PROVIDES THAT THE ADMINISTRATIVE ASSISTANT TO THE CHIEF JUSTICE OF THE UNITED STATES MAY ELECT COVERAGE UNDER THE SAME RETIREMENT PLAN AUTHORIZED FOR THE DIRECTOR OF THE ADMINISTRATIVE OFFICE UNDER SECTION 611.